COURT FILE NO.: 20-84983

DATE: 20210415

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alexander Bissonnette, Applicant

-and-

Roger Callow, Respondent

BEFORE: Muszynski J.

COUNSEL: Kristopher L. Dixon, Applicant

Roger Callow, self-represented

HEARD: April 9, 2021

decision on application for vexatious litigant declaration

[1] The applicant, Alexander Bissonnette, brings this application seeking a declaration that the respondent, Roger Callow, is a vexatious litigant.

[2] Mr. Bissonnette is a named defendant in a civil action commenced by Mr. Callow. Mr. Bissonnette is a lawyer in Ottawa that represented a family health team that was a named defendant in a separate civil action that was also commenced by Mr. Callow.

ISSUES

[3] This application is not about the termination of Mr. Callow’s employment as a teacher in British Columbia in 1985. This application is not about whether Mr. Callow’s driving privileges were suspended lawfully, his involuntary committal to Ottawa General Hospital, or whether his repeated requests for documentary disclosure from physicians were appropriate.

[4] I have no jurisdiction to decide any other matters which Mr. Callow has litigated in the past nor authority to stray from the procedures set out in the Rules of Civil Procedure R.R.O. 1990 (the “Rules”), Reg. 194 and the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”).

[5] The issue that I must decide on this application is whether Mr. Callow should be declared a vexatious litigant and, if so, what reasonable measures would be required to protect the administration of justice from Mr. Callow’s vexatious conduct.

POSITION OF THE PARTIES

[6] The applicant submits that the purpose of s. 140 of the CJA is to “protect honest citizens, litigants and the integrity of the justice system against litigants who continually abuse the court process by engaging in frivolous and vexatious litigation.” According to the applicant, Mr. Callow has demonstrated a willingness to abuse the court system. Five out of six of Mr. Callow’s recent claims were dismissed as being frivolous or an abuse of process and all involve similar facts and issues. Further, the applicant points to Mr. Callow’s complaints to administrative bodies regarding physicians, lawyers and judges that have crossed his path. The applicant submits that the best way to protect the integrity of the justice system is to issue a declaration that Mr. Callow is a vexatious litigant and to put measures in place to prevent Mr. Callow from commencing or continuing unmeritorious and vexatious litigation.

[7] Mr. Callow declined to participate in the hearing of the application when the court refused his request to adjourn the hearing and proceed by way of written questions from the bench. From reviewing correspondence authored by Mr. Callow contained in the record, it can be gleaned that he is objecting to the relief sought by the applicant, namely, a declaration that he is a vexatious litigant and the restrictions that go along with that finding.

BACKGROUND

[8] The notice of application was issued on November 13, 2020 and was served personally on Mr. Callow on November 23, 2020. The application was originally scheduled to be heard on February 11, 2021. At that time, counsel for the applicant appeared virtually before Justice Roger, but Mr. Callow did not attend.

[9] At the February 11, 2021 virtual attendance, counsel for the applicant proposed that an adjournment was appropriate to allow Mr. Callow an opportunity to participate. I note that the applicant could have insisted that the application proceed on February 11, 2021, however an adjournment was granted, and the application was rescheduled for April 9, 2021. Justice Roger made an endorsement that the adjournment was peremptory on Mr. Callow.

[10] On April 9, 2021, counsel for the applicant and Mr. Callow attended the virtual hearing on the Zoom platform. Mr. Callow used his telephone to call into the hearing.

[11] Mr. Callow objected to the process of the application. Instead of an oral hearing, Mr. Callow requested that the court review the material filed and draft written questions to each party, which could then be responded to in writing. Mr. Callow was told that the process that he proposed was not permitted under the Rules.

[12] Mr. Callow further took issue with the fact that Justice Roger was not presiding over the application. Mr. Callow was told that Justice Roger’s endorsement arising out of the February 11, 2021 attendance specifically stated that he was not seized and another judge could be assigned to hear the application.

[13] After Mr. Callow’s preliminary concerns were addressed, the parties were informed that they would each be given an opportunity to make oral submissions starting with counsel for the applicant, as is the typical court process on a hearing of an application.

[14] Mr. Callow maintained his objection to the procedure and again requested that the court pose questions to him in writing. Mr. Callow was told again that his preferred process is not permitted by the Rules. Mr. Callow then said that he declined to participate further in the hearing.

[15] Throughout Mr. Callow’s materials, he maintains that he has not been given an opportunity to tell his side of the story and that the courts have made decisions without his involvement in the past. Mr. Callow was told that this hearing was the proper forum to tell the court his position and that I was ready to listen.

