Court File and Parties

COURT FILE NO.: 2208/19

DATE: 2020/11/27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: London District Catholic School Board, Applicant

AND:

Myriam Michail, Respondent

BEFORE: Mitchell J.

COUNSEL: E. Traynor and L. Ledgerwood, for the applicant (responding party)

M. Michail, self-represented respondent (moving party)

HEARD: November 18, 2020 via Zoom

ENDORSEMENT

Overview

[1] The respondent, Myriam Michail (“Ms. Michail”) brings this motion pursuant to s. 137.1 of the Courts of Justice Act (“CJA”) seeking an order dismissing this application. She alleges the underlying application is a strategic lawsuit against public participation (a “SLAPP”).

[2] In the underlying application, the London District Catholic School Board (“LDCSB”) seeks an Order declaring Ms. Michail to be a vexatious litigant pursuant to s. 140 of the CJA.

[3] The application is stayed pending a determination of this motion.[^1]

Background

[4] Ms. Michail was employed with the LDCSB as a high school teacher from 1990 until October 29, 2014.

[5] Since 2011, Ms. Michail has initiated numerous legal proceedings against or involving LDCSB as follows:

• During the period April 13, 2011 – December 9, 2014 – through the union representing Ms. Michail (OECTA), filed various grievances. The first grievance resulted in a consent award and an award in favour of Ms. Michail in the amount of $7500 representing damages for violation of the Human Rights Code. The second grievance filed resulted in an award in favour of Ms. Michail in the amount of $20,000 for damages arising from the tort of intentional infliction of mental distress (the “Brown Award”). The other grievances were either adjourned or withdrawn.

• On October 28, 2015, Ms. Michail brought an application to the Ontario Human Rights Tribunal (“OHRT”) alleging discrimination on the basis of a disability by LDCSB.

• On March 24, 2016, Ms. Michail brought an application against the union to the Ontario Labour Relations Board (“OLRB”) alleging breach of duty of fair representation. The application was dismissed on February 8, 2017 (the “OLRB Decision”).

• On March 31, 2016, Ms. Michail brought an application to the OHRT against the union alleging discrimination on the basis of a disability.

• On March 9, 2017, Ms. Michail brought a motion to the Superior Court of Justice (“SCJ”) seeking leave to have her judicial review application of the Brown Award and the OLRB Decision heard by a single judge of the SCJ. A procedural order was made setting a special appointment date for the motion and time-tabling the service and filing of materials (the “Leitch J. Order”). The motion for leave was dismissed and the application for judicial review was transferred to the Divisional Court (the “Grace J. Order”).

• On June 18, 2018, Ms. Michail appealed the Grace J. Order and the Leitch J. Order to the Divisional Court. On June 21, 2018, Ms. Michail transferred her appeal of these orders to the Court of Appeal (the “Appeals”).

• On August 20, 2018, Ms. Michail brought a motion before a single judge of the Court of Appeal seeking various relief including a transfer of the judicial review application from the Divisional Court to the Court of Appeal. This motion was dismissed by Pacciocco JA. on September 4, 2018 (the “Pacciocco JA. Order”).

• On September 5, 2018, LDCSB brought a motion to quash the Appeals.

• On September 10, 2018, Ms. Michail brought two motions: a motion appealing the Pacciocco JA. Order; and a motion seeking recordings of her previous matters and leave to record all future matters.

• By Order of a panel of the Court of Appeal made October 25, 2018 the Appeals were quashed thus rendering the September 10, 2018 motions moot and transferred the Appeals to the Divisional Court for adjudication (the “Quash Decision”).

• On November 5, 2018, Ms. Michail brought a motion to obtain a recording of the hearing before Pacciocco JA. and the panel’s hearing of the motion to quash and also challenged the constitutionality of sections 136(1)(a) and 136(4) CJA. The motion was dismissed by Browne JA. on November 23, 2018 (the “Browne JA. Order”).

• On November 28, 2018, Ms. Michail filed a motion appealing the Browne JA. Order and challenging the constitutionality of sections 136(1)(a) and 136(4) CJA. The panel dismissed the motion by Order made April 24, 2019 and awarded costs of $1000 in favour of LDCSB (“Audio Recordings Decision”).

• On June 24, 2019, Ms. Michail filed an application with the Supreme Court of Canada seeking leave to appeal the Audio Recordings Decision. Leave was denied by order made October 17, 2019 (“First SCC Dismissal”).

