Tiago et al. v. Regional Municipality of Peel et al.
Date: 2020-12-01 Ontario Superior Court of Justice
Re: Tiago et al., Plaintiffs -and- Regional Municipality of Peel et al., Defendants
Before: Myers J.
Counsel: Paul Tiago in person Aaron Hershtal for Ian Latimer et al. Evan Kopiak, for Regional Municipality of Peel Theresa Hartley, for Samuel Property Management Sean McGarry, for Tinimint Housing Non-Profit Inc. et al.
Heard: November 30, 2020
ENDORSEMENT
The Subject Proceedings
[1] This endorsement applies to the related action under Court File Number CV-14-00511339-0000.
[2] The parties participated in a case conference to discuss the scheduling of several proceedings. Details are set out more fully in the decision of Schreck J. dated April 27, 2018, reported at 2018 ONSC 2717.
[3] In 2007 and 2008, three orders were made ending litigation that had been brought on behalf of one or more of the plaintiffs. After unsuccessfully trying to appeal the orders, in 2011 the plaintiffs brought motions under Rule 59.06 to set them aside. The defendants in those proceedings wish to schedule the motions for hearing as the plaintiffs have yet to do so after nine years.
[4] In addition, the Regional Municipality of Peel has brought a motion for summary judgment to dismiss the claim against it. It asks to schedule its motion for hearing.
[5] Counsel for Mr. Latimer and his law firm have brought an application under section 140 of the Courts of Justice Act, RSO 1990, c C.43 to have the plaintiffs declared vexatious litigants. They ask to schedule the hearing of this application as well.
[6] Mr. Tiago advises that the plaintiffs wish to bring a separate challenge to the constitutionality of the proceedings since 2007. He has delivered a Notice of Constitutional Question to counsel for the Attorney General. He submits that his constitutional challenge is superordinate and must be heard prior to the scheduling of any of the other motions.
The Tiagos’ Proposed Constitutional Proceeding
[7] I heard approximately 30 minutes of submissions from Mr. Tiago to try to understand his proposed proceeding and why it must be scheduled first. In addition, I have reviewed carefully his 14 page submission detailing his concerns. I do not mean the following to provide more than a flavour of its contents.
[8] In essence, Mr. Tiago argues that the lawyers who are involved today committed wrongdoing associated with the 2007 and 2008 dismissal of his original claims. Their continued involvement perpetrate and perpetuates an injustice to him that violates his rights under the Charter of Rights. More generally, the willingness of judges to hear these lawyers is also a denial of his rights. He says that the civil justice system has been subverted by all involved to the prejudice of the plaintiffs and other similarly situated.
[9] The plaintiffs also wish to challenge the constitutionality of the vexatious litigant proceeding provisions of s. 140 of the Court of Justice Act.
[10] The following paragraphs from the final section of Mr. Tiago’s written submissions summarize his proposed constitutional cause of actions:
- The pandemic interrupted that process and the Plaintiffs then discovered the necessity to bring the Application to have the Court review the conduct of the Defendants and their lawyers which caused the miscarriage of justice and, further to review the conduct of the Law Society, as well as of the presiding judges and the Attorney General. The Plaintiffs seek remedies in relation to that
conduct, which has denied their right to fair, timely and effective access to the courts. Further, they ask the Court to review the s. 140 procedures and the principles concerning vexatious litigants, which caused or contributed to the miscarriage of justice and breach of rights.
It is necessary to review the Law Society’s conduct as it has acted contrary to the established common law principles and its own Rules of Professional Conduct, including the lawyer/witness and “unsworn witness” rules which prohibit a lawyer from acting in a proceeding in which the lawyer has a personal involvement or interest, in circumstances where it finds lawyers guilty of misconduct for doing so and has disbarred a lawyer who breached those rules (Law Society of Upper Canada v. Kimberly Lynne Townley-Smith, 2010 ONLSHP 77, paras 11, 22).
It is also necessary to review the conduct of the members of the judiciary who have presided over the Plaintiffs’ litigation since 2009, as there is a pattern of judicial conduct in which the judges persistently disregard the issues raised by the Plaintiffs, as well as disregard the evidence in the case and, further, disregard and depart from established principles and precedents and, instead, permit the Court to be used as an instrument of fraud and injustice.
[11] Mr. Tiago argues that if the entire process is unconstitutional, then scheduling the three outstanding matters would similarly be unconstitutional.
The Removal of Counsel Opposite
[12] Mr. Tiago submits that the involvement of the same lawyers in this proceeding taints the process with their conflicts of interest because their conduct is at issue. He noted that Archibald J. previously required the question of the lawyers’ participation to be decided before any of their matters were scheduled further.
[13] I have reviewed the endorsement of Archibald J. dated October 26, 2015. He did order that the plaintiffs could bring a motion to remove counsel opposite prior to the scheduling of further steps.
[14] However, that motion has been brought and decided. By order dated February 18, 2018, Master Mills dismissed the plaintiffs’ motion to remove counsel. The plaintiffs appealed. Their appeal was dismissed by Schreck J. by the order mentioned in para. 2 above.
