Court File and Parties

COURT FILE NOS.: CV-20-84581; CV-20-84594 DATE: 2021-02-17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Court File No.: CV-20-84581 Kaufman LLP, Applicant AND Antranik Kechichian and Optical Vision Canada Ltd., Respondents

Court File No.: CV-20-84594 Essilor Groupe Canada Inc., Applicant AND Antranik Kechichian and Optical Vision Canada Ltd., Respondents

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Gary G. Boyd, Counsel for the Applicant (CV-20-84581) Zohar R. Levy and Chad Pilkington, Counsel for the Applicant (CV-20-84594) Antranik Kechichian and Optical Vision Canada Ltd., Self-Represented Respondents (CV-20-84581 and CV-20-84594)

HEARD: December 10, 2020 by video conferencing

Reasons for Decision

M. Smith J

[1] There are two Applications before me where each Applicant is seeking a declaration that Antranik Kechichian and Optical Vision Canada Ltd. (“Respondents”) are vexatious litigants and, amongst other things, that the Respondents be required to seek leave before instituting any further legal proceedings.

[2] The Respondents oppose the Applications.

[3] For the reasons that are set out below, I grant both Applications.

Background

[4] Antranik Kechichian owned and operated Optical Vision Canada Ltd. (“OVC”) through several companies and a franchise system, for approximately 30 years until it was sold in or around September 23, 2016. It was being operated as Laurier Optical, a well-known chain of eye exam clinics and eyewear dispensaries in the Ottawa region.

[5] The Applicant Kaufman LLP (“Kaufman”) is a law firm based in Montreal, Quebec. In 2016, it acted for Mr. Kechichian and OVC in the negotiation of the sale of OVC and the signing of a comprehensive Asset Purchase Agreement (“APA”). Under the APA, the purchaser Mr. Eric Savard on behalf of two Quebec companies (collectively referred to as the “Savard Group”) agreed to purchase the assets of OVC and assume some of its long-term debts.

[6] The Applicant Essilor Groupe Canada Inc. (“Essilor”) designs, manufactures and markets a wide range of lenses to improve and protect eyesight.

[7] Shortly after the purchase of the OVC assets (December 2016), the Savard Group advised that it was insolvent. In May 2017, the Savard Group sought protection under the Companies Creditors Arrangement Act, R.S.C. 1985, Chap. C-36 in the Quebec Superior Court of Justice (“CCAA Proceeding”). On May 18, 2017, a protection Order was granted to the Savard Group.

[8] Raymond Chabot Grant Thornton LLP (“RCGT”) was judicially appointed as the monitor. The CCAA Proceeding ended with the bankruptcy of the Savard Group.

[9] Mr. Kechichian and OVC were unsecured creditors in the CCAA Proceeding. The OVC assets were purchased by a company called 10313033 Canada Inc. (“103”). On August 31, 2017, the Superior Court of Quebec approved the sale to 103 (the “Vesting Order).

[10] In April 2017, Mr. Kechichian, OVC and 9130217 Canada Inc. (the latter being a company owned by Mr. Kechichian) commenced legal proceedings in the Superior Court of Quebec bearing Court File No.: 500-11-052492-176 (“Global Claim”) against a number of individuals and companies, including Essilor. The plaintiffs alleged that Essilor had colluded with the Savard Group to harm the plaintiffs. They seek damages in excess of $12,000,000.00.

[11] Mr. Kechichian and the other plaintiffs in the Global Claim sought two amendments: (1) to add, amongst other things, Kaufman (and four individual lawyers from the firm) as defendants. The plaintiffs alleged that the Kaufman lawyers were professionally negligent in relation to the sale of OVC; and (2) to remove certain allegations and reduce the amount of damages to $10,000,000.00. More specifically, the plaintiffs were seeking to remove the long-term debt payments in order to allow the plaintiffs to argue this aspect of the Global Claim in concurrent proceedings. The Superior Court of Quebec allowed the first amendment but denied the second on the following basis: “It would not be appropriate to endorse such an approach, that could result in contradictory judgments and the presentation of the same arguments before different instances and possibly several times”.

[12] In addition to the Global Claim, Mr. Kechichian is involved in twenty-five (25) other actions (one in Quebec and twenty-four in Ontario) where he has either made a claim, counterclaim, a third party claim or fourth party claim. Some of these actions were initiated by Mr. Kechichian against Kaufman, other law firms and lawyers, while others were commenced by creditors claiming that Mr. Kechichian and OVC have defaulted on loans. In response to these creditor claims, Mr. Kechichian not only defended the actions, but started third and fourth party proceedings against Essilor and other parties.