[16] Mr. Callow was further informed that he if did not participate, the application would proceed without him and could result in an adverse finding against him. Mr. Callow ended the call and did not sign back in for the duration of the hearing. Before he hung up, Mr. Callow did not make substantive submissions on the merits of the application before the court.

ANALYSIS

[17] Section 140(1) of the CJA provides:

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.

[18] In Lang Michener Lash Johnston v. Fabian, (1987), 59 O.R. (3d) 353, the factors to consider in determining whether the respondents are vexatious litigants are listed as including:

(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 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 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.

[19] I agree with the submission of the applicant that, of the principles set out above, all but items (a) and (g) are applicable to this case. The applicant also correctly identifies that the principles are not exhaustive, and the applicant does not need to establish all of them: Carleton Condominium Corporation No. 166 v. Senneck, 2017 ONSC 5016, aff’d 2018 ONCA 119 at para 30.

[20] In the recent case of Goodlife Fitness Centres Inc. v. Hicks, 2019 ONSC 4942, Justice Corthorn noted that the existence of non-judicial proceedings can constitute evidence from which a court may infer that court proceedings started by the litigant are the product of someone who is “unreasonably obsessed with a cause and likely to pursue vexatious court proceedings on an indefinite basis unless stopped”: see para. 56.

[21] The evidence on this application confirms that since his driving suspension, Mr. Callow has initiated a series of civil actions that, in essence, demand an explanation as to why his licence was suspended in the first place. He has sued or launched non-judicial proceedings against almost every professional he has encountered along the way, regardless of their involvement or lack thereof. None of Mr. Callow’s efforts have been met with success, but that has not deterred him.

[22] The allegations and issues in Mr. Callow’s first action have been rolled forward and repeated in his subsequent five actions with some additions along the way. There is evidence before the court that some of Mr. Callow’s claims were started on dates when others were dismissed. Four of these actions were dismissed at a preliminary stage pursuant to Rule 2.1. One of the actions, that was commenced in Small Claims Court, was dismissed by Deputy Judge Conway on the basis that it was an abuse of process and a costs award of $100.00 was made against Mr. Callow.

[23] Other factors which I consider include:

a. Mr. Callow was declared a vexatious litigant in Ontario in 2014 and precluded from initiating further litigation relating to the termination of his employment as a teacher in British Columbia: see West Vancouver School District No. 45 v. Callow, 2014 ONSC 2547;

b. Mr. Callow was declared a vexatious litigant in British Columbia: Callow v. Board of School Trustees, School District No. 45 and West Vancouver Teacher’s Association, 2008 BCSC 778, 2008 BSCS 788, [2008] B.C.J. No. 1137;

c. Mr. Callow has an extensive history of litigating in the courts and tribunals across Canada;

d. Mr. Callow’s correspondence, and print outs from his website contained in the record, includes baseless and damaging allegations of conspiracy and fraud against individuals with no supporting particulars;

e. Mr. Callow claims to have made complaints against Mr. Bissonnette and Mr. Dixon to their regulator, and has accused them of serious impropriety; and,

f. Mr. Callow’s out of court communications, including his blog posts to his website have been abusive, denigrating the judiciary and legal system, and, at times, threatening.

[24] The undisputed evidence is that Mr. Callow has commenced at least six actions in Ontario related to the circumstances surrounding his driver’s licence suspension and that five of these actions have already been dismissed.

[25] On the evidence before me, I am satisfied that the public and the integrity of the justice system require protection from Mr. Callow. I am satisfied that Mr. Callow will continue to launch baseless litigation and complaints unless he is restrained from doing so by virtue of a vexatious litigant declaration. It should be noted that the 2014 vexatious litigant declaration from Ontario only limits Mr. Callow in relation to the commencement of litigation regarding his employment termination and therefore did not prevent him from commencing the most recent round of lawsuits.

[26] Based on the totality of evidence before me, I find Mr. Callow to be a vexatious litigant within the scope of s. 140 of the CJA.

[27] Having found Mr. Callow to be a vexatious litigant, the next step is to determine what reasonable measures are required to protect the administration of justice from Mr. Callow’s vexatious conduct.

[28] No one has suggested that Mr. Callow should be stripped of the right to commence litigation in perpetuity. Rather, it has been suggested that an additional step be required before Mr. Callow can begin a lawsuit in Ontario. Specifically, the applicant submits that I make an order that Mr. Callow be required to obtain leave from the court before starting a claim. I agree. The requirement that Mr. Callow obtain leave will ensure that he is not precluded from advancing meritorious litigation while preventing him from abusing the court process. It strikes an appropriate balance.

