COURT FILE NO.: 20-83059

DATE: 2020/10/22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Brian Alexander Fleischhaker and David Allan Fleischhaker

Applicants

– and –

Kevin David Fleischhaker

Respondent

Mitchell Kitagawa for the Applicants

Self-represented

HEARD: September 30, 2020

REASONS FOR decision

RYAN BELL j.

Overview

Overview

1Brian Alexander Fleischhaker (“Brian”) and David Allan Fleischhaker (“David”) apply for a declaration that Kevin David Fleischhaker (“Kevin”) is a vexatious litigant and an order that no further proceeding be instituted by Kevin in any court except by leave of a judge. Brian is one of Kevin’s brothers. David is Kevin’s father.

2Since 2015, Kevin has commenced five separate lawsuits in Small Claims Court against Brian, David, and his former psychiatrist. All of Kevin’s claims have been dismissed. Kevin has complained about the deputy judges who dismissed his actions. He has also initiated complaints to the Law Society of Ontario concerning Brian and David’s lawyers. Brian and David attribute Kevin’s actions to his schizophrenia. They maintain that Kevin is abusing the court system and using it to threaten and intimidate those trying to render assistance to him. Brian and David are concerned that unless Kevin is declared a vexatious litigant, he will continue to pursue them in the courts by initiating wholly unmeritorious proceedings.

3Kevin asserts that his litigation history – which he says has yielded mixed results – does not merit a vexatious litigant declaration. He argues that a vexatious litigant declaration should be reserved for “someone who files at least 10 cases per year not less than 3.” He characterizes this application as an attempt by his father and brother to prevent accountability for “their long documented history of abuse and terrorization.”

Chronology

Chronology

4A brief chronology of events is necessary to situate the legal actions commenced and complaints initiated by Kevin.

5Kevin has a schizophrenia diagnosis. He was involuntarily hospitalized in 2010 and 2015. In 2015, Brian was named as Kevin’s representative to consent to or refuse treatments on his behalf. There were a number of hearings before the Consent and Capacity Board.

6In 2015, Kevin commenced a claim in Small Claims Court against his former psychiatrist, Dr. Labelle. Deputy Judge Leclaire dismissed this claim.

7In 2016, Kevin commenced a claim in Small Claims Court against Brian for defamation for allegedly providing false information to Kevin’s doctors, and negligent performance of his duties as a substitute decision maker under the Health Care Consent Act, 1996.¹ The focus of the defamation claim was an email Brian had written to Kevin’s psychiatrist. Following a trial, Deputy Judge Dwoskin dismissed Kevin’s claim in June 2017. The deputy judge found that the impugned email was written by Brian out of concern for Kevin’s health and well-being, and that it had little, if any, impact on the decision to hospitalize Kevin. As to the allegation of negligence, the deputy judge found that Brian had performed “that function [of substitute decision maker] in an exemplary manner.”

8In 2017, Kevin commenced a claim in Small Claims Court against David. The gravamen of Kevin’s claim was that David had opened a piece of mail addressed to Kevin. David acknowledged that he had done so, out of concern for Kevin’s well-being. Deputy Judge Leclaire granted the motion to dismiss, finding that to allow Kevin’s claim to proceed would amount to “a waste of time, a nuisance, and an abuse of the court’s process.” The deputy judge invited submissions on costs in the event David wished to pursue costs against Kevin. David does not appear to have pursued the issue.

9Kevin wrote to then Regional Senior Justice McNamara in May 2017, alleging “serious legal errors”, “egregious mistakes”, and “miscarriages of justice” in Deputy Judge Leclaire’s dismissals of the 2015 action against Dr. Labelle and the 2017 action against David. Regional Senior Justice McNamara concluded that the deputy judge had properly dismissed the claims and delivered well-articulated reasons for doing so. He determined that no judicial misconduct had occurred in either case.

10In 2019, Kevin commenced separate Small Claims Court actions against Brian and David. Kevin’s claim against Brian was based on Brian’s invitations to Kevin to go for a bite to eat and Brian’s dropping off a Christmas card at Kevin’s residence. Brian asked the court to dismiss the claim under Rule 12 of the Rules of the Small Claims Court. Deputy Judge Stauffer ordered the claim dismissed. The deputy judge found that Kevin had failed to attach any documents to his claim which would confirm that he suffered damages as a result of Brian’s invitations and that there would be no reasonable chance of success if the claim proceeded to trial. Costs were fixed in the amount of $250, payable in the event Brian insisted upon being paid his costs. Brian says that these costs have not been paid by Kevin.