[13] Five of the third and fourth party claims (Court File Nos.: CV-19-81579-A1; CV-17-72986-A1; CV-18-76459-B1; CV-17-581036-B1; and CV-17-581034-A1) against Essilor pertain to the creditor claims alleging that the Respondents have defaulted on certain loans and leases. Essilor took the position that these third and fourth party claims sought the same relief as in the Global Claim and as such, brought a motion to stay these actions. On November 1, 2019, Justice McLean stayed these claims until the final disposition of the Global Claim. Costs in the amount of $5,000.00 per claim were granted in favour of Essilor. To this day, these costs remain unpaid.

[14] In February 2020, Mr. Kechichian brought a motion for the removal of Mr. Gary Boyd as counsel for Mr. Francois Lepage, the law firm of Bernier Beaudry, the law firm of Kaufman LLP and the law firm Morency S.E.N.C.R.L. on the basis of a conflict of interest. On March 11, 2020, Justice Parfett dismissed the motion (Kechichian v. Lepage, 2020 ONSC 1497).

[15] In or around the same time that Mr. Kechichian brought the removal motion (February 2020), he filed a complaint with the Law Society of Ontario (“LSO”) against Mr. Gary Boyd for professional misconduct. On June 8, 2020, the LSO advised as follows: “Based on my review of the information received in this case, I have concluded that the appropriate regulatory response is to close this file because no further investigation is warranted in this matter”.

[16] In relation to Court File No. CV-19-79346, Mr. Kechichian (and other plaintiffs) filed a Counterclaim against a number of defendants, including Essilor. Three of the Defendants by Counterclaim brought a motion to strike the pleading on the basis that it was frivolous, vexatious, an abuse of process or duplicative of other proceedings. A decision was rendered by Justice Corthorn on April 2, 2020. In finding that the Counterclaim was frivolous, vexatious and an abuse of process (10313033 Canada Inc. v. Kechichian et al. 2020 ONSC 1990), Justice Corthorn wrote:

62 For this motion, it is assumed that, in support of the relief sought by Counterclaim, Mr. Kechichian pleads and relies upon the allegations made in the Amended Statement of Defence. The descriptions by Healey J. of the statement of claim before him are equally applicable to the allegations made in the Amended Statement of Defence. The allegations in Mr. Kechichian's pleading are sweeping. The allegations are detailed and lengthy, yet it is very challenging to identify specific causes of action and to identify the Defendants by Counterclaim against whom those causes of action are plead.

63 Mr. Kechichian knowingly delivered a pleading of this kind. Paragraph 19 of the document begins with the following statement: "Due to the complexity of this file, [Mr.] Kechichian wishes to elaborate on all of the facts to assist the Court to better understand this entire ordeal " (emphasis added).

64 The allegations made by Mr. Kechichian are also replete with aspersions cast not only on the Moving Parties and other Defendants to the Counterclaim, but on the CCAA proceedings. For example, at para. 53 of the Amended Statement of Defence, Mr. Kechichian alleges that the appointment of Fontaine/RCGT as Monitor of the Savard Group was a "conflict of interest to serve only Essilor" and to permit it to in some way gain an ownership stake in Laurier Optical. This theme of Essilor manipulating the process for that purpose is repeated throughout the Amended Statement of Defence.

[17] Justice Corthorn ordered that Mr. Kechichian pay costs in the amount of $31,455.00, inclusive of fees, disbursements and applicable HST. To date, these costs have not been paid.

Position of the Parties

The Applicants

[18] It is argued that the Respondents have been persistently abusing the Court system in that they have brought 26 actions that arise out of the sale of their business in 2016. Since the Savard Group has initiated the CCAA Proceeding, the Respondents have been making fraud and conspiracy allegations against all of those involved, including the Savard Group, Essilor, RCGT and other lawyers. Moreover, the Respondents have said that they will continue to bring claims in the future.

[19] The Applicants do not impugn the Respondents’ intentions as they say that they are irrelevant. Rather, it is submitted that the Respondents have been acting in a vexatious manner and it is now necessary to restrict their actions. The Respondents have been continuously exhibiting the same pattern of engaging in collateral attacks and the Respondents always attribute every decision against them as a conspiracy.

[20] The Respondents have thus far been unsuccessful in their pursuits before the Courts and there are outstanding costs awards against them in the range of $60,000.00. The Respondents have failed to pay these costs.

The Respondents

[21] Mr. Kechichian indicates that he has been in business for 45 years and he has been the victim of fraud. He is not vexatious. He is passionate. The Savard Group bankruptcy was pre-planned. He trusted his lawyers, but they have failed him. He does not believe in conspiracies but rather the truth.