[29] There is at least one live Ontario action, that being Mr. Callow’s claim against Mr. Bissonnette (Court File No. CV-20-82889). The applicant submits that I should dismiss that action outright at this stage. I decline to do so. The action against Mr. Bissonnette was subject to a prior Rule 2.1 request which was refused. While it is quite possible that the action would be dismissed at a pleadings motion or a summary judgment motion, no such motion is before me. The appropriate remedy on this application is to stay all litigation commenced by Mr. Callow until such time as Mr. Callow can obtain an order granting him leave to continue the same.

[30] I similarly find it appropriate to make an order requiring Mr. Callow provide a copy of these reasons for decision, along with a copy of my order, to any administrative body or appellate court to which he intends to initiate or continue a complaint or proceeding.

SUMMARY

[31] Mr. Callow is a passionate individual. This is evident from his cross-country legal battle related to the termination of his employment that went on for decades until he ran out of options. He is similarly passionate about the circumstances related to the suspension of his driver’s licence. However, Mr. Callow’s passion has become a destructive force in the lives of individuals who cross him and the justice system more broadly. It is time for this to end.

ORDER

[32] An order shall issue as follows:

1. THIS COURT DECLARES that Roger Callow:

a. has persistently and without reasonable grounds instituted and conducted vexatious court proceedings in a vexatious manner within the meaning of ss. 140(1)(a) & (b) of the Courts of Justice Act; and

b. is a vexatious litigant pursuant to s. 140 of the Courts of Justice Act.

2. THIS COURT PROHIBITS Roger Callow, either directly or indirectly, from instituting any proceedings or continuing any proceedings previously instituted in any court in Ontario, except and until such time as he has obtained leave to do so from a judge of the Superior Court of Justice pursuant to s. 140(3) of the Courts of Justice Act and as provided for in this order.

3. THIS COURT ORDERS THAT all existing actions, appeals, and applications brought by Roger Callow in the province of Ontario be and they are immediately stayed except and until such time as Roger Callow has obtained leave pursuant to s. 140(3) of the Courts of Justice Act and as provided for in this order.

4. THIS COURT ORDERS THAT should Roger Callow seek to commence or continue a proceeding or any appeal in any court in Ontario without first filing an order permitting him to do so, the proceeding shall be immediately stayed upon any person filing a copy of this Order in such a court.

5. THIS COURT ORDERS THAT Roger Callow shall deliver a copy of this Order, and the copy of the Reasons for Decision herein dated April 15, 2021, to any person or body with whom he initiates or continues any complaint, including any court, administrative body, tribunal, and/or regulatory body.

6. THIS COURT ORDERS THAT the requirement for Roger Callow to approve, as to form and content, this or any other draft order herein is dispensed with.

COSTS

[33] At the hearing counsel for the applicant advised that, if successful, he would be seeking costs in relation to the application. Counsel for the applicant filed a cost outline setting out a claim for partial indemnity costs in the amount of $7,677.33 ($7,222.33 fees inclusive of HST and $455.00 disbursements inclusive of HST).

[34] As conceded by counsel for the applicant, it is unlikely that any costs awarded against Mr. Callow will be satisfied. Mr. Callow has yet to pay costs ordered against him in Small Claims Court in the amount of $100.00 and it is unknown whether he has the means to pay.

[35] There are reasons to make an award for costs against Mr. Callow regardless of the likelihood he will pay it. Firstly, Mr. Callow must understand that the Rules provide that, generally, the unsuccessful party will be ordered to pay a portion of the successful party’s legal costs. Secondly, the non-payment of another cost award could constitute evidence of his conduct as a litigant at a later date.

[36] While the cost outline filed by Mr. Dixon is reasonable with respect to the amount claimed, in the circumstances of this case, I find it to be reasonable to reduce costs to $3,500.00 inclusive of HST and disbursements.

[37] Accordingly, Mr. Callow is ordered to pay to the applicant costs of this application fixed in the amount of $3,500.00 all inclusive.

Muszynski J.

Date: April 15, 2021

DATE: 20210415

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Alexander Bissonnette, Applicant

-and-

Roger Callow, Respondent

BEFORE: Justice Muszynski

DECISION ON APPLICATION FOR

VEXATIOUS LITIGANT DECLARATION

Released: April 15, 2021