COURT FILE NO.: CV-07-329615 PD2
DATE: 20210330
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PAUL TIAGO and ANITA TIAGO
Plaintiffs
and
TINIMINT HOUSING NON-PROFIT INC.,
THE REGIONAL MUNICIPALITY OF PEEL,
SAMUEL PROPERTY MANAGEMENT LTD.,
MARTA MUNOZ, BRUCE LAIRD,
IAN LATIMER and SPEIGEL NICHOLS FOX LLP
Defendants
BEFORE: Justice Edward Belobaba
COUNSEL: Aaron Hershtal for Defendants Ian Latimer and Speigel Nichols Fox LLP
Sean McGarry for Defendants Tinimint Housing Non Profit Inc., Marta Munoz and Bruce Laird
Theresa Hartley for Defendant Samuel Property Management
Christian Caffarena and Evan Kopiak for the Defendant Regional Municipality of Peel
No one attending for Responding Parties/Plaintiffs although duly served
HEARD: March 17, 2021 via Zoom video
TWO MOTIONS AND AN APPLICATION
Justice Belobaba:
[1] For almost 15 years, Paul and Anita Tiago have burdened this court with dozens of spurious claims, motions and appeals — all stemming from a 2002 tribunal decision evicting them from non-profit housing because they misrepresented their income. The plaintiffs’ abuse of the judicial system ends today.
[2] There are three matters before me as directed by Justice Myers in his Order dated December 1, 2020:[^1]
(i) Plaintiffs’ motion under Rule 59.06(2) to reinstate this action as against the Defendants Ian Latimer, Speigel Nichols Fox LLP (the “Latimer Defendants”) Tinimint Housing Non-Profit Inc., Marta Munoz, and Bruce Laird (the “Tinimint Defendants”) and Samuel Property Management Ltd. (“Samuel Property”) [collectively hereinafter “the 59.06 Respondents”] on the grounds of fraud. This action has been dismissed as against the 59.06 Respondents since 2008.
(ii) Defendant Peel Region’s motion for summary judgment that should have been heard, but for the plaintiffs’ delays, in 2014;
(iii) Defendants’ application under s. 140(1)(a) of the Courts of Justice Act,[^2] to have Paul and Anita Tiago declared vexatious litigants. This motion should have been heard, but for the plaintiffs’ delays, on March 2 and 3, 2015.
[3] These are not difficult matters. In the ordinary course, I would have issued a short endorsement dismissing the plaintiffs’ Rule 59.06 motion, granting Peel Region’s summary judgment motion and declaring the plaintiffs to be vexatious litigants. Here, however, I will provide more comprehensive reasons. I do so because the plaintiffs have appealed or tried to set aside literally every decision of some twenty-five judges and Masters that have been involved in this matter over the last 15 years. And they will no doubt try to do so again.
[4] Therefore, for the benefit of all readers, including and especially the plaintiffs, I provide these detailed reasons.
[5] I begin by attaching a Chart in the Appendix that sets out the litigation chronology from September 2002 to March 2021. I expand upon this chronology in the overview below. I then consider the three matters that are before me in turn. Before doing so, however, I must explain why these motions proceeded in the plaintiffs’ absence.
The plaintiffs’ absence
[6] Like every judge, I am acutely aware of my obligation to ensure procedural fairness for all parties in all matters that come before me. When the Zoom hearing began and it was obvious that the plaintiffs were choosing not to attend, I raised my concerns about procedural fairness and discussed them at length with counsel for the defendants.
[7] In the end, I was satisfied that the motions should proceed as scheduled even though the plaintiffs elected not to attend. The plaintiffs were duly served and fully understood that the motions and application would be proceeding on March 17, 2021. Indeed, Mr. Tiago was in court before Myers J. on November 30, 2020 when this date was set. The plaintiffs filed a motion for leave to appeal Justice Myers’ scheduling Order and were advised by Justice Corbett of the Divisional Court that Justice Myers’ scheduling Order would not be stayed.[^3]
[8] I had ample time before the hearing to review all of the filed material, including the litigation chronology Chart, the parties’ affidavits and the factums. I was satisfied on the evidence before me that the plaintiffs’ non-attendance appeared to be tactical, designed to further manipulate the judicial system and generate possible issues for appeal.
[9] It was clear on the evidence before me that the plaintiffs are playing a strategic long-game — to what end, I don’t know. They repeatedly miss motion dates and case conference dates. They request adjournments, press unreasonably for additional time, and claim not to have received notices of decisions that impacted them negatively. They routinely appeal scheduling orders and then disobey them when they are not overturned. They refuse to accept service by fax or by email but then use these same technologies to serve documents and deliver correspondence to the other side. The plaintiffs’ non-attendance at the hearing before me was completely consistent with their past behaviour.
[10] I also noted three further points: that the plaintiffs took no steps to seek an adjournment of this scheduled hearing; that they had filed all the requisite affidavit material; and that the motions before me turned on the affidavit evidence.
[11] I therefore concluded that it was fair and proper to proceed.
Overview
[12] The procedural history of this action, CV-07-329615 PD2, and the related action CV-10-404793CM, (the “Solicitors Negligence Action”) is best understood with the following overview. Because the background chronology is not in dispute, I have tracked the narration as set out in the defendants’ factums with their permission.
➢ The eviction giving rise to the action.
[13] Tinimint Housing Non-Profit Inc. (“Tinimint”) is a not-for-profit housing initiative that housed the plaintiffs beginning in March of 1997. In 2002, Tinimint issued the appropriate notice under the Tenant Protection Act[^4] to evict the Plaintiffs for materially misrepresenting their income (the “Eviction Proceedings”).
[14] On September 20, 2002, the Tribunal issued an order terminating the Tiago’s tenancy and ordering them to pay $10,000 in rent owing. The plaintiffs appealed the Tribunal decision. The appeal was dismissed with costs awarded against the plaintiffs in the amount of $5,000.
➢ The summary judgment motions
[15] The plaintiffs issued the statement of claim in the within action in 2007 naming as defendants Tinimint and its directors, Tinimint’s lawyer Ian Latimer and his law firm Speigel Nichols Fox LLP, Tinimint’s property manager Samuel Property and the Regional Municipality of Peel. The pleading alleges various conspiratorial causes of action and appears to be almost entirely derivative of the Eviction Proceedings.
[16] The Latimer and Tinimint defendants brought successful summary judgment motions and the action was dismissed as against them in September of 2007 and June 2008 respectively. Samuel Property brought a successful motion enforcing a settlement to dismiss the action in November of 2008. The plaintiffs were represented by counsel, Alvin Meisels (“Meisels”) for both of the summary judgment motions and when the enforced settlement was entered into.
[17] As of November 2008, the action was formally dismissed as against all the defendants, except Peel, by the orders of Justices Conway, Allen and Wilson (the “Dismissal Orders”).