[22] In response to these Applications, Mr. Kechichian has filed comprehensive materials (two affidavits, exhibits and factums totalling over 3500 pages). From these materials and Mr. Kechichian’s oral submissions, I summarize the Respondents’ position on these Applications as follows:

a. For the last four years, the lawyers representing the other parties have skillfully had Mr. Kechichian run from one Court to another to find justice; b. Mr. Kechichian signed a fraudulent document in relation to the sale of his business on October 3, 2016 (produced by the lawyers at Fasken, Norton Rose and Kaufman) that has destroyed him. These same lawyers now turn against him by calling him vexatious, frivolous and a Court abuser, with the intention of stopping him from seeking justice in the Court; c. Mr. Kechichian is hardly managing through the Court as it is, and he asks that the Court does not give the other parties the upper hand. He is not an aggressor in any of the claims. He does not know how to be vexatious, frivolous or a Court disturber. He is being sued and only trying to defend himself without the assistance of a lawyer; d. By selling the unpaid assets belonging to the banks and lenders in the fraudulent Vesting Order (as recommended by RCGT), RCGT has triggered over 24 Court cases against Mr. Kechichian for being a guarantor on the same leased assets sold; e. As a self-represented litigant, Mr. Kechichian is not aware how to engage in collateral attacks. He denies having any knowledge of doing this and even if he does not agree with a Court Order, he will respect that Order; f. It is submitted that the Applicants’ strategy of accusing Mr. Kechichian as a Court disturber will assist them to delay the files from reaching trial, thereby giving the Applicants with time to come up with a new idea to keep Mr. Kechichian “on defense compared to concentrate with the real issues of this files”; and g. He denies that the claims are duplicates. There are multiple banks and lenders suing him for unpaid leased assets. Mr. Kechichian tried to avoid duplication of claims, but he was denied by the Superior Court of Quebec.

[23] In respect to the cost awards made against the Respondents, it is argued that they have been unfairly penalized because the Applicants have falsely made claims that they were duplicative.

The Law

[24] Section 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) gives the Court the authority to declare a party as a vexatious litigant:

Vexatious proceedings

140 (1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) instituted vexatious proceedings in any court; or (b) conducted a proceeding in any court in a vexatious manner,

the judge may order that,

(c) no further proceeding be instituted by the person in any court; or (d) a proceeding previously instituted by the person in any court not be continued,

except by leave of a judge of the Superior Court of Justice.

[25] Section 140(3) of the CJA provides that once a party is declared vexatious, he/she may still commence applications and/or actions with leave.

Application for leave to proceed

(3) Where a person against whom an order under subsection (1) has been made seeks leave to institute or continue a proceeding, the person shall do so by way of an application in the Superior Court of Justice.

[26] There are two purposes for declaring a party as vexatious: (1) to prevent litigants from harassing others and; (2) to protect the vexatious litigant from squandering their own resources (Foy v. Foy (No.2), (1979) 26 O.R. (2d) 220).

[27] The factors to consider in determining if a litigant is vexatious are set out in the leading case called Re Lang Michener and Fabian, [1987] O.J. No. 355:

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

[28] For a litigant to be declared vexatious, it is not necessary that the litigant’s conduct fall within each of the factors enunciated above (GoodLife Fitness Centres Inc. v. Hicks, 2019 ONSC 4942).

[29] The Court may look at a litigant’s conduct in the institution of both the judicial and non-judicial proceedings (Bishop v. Bishop, 2011 ONCA 211).

[30] To prevent further abuse of the judicial system, the Court may issue what is known as a Chavali Order, meaning that the vexatious party must obtain an order from the Case Management Judge or Master giving them the permission to bring an application pursuant to section 140(3) of the CJA (Chavali v. Law Society of Upper Canada, [2006] O.J. No. 2036).

Analysis

[31] Mr. Kechichian firmly believes that he is the victim of an elaborate fraudulent scheme that has destroyed his life’s work. He accuses Essilor of using the Savard Group as a front to purchase his business. He submits that Essilor’s intentions were to bankrupt the Savard Group in order that the terms of the APA could not be fulfilled. He claims that RCGT was part of this fraudulent scheme as they were hired by Essilor “with a mission to cook the books of Savard to be acceptable for a CCAA filing”. He is also of the belief that the lawyers at Fasken, Kaufman and Norton Rose colluded in producing a fraudulent document dated October 3, 2016 to destroy him.

[32] Mr. Kechichian’s convictions are deeply rooted and he has been relentless in his pursuit for justice, starting with the issuance of the Global Claim in 2017 to the commencement of many more claims since then. Although it is true that some of the claims commenced by Mr. Kechichian (third and fourth party claims) were in response to legal proceedings that had been started against him by the banks and lenders, there are many others where Mr. Kechichian is the instigator.

[33] The issue to be determined is whether Mr. Kechichian’s conduct (which includes OVC) can be described as vexatious. In the affirmative, what are the restrictions that should be imposed upon Mr. Kechichian to protect the administration of justice from this type of conduct.

Are the Respondents vexatious litigants?

[34] The answer is yes.

[35] The Respondents’ behaviour falls within the vast majority of the principles set out above in Lang Michener. However, I find that the most applicable ones are principles (a), (d) and (f).

