COURT FILE NO.: CV-19-3567
DATE: 2020 12 07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Equal Justice Canada v. Big Brothers and Big Sisters Halton and Hamilton
BEFORE: D. E. Harris J.
COUNSEL: Kibondo Kilongozi, friend of the court; Isabelle Norris, representative of Equal Justice, for the Applicant Equal Justice Canada
Cameron Neil for the Respondent Big Brothers and Sisters
HEARD: November 26, 2020 by Zoom video conference
E N D O R S E M E N T
[1] The Applicant, Equal Justice Canada (EJC), moves to amend the order of Justice Andre dismissing their action by appending to it the phrase “without prejudice to the Applicant’s small claims action or any subsequent action against the Respondent.”
[2] I dismissed the motion at the Zoom hearing and now write these reasons to explain my decision. At the hearing in this matter, Mr. Kilongozi called in on behalf of the Applicant Equal Justice Canada (EJC) but stated that he was not retained and was attending as a “friend of the court” to ask for an adjournment. Later, a person who said she was Isabelle Norris appeared at the virtual hearing. She introduced herself as a clerical assistant at EJC. The motion was re-opened for a short discussion of the matter.
[3] With respect to the adjournment request, these are the reasons it was dismissed. Mr. Kilongozi, who is a lawyer, requested an adjournment but did not know anything about the case nor did he made any specific submissions why an adjournment ought to be granted. The motion had originally been up for a video conference motion before Justice Emery October 6, 2020. After Justice Emery had vetted the list and spoken to Ms. Maxine Marchan who appeared as a representative of EJC, the matter was held down. When it was recalled, Ms. Marchan was no longer on the video conference. At no point had she appeared on the visual feed and her face was never seen. In light of this history and the fact there was no reason given by Mr. Kilongozi for his adjournment request, the adjournment was not granted.
[4] On the substantive issue, the Respondent BBBS argues: 1. The motion is brought by Althea Reyes, a vexatious litigant, and should not be permitted to proceed; and 2. The motion should be dismissed on its merits.
[5] This is the history. The plaintiff EJC was to deliver programs to the defendant Big Brothers and Big Sisters of Halton and Hamilton (BBBS). There was a dispute about payment. EJC filed a notice of action in Superior Court seeking $13,650 from BBBS. Unbeknownst to BBBS, allegedly without notice of any kind, precisely the same action was commenced by EJC in Small Claims Court. One day before the Respondent’s motion before Justice Andre to dismiss the EJC action, on January 30, 2020, EJC obtained judgment in the parallel proceeding before Deputy Judge Klein of the Brampton Small Claims Court.
[6] Judge Klein’s endorsement from that day states that the Plaintiff EJC, represented, it is noted, by “Maxine Marchan, employee,” advised him that the Defendant BBBS, who was not present, was “not opposing the motion and consenting to the granting of judgment in favour of the plaintiff in the amount of $13,650.” The Respondent BBBS says Maxine Marchan is an alias used by vexatious litigant Althea Reyes. The endorsement ends by providing a date for a settlement conference to discuss the remaining amount the Plaintiff alleged was outstanding, about $9000. The Respondent states in an affidavit that a perusal of the Small Claims Court file indicates that no mention was made there of the parallel Superior Court proceeding.
[7] The material from BBBS convincingly protests that they were never served with any Small Claims legal documents and did not have knowledge of the proceedings. Specifically, they had no notice of the proceedings in front of Deputy Judge Klein on January 30, 2020 and claim, essentially, that a fraud was perpetrated on the court.