[18] Peel advised the plaintiffs on June 7, 2010, that it intended to bring a motion for summary judgment and subsequently served materials in support of that motion. (I add in parentheses that Peel’s motion is finally being heard, more than ten years after it was filed.)
➢ The appeals of the Dismissal Orders
[19] Beginning in June of 2008, the plaintiffs became self-represented and sought to appeal the Dismissal Orders. On March 13, 2009, the plaintiffs brought a motion to extend time to file a notice of appeal of all three Dismissal Orders. This motion was dismissed by Justice Feldman on March 19, 2009 (the “Feldman Order”) with costs.
[20] On July 9, 2009, the plaintiffs brought a motion to extend the time to appeal the Feldman Order. This motion was dismissed by Justice Epstein with costs. The plaintiffs appealed Justice Epstein’s Order before a three-member panel of the Court of Appeal. The panel dismissed the appeal with costs.
➢ The plaintiffs sue their former lawyer
[21] On June 11, 2010, the Plaintiffs commenced the Solicitors Negligence Action against their former lawyer Meisels alleging professional negligence in his handling of the Dismissal Orders.
➢ The rule 59.06 motion and the s. 140 application
[22] On April 29, 2011, in response to Peel’s summary judgment motion, the Plaintiffs served a notice of cross-motion and constitutional question seeking to set aside the Dismissal Orders under Rule 59.06. Although not clear from the plaintiffs’ material, the basis appears to be that the Dismissal Orders were fraudulently obtained. The plaintiffs allege that the defendants’ counsel defrauded their lawyer (Meisels) in obtaining the Dismissal Orders and/or otherwise engaged in “collusive and quid pro quo” dealings with their lawyer.
[23] In July 2014, the Latimer Defendants advised the plaintiffs that they intended to bring a s. 140 vexatious litigant application. The s. 140 application, the Rule 59.06 motion and the Peel summary judgment motion (“The Three Motions”) were scheduled to be heard together on March 2 and 3, 2015.
➢ The disqualification and recusal motions
[24] As part of the plaintiffs’ theory of conspiracy between their former lawyer and the lawyers for the 59.06 Respondents, the plaintiffs brought a motion seeking an order disqualifying counsel for the 59.06 Respondents, as well as disqualifying LawPRO counsel for their former lawyer (the “Disqualification Motion”). This necessitated an adjournment of the Three Motions to determine whether defence counsel could argue them.
[25] The Disqualification Motion was argued on March 4 and August 12, 2015 before Master Hawkins. A third day was required and was scheduled for February 3, 2016. However, on January 25, 2016 the plaintiffs brought a motion to have Master Hawkins recused (the “Recusal Motion”). The plaintiffs alleged that the Master had displayed bias in the conduct of the first two days of the Disqualification Motion and was thereby implicated in the conspiracy involving the Rule 59.06 Respondents’ counsel. As a result of the Recusal Motion, the completion of the Disqualification Motion was delayed indefinitely.
[26] The Recusal Motion was set to proceed on March 30, 2016. Notwithstanding their own motion to set aside the Dismissal Orders which had been pending for almost five years, the plaintiffs took steps to delay the hearing of the Recusal Motion and the completion of the Disqualification Motion, including the following:
• The plaintiffs requested an adjournment of the March 30 date as a result of a medical procedure for Ms. Tiago;
• The plaintiffs, or at least Mr. Tiago if Mrs. Tiago was still recovering, refused to attend an in-person case conference on May 10, 2016 to set a new date;
• The plaintiffs, or at least Mr. Tiago if Mrs. Tiago was still recovering, refused to attend a second case conference on June 16, 2016, where a return date for the Recusal Motion and the last day of the Disqualification Motion were set by Master Hawkins;
• The plaintiffs then brought a motion to vary the scheduling order of Master Hawkins before a judge of the Superior Court (rather than to Master Hawkins) returnable on July 26, 2016;
• The plaintiffs’ motion to vary was dismissed by Justice C. Brown on July 26, 2016. Among the relief sought by the Plaintiffs on the motion before Justice Brown was a declaration that counsel for the 59.06 Respondents were disqualified from arguing the Disqualification Motion; and
• The Plaintiffs finally brought their Motion to vary the scheduling order before Master Hawkins on August 19, 2016, but the motion was not reached for hearing as the plaintiffs required more than two hours to argue it.
[27] The parties attended before Master Hawkins on October 26, 2016 to argue the Recusal Motion. Master Hawkins recused himself due to his imminent retirement and his inability to complete the Disqualification Motion before he retired from the bench.
[28] Master Mills was appointed Case Management Master to replace Master Hawkins. In January 2017, Master Mills made a case conference order dealing solely with the procedure for the Disqualification Motion that would proceed de novo before her (the “Mills Case Conference Order”). The Plaintiffs once again sought an order prohibiting the 59.06 Respondents lawyers from arguing the Disqualification Motion at the case conference with Master Mills, despite the fact that it had already been addressed by Justice Brown. Master Mills refused the plaintiffs’ request on the basis that Justice Brown had dismissed the plaintiffs’ earlier motion seeking the same relief.
[29] The plaintiffs unsuccessfully appealed the Mills Case Conference Order before Justice Matheson. The plaintiffs then unsuccessfully sought leave to appeal Justice Matheson’s decision to the Divisional Court.
[30] Master Mills heard and dismissed the Disqualification Motion in January of 2018. This Order was in turn appealed to Justice Schreck and dismissed. Leave to appeal Justice Schreck’s decision to the Divisional Court was once again dismissed.
[31] Despite failing to obtain leave to appeal, being the appeal of last resort for the Disqualification Motion, the Plaintiffs nonetheless sought leave to appeal to the Court of Appeal in June of 2019. Leave was refused by Justice Nordheimer. The plaintiffs then brought a motion to extend the time to appeal Nordheimer J.’s decision, which was dismissed by Miller J.A.
The two motions and application herein
[32] I will refer to these three matters as the Three Motions. The Three Motions were ordered returnable by Order of Justice Myers dated December 1, 2020.[^5] The plaintiffs sought leave to appeal the scheduling Order. Upon filing of the plaintiffs’ Notice of Motion for leave to appeal Justice Myers’ order, the parties received an endorsement from Justice Corbett of the Divisional Court advising that the Order of Justice Myers scheduling the Three Motions and setting a timetable for delivery of materials was not stayed pending the decision on the motion for leave to appeal. On March 24, 2021 the Divisional Court dismissed the motion for leave to appeal, finding that the motion was “entirely without merit”.[^6]
[33] Justice Myers said this in his scheduling Order:
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.
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 … [^7]
[34] The Three Motions are now before me for adjudication. I will address each in turn.
Analysis
(1) The plaintiffs’ 59.06 motion
[35] I agree with counsel for the defendants that there is no basis for the plaintiffs’ motion to set aside the Dismissal Orders.