Principle (a) – Multiple proceedings

[36] The allegations made against Essilor and Kaufman in the various claims are repetitive, similar or identical. They relate to the sale of Mr. Kechichian’s business and these defendants’ fraudulent and negligent conduct. For illustrative purposes, I have extracted some of the allegations made by Mr. Kechichian as found in some of the pleadings:

a. Global Claim (No.: 500-11-052492-176): paragraph 22 (Essilor is indeed Savard’s silent partner, having a direct interest and financial control in and over all of the business activities of Savard); paragraph 153 (Essilor played a central role in forcing Savard and his companies to seek the protection of the CCAA and to have RCGT Quebec appointed); paragraph 163 (Essilor was grossly negligent when it placed millions of dollars in the hands of its front and secret partner Eric Savard); paragraph 184 (the Defendant Lawyers did not respect their civil obligations but also their ethical and professional obligations in light of the defaults mentioned hereinabove); paragraph 199 (Consequently, due to the failure and negligence of the Defendants Lawyers in drafting and securing a proper transaction, the Plaintiffs have not been paid their balance of sale, spent over $300,000.00 in legal fees during the CCAA process to the Defendant Kaufman and/or Defendant Me Debrun for their protection and the one of their creditors and are now facing multiple claims and/or law suits from unpaid creditors). b. Court File Nos.: CV-17-72986-A1; CV-17-578911-A1; CV-17-581034-A1; CV-17-581036-B1;: paragraph 16 (Savard was instructed by Essilor to conceal the existence of Essilor’s contracts with Savard and/or his companies for the compulsory purchase of at least 90% of all ophthalmic lenses from Essilor laboratories and to conceal the direct investments made by Essilor in optometric stores; paragraph 25 (on May 18, 2017, without any notice to Mr. Kechichian or Laurier Optical, Essilor forced Savard to take his companies, including the Purchasers, into a proceeding under the Companies’ Creditors Arrangement Act ); c. Court File No.: CV-18-76459-B1: paragraph 22 (Essilor forced the CCAA process to get rid of the creditors and long term debt payments. Essilor pulled the plug on Savard forcing him into a Credit arrangement (CCAA) to avoid paying the creditors); d. Court File No.: CV-19-79346: paragraph 28 (On May 18, 2017, Essilor managed to force Savard into the CCAA filing without the consent of Kechichian who was and still is maintaining 30.5% ownership of Laurier Optical Assets); paragraph 40 (Essilor Group provided a secret loan of approximately $2 million to 103…which allowed them to purchase Laurier Optical. Previously Dreige was tagged as a criminal by Savard/Essilor then ended up becoming a silent partner to Essilor in the new venture of 103); paragraph 55 (The Vesting Order has been objected to by Kechichian however the Judge Monitor Fontaine / RCGT that has been working for Essilor since December 2016, managed to mislead the court and manipulate the Vesting Order in a way that it appears to never been objected or appealed by Kechichian); e. Court File No.: CV-19-80189: paragraph 23 (It is the position of Optical Vision that the responsibility of this Default Judgment should be Dr. Eric Savard, and Essilor Canada or the new fronts of Essilor 10313033 Canada Inc., who purchased Laurier Optical from bankruptcy, and kept Essilor as a silent partner); paragraph 32 (Kaufman LLP was the chief architect of transferring the landlords, leased and leased asset leases to the new owners Essilor/Savard/GES. Such transfers were not properly executed); f. Court File No.: CV-19-80276: paragraph 13 (Essilor were the cartels that orchestrated the bankruptcy of Savard); paragraph 18 (It is the position of Kechichian that the responsibility of this Default Judgment should be Dr. Eric Savard, and Essilor Canada or the new fronts of Essilor 103, who purchased Laurier Optical from bankruptcy on the condition “as is where is” but kept Essilor as a silent partner); g. Court File No.: CV-19-80332: paragraph 21 (This lease payments were not respected by Essilor fronts being Dr. Eric Savard or the new owners 10313033 Canada Inc.); paragraph 32 (Kaufman LLP was the chief architect of transferring the landlords, leased and leased asset leases to the new owners Essilor/Savard/GES. Such transfers were not properly executed); and h. Court File No.: CV-19-80426: paragraph 17 (The plaintiff believes that Essilor hired RCGT and Benoit Fontaine since 2016 to simply bankrupt the company to get rid of Savard, his companies and all other creditors); paragraph 23 (Essilor was positioned in the CCAA as lenders and bankers when in reality they were partners to Savard); paragraph 48 (Kaufman LLP failed to secure a proper binding agreement for the plaintiff to protect its interests).

[37] Mr. Kechichian has repeatedly criticized the CCAA Proceeding. Instead of challenging the Vesting Order and pursuing the remedies available to him through the creditor process, he has initiated numerous claims attacking the CCAA Proceeding.