• In the summer of 2019, Ms. Michail filed a claim with the Workplace Safety and Insurance Board. This proceeding remains outstanding.

• On September 27, 2019, Ms. Michail filed an application with the Supreme Court of Canada seeking leave to appeal the Quash Decision. Leave was denied by order made February 13, 2020.

• On November 15, 2019, Ms. Michail filed a request for reconsideration of the First SCC Dismissal with the Supreme Court of Canada.

[6] Various requests[^2] by LDCSB and the union to have the Appeals dismissed pursuant to the summary process provided for under rule 2.1 of the Rules of Civil Procedure on the basis the Appeals were frivolous, vexatious, and/or an abuse of process, were denied.

[7] This application was commenced by Notice of Application issued November 12, 2019. Ms. Michail has not responded to the application.

[8] In this application, LDCSB seeks an Order:

(a) that no further proceedings be instituted or continued by Ms. Michail in any court except by leave of a judge of the Superior Court of Justice; and

(b) requiring Ms. Michail to deliver a copy of the vexatious litigant order and any written decision arising from the application to any person or body with whom she initiates or continues any complaint, including, without limitation, any court, administrative body, regulatory body, and the Crown.

Analysis

(a) Section 137.1 CJA - Overview

[9] The policy objective underlying s. 137.1 CJA was described by the Ontario Court of Appeal in 1704604 Ontario Ltd. v. Pointes Protection Association as:[^3]

1 Freedom of expression is a constitutionally-protected right in Canada. The free and open expression of divergent, competing, and strong viewpoints on matters of public interest is essential to personal liberty, self fulfillment, the search for the truth, and the maintenance of a vibrant democracy.

2 From time to time, those who are the target of criticism resort to litigation, not to vindicate any genuine wrong done to them, but to silence, intimidate, and punish those who have spoken out. Litigation can be a potent weapon in the hands of the rich and powerful. The financial and personal costs associated with defending a lawsuit, particularly one brought by a deep-pocketed plaintiff determined to maximize the costs incurred in defending the litigation, can deter even the most committed and outspoken critic.

3 Lawsuits brought to silence and/or financially punish one’s critics have come to be known as Strategic Lawsuits Against Public Participation (“SLAPP”). Defamation lawsuits, perhaps because of the relatively light burden the case law places on the plaintiff, have proved to be an ideal vehicle for SLAPPs.

[10] In Pointes, the plaintiff had brought a breach of contract claim against the defendant claiming the defendant’s testimony before the OMB regarding the negative environmental impact of the plaintiff’s proposed development on wetlands, was in breach of an earlier settlement agreement reached between the parties. The court held that the evidence given by Pointes at the OMB hearing was a matter of public interest.

[11] The Court of Appeal overturned the lower court’s decision and dismissed the action. The Court of Appeal’s decision was upheld on appeal.[^4]

[12] The proper application of the framework for adjudicating motions under section 137.1 was laid out by the Supreme Court of Canada in Pointes:

In brief, s. 137.1 places an initial burden on the moving party - the defendant in a lawsuit - to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. Once that showing is made, the burden shifts to the responding party - the plaintiff - to satisfy the motion judge that there are grounds to believe the proceeding has substantial merit and the moving party has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. If the responding party cannot satisfy the motion judge that it has met its burden, then the s. 137.1 motion will be granted, and the underlying proceeding will be consequently dismissed. It is important to recognize that the final weighing exercise under s. 137.1(4)(b) is the fundamental crux of the analysis: as noted repeatedly above, the APR and the legislative debates emphasized balancing and proportionality between the public interest in allowing meritorious lawsuits to proceed and the public interest in protecting expression on matters of public interest. Section 137.1(4)(b) is intended to optimize that balance.[^5]

[13] The analysis under s. 137.1 of the CJA is two-part. The burden is on the moving party to show that the proceeding arises from an expression made by the moving party and that the expression relates to a matter of public interest. This threshold burden must be met by the moving party before the court is permitted to proceed to subsection (4) and an ultimate determination of whether the proceeding should be dismissed.[^6]

(b) Has the Moving Party satisfied the Threshold Burden?