[36] As already noted, the action as against the Latimer Defendants, the Tinimint Defendants and Samuel Property has been dismissed for well over a decade.
[37] Rule 59.06(2) provides that a party may bring a motion “to have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made”. This is not an invitation to reargue cases endlessly or an invitation to raise new issues after a decision has been rendered. As this court has previously noted it is “not a do-over”.[^8] Rule 59.06(2) requires the moving party to provide evidence of fraud or evidence of facts discovered after the Dismissal Orders were made.
[38] The plaintiffs provide neither. There is simply no basis for their allegations about fraud or newly discovered evidence. The Plaintiffs were present at the hearing of the motion for summary judgment before Justice Conway. They were aware of the submissions and evidence being advanced by their lawyer. If their concern is their lawyer’s negligence and the (unfounded) allegation that their lawyer colluded with the defendants’ counsel, the remedy is in the Solicitor’s Negligence Action. Any alleged negligence on the part of plaintiffs’ counsel is not a basis for a motion under Rule 59.06 to set aside the Dismissal Orders.[^9]
[39] The gist of the plaintiffs’ 59.06 submission appears to be that there was collusion and conspiracy between all counsel, including their own lawyer, when the Dismissal Orders were made and thus, they say, the Dismissal Orders were obtained by fraud. But counsel for the other parties were not even present when the action was dismissed as against the Latimer Defendants.
[40] More importantly, these very allegations were advanced before Master Mills when the plaintiffs tried to disqualify the 59.06 Respondents’ lawyers of record. In dismissing the Disqualification Motion, Master Mills said this:
The plaintiffs wish to re-open the Tinimint Action, relying on R. 59.06 (2), alleging [the Dismissal Orders] should be set aside on the ground of fraud. To support their motion, the plaintiffs submit the responding counsel are all material witnesses to the alleged misconduct. There is no evidence before me to support such a serious allegation.[^10]
[41] Dismissing the plaintiffs’ appeal, Justice Shreck concurred with Master Mills:
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.[^11]
[42] There is still no evidence. In their filed affidavit, the plaintiffs cannot point to a single instance of fraud or misconduct that could support a finding that the Dismissal Orders should to be set aside.
[43] The plaintiffs’ Rule 59.06 motion is dismissed with costs.
(2) Peel Region’s motion for summary judgment
[44] As already noted, the Latimer and Tinimint defendants succeeded in their summary judgment motions and the action was dismissed as against them in September of 2007 and June 2008 respectively. The Samuel Property defendant brought a successful motion enforcing a settlement to dismiss the action as against them in November of 2008. Only Peel Region’s motion to extricate itself from the within action remains to be heard.
[45] Peel filed their motion for summary judgment more than ten years ago. On May 3, 2011, at the return of the motion, the plaintiffs asked for an adjournment. Justice Pollak refused to adjourn the matter. However, because of the time taken to hear the plaintiffs’ adjournment request, there was insufficient time to hear the motion. Ten more years have passed but Peel’s motion for summary judgment is finally before the court.
[46] I agree with counsel for Peel that its motion for summary judgment should also be granted. There are no genuine issues requiring a trial and a summary judgment is fair and appropriate.
[47] The plaintiffs’ action against Peel Region is fundamentally misguided. Peel funds social housing in the region but has nothing to do with the operational decisions of the non-profit housing groups, such as Tinimint. The decision to review the plaintiffs’ ongoing eligibility for social housing and the decision herein to commence the Eviction Proceedings were all operational steps taken by Tinimint itself.
[48] The action against Peel Region fails on two legal grounds, issue estoppel/res judicata and the absence of any provable harm.
[49] The action against Peel Region advances the same claims and issues that were decided by the Tribunal in the Eviction Proceedings. I agree with counsel for Peel that pursuant to the principles of issue estoppel and res judicata as set out in the case law,[^12] the plaintiffs are precluded from relitigating the very claims and issues decided by the Tribunal in 2002.
[50] I also agree with counsel for Peel that the plaintiffs have failed to prove that any damage sustained as a result of their eviction from the Tinimint housing project can be attributed to any action of Peel Region, or indeed that any damage was sustained at all.[^13]
[51] I have no difficulty granting Peel Region’s motion for summary judgment.
(3) Defendants’ s. 140 application
[52] The defendants collectively ask that the plaintiffs, Paul and Anita Tiago, be declared “vexatious litigants” under s. 140(1) of the Courts of Justice Act.[^14]
[53] Section 140(1) provides that:
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.
[54] An order declaring a litigant to be a vexatious litigant and denying them access to the court without leave is an exceptional order and should be granted only for the clearest and most compelling reasons. A court granting a vexatious litigant order must provide principled reasons for the order, balancing a person's right to be free from abusive litigation with the right of another to have access to justice.[^15]
[55] The term “vexatious” as used in section 140 of the Courts of Justice Act is “broadly synonymous with the concept of abuse of process developed by the courts in the exercise of their inherent right to control proceedings.”[^16] In determining whether proceedings or conduct are vexatious, the entire history of the matter must be considered, and not just whether there was originally a good cause of action.[^17]
[56] The focus of the s. 140 application is primarily on the conduct of the litigants, the manner in which they have pursued the litigation and whether and to what extent their conduct has abused the court’s processes.
[57] In considering whether a litigant is vexatious or their proceeding is an abuse of process, the court may consider the behaviour of the litigant over the course of the proceedings, including the re-litigation of matters already decided, persistently taking unsuccessful appeals from judicial decisions, expanding the litigation to include lawyers who have acted for or against the litigant, and failure to follow the Rules or adhere to court orders including any failure to pay cost awards.[^18] This list is not exhaustive. Whether a litigant is vexatious must be determined by an objective standard.[^19]
[58] I have made an effort to describe in some detail the almost two decades of litigation that began with the plaintiffs’ justified eviction from non-profit housing. The summary of the multi-year litigation as set out above and in the attached Chart speaks for itself. Applying the factors just listed, it is apparent that the plaintiffs’ conduct of this action is an abuse of the judicial process.
[59] The plaintiffs have used (and abused) the judicial system to undo what they still believe was an unjust eviction order made almost 20 years ago. In their relentless pursuit of this misguided objective, they first sued Tinimint’s lawyer, Latimer, alleging misconduct in the prosecution of the Eviction Proceedings. When Latimer’s LawPRO counsel, Michael Kestenberg, successfully obtained a dismissal of the action against the Latimer Defendants, the Plaintiffs alleged misconduct on the part of Kestenberg. When Kestenberg’s former partner, Pantel, began representing Meisels in the Solicitor’s Negligence Action, the plaintiffs made allegations of impropriety against Pantel. They have also added the Law Society as a party in their action against Meisels.