[8] It was the very next day, January 31, 2020, that EJC, again represented by a person calling herself Maxine Marchan, appeared in Superior Court before Justice Andre. She was present to respond to the BBBS motion to dismiss the Superior Court action for failure to pay previous cost awards. The action was for the identical amount as the Small Claims action, $13,650. And it was based on the same cause of action. The Small Claims action came up as a topic during the hearing, with Mr. Neil saying on behalf of BBBS that he was unaware of it and had asked in writing several times for a copy of it but with no success. He asked for it again. Ms. Marchan for EJC said she had a copy of it in her bag but eventually changed that to say the endorsement was on her phone. She offered to show it to Justice Andre but he declined. At no time did Ms. Marchan ask for the no prejudice clause that is now being sought by EJC in this motion.
[9] Justice Andre’s order and reasons of January 31, 2020 dismissed EJC’s notice of action for the $13,650 because of the failure to pay two costs awards: 1. Justice Doi’s order of September 18, 2019 for $8000; and 2. Master Wiebe’s order of October 22, 2019 for costs of $4000. Justice Andre also noted in his oral reasons that EJC had failed to replace the notice of action with a statement of claim, contrary to Rule 14.03(3). The action by EJC was dismissed and costs of $2000 against EJC were ordered.
[10] The relief now requested is to insert a caveat into Justice Andre’s order to make it clear that the dismissal of EJC’s order was without prejudice to any Small Claims actions brought by Equal Justice against Big Brother. The notice of motion states that the order of Justice Andre “did not preclude the Applicant’s Small Claim Court action.” According to the notice, “Equal Justice was transparent and honest during the motion of January 31, 2020 [in front of Justice Andre] and informed the Court of the Small Claims action for fees and damages owed to them by Big Brothers Big Sisters.”
[11] Having read the transcript of the January 31, 2020 proceeding, I disagree that EJC was “transparent and honest” that day. The fact is Ms. Marchan had appeared the day before in Small Claims Court and, after stating that the matter was unopposed, had been able to secure judgment for $13,650. The next day, Ms. Marchan appeared in front of Justice Andre and, despite the Small Claims matter being discussed several times, at no time did Ms. Marchan inform Justice Andre of what had occurred the day before. That was anything but transparent or honest.
[12] There are several other specific problems with the relief requested. First and foremost, there would be no justification in these circumstances to clear the Applicant’s way in Small Claims Court by a “without prejudice” endorsement of this kind. This would, in effect, be meddling in proceedings under which this court has no jurisdiction or authority. The Small Claims Court is well capable of controlling their own process. Second, amendment of orders is permitted by Rule 59.06 when the order in question: a. contains an error arising from an accidental slip or omission or b. requires an amendment in any particular that the Court did not adjudicate. Clearly, neither condition obtains in this instance.
[13] It appears that the purpose behind the attempt to amend Justice Andre’s order by inserting the no prejudice clause was to somehow legitimize the Small Claims Court judgment of January 30, 2020, the judgment BBBS says was fraudulently obtained. It could not realistically succeed in that aim, but in my opinion, for want of another discernable purpose, that appears to be the underlying reason it was brought.
[14] This is sufficient to dispose of this motion. As noted above, the Respondent argued as its primary position that the motion should be dismissed because the driving force behind it is Althea Reyes, an individual who has been found to be a vexatious litigant under Section 140 of the Courts of Justice Act: Ontario (Attorney General) v Reyes, 2017 ONSC 3451 9 (S.C.J.). As a consequence, she is not entitled to appear in Ontario courts or to be involved in litigation without first being granted leave by a judge. If I were to find that the Respondent’s allegation was true, I would be obliged to dismiss this action because leave was not obtained or sought with respect to this motion.
[15] Ms. Reyes did not appear on this motion nor is her name on any of the documents filed by EJC. Mr. Neil for BBBS claims EJC has no real existence and is, in fact, a fictional entity created by Ms. Reyes. It is said that there is no real mailing address for the EJC organization.