[38] Mr. Kechichian maintains that the claims are not duplications. I disagree. In his responding affidavit, he sets out the different claims that have been commenced in an attempt to distinguish each of them by arguing that they pertain to different parties, different store locations and different allegations, all of which, he says, do not form part of the Global Claim. These claims are nonetheless replete with the same allegations of collusion, fraud and negligence, all connected to the scheme that was allegedly perpetuated against the Respondents during the CCAA Proceeding.

[39] The Superior Court of Justice and the Superior Court of Quebec have also previously disagreed with Mr. Kechichian’s position. There have been rulings to the effect that the Respondents’ pleadings are indeed duplicative and an abuse of process.

[40] On January 28, 2019, Justice Samoisette of the Superior Court of Quebec dismissed an action that was brought by the Respondents against Essilor and others on the basis that they were trying to advance the same claims as those found in the Global Claim. The Court of Appeal of Quebec dismissed the Respondents’ motion for leave to appeal Justice Samoisette’s decision.

[41] On November 1, 2019, Justice McLean issued a stay of proceedings on five of the third and fourth party claims pending the final disposition of the Global Claim. The Applicants say that this decision was rendered by Justice McLean because the long-term debt claims formed part of the Global Claim.

[42] Also, as mentioned earlier, on April 2, 2020, Justice Corthorn struck portions of the Respondents’ Counterclaim. It was found that the Counterclaim was frivolous, vexatious and an abuse of process. In awarding costs against Mr. Kechichian, she found that he had “behaved in an abusive manner, brought proceedings wholly devoid of merit, and unnecessarily ran up the costs of litigation”.

[43] Mr. Kechichian is not prepared to stop initiating legal proceedings. In his responding affidavit dated November 6, 2020 (Court File No.: CV-20-84581), he has deposed that, if necessary, he will continue onward for the following reasons:

a. Paragraph 57 – Kechichian will continue amending third parties if he receives any judgment by default which he is not responsible for, or if he is being sued by any party for a damage that he is not responsible for. b. Paragraph 71 - In the event of discovering any other illegal activity by any party that caused intentional harm to Kechichian for personal agendas or for supporting Essilor against Kechichian (the wrong way, Kechichian will be obliged to file more claims against any illegal activity that were involved directly or indirectly in the fraudulent bankruptcy of Laurier Optical. c. Paragraph 190 - The opposite parties are to stop defaming Kechichian if they care not to be sued for defamation.

[44] The claims that have been initiated by Mr. Kechichian all stem from the failed business transaction and allege that it was fraudulently orchestrated by Essilor, Kaufman and others. Mr. Kechichian has slowly and persistently been expanding his pool of defendants. The evidence strongly supports the conclusion that Mr. Kechichian will continue to initiate legal proceedings and add new defendants if he deems it necessary in the pursuit of justice. Mr. Kechichian’s pattern of litigation can easily be described as vexatious behaviour.

Principle (d) – Grounds/issues raised rolled forward into subsequent actions

[45] For all actions initiated by Mr. Kechichian, he relies upon the same fact scenario and seeks damages that are similar to the other claims.

[46] Mr. Kechichian has not limited his claims against the Savard Group, Essilor and Kaufman. He has expanded his base of defendants and has commenced proceedings against several individuals, companies, shareholders, directors, officers and lawyers, which include, amongst others, the following: Khaled El-Shiekh, Dany Dreige, Rosalie Malo, Madeleine Bonhomme and Sameh Mansour (alleged to be owners of 103); 9372-3781 Quebec Inc., Rahma Hajaji and Tami Aboubakary (alleged to be owners of the Quebec Laurier Optical Stores); the law firm Bernard Beaudry and Francois Lepage (lawyer); the law firm Morency S.E.N.C.R.L. and Luc Paradis, Julien Sirois, Ali Argun, Stephane Laforest, Marc-Andre Russell (lawyers); the law firm of Norton Rose Fulbright Canada LLP and Jerome Landry (lawyer); Elyse L’Ecuyer (stenographer during examinations in May 2019); Martin Chartrand (licensed optician); Georges Nassrallah (lawyer); and Henry Young (information technology technician).

[47] Mr. Kechichian believes that the lawyers involved in the sale of his business are corrupt and played an instrumental role in his demise. He has already sued a number of them. He unsuccessfully brought a motion to remove Mr. Boyd as counsel of record. He simultaneously and again, unsuccessfully, lodged a complaint against Mr. Boyd with the LSO, for similar reasons referenced in his motion.

[48] In specific reference to the law firm Fasken, Mr. Kechichian is of the belief that the lawyers in this firm were intentionally involved in a fraud against him. He has threatened legal action against the Fasken lawyers on numerous occasions as well as a complaint to the LSO. He has initiated legal proceedings against a Fasken Montreal lawyer named Ms. Marie-Josée Neveu, whom he accuses of being involved in “bad faith, with the intention to kill the September 23 APA”. Some examples of Mr. Kechichian’s conduct vis-à-vis the Fasken lawyers are set out in the text that follow.