11Kevin’s 2019 claim against David alleged “mental stress and inconvenience.” David asked that the claim be dismissed pursuant to Rule 12 of the Rules of the Small Claims Court. Deputy Judge Stauffer dismissed the claim, finding there was nothing in any of the attachments to Kevin’s claim that would lead a reasonable person to conclude that Kevin had a claim for mental stress and inconvenience. As described by the deputy judge, David sent, “essentially, birthday and Christmas and New Year’s greetings to the Plaintiff.” The deputy judge found that, based on a plain reading of these messages, a reasonable person could not come to any other conclusion than that David was sincere in his messages of love. The deputy judge concluded that the claim did not disclose a reasonable cause of action and it would be a waste of the court’s time to conduct a trial of the action because there were no provable damages. Costs were fixed in the amount of $250, payable in the event David insisted upon being paid his costs. David says that Kevin has not paid these costs.

12In June 2019, following the dismissal of the two 2019 actions, Kevin wrote to counsel for Brian and David, threatening to commence a fresh court action based on what he described as the “latest incident of harassment” by David, and stating that he was contemplating a restraining order for both Brian and David. Kevin stated that he was debating recommending David for criminal prosecution for alleged tax fraud, firearms, and intellectual property offences and added that he believed that Brian and David had engaged in mortgage fraud.

13In August 2019, Kevin wrote to Justice Williams in her capacity as the Local Administrative Judge for the Small Claims Court to launch a formal complaint against Deputy Judge Stauffer for his dismissal of Kevin’s 2019 actions. Kevin described the dismissals as “corrupt” and “improper.” He sought “maximum sanctions and punishment” against Deputy Judge Stauffer for what he alleged were “gross process and ethics violations.” Justice Williams concluded that the dismissals were within the jurisdiction of the deputy judge and that detailed reasons were given. Justice Williams determined that no judicial misconduct had occurred.

14On November 29, 2019, Kevin wrote to counsel for Brian and David to provide “notice of ongoing harassment.” Kevin wrote that he was “strongly considering” a fresh action against David. Brian and David deny making any attempts to contact Kevin since the 2019 lawsuits.

15On November 30, 2019, Kevin wrote to counsel stating, “[y]our deranged client wants to “GO GET ME. Consider this formal notice than [sic] you and him are on VERY VERY thin “ICE.” Again, Brian and David say that they have not attempted to contact Kevin since the 2019 claims.

16In December 2019, Kevin launched a complaint to the Law Society of Ontario against Mr. Kitagawa. Kevin alleged that counsel had acted dishonourably by using his background as duty counsel to subvert the legal process and that he had failed to respond to Kevin’s correspondence. Kevin sought to have counsel disbarred. The Law Society concluded that counsel had not engaged in professional misconduct. The Law Society determined that no further investigation was warranted and closed its file.

17The hearing of this application was previously scheduled for June 30, 2020. The application did not proceed in June as scheduled because of the COVID-19-related suspension of the court’s regular operations. In July 2020, Kevin sent an email to Mr. Kitagawa and his colleague, Ms. Mack, advising that their clients had “lost” and owed him court-ordered costs. Ms. Mack wrote to the court to inquire whether an endorsement regarding costs existed. Ms. Mack communicated to Kevin that the court had advised her that there was no such endorsement. In August 2020, Kevin filed a complaint to the Law Society against Ms. Mack alleging that she had lied about the outcome of this matter, in a “blatant and flagrant” attempt to have her clients avoid paying court-ordered costs. In his complaint to the Law Society, Kevin has requested the permanent revocation of counsel’s license to practise law, a public apology letter and “court-ordered costs.”

18Kevin characterizes this application as evidence of sustained harassment and abuse by not only Brian and David, but also by their counsel who, Kevin maintains, “has a personal vendetta against me and desire [sic] to smear my reputation due to the LSO complaint lodged against him.”

Legal Principles: Vexatious Litigant Applications

Legal Principles: Vexatious Litigant Applications

19Where a judge of the Superior Court of Justice is satisfied that a person has “persistently and without reasonable grounds” instituted vexatious proceedings in any court, or conducted a proceeding in any court in a vexatious manner, the judge may order that no further proceeding be instituted by the person in any court or a proceeding previously commenced not be continued, except by leave of a judge: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 140(1).

20In Foy v. Foy (No. 2) (1979), 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220 (C.A.),² Howland C.J.O. noted two purposes for a vexatious litigant declaration: first, to prevent litigants from harassing others; and second, to protect vexatious litigants from squandering their own resources.

21While a person’s access to justice is a fundamental right, the court must be diligent to ensure that its processes are not abused by any particular litigant to the detriment of, not only those directly involved in the litigation, but also the system at large: P.R. v. K.R., 2005 CanLII 44186 (ON SC), at para. 1. The control of vexatious proceedings is necessary to protect the integrity of the judicial system: Dale Streiman & Kurz, 2007 CanLII 1902 (ON SC), at para. 7.

22As Corbett J. stated in Peoples Trust Company v. Atas, 2018 ONSC 58, at para. 34, s. 140(1) embodies a three-part test:

(i) Has the impugned activity been “persistent”?

(ii) Has the impugned activity been “without reasonable grounds”? and

(iii) Has the impugned conduct been “vexatious”?