[16] The Respondent says that the person who appeared in court January 31, 2020 before Justice Andre was Ms. Reyes using the alias of Maxine Marchan. There is some evidence tending to support this. When asked at this hearing, Mr. Kilongozi said that he had been contacted by Ms. Reyes the previous day about the motion. They had discussed it. I would note that Mr. Kilongozi had been previously retained on this matter but, as was the case in this hearing, after being retained, seemed confused about the nature of the matter. At one point, Mr. Neil, on behalf of BBBS, wrote an email to Mr. Kilongozi disabusing him of the belief it was a criminal matter. Mr. Kilongozi replied that he was recusing himself because he had no experience with animal welfare cases. Mr. Neil had never said that it was an animal welfare case nor of course is it. With this history, it was surprising to see Mr. Kilongozi back on the matter.
[17] In addition to the admission that Mr. Kilongozi took instructions from Ms. Reyes the day before the motion, there was a recent affidavit filed from a law student. She said that she was hired as an intern by EJC and had contact with a woman she knew as “Maxine Adwella.” Indeed, her email address appeared as a cc on emails sent from EJC to the Court in September of 2020 attempting to schedule this matter. Based on photographs she was shown afterwards, the law student positively identified Maxine Adwella as Althea Reyes. She states that other aliases of Ms. Reyes are Maxine Marchan, Isabelle Norris, Sarah Lacoursiere, and Karine Brown.
[18] The law student states that she travelled to Ottawa from Toronto with the person she knows to be Ms. Reyes on September 20, 2020. She was supposed to meet with Mr. Kilongozi the next day but he did not show up and did not respond to phone calls.
[19] For a number of reasons explained in her affidavit, the law student became suspicious of the legitimacy of EJC. She asked “Maxine” who Maxine Marchan was and received a reply that they were one and the same person. When she asked who Althea Reyes was, “Maxine” said she was her twin sister. Disenchanted, the law student soon left Ottawa and her brief employment with EJC.
[20] The law student also had some light to shed with respect to Isabelle Norris, the person who purportedly appeared on this video call. At the video conference, Mr. Neil did not recognize her as Ms. Reyes nor did she look anything like Ms. Reyes’ photograph. However, the law student included as an exhibit to her affidavit an affidavit purportedly sworn by Ms. Norris in July 2020 that was part of one of the files that she was working on for EJC. Ms. Norris, who in this proceeding said that she was a clerical assistant at EJC, said in that affidavit that she was a youth mental health worker for an organization called National Collaboration for Youth Mental Health (NCYMH). The affidavit is said to be made for the purpose of a motion to return pets seized by the Ontario Society for the Prevention of Cruelty to Animals. It refers to Maxine Adwella as being a staff worker at NCYMH. There are repeated references to Althea Reyes as the mother of a boy whom Ms. Norris was assigned to as a mental health worker. The pets that were seized were supposedly being cared for by the boy. Isabelle Norris, if she is the same person who attended this video hearing on behalf of EJC, is by her own admission, associated with Ms. Reyes.
[21] In sum, there is a body of evidence suggesting Ms. Reyes’ involvement in this proceeding. However, it is ultimately unnecessary to decide whether it was Ms. Reyes behind this motion, and if so, whether because of her designation as a vexatious litigant, the motion ought to be dismissed. Leaving this aside, on the substantive issue of the amendment sought, the EJC motion was without merit and was dismissed on this basis.
[22] The motion to amend Justice Andre’s order is therefore dismissed. I would grant costs in favour of BBBS in the amount of $10000, all inclusive. 30 days to pay.
D.E. HARRIS J.
DATE: December 7, 2020
COURT FILE NO.: CV-19-3567
DATE: 2020 12 07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Equal Justice Canada v. Big Brothers and Big Sisters Halton and Hamilton
BEFORE: D. E. Harris J.
COUNSEL: Kibondo Kilongozi, friend of the court; Isabelle Norris, representative of Equal Justice, for the Applicant Equal Justice Canada
Cameron Neil for the Respondent
Big Brothers and Sisters
ENDORSEMENT
D.E. HARRIS J.
DATE: December 7, 2020