[49] On August 13, 2019, Mr. Kechichian served a motion in Court File No.: CV-19-79346 seeking the removal of Fasken as solicitor of record due to an alleged conflict of interest. On August 15, 2019, Mr. Kechichian wrote to counsel for Essilor and expressed his frustrations regarding Fasken’s role in the fraudulent bankruptcy: “I guess we will need a jury to decide on this most complex file orchestrated by fasken & essilor. Meantime pls be informed that we will be filing a motion in every court case that fasken is involved with essilor, we will request the court to have fasken out of every essilor file for being in a serious conflict of interest.”

[50] In September 2019, Mr. Kechichian served additional draft notices of motion on the following Court File Nos.: CV-17-72986, CV-17-578911, CV-17-581034 and CV-17-581036-A1. No hearing dates were scheduled for any of the proposed motions to remove Fasken as counsel of record.

[51] On February 13, 2020, Mr. Kechichian made another threat against counsel for Essilor after she refused his request to examine shareholders and directors of 9109862 Canada Inc. He wrote: “You destroyed my life, I will do what ever it takes to examine fasken lawyers that robbed the work of my life. I will be filing today a complaint to the law society, hoping to be protected as a consumer. Failure to find consumer protection at the law society, I will be obliged to file a claim against fasken and certain unethical lawyers at fasken for a fair trial. Fasken involved lawyers must be examined to solve the judicial puzzle they created.”

[52] On February 19, 2020, Mr. Kechichian followed up on his threats and sued Ms. Marie-Josée Neveu (a lawyer at Fasken) as well the shareholders and directors of 9109862 Canada Inc. (Court File No.: CV-20-82918).

[53] On May 20, 2020, Mr. Kechichian advised in an email that a further lawyer from Fasken needed to be added to the Court proceedings. He said “Must read to properly examine Kaufman 4 lawyers & Savard in Ontario claim, must add mr. Brandon farber personally in Ontario claim, should check if counse Zohar levy will represent the person of counsel brandon farber.” On June 2, 2020, he sent an email to Mr. Farber with further explanation:

“Please be informed that we will soon filing a claim against you for the following reasons:

-for your collusion with the judge monitor for participating in intentional criminal negligence in selling unpaid leased assets knowingly that they belong to lenders and they have not been paid -for facilitating to your broker mr. Khaled elsheikh and essilor new fronts 103, the use of the leased assets on which I am sued without having your client essilor or its front 103 pay the monthly bills to the lenders. -for participating in the fraudulent purchase of my 16% shares from mr. Khaled elsheikh without my consent. -for participating in closing the stores without the lenders consent or the patient’s consent. Min the event you except to submit an affidavit of the facts under oath I may chose not to file the claim against you”

[54] On August 26, 2020, he threatened counsels for Essilor and 103 with a claim. He stated: “Failure to accept the claims amalgamated, will force me to file claim against you both and your clients for manipulating and delaying the Courts and Justices as well as prolonging this entire process to serve your agenda.”

[55] Mr. Kechichian sees himself as a victim of an elaborate fraud that has stripped him of his life work and savings. He has spent thousands and thousands of dollars in legal fees, forcing him to represent himself in all of the legal proceedings. He feels outplayed by the lawyers because of his lack of legal training. Lawyers are clearly one of Mr. Kechichian’s targets.

[56] Mr. Kechichian’s threats of pursuing legal action against lawyers and others are real. He has shown it time and time again. In his pursuit of justice, he has not and will not in the future hesitate to issue a claim against a lawyer or any individual/company that he perceives to be involved in the fraudulent scheme. Mr. Kechichian’s frequent allegations of fraudulent wrongdoing by lawyers and others as well as his pattern of commencing legal proceedings against new individuals/companies that are complicit in the fraudulent scheme, are clear examples of vexatious conduct.

Principle (f) – Failure to pay costs

[57] There are a number of outstanding costs awards.

[58] As referenced earlier, on November 1, 2019, Justice McLean ordered the payment of costs of $5,000.00, in each of the following actions: CV-19-82023-A1, CV-19-82025-B1, CV-19-81579-A1, CV-17-72986-A1 and CV-18-76459-B1. In the case of 10313033 Canada Inc. v. Kechichian et al., 2020 ONSC 4490, Justice Corthorn awarded costs in the amount of $31,455.00. The Respondents have not fully paid these costs.

[59] The Respondents submit that they have been unfairly penalized with the imposition of legal costs. They argue that these costs were awarded because the lawyers for the Applicants have been defaming Mr. Kechichian with fabricated allegations and misleading the Court with “lies and manipulative games”.