23Whether an action is vexatious is determined on an objective, not a subjective, test: Peoples Trust Company, at para. 40.

24In Lang Michener v. Fabian, (1987), 1987 CanLII 172 (ON SC), Henry J. summarized the characteristics of vexatious proceedings:

a. the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

b. where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

c. vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

d. it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

e. in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

f. the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and

g. the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

25Kevin argues that a vexatious litigant determination should be reserved for the “highest of repeated abuses of the court”, someone who repeatedly files frivolous claims (at least ten cases per year), and who uses the court to intimidate and strike fear. But it is not a specific number of claims per year that will determine whether a vexatious litigant finding is warranted. The respondent’s conduct as a litigant is in issue, and that includes their conduct in litigation, in administrative proceedings (including complaints to professional regulators), and in related extra-litigation conduct, such as harassment and incivility: Peoples Trust Company, at paras. 35 and 42; Dale Streiman & Kurz, at para. 9. As Henry J. observed in Lang Michener, the whole history of the matter must be considered.

Analysis

Analysis

26On the evidence before me, I have no hesitation in finding that Kevin is a vexatious litigant.

27On at least three of five occasions, courts found Kevin’s lawsuits to be without merit and dismissed the claims prior to trial. For example, in dismissing the 2017 claim against David – based on David opening a piece of Kevin’s mail – the deputy judge stated that it would be an abuse of the court’s process to allow the claim to proceed. The 2019 claim against David – based on David sending birthday and holiday greetings to Kevin – was dismissed because it disclosed no reasonable cause of action.

28Kevin’s 2016 claim against Brian for defamation and negligence in the performance of his duties as a substitute decision maker did proceed to trial; however, the deputy judge found that Brian had acted out of concern for Kevin’s health and had performed his functions in an exemplary manner.

29Kevin’s claims fall into the category of claims where it is obvious that the action cannot succeed because there is no reasonable cause of action and/or no reasonable person could reasonably expect to obtain relief as there are no provable damages. They are vexatious. They were commenced by Kevin against those individuals – his brother, his father, and his psychiatrist – who are and were trying to render assistance to him.

30Against those whom he perceives as acting contrary to his position and with whom he disagrees, Kevin launches complaints. Kevin initiated complaints against the deputy judges who dismissed his claims prior to trial. He complained that the dismissals were “corrupt.” He alleged egregious mistakes and miscarriages of justice on the part of one deputy judge and requested “maximum sanctions and punishment” against another. Kevin’s baseless allegations were an attack on the integrity of the judicial officers involved and constituted an attack on the judicial system as a whole.

31Kevin has initiated complaints to the Law Society about Brian and David’s lawyers. He alleged that counsel had acted dishonourably and had subverted the legal process. He requested that counsel be disbarred. Kevin’s most recent complaint to the Law Society is predicated on a non-existent costs endorsement. Kevin’s conduct constitutes an abuse of process to the detriment of counsel involved and the system as a whole. It is vexatious behaviour.

32Kevin has threatened additional legal action against David – both civil and criminal. He has threatened proceedings for a restraining order against David and Brian. In my view, these threats are the embodiment of harassment. They constitute vexatious behaviour.

33Looking at the whole history of the matter, I find that Kevin’s conduct – in commencing claims without any prospect of success, initiating unmeritorious complaints about the conduct of the judicial officers and counsel involved, and threatening further legal action – has been persistent, without reasonable grounds, and vexatious.

34Kevin has abused the court’s processes to the detriment of Brian and David. They have had to respond to and deal with claims that are not legitimate, in circumstances where they were only trying to help Kevin. The purpose of s. 140(1) of the Courts of Justice Act is to protect litigants from proceedings that are an abuse of the court’s process and thereby protect the judicial system against the inappropriate use of its finite resources: Kallaba v. Bylykbashi, 2006 CarswellOnt 749 (C.A.), at para. 113. Kevin pursues those with whom he disagrees, and he has threatened further litigation. A vexatious litigant declaration is warranted to protect not only Brian and David, but also the integrity of the judicial system.

Disposition

Disposition

35For these reasons, I declare Kevin David Fleischhaker to be a vexatious litigant within the meaning of s. 140(1) of the Courts of Justice Act. I order that Kevin David Fleischhaker is prohibited from instituted a proceeding, directly or indirectly, in any court in Ontario unless and until he has, prior to the commencement of a proceeding, obtained leave pursuant to s. 140(3) of the Courts of Justice Act.

36I make no order as to costs as none was requested in the notice of application.

Footnotes

1. 1S.O. 1996, c. 2, Sch. A.
2. 2Leave to appeal to S.C.C. refused, [1979] 2 S.C.R. vii, cited by Lang J.A. (dissenting but not on this issue) in Kallaba v. Bylykbashi, 2006 CarswellOnt 749 (C.A.), at para. 115.