[60] The plaintiffs have exhausted every avenue of appeal for every order made against them. Despite repeated judicial findings that there is no basis for the conspiracy allegations, the plaintiffs continue to recycle these allegations, alleging they are the victims of an inherently biased judicial system and the collusive conduct of the lawyers who thwart their efforts and the judges and Masters who find against them.[^20]
[61] The plaintiffs have repeatedly missed motion dates, case conference dates, requested adjournments, requested more time, and claim to have received no notice of decisions that impact them negatively. They appealed scheduling orders and then disobeyed them when they are not overturned. They did not accept service by fax or by email and claimed not to check them when the defendants replied, but then used those technologies themselves to serve documents and deliver correspondence.
[62] The plaintiffs tend to ignore the procedures and deadlines for appeal as set out in the Rules and more often than not are compelled to bring motions seeking to extend the time to appeal. Indeed, they did so in the following circumstances:
• a motion to extend time to file a notice of appeal the Dismissal Orders;
• a motion to extend time to appeal the order of Feldman J.;
• a first motion to obtain extension of time to appeal the order of Epstein J., that was dismissed for delay;
• a second motion to obtain extension of time to appeal the order of Epstein J. that was also dismissed for delay;
• a motion for extension of time to appeal the order of Shreck J.;
• a motion for extension of time to appeal the order of the Divisional Court refusing leave to appeal.
[63] The plaintiffs have also failed to pay any of the 35 cost awards ordered to date, now totalling almost $220,000. The unpaid cost awards are set out below:
Judge or Master
Date
Cost Award
Landlord Tribunal
September 20, 2002
Tribunal: $500 Tinimint: $60
O’Driscoll J.
June 5, 2003
Tinimint: $5,000
Conway J.
September 4, 2007
Latimer: $18,000
Allen J.
June 13, 2008
Tinimint: $17,675.01 Security: $75,000
Aston J.
October 3, 2008
Tinimint: $1,492.50
Feldman J.
March 26, 2009
Latimer: $1,000 Tinimint: $1,000 Samuel: $1,000
Epstein J.
July 9, 2009
Latimer: $500 Tinimint: $500 Samuel: $500 Peel: $500
Court of Appeal Panel
March 19, 2010
Latimer: $1,000 Tinimint: $1,000 Samuel: $1,000
Master Hawkins
October 17, 2012
Meisels: $4,000
Donohue J.
April 5, 2012
Tinimint: $2,067
Matheson J.
April 19, 2017
Latimer: $2,000 Meisels: $1,500 Samuel: $1,000
Divisional Court Panel
August 25, 2017
Meisels: $2,500
Master Mills
March, 27, 2018
Latimer: $53,316.34 Tinimint: $24,443.20 Samuel: $26,327.22 Meisels: $23,880.58
Schreck J.
May 22, 2018
Latimer: $7,829.50 Tinimint: $1,700.00 Samuel: $3,298.05 Meisels: $4,945.96
Divisional Court Panel
May 3, 2019
Latimer: $5,000
Nordheimer J.
October 2, 2019
$750 to responding parties
Miller J.
December 18, 2019
$750 to responding parties
[64] The total at the end of 2020 was $215,936.10. Add the $2815.24 in costs awarded on March 24, 2021 by the Divisional Court in its dismissal of the plaintiffs’ motion for leave to appeal Justice Myers’ scheduling Order, and the overall total now stands at $218,751.13. This amount does not include motions wherein costs were reserved to the cause, interest on any of these cost awards, or the requirement to post $75,000 security that was ordered by Justice Wilson in 2008 and remains unpaid. To date, the plaintiffs have paid none of the costs awards and have paid nothing into court for security.
[65] The case law is clear that a repeated failure to pay costs is only one consideration in a vexatious litigant application and by itself would not justify a s. 140 order, especially in the case of an impecunious litigant. However, as this court noted in Coote:[^21]
Costs awards are however an important indicator of the resources that have been expended by opposing counsel in responding to unsuccessful proceedings. In addition, an award of costs against a party should act as a disincentive to fruitless litigation. The fact that the courts have seen fit to order costs against [the litigant] at times in very substantial amounts, has not dissuaded him from pursuing meritless appeals and motions. This is a factor to consider in determining whether an order under s. 140 is warranted.[^22]
[66] I have now considered the key factors. By any objective measure, the evidence favouring the s. 140 application is overwhelming.
[67] I find that the plaintiffs, Paul and Anita Tiago, have persistently and without reasonable grounds, instituted vexatious proceedings in this court and that they have conducted them in a vexatious manner. I am satisfied that this is an appropriate case for an order under s. 140 of the Courts of Justice Act prohibiting the plaintiffs, either directly or indirectly, from instituting or continuing any proceedings in any court in Ontario, except with leave of a judge of this court.
[68] The s. 140 application is granted.
Disposition
[69] The plaintiffs’ Rule 59.06(2) motion is dismissed.
[70] The defendant Peel Region’s motion for summary judgment is granted and the within action against this defendant is dismissed.
[71] The defendants’ application under s. 140 of the Courts of Justice Act for a declaration that the plaintiffs are vexatious litigants is granted. No proceedings may be instituted or continued by the plaintiffs except by leave of a judge of this court.
[72] Order to go accordingly.
Costs
[73] I asked for costs submissions from the defendants on a partial indemnity basis and I have now received the following. The Latimer Defendants seek costs in the amount of $22,172.12. The Tinimint Defendants ask for $11,098.01. Samuel Property seeks $9,422.51 and Peel Region $43,139.79 ($8,265.73 for its summary judgment motion and $34,874.06 for the action.) These costs requests are separate from the costs that have already been considered and awarded. Before I decide the appropriate cost awards, I would welcome a responding submission from the plaintiffs within 14 days.
Signed: Justice Edward P. Belobaba
Notwithstanding Rule 59.05, this Judgment [Order] is effective from the date it is made, and is enforceable without any need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal Judgment [Order] need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party to this Judgment [Order] may nonetheless submit a formal Judgment [Order] for original signing, entry and filing when the Court returns to regular operations.
Date: March 30, 2021
APPENDIX
CHRONOLOGY OF PROCEEDINGS
(To March 2021)
Date
Description
THE TIAGOS’ EVICTION PROCEEDINGS WITH TINIMINT
Apr. 12, 2002
Tinimint issues an N6 under the Tenant Protection Act to evict the Tiagos on the grounds that they had knowingly and materially misrepresented their household income.
Sept. 20, 2002
The Tribunal determines that the Tiagos knowingly and materially misrepresented their income. The Tribunal finds that this misrepresentation of income resulted in rent owing of $55,322.00. The Tribunal terminates the Tiagos’ tenancy agreement and orders the Tiagos to pay Tinimint $10,000.00 for the additional rent they should have been paid during the period of March 1997 to February 2002.
Sept. 23, 2002
The Tiagos issue a notice of appeal of the Tribunal’s decision.
June 5, 2003
The Divisional Court dismisses the appeal and orders the Tiagos to pay costs of $5,000.00.