[14] Section 137.1(3) reads:

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. (emphasis placed on the critical terms interpreted in Pointes)

[15] Guidance with respect to the proper interpretation of the critical terms contained in subsection (3) is provided by Cote J. writing for the court in Pointes. A summary of her instructive comments is as follows:

(i) “satisfies” requires the moving party to meet its burden on a balance of probabilities (para. 23);

(ii) “arising from” means that the expression must somehow be causally related to the proceeding; however, a broad and liberal interpretation of this term should be taken and proceedings arising from an expression are not limited to those directly concerned with expression, such as defamation lawsuits (para. 24);

(iii) “expression” is defined in s. 137.1(2) as: “any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.” This term is defined expansively (para. 25);

(iv) “relates to a matter of public interest” should be given a broad and liberal interpretation, consistent with the legislative purpose of s. 137.1(3) to ensure that the full scope of legitimate participation in public matters is made subject to the special procedure. It is not relevant whether the expression is desirable or deleterious, valuable or vexatious, or whether it helps or hampers the public interest - there is no qualitative assessment of the expression at this stage. Expression that relates to a matter of public interest is to be distinguished from expression that simply refers to something of public interest, or to a matter about which the public is merely curious. The latter two forms of expression will not be sufficient to meet the burden under s. 137.1(3) (paras. 26-29); and

(v) The inquiry is a contextual one. Section 137.1 was enacted “to circumscribe proceedings that adversely affect expression made in relation to matters of public interest, in order to protect that expression and safeguard the fundamental value that is public participation in democracy” (para. 30).

[16] Ms. Michail makes the following submissions in support of this motion:

(i) the various proceedings before the court (which LDCSB is attempting to declare vexatious) raise issues relating to matters of public interest such as:

(a) the constitutional rights of 5 million unionized workers in Canada;

(b) the rule of law;

(c) the maintenance and preservation of an open justice system;

(d) the proper administration of justice; and

(e) the conduct of governmental affairs.

(ii) In this application, LDCSB is attempting to silence her as an unjustly terminated employee without legal representation and with damaged health;

(iii) The application is intended to intimidate and censor her expressions on public issues, deplete her resources, reduce her ability to participate in public affairs and deter others from participating in discussions on matters of public interest.

[17] The history of proceedings reveals a pattern of litigation - Ms. Michail has appealed every decision made in proceedings involving LDCSB in which she has been unsuccessful. To illuminate my finding, consider:

(i) Ms. Michail appealed the two procedural orders of the Superior Court of Justice (the Grace J. Order and the Leitch J. Order);

(ii) Ms. Michail appealed the two orders each made by a single judge of the Court of Appeal (the Pacciocco JA. Order and the Browne JA. Order);

(iii) Ms. Michail appealed the two orders each made by a panel of the Court of Appeal (the Quash Decision and the Audio Recordings Decision); and

(iv) Ms. Michail sought a reconsideration of the decisions of the Supreme Court of Canada, the highest level of court in Canada, denying leave to appeal the Audio Recordings Decision and the Quash Decision.

[18] I find that any legal proceedings (vexatious or otherwise) brought by Ms. Michail constitute a form of “expression” as that term is defined in s. 137.1(2).

[19] I further find that it is counter-intuitive to suggest that an application brought pursuant to s. 140 CJA is not causally related to vexatious proceedings. I find that any vexatious legal proceedings brought by Ms. Michael form the subject matter of these proceedings and are, therefore, causally connected to the underlying application. Conversely, non-vexatious or meritorious proceedings are not captured by this application and are, therefore, not causally related.

[20] Turning now to the third and final criteria under s. 137.1(3), Ms. Michail must satisfy the court on a balance of probabilities that vexatious litigation, as a form of expression, relates to a matter of public interest and is therefore protected by s. 137.1.

[21] For the following reasons, I find that Ms. Michail has failed to satisfy the court that her expression relates to a matter of public interest:

• The relief sought on this application is procedural not substantive.[^7] This application is designed as a “check and balance” to ensure any existing or future proceeding is only permitted to be brought or continued if shown to have merit.

• In this application, LDCSB is not seeking to prevent Ms. Michail’s access to the justice system thereby suppressing her ability to express herself through litigation. Rather, LDCSB is asking the court to declare Ms. Michail a vexatious litigant because of her history of bringing numerous unsuccessful court proceedings and appeals at great expense to LDCSB.[^8] LDCSB is seeking only that the court act as a “gatekeeper” to ensure that only legitimate and meritorious proceedings are permitted to proceed.