[60] In an email dated August 26, 2020 and titled “Court Manipulation”, Mr. Kechichian wrote to counsels for Essilor and 103 regarding the costs: “Following the case conference today, I suggest that you withdrawal your claim for legal costs against me in the matters CV-19-80189, CV-19-79346 and CV-17-581036-B1 for which you claimed that I was duplicating claims against your clients which is completely false and my amalgamated claim proves this point to all parties. If not, I will be obliged to file a claim against you and your clients for misleading the Justices and Courts to obtain judgments that are based on false allegations.”

[61] Mr. Kechichian has not appealed any of the cost decisions, claiming that he does not know how to go about appealing these decisions. Although he says that he respects Court Orders, there is no evidence before me that he has any intentions of paying these costs. To the contrary, he wishes to dispute them by way of a motion. At paragraph 101 of his affidavit dated November 6, 2020, he says: “Kechichian will be filing a motion to have the court reconsider the harsh judgment of Justice McLean ($60,000 in legal costs) due to Essilor and Kaufman lawyers misleading the courts by defaming Kechichian with fabricated allegations.”

[62] Mr. Kechichian’s persistent failure to pay costs is further evidence of vexatious conduct.

Summary

[63] Looking at the history of Mr. Kechichian’s behaviour, he has the general characteristics of a vexatious litigant. Since the bankruptcy of the Savard Group in 2017, Mr. Kechichian’s pattern of behaviour has been consistent. He has started claim after claim, all arising from the same event, being the failed APA and the fraudulent bankruptcy. Not only has he threatened legal action, but he has acted upon his threats. Twenty-six claims have been initiated by Mr. Kechichian. Some of these claims were initiated as a mean to harass a party and not for asserting a legitimate right.

[64] Mr. Kechichian’s oral and detailed written submissions focused primarily on setting out the facts that support his position that all those involved in the Savard Group bankruptcy worked together to make sure that he would lose his life savings and that Essilor could repurchase Laurier Optical for $0.10 on every dollar. He accuses the Savard Group, Essilor, RCGT, lawyers at Fasken, Norton Rose and Fasken and numerous other individuals of fraudulent conduct. Mr. Kechichian’s attacks on the Vesting Order have persisted since 2017 and are endless. His submissions suggest that he may not understanding the true meaning of the terms and effect of the Vesting Order. He says that he does not know how to manage a collateral attack, but the evidence clearly shows that he has precisely been carrying out collateral attacks from the very beginning, consciously or not.

[65] The most surprising behaviour from Mr. Kechichian is the approach that he has taken in defending these Applications of declaring him to be vexatious. He repeats the same allegations that he has been making since 2017, and he vows to continue the fight by suing anybody that he believes to be responsible for his loss. Mr. Kechichian’s strong convictions are, in my view, impeding his ability to reason. I can certainly appreciate his frustration and his desperation in seeking justice. However, his continuous desire to sue anybody that he feels is remotely involved in the alleged conspiracy, is in itself, vexatious conduct.

[66] On the evidentiary record before me and for the reasons outlined above, I am satisfied that the Respondents are vexatious litigants as contemplated by section 140 of the CJA.

What are the appropriate restrictions that should be imposed upon the Respondents?

[67] Now that I have found the Respondents to be vexatious litigants, I must determine the reasonable measures that must be taken to protect the administration of justice from the conduct that has been exhibited by the Respondents.

[68] The standard Order that is issued once a party has been found to be a vexatious litigant is that he/she requires the Court’s permission (seeking leave) before instituting any further legal proceedings. The Applicants are seeking further restrictions. They are asking this Court to issue what is referred to as a Chavali Order.

[69] In the case of Peoples Trust Co. v. Atas, 2018 ONSC 58 (at paras. 302-304), Justice Corbett sets out the purpose and reasoning of issuing a Chavali Order:

302 A litigant who just will not desist can pursue his obsessions, or resort to litigation to harass, by bringing serial applications for leave to bring or continue proceedings. In a busy court site like Toronto, with over 80 judges, and a roster of judges that is constantly changing, the problem is compounded if these applications can be brought in the ordinary course. With ten other Superior Court of Justice court sites within a two hour drive of Toronto, the potential for mischief is evident.

303 I.V.B. Nordheimer J., as he then was, fashioned a solution to this problem that has proved successful in curtailing this behaviour, in Chavali v. LSUC. 262 Nordheimer J. ordered that the Chavalis could not seek leave to commence or continue a proceeding or lift the s.140 order without first obtaining permission from a judge to do so. This permission would be sought by without notice motion for permission to bring an application under s.140(3) of the Courts of Justice Act. As a matter of efficiency and to ensure that the Chavalis ' litigation history was known to the judge considering the without notice motion, Nordheimer J. directed that these motions be brought to him.