[15] In dismissing the appeal, Schreck J. wrote:
[19] As I explained to Mr. Tiago during the hearing, in my view his Rule 59.06 motion is unlikely to succeed. Mr. Tiago has pursued routes of appeal from the Conway, Allen and Wilson orders which were unsuccessful. In my view, it is unlikely that a judge of this court will now grant him the relief that the Court of Appeal refused to grant. Of course, I am not deciding the Rule 59.06 motion. However, in my view I must consider the prospect of the motion’s success and weigh that against the right of the parties to have their counsel of choice. Because the motion is unlikely to succeed, the lawyers are unlikely to become witnesses on the motion or any subsequent action. As a result, I cannot conclude that this is one of those “clear cases” that warrant disqualifying counsel: Essa (Township) v. Guergis (1993), 1993 CanLII 8756 (ON SCDC), 15 O.R. (3d) 573 (Div. Ct.), at para. 43.
[20] With respect to the allegations that the lawyers misled the courts and colluded with Mr. Meisels to ensure that the Tiagos were defeated in their action against Tinimint, the Master concluded that there was no evidence to support those allegations. I see no error in that conclusion. While Mr. Tiago has a number of theories about what occurred, there is no evidence in the record supporting them. It is of course open to Mr. Tiago to attempt to prove his theories at the trial of the action, but at this stage there is no basis to warrant the disqualification of counsel.
[21] Master Mills ordered costs against the appellants on a substantial indemnity basis. The ordering of costs is a discretionary matter and I see no error in the manner in which the Master exercised her discretion.
Analysis
[16] I accept completely that the plaintiffs feel that they have been treated improperly by the legal system. It appears that the plaintiffs never had a trial of the issues that were the substance of the disputes that ended with the three orders that they seek to set aside. Those issues appear to have arisen in 2002. They are now coming on 20 years of feeling victimized by lawyers and the legal system.
[17] To try to obtain relief denied to them in 2007 and 2008, the plaintiffs claim against an ever-expanding field of others, from lawyers, to judges, to the Law Society, and now the law itself. When they fail to succeed on a point, that decision becomes yet further proof of wrongdoing.
[18] Mr. Tiago was very clear with me that in the event that I schedule the motions that he wishes to defer pending his constitutional challenge, I will be implicated in further wrongdoing and will join a long list of other members of the judiciary whose conduct he has already reported to the Canadian Judicial Council. I chose to overlook this rather clear act of contempt of court. But I did mention to Mr. Tiago that I did not believe that the Canadian Judicial Council deals with his complaints against Masters of this court who are regulated by the Province.
[19] It is less than clear that the paragraphs quoted above from Mr. Tiago’s written submissions, even generously read, raise a constitutional issue. But they certainly exhibit an effort to re-litigate over a decade of legal decisions that are final and binding.
[20] The plaintiffs ask for 45 days to perfect their constitutional application. Mr. Tiago has not commenced it yet. Once he does so, it can be reviewed and be scheduled in the ordinary course as appropriate.
[21] I do not agree that all the other proceedings need to await the constitutional challenge. It may never be brought. If it is brought, it may never be heard. If the plaintiffs succeed in their challenge to the entire process, then the further steps sought by the other parties may prove to have been wasted time and money in retrospect. But those proceedings have been outstanding for far too long to leave them dangling awaiting a hypothetical outcome in a constitutional challenge that is not yet brought. The parties opposite to the plaintiffs in these proceedings are entitled to their day in court too.
[22] It is true that if the plaintiffs are declared vexatious litigants, they will need leave of the court to commence or continue their proposed constitutional challenge. But even if they are declared vexatious litigants, the plaintiffs can obtain leave to bring further proceedings provided that they appear to be meritorious. The plaintiffs cannot assert a right to bring proceedings that have no legal merit.
[23] I respect and understand that the plaintiffs feel that they have not obtained justice for the events of 2002. But bringing further and ever-more-remote proceedings is not a fair basis to stop other parties from being heard to try to obtain the relief that they seek.
[24] Accordingly, I am scheduling the outstanding motions for hearing as requested.
Schedule
[25] Mr. Hershtal’s clients and all others supporting them shall deliver their factums for the s. 140 application by January 29, 2021. The respondents to that application shall deliver they factum by February 26, 2021.
[26] The plaintiffs shall deliver their factum on their motions to set aside the 2007 and 2008 orders by January 29, 2021. Responding parties’ factums and a joint compendium for use at the hearing shall be delivered by February 26, 2021.
[27] Peel’s motions for summary judgment is ready to be heard. Counsel for Peel advises that it wishes to bring a motion for security for costs in the interim. I decline to schedule that motion. If the motion for summary judgment succeeds on its merits, Peel will have its relief. Opening another front now will just risk de-railing the process again.
[28] All three motions in the two related proceedings are scheduled to be heard together, for a full day total, on March 17, 2021. The motions will be heard by Zoom and telephone. If any party wishes to appear in person at the courthouse, that can be considered at a time closer to the hearing date.
F.L. Myers J.
Date: December 1, 2020