THE TIAGOS COMMENCE ACTION AGAINST LATIMER, SNF, TINIMINT AND SAMUEL PROPERTY MANAGEMENT
March 16, 2007
TheTiagos issue a Statement of Claim in CV 07 329615PD2 which names Tinimint Housing Non-Profit Inc., The Regional Municipality of Peel, Samuel Property Management Ltd., Marta Munoz, Bruce Laird, Ian Latimer and the law firm of Speigel Nichols Fox LLP as Defendants, making allegations against Tinimint, its directors, and lawyer with respect to the eviction proceedings (“Tinimint Action”).
Sept. 4, 2008
Ian Latimer and Spiegel Nichols Fox LLP are successful in moving for summary judgment before Conway J. dismissing the Tinimint Action. Costs ordered of $18,000.00 (“CONWAY ORDER”)
June 13, 2008
Tinimint Housing, Bruce Laird and Marta Munoz are successful in moving for summary judgment in the Tinimint Action before Allen J. Costs ordered of $17,675.01 (“ALLEN ORDER”)
June 13, 2008
Counsel for the Tiagos consent to dismiss the Tinimint Action, without costs, as against the defendant Samuel Property Management.
Nov. 28, 2008
Samuel is successful on a motion to enforce the settlement before Madam Justice Wilson. (“WILSON ORDER”)
THE TIAGOS’ OMNIBUS APPEAL OF THE CONWAY, ALLEN and WILSON ORDERS
March 13, 2009
The Tiagos serve a notice of motion to the Court of Appeal returnable March 19, 2009. The motion is to extend time to file a notice of appeal for the Conway, Allen, Wilson Orders (the affidavit is not served until March 18, 2009)
March 19, 2009
Feldman J. dismisses the Tiagos’ motion to extend time and orders costs of $1,000.00 per respondent to be paid by the Tiagos. (“FELDMAN ORDER”)
July 9, 2009
Attendance before Epstein J. of the Court of appeal. The Tiagos bring motion to extend an extension of time to appeal the Feldman Order. The Tiagos lose and the Court awards costs of $500 per respondent. (“EPSTEIN ORDER”)
March 19, 2010
Attendance before a three-member panel of the Court of Appeal, to appeal the Feldman Order. The Tiagos lose and the Court awards costs of $1000.00 to each respondent. (“PANEL ORDER”)
PEEL REGION’S MOTION FOR SUMMARY JUDGMENT
June 7, 2010
Counsel for the Region of Peel, the only remaining defendant in the Tinimint Action, advises that it is bringing a motion for summary judgment.
THE TIAGOS SUE THEIR FORMER LAWYER, MEISELS
June 11, 2010
The Tiagos commence an action in the Ontario Superior Court against their lawyer in the Tinimint Action, Alvin Meisels, alleging professional negligence in Meisels’ conduct of the Tinimint Litigation. (“Meisels Action”)
THE TIAGOS BRING CROSS MOTION TO SET ASIDE CONWAY, ALLEN, WILSON, FELDMAN, EPSTEIN AND PANEL ORDERS
April 29, 2011
The Tiagos serve a Notice of Cross-Motion and Constitutional Question in the Tinimint Action and a supporting Cross-Motion Record returnable May 3, 2011 to be heard together with the Region’s motion for summary judgment.
Dec. 1, 2011
The Tiagos deliver a two-volume Motion Record totalling 819 pages in support of their Cross-Motion and Constitutional Question. (Cross Motion Materials)
April 17, 2014
The Tiagos serve an amended Notice of Cross-Motion and Supplementary Motion Record returnable for July 17, 2014.
THE TIAGOS GIVE NOTICE THAT THEY ARE SEEKING TO REMOVE COUNSEL IN THE TINIMINT ACTION
June 27, 2014
The Tiagos serve a Notice of Motion in the Meisels Action unilaterally booked for a return date of July 22, 2014 for 20 minutes before Master Hawkins seeking to remove Kestenberg, Hartley, Pantel and White as counsel for their respective clients in the Tinimint Action, which is currently dismissed as against these lawyers’ clients.
July 4, 2014
The Tiagos serve an amended Notice of Motion in the Tinimint Action, advising that they were seeking to have counsel in the Tinimint Action removed as solicitors of record for their respective clients.
LATIMER AND SNF SERVE APPLICATION TO HAVE THE TIAGOS DECLARED VEXATIOUS LITIGANTS
July 7, 2014
Latimer advises the Tiagos that he is bringing an Application under S. 140 of the Courts of Justice Act
CIVIL PRACTICE COURT BEFORE JUSTICE HIMEL
July 10, 2014
Motion for summary judgment of Peel Region, cross-motion and section 140 application are booked for March 2 and 3, 2015
DISQUALIFICATION MOTION IS SCHEDULED
July 22, 2014
The parties attend before Master Hawkins to schedule the Disqualification Motion for a full day on March 4, 2015
Oct. 7, 2014
The parties attend Motion Scheduling Court before Madam Justice Himel to re-schedule the Region’s Motion, the Tiagos’ Cross-Motion and the Application to May 12 and 13, 2015, previously scheduled for March 2 and 3, 2015.
Nov. 10, 2014
The Tiagos serve an Amended Supplementary Motion Record in support of the Disqualification Motion.
Jan. 30 and Feb. 3, 2015
The Tiagos serve an Amended Supplementary Motion Record with a Supplementary Notice of Motion seeking additional relief including leave to allow the Tiagos to release a digital recording of the Court of Appeal hearing before Justice Feldman
March 4, 2015
The parties attend before Master Hawkins to argue the Disqualification Motion counsel in the Tinimint Action. The Motion hearing is not finished and a new date to continue the hearing of the Motion is set for August 12, 2015.
Master Hawkins rules that Tiagos must obtain leave from the Court of Appeal to obtain a transcript of the appeal hearing before Justice Feldman.
At the conclusion of the first day the Tiagos order a copy of the transcript of the submissions of opposing counsel, Pantel and Hershtal.
THE TIAGOS SEEK TO EXAMINE COUNSEL
March 9, 2015
Following submissions by opposing counsel that the lawyers could not be witnesses as they were not examined, the Tiagos deliver a letter advising that they request to examine Kestenberg and White pursuant to Rule 39.03 with respect to the Cross-Motion and Disqualification Motion
March 10 - 11 2015
Counsel respond to the Tiagos’ request and advise that they will not consent to examinations of Kestenberg and White
March 13, 2015
The Tiagos respond and specify that they are seeking examinations of counsel at this time in response to submissions made by Pantel and Hershtal at Disqualification Motion
CIVIL PRACTICE COURT BEFORE JUSTICE STINSON
March 27, 2015
The parties attended before Justice Stinson to re-schedule the Region’s Motion, the Cross Motion and the Application because the Disqualification Motion was still ongoing. A new date was chosen for those motions of November 24 – 25, 2015. Those dates were peremptory on all parties.