304 I have found this approach useful in several cases to curtail continued harassment by a vexatious litigant. Although I have been unable to find direct authority from the Court of Appeal approving this kind of order, the issue has been before that court at least twice. The Chavalis, themselves, once purported to appeal a decision of Nordheimer J. refusing them permission to apply under s.140(3). That appeal was dismissed. If the Court of Appeal had felt that the predicate order had been made without jurisdiction, or that the restriction on the Chavalis ability to access the courts was unwarranted, it could have intervened. 263 Similarly, in Simpson v. Institute of Chartered Accountants of Ontario, Mr Simpson appealed a decision of mine refusing him permission to pursue proceedings against the Institute. 264 My order had been a Chavali-type order, though Mr Simpson had not been found to be a vexatious litigant under s.140 of the Courts of Justice Act. The Court of Appeal dismissed Mr Simpson's appeal under R.2.1, and set out the process to be followed for future R.2.1 proceedings in that court. 265 Again, if the Court of Appeal had felt that my order had been made without jurisdiction or was an unreasonable fettering of Mr Simpson's access to the courts, then it could have said so. I view a Chavali order as rooted in the court's inherent jurisdiction to control its own process: preventing a wayward litigant from using the justice system to harass and oppress others is surely within the court's inherent jurisdiction.

[70] I believe that in the circumstances of this case, a Chavali Order is appropriate. The Respondents have repeatedly demonstrated a propensity to abuse the legal system such as issuing 26 claims, amending the Global Claim on two occasions, appealing Justice Samoisette’s decision, bringing a Motion to remove Mr. Boyd as counsel of record, preparing and serving numerous Notices of Motion for the removal of Ms. Levy as counsel of record. There is no indication that the Respondents will desist from this type of behaviour.

[71] My concern is that without a Chavali Order, Mr. Kechichian could easily continue on his path of abusing the legal system by repeatedly applying for leave under section 140(3) of the CJA in a manner that is similar to what he has done with the filing of claims since 2017. In my view, Mr. Kechichian’s demonstrated conduct is precisely the type of behaviour that needs to be curtailed, as contemplated by a Chavali Order.

[72] With a Chavali Order, the Respondents would be prohibited from commencing an application for leave until such time as they have received permission to do so from the Court. Not only will this limit the abuse, but it will protect the Respondents from future cost orders that would likely arise from legal proceedings that may not have a chance of success.

Conclusion

[73] This Court therefore orders the following:

(a) A declaration that the Respondents are vexatious litigants; (b) No further proceeding may be instituted by the Respondents, in any Court, except by leave of a judge of the Superior Court of Justice pursuant to section 140 of the CJA; (c) All proceedings previously instituted by the Respondents in any Court not be continued except by leave of a judge of the Superior Court of Justice pursuant to section 140 of the CJA; (d) Should the Respondents attempt to commence or continue any proceeding in Ontario without first obtaining leave to do so, the proceeding shall be immediately stayed; (e) A Chavali Order shall issue prohibiting the Respondents from commencing any application under section 140(3) of the CJA for leave to proceed with a proceeding or step in a proceeding in any Court in Ontario until such time as they have obtained an Order from the Case Management Judge or Master giving them permission to bring an application under section 140(3) for leave to proceed with a proceeding or step in a proceeding which Order shall be obtained through a motion in writing and on a without notice basis. The motion shall be accompanied by (1) an affidavit, not exceeding ten pages in length (double-spaced), that outlines the merits of the proposed proceeding or step; (2) explains the extent (if any) to which the Respondents have satisfied the outstanding costs awards against them; and (3) a copy of the Order made on this Application together with a copy of these Reasons for Decision. (f) If the Court is of the view that the proposed application for leave to proceed has a sufficient degree of merit, the Court will direct that a full application for leave to proceed be prepared which shall then be served on the responding parties and a date for the hearing of that application will be set thereafter. (g) A copy of this Order is to be sent to every Region of the Superior Court of Justice with a direction that no application by the Respondents under section 140(3) for leave to proceed with a proceeding or step in a proceeding is to be filed or listed for hearing unless it is accompanied by an Order, as set out above. (h) Neither of the Respondents may commence or continue (1) Court proceedings in the Federal Court of Canada or in any Court outside Ontario; or (2) administrative proceedings of any kind (including, without limitation, complaints to any professional or regulatory body or claims to a human rights commission or tribunal) unless they simultaneously provide a copy of the Order made on this Application together with a copy of these Reasons for Decision, to the Court, body, commission or tribunal to which the claim or complaint is made.

Costs

[74] If the parties are unable to agree on the issue of costs, the Applicants may deliver written submissions along with their Bill of Costs and Offers to Settle, if applicable, within thirty (30) days of the date of this decision. The Respondents may then deliver responding written submissions along with their Bill of Costs and Offers to Settle, if applicable, within fifteen (15) days of the receipt of the Applicants’ submissions. The Applicants may then deliver any reply submissions (limited to three pages in length) within seven (7) days of the receipt of the Respondents’ submissions.

Released: February 17, 2021 M. Smith J