COURT FILE NO.: CV-19-00628056-0000
DATE: 20210202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDRÈ C. LEHOUX
Applicant
– and –
LUCIE LEVESQUE
Respondent
Adam C. Pantel, for the Applicant
Lucie Levesque, acting in person
HEARD: January 19, 2021
papageorgiou j.
[1] This is an Application for a declaration pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), that the Respondent is a vexatious litigant. The Applicant, André C. Lehoux, (“Mr. Lehoux” or the “Applicant”) is a lawyer. The Respondent, Lucie Levesque (“Ms. Levesque” or the “Respondent”), has been a self-represented litigant at all relevant times.
Analysis
The legal principals
[2] Section 140(1) of the CJA provides a judge with authority to issue a vexatious litigant order. It provides:
(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.
[3] This provision is a codification of the inherent jurisdiction of the Superior Court to control and to prevent abuses of its own process by authorizing the judicial restriction of a litigant’s right to access any court, including proceedings in appellate courts: Kallaba v. Bylykbashi (2006), 2006 3953 (ON CA), 265 D.L.R. (4th) 320 (Ont. C.A.), at para. 30, leave to appeal refused, [2006] S.C.C.A. No. 144.
[4] In Re Lang Michener et al. v. Fabian et al. (1987), 1987 172 (ON SC), 59 O.R. (2d) 353 (H. Ct. J.), at para. 19, Henry J. identified certain typical features of vexatious proceedings as follows:
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; and
g. the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
[5] This list is neither exhaustive nor is it necessary for a litigant to meet all of the various factors identified by Henry J. The categories of vexatious proceedings are never closed and whether a litigant is vexatious must be determined by an objective standard: Mascan Corp. v. French (1998), 1988 4731 (ON CA), 64 O.R. (2d) 1 (Ont. C.A.) at para. 15, and Ontario v. Deutsch, [2004] O.J. 535 (Ont. S.C.) at para. 21.
[6] A declaration that someone is a vexatious litigant is an extreme remedy. The CJA is designed to advance access to justice which is a fundamental pillar of the rule of law. Section 140(1) runs contrary to that important goal by denying access to individuals. It is an exception to the thrust of the litigation and should be construed strictly: Lukezic v. Royal Bank of Canada, 2012 ONCA 350, 350 D.L.R. (4th) 111, at para. 13.
The various actions instituted by Ms. Levesque against Mr. Lehoux
[7] In my view, Ms. Levesque satisfies the test for being a vexatious litigant in respect of Mr. Lehoux.
[8] Ms. Levesque instituted four actions against Mr. Lehoux which have all been summarily dismissed as being vexatious, pursuant to Rule 2.1.01 of the Rules of Civil Procedure, R.R.O 1990, Reg. 194, which provides as follows:
2.1.01 (1) The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.
[9] The following chart sets out the relevant details of when these actions were commenced and dismissed pursuant