Justice Stinson orders that if the Tiagos are successful in obtaining a transcript of the Feldman Appeal they will need to obtain the consent of the parties opposite, or prior leave of a Judge of CPC to use it on the return of the motions on November 24 – 25.
Justice Stinson orders that the record for those motions is otherwise closed and that no other materials can be filed save for the parties’ factums which are to be filed by October 5 (moving parties) and November 10 (responding parties).
Prior to the motion hearing, the Tiagos serve Summonses to Witness on counsel for Kestenberg and White. Justice Stinson dismissed the Tiagos’ request to examine Kestenberg and White for oral reasons given in Court and endorsed in the record.
THE TIAGOS OBTAIN TRANSCRIPT OF FELDMAN, J. APPEAL
June 8, 2015
The Tiagos serve Notice of Motion before a single judge of the Court of Appeal to obtain an official transcript of the hearing before Madam Justice Feldman
June 10 – 12, 2015
Consent granted by all counsel to the Tiagos obtaining transcript but reserving rights to argue that no further materials be adduced on the Disqualification Motion
July 31, 2015
The Tiagos serve further motion materials, including 1) Court of Appeal Order; 2) Stinson Order 3) Numerous other documents retrieved from the Court file regarding the Tinimint Action
CONTINUATION OF DISQUALIFICATION MOTION BEFORE MASTER HAWKINS
Aug. 12, 2015
The parties attend to continue the Disqualification Motion hearing before Master Hawkins.
Master Hawkins provides an initial ruling that any materials obtained after March 4, 2015 can be used on the return of the motion (ie. Stinson Order and Court of Appeal Order and transcript of Feldman appeal). The balance of the Tiagos’ additional materials are excluded from the record.
Once again the Disqualification Motion does not conclude. The only remaining submissions are those of counsel for Tinimint and the Tiagos’ Reply submissions.
Master Hawkins endorses his bench book that no further materials are to be filed on the Disqualification Motion.
The Disqualification Motion (Part III) is scheduled to continue on February 3, 2016 for a full day hearing.
SCHEDULING ATTENDANCE, OCTOBER 26, 2015
Aug. 27, 2015
The Tiagos advise that they require an urgent short motion before a judge to re-schedule the Motion, Cross Motion and Application and for other various relief.
The Tiagos further clarify that they are seeking directions that 1) the Plaintiffs may examine counsel; 2) may file and use further and better materials on the Motion, Cross Motion and Application including the examination transcripts and the Transcript of the Feldman Appeal
Sept. 8, 2015
The Tiagos serve Notice of Short Motion re Plaintiffs’ Cross Motion seeking the relief set out above, unilaterally booked for October 13, 2015.
Sept. 11, 2015
Hershtal writes to the Tiagos advising that there is no need for a short motion and that all issues can and should be dealt with in CPC.
Sept. 16, 2015
The Tiagos advise Counsel that they have booked a CPC attendance for October 26, 2015
October 26, 2015
The parties attend before Justice Archibald to re-schedule the Region’s Motion, the Cross Motion and the Application because the Disqualification Motion is still ongoing. It is agreed that a date will not be selected until the Disqualification Motion is heard.
The Tiagos also seek to vary Justice Stinson’s order denying the Tiago’s request to examine Kestenberg and White pursuant to Rule 39.03 which was rejected by Justice Archibald.
The Tiagos also seek to file further materials with respect to the Cross Motion. Justice Archibald declines to vary Justice Stinson’s order that no further materials be filed.
THE TIAGOS BRING THE RECUSAL MOTION
January 25, 2016
The Tiagos serve a Supplementary Notice of Motion returnable February 3, 2016 (the last day of the Removal Motion) seeking an Order requiring Master Hawkins to recuse himself, and requesting that the Disqualification Motion be heard by another Master de novo.
February 3, 2016
The parties attend before Master Hawkins to argue the third day of the Disqualification Motion and to address the Tiagos’ Recusal Motion. The parties agree that they Recusal Motion must proceed first and that Master Hawkins will hear the Recusal Motion.
The transcript of the August 12 hearing the Tiagos are attempting to rely upon as the basis for their motion is determined to be incomplete and inaccurate. Accordingly, Master Hawkins adjourns the Return Date of the Recusal Motion to March 30, 2016 and requires the Tiagos to obtain an accurate copy of the August 12 transcript if they intended to rely on it.
March 7, 2016
The Tiagos write to all counsel and to Master Hawkins advising that they have been unable to reach the transcriptionist that prepared the original August 12 transcript, and request an adjournment of the March 30 hearing to allow the Plaintiffs to bring an application against the Attorney General, the transcriptionist, Arkley Professional Services.
March 11, 2016
The Tiagos advise that Ms. Tiago is undergoing a medical procedure and that the March 30 hearing would have to be adjourned sine die until the Tiagos are ready to resume, likely around June or July 2016.
March 15 to March 23, 2016
There is continued email correspondence between counsel for the Defendants and the Tiagos regarding the requested adjournment.
March 30, 2016
Master Hawkins issues an endorsement adjourning the March 30 date to a date to be set at a subsequent case conference.
The order is to be served by mail.
March 30, 2016
A copy of Master Hawkins’ order is sent to the Tiagos by email asking for their availability to schedule a case conference.
An update from the Tiagos as to the status of the revised August 12 transcript is also requested.
The Tiagos do not respond.
April 8, 2016
Master Hawkins fixes an in-person case conference date for May 10, 2016. The scheduling order indicates that it was delivered to the Tiagos by mail at 1941 Hindhead Rd.
May 10, 2016
Counsel for the Defendants attend the in-person case conference. The Tiagos do not attend.
A new case conference is scheduled for June 16, 2016. A copy of Master Hawkins further endorsement setting the case conference date is emailed at least twice to the Tiagos. The Tiagos do not respond.
June 16, 2016
Counsel for the Defendants attend the in-person case conference. The Tiagos do not attend.
Master Hawkins sets a timetable and new return date for the Recusal motion of August 24, 2016, and a return date for the Disqualification Motion (if the Recusal Motion is denied) of October 26, 2016.
Master Hawkins’ Order indicates it is to be mailed and emailed to the Tiagos.
June 20, 2016
Adam Pantel emails and mails a copy of Master Hawkins’ new scheduling orders to the Tiagos.
The Tiagos Move to Set Aside Master Hawkins’ Scheduling Orders
July 13, 2016
The Tiagos deliver a Notice of Motion by fax for a motion unilaterally booked for July 29, 2016 seeking inter alia:
a) An order varying Master Hawkins scheduling orders
b) Directing that the Plaintiff’s Application against the Attorney General, et al, be heard prior to the Recusal Motion
c) Asking that counsel that are subject to disqualification motion are not to argue the Disqualification Motion or the Recusal Motion
d) Waiving notice requirements under the Proceedings Against the Crown Act
e) Requesting substituted service for the transcriptionist
The Tiagos claim that they do not have regular access to email and accordingly were unaware of the scheduling orders made by Master Hawkins between March and June 2016.