• The court cannot be viewed as a proponent of vexatious litigation by deeming vexatious litigation a protected form of expression. Ms. Michail appears to conflate the expressions forming the basis of the proceedings she has brought to date – allegations relating to the constitutionality of legislation, breach of her Charter rights, discrimination on the basis of a disability and other human rights violations - with the expression sought to be “suppressed” by LDCSB in this application - the commencement and continuation of vexatious legal proceedings. The former is arguably protected expression while the latter clearly is not.[^9]

• To include proceedings brought under s. 140 CJA as caught by s. 137.1(3) CJA, would render the protection granted by s. 140 and afforded to those against whom vexatious litigation is brought, meaningless. Relief granted on an application brought pursuant to the statutory authority in s. 140, is procedural (i.e., the appointment of the court as “gatekeeper”) and, therefore, not capable of “gagging” or suppressing protected expression.

• As earlier noted, the only expression which is causally connected to the relief sought on this application is the bringing or continuation of vexatious or unmeritorious court proceedings. On any interpretation of the term “related to public interest” - no matter how broad and expansive that interpretation - the public interest is not triggered by vexatious proceedings.

• This application causally arises from the numerous unsuccessful proceedings and appeals instituted by Ms. Michail. It is not the “expressions” or allegations advanced by Ms. Michail adverse in interest to LDCSB made in the various proceedings which form the grounds for this application. The evidence filed by LDCSB in response to this motion establishes that, to date, LDCSB has not prevented or attempted to suppress any of Ms. Michail’s expression.

Ms. Michail is free to, and does, speak freely and publicly about her legal arguments. She uses her active website to communicate to the public. She speaks to journalists about her legal disputes. She comments on social media articles. She has been permitted to make allegations regarding the constitutionality of the Labour Relations Act, 1995, and/or the Courts of Justice Act. She has been permitted to make allegations regarding the alleged impropriety of several judges, administrative decision makers and counsel for LDCSB for several years all without retaliation in any form by LDCSB.

• LDCSB is no longer prepared to tolerate the expense of unnecessary, merit-less vexatious litigation and asks that it stop. The only means LDCSB has available to “stop” the expense of vexatious litigation is through the remedy available under s. 140 CJA.

Has LDCSB satisfied its burden under s. 137.1(4)?

[22] The moving party has failed to satisfy the threshold burden on a balance of probabilities under subsection (3) making it unnecessary to proceed to the second stage and consider whether LDCSB as the responding party has satisfied its burden under subsection (4).

Disposition

[23] Motion dismissed.

[24] Whether the underlying application will ultimately prove successful and Ms. Michail declared a vexatious litigant are issues for another day. Dismissing this motion does not affect or impair Ms. Michail’s right to vigorously oppose the relief sought on the application. I suspect she will file substantially the same evidentiary record adduced on this motion in response to the application. Her right to respond to the application is hereby expressly reserved.

Costs

[25] LDCSB was successful on the motion and is, therefore, presumptively entitled to its costs. However, s. 137.1(8) CJA negates that presumption. Section 137.1(8) reads:

(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.

[26] However, if LDCSB intends to pursue its costs of the motion, the parties shall adhere to the following timetable for filing submissions:

(a) LDCSB shall serve and file its costs submission not to exceed 5 pages within 15 days;

(b) Ms. Michail shall serve and file her responding costs submissions not to exceed 5 pages in length within 15 days thereafter; and

(c) Any reply submissions of LDCSB to be served and filed within 5 days thereafter.

“Justice A.K. Mitchell”

Justice A.K. Mitchell

Released: November 27, 2020

[^1]: Section 137.1(5) CJA. [^2]: 3 in total. [^3]: 2018 ONCA 685 at paras. 1-3. [^4]: 1704604 Ontario Limited v. Pointes Protection Association et al., 2020 SCC 22 (“Pointes”). [^5]: Ibid, at para. 18. [^6]: Pointes, supra, at para. 21. [^7]: Uncharacteristic of a defamation suit or a breach of contract claim (the factual context in Pointes) where damages are sought by the more powerful and wealthy party, in this application, LDCSB does not seek damages from Ms. Michail arising from an alleged tort or breach of contract. [^8]: As at November 15, 2019, LDCSB had incurred $119,473.27 in costs to defend its position in litigation brought by Ms. Michail. [^9]: During argument, LDCSB gave as examples the judicial review application with respect to the Brown Award and the application before the Human Rights Tribunal as potentially having merit. LDCSB submits that the relief sought on this application, if granted, would not affect Ms. Michail’s ability to continue meritorious proceedings.