July 29, 2016
The parties appear before Justice C. Brown for the hearing of the Tiagos’ motions.
Justice Brown dismisses the Tiagos’ motion and finds no grounds on which to interfere with the procedural orders of Master Hawkins.
Justice Brown also orders that the Tiagos serve all parties with all materials going forward.
August 2, 2016
The Defendants write to Master Hawkins seeking an urgent case conference to address the timetabling issues raised by the Tiagos.
The Defendants also advise the Tiagos that any other court reporter can prepare a transcript of the August 12 hearing. These letters are mailed to the Tiagos, emailed, and they are notified by text message that the email was sent.
August 3, 2016
Rather than proceed by case conference, the Tiagos serve a Notice of Motion for a motion unilaterally booked on the regular motions list before Master Hawkins seeking to address the scheduling issues, and to require the Plaintiff’s Application against the Attorney General, etc to proceed before the Recusal Motion.
That Motion is ultimately scheduled for August 19, 2016
August 12, 2016
Counsel for the Defendants advise the Tiagos that they are prepared to pay for a new copy of the August 12 transcript, thus obviating the need for the Application.
August 19, 2016
The Tiagos advise the Court that there are many contested issues that need to be addressed and accordingly at least 2 hours will be required for their motion. The Tiagos motion is not reached as it was on the regular motions list and not booked as a case conference. It is rescheduled for August 24, 2016.
August 24, 2016
The parties attend before Master Hawkins and a new return date and timetable are set for the recusal Motion. The new return date is October 26, 2016, the date previously set for the hearing of the Disqualification Motion.
No new date is set for the Disqualification Motion.
August 31, 2016
A hardcopy of the accurate and complete transcript of the August 12 hearing is delivered to the Tiagos by counsel for the Defendants.
September 14, 2016
The Tiagos deliver further motion materials in support of the Recusal Motion. The August 12, 2016 transcript is not included in the Tiagos’ materials.
September 22, 2016
The Tiagos write to Kestenberg requesting that he advise them of all the judicial officers for whom he has acted.
September 29, 2016
Hershtal responds and advises that it would be a potential breach of solicitor-client privilege to disclose the identity of any judges for whom the firm may have acted. However, Hershtal confirms that no member of the firm had acted for any sitting judge in the Toronto Region, and that any judge for whom the firm had acted in the previous four years would be required to recuse himself from this matter in any event.
October 26, 2016
The Parties attend before Master Hawkins for the hearing of the Recusal Motion.
Master Hawkins recuses himself as Case Management Master on the basis that he did not have time before his retirement in March 2017 to complete the Disqualification, if he dismissed the Tiagos’ Motion. Master Hawkins specifically noted that he had not been biased in anyway and he had reviewed some of the comments made during the August 12 hearing and concluded they were entirely appropriate.
Costs of the Disqualification Motion are reserved to the Master that ultimately hears it.
A NEW CASE MANAGEMENT MASTER IS APPOINTED
January 13, 2017
The Tiagos deliver a draft Notice of Motion returnable on a date to be fixed seeking:
a) An order directing that the Recusal Motion proceed;
b) Asking that Counsel for the Defendants not be permitted to argue the Disqualification Motion
c) Asking that Counsel for the Defendants disclose a list of judicial officers who they have represented or who they have links or relationships with;
d) Directing that Kestenberg, White, Hershtal, Hartley and Pantel attend for Rule 39.03 examinations;
e) Setting a timetable for the Recusal and Disqualification Motions, including the filing of materials;
f) Directing that Master Hawkins’ benchbooks be purged.
January 17, 2017
Master Mills (as she then was) is appointed as case management master. A case conference is held with Master Mills to re-schedule the Disqualification Motion. Master Mills Orders that:
a) The Recusal Motion would not proceed;
b) The Disqualification Motion would proceed de novo on the existing record
c) Master Mills refused the Tiago’s request to examine counsel for the Defendants;
d) Dismissing the Tiagos request that Counsel for the Defendants be prohibited from arguing the Disqualification Motion on the basis that it had already been heard and dismissed by Justice Carol Brown on July 29, 2016;
THE TIAGOS APPEAL MASTER MILLS CASE CONFERENCE ORDER
January 2017
The Tiagos serve a Notice of Appeal appealing Master Mills Case Conference Scheduling Order
March 6, 2017
Justice Matheson dismisses the Tiagos Appeal of Master Mills’ Order in its entirety
April 19, 2017
Justice Matheson orders costs of the Appeal, in the all-inclusive amounts, against the Tiagos as follows:
a) $2,000 to Latimer and Spiegel Nichols Fox LLP;
b) $1,500 to the party defendants, Alvin Meisels;
c) $1,000 to Samuel Property Management.
The costs have not been paid.
THE TIAGOS SEEK LEAVE TO APPEAL MASTER MILLS CASE CONFERENCE ORDER
April, 2017
The Tiagos bring a Motion for Leave to Appeal the Order of Justice Matheson
August 2017
The Tiagos Motion for Leave to Appeal is dismissed by the Divisional Court with costs awarded in the collective amount of $2,500.
The costs have not been paid.
THE DISQUALIFICATION MOTION IS FINALLY DETERMINED
January 31, 2018
The parties re-schedule the Disqualification Motion for a full day to be heard on January 31, 2018. Master Mills dismissed the Tiagos Motion. In her reasons for decision Master Mills found that:
“The Plaintiffs have speculated that counsel may have information regarding a collusion among counsel to commit a fraud upon the court, but there is nothing more than innuendo and conjecture to support that speculation.”
“There is no reasonable basis on which a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires the removal of the responding counsel”
March 27, 2018
On March 27, 2018 Master Mills orders costs of the Disqualification Motion against the Tiagos on a substantial indemnity basis, as follows:
a) $53,316.54 to Latimer and Speigel Nichols Fox LLP
b) $24,443.20 to Tinimint, Munoz and Laird
c) $26,327.22 to Samuel Property Management
d) $23,880.58 to Meisels
The costs are ordered payable within 60 days of the release of Master Mills endorsement. As set out below, the appeals of Master Mills’ Cost Order have been exhausted but the Tiagos have still not paid these costs in excess of $125,000.
The Tiagos Appeal Master Mills’ Order Dismissing the Disqualification Motion
April 24, 2018
The Tiagos appeal the Order of Master Mills dismissing the Disqualification Motion. The appeal is heard by the Honourable Justice Schreck on April 24, 2018.
On April 27, 2018, Justice Schreck issues his reasons for decision dismissing the Appeal. Justice Schreck finds that:
“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.
“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.”
May 22, 2018
On May 22, 2018, Justice Schreck issues a costs endorsement awarding costs of the appeal to the Defendants as follows:
a) $7,829.50 to Latimer and Speigel Nichols Fox LLP
b) $1,700 to Tinimint, Laird and Munoz;
c) $3,9805 to Samuel
d) $4,945.96 to Meisels
The costs have not been paid.
THE TIAGOS SEEK LEAVE TO APPEAL JUSTICE SCHRECK’S ORDER
July 2018
The Tiagos bring a Motion for Leave to Appeal the Order of Justice Schreck. The Tiagos do not serve their Motion materials within the time allotted. A request is made to counsel to extend the time to deliver Motion materials until the end of August, which is granted by counsel on consent.
THE TIAGOS SEEK AN EXTENSION TO FILE THEIR LEAVE TO APPEAL MATERIALS
December 27, 2018
The Tiagos had not served their motion materials and a formal motion was necessitated to set a timetable for delivery of their motion materials.
The parties attend at a motion before Justice Perell and a timetable is ordered by the Court.
May 3, 2019
The Divisional Court dismisses the Tiagos’ Motion for Leave to Appeal and orders costs payable by the Tiagos in the amount of $5,000 all inclusive to Latimer and Speigel Nichols Fox LLP.
THE TIAGOS IMPROPERLY SEEK LEAVE TO APPEAL THE DIV. COURT DECISION TO THE COURT OF APPEAL
June 2019
Although the Divisional Court’s Order should have ended the matter vis a vis the Disqualification Motion, the Tiagos seek leave to a single judge of the Court of Appeal to appeal the Divisional Court’s Ruling.
The Defendants advise the Tiagos that there is no basis in law and that this step was improper. Notwithstanding the Tiagos press forward to have the Court of Appeal hear the matter.
THE TIAGOS SEEK AN EXTENTION OF TIME TO FILE THEIR IMPROPER MOTION MATERIALS
October 2, 2019
The Tiagos do not bring their motion for leave to appeal to the Court of Appeal in time and seek an extension of time to deliver their materials. The extension is opposed by the Defendants and a motion to extend the time to appeal is heard by Justice Nordheimer. Justice Nordheimer dismisses the Tiagos Motion and orders costs against the Tiagos in the amount of $250.00 which have not been paid.
THE TIAGOS APPEAL THE ORDER DENYING AN EXTENSION OF TIME TO FILE THEIR IMPROPER MOTION MATERIALS
December 18, 2019
The Tiagos then bring a motion to appeal the Order of Justice Nordheimer. Those motion materials are not served on time, and once again, the Tiagos seek an extension of time which is opposed by the Defendants.
Justice Miller, sitting as a single judge of the Court of Appeal, dismisses the Tiagos motion and orders costs in the amount of $750.00.
The costs have not been paid.
THE TIAGOS ATTEMPT TO BRING A NOTICE OF CONSTITUTIONAL QUESTION
November 2020
Following the release of Justice Miller’s endorsement, the Defendants seek to schedule the Rule 59.06 Motion, the Region of Peel’s Summary Judgment Motion and the s.140 Application. In light of the COVID-19 pandemic scheduling is delayed until the summer of 2020. The matter is ultimately scheduled to be heard at Civil Practice Court on November 23, 2020.
Prior to the attendance at Civil Practice Court the Tiagos deliver a Notice of Constitutional Question challenging the constitutionality of the 2007 proceedings by which the Tinimint Action was dismissed. Justice Myers adjourned the November 24, 2020 attendance to a case conference on November 30, 2020, which proceeded.
JUSTICE MYERS SCHEDULES THESE MOTIONS AND APPLICATION
December 1, 2020
Justice Myers issues an endorsement arising from the Case Conference. He declines the Tiagos request to have the Constitutional Question heard and orderes that the Tiagos Rules 59.06 Motion, the Region of Peel’s Summary Judgment Motion and the s.140 Application be heard together, for one day, on March 17, 2021.
THE TIAGOS APPEAL JUSTICE MYERS’ CASE CONFERENCE ORDER
December 2020
March 24, 2021
The Tiagos serve a Motion for Leave to Appeal the Endorsement of Justice Myers. Corbett J. of Divisional Court advises that Justice Myers’ scheduling Order would not be stayed. The Tiagos’ leave to appeal motion is heard in writing by the Divisional Court. On March 24, 2021, the Court dismisses the motion noting that the Tiagos’ appeal was “entirely without merit.”
[^1]: Tiago v. Regional Municipality of Peel, 2020 ONSC 7429. [^2]: R.S.O. 1990, c. C.43. [^3]: The Divisional Court dismissed the leave motion on March 24, 2021, noting that it was “entirely without merit”: see Tiago v. Tinimint Housing et al, 2021 ONSC 2089. [^4]: Tenant Protection Act, 1997, S.O. 1997, c. 24. [^5]: Supra, note 1. [^6]: Supra, note 3. [^7]: Supra, note 1, at paras. 17-18. [^8]: Berge v. College of Audiologists and Speech Language Pathologists of Ontario, 2019 ONSC 3351, at para. 34. [^9]: Massiah v. Justices of the Peace Review Council, 2018 ONSC 2179 at para. 21. [^10]: Endorsement of Master Mills released on February 14, 2018, at para. 6. [^11]: Tiago v. Meisels, 2018 ONSC 2717, at para. 20. [^12]: See, for example, Angle v. M.N. R. (1974), 1974 CanLII 168 (SCC), 47 D.L.R. (3rd) 544 (S.C.C.); Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC), [1991] 2 S.C.R. 5; and John Machado v. Pratt & Whitney Canada Inc., [1995] O.J. No. 1732 (S.C.J.). [^13]: Continental Insurance Co. v. Almassa International Inc., [2002] O.J. No. 2101 (S.C.J.) [^14]: Supra, note 2. [^15]: Pollock v. Irmya, 2018 ONSC 2694 at para. 18. [^16]: Foy v. Foy (No. 2) (1979) 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220 (C.A.), cited in Ontario v. Deutsch, [2004] O.J. No. 535 (S.C.J.) at para. 17. [^17]: Beard Winter LLP v. Shekhdar, 2017 ONSC 4846, at para. 14. [^18]: Pollock v. Irmya, 2018 ONSC 2694 at para. 20 and see generally Lang Michener v. Fabian (1987), 1987 CanLII 172 (ON SC), 59 O.R. (2d) 353. [^19]: Ontario v. Coote, (2011) ONSC 858 at para. 67 citing Mascan Corp. v. French, 1988 CanLII 4731 (ON CA), [1988] O.J. No. 209 at para. 15 and Ontario v. Deutsch, [2004] O.J. No. 535 at para. 21. [^20]: Tiago v. Meisels, 2020 ONSC 7429 paras. 17-18. [^21]: Her Majesty the Queen in Right of Ontario v. Coote; Lawyers’ Professional Indemnity v. Coote, 2011 ONSC 858. [^22]: Ibid., at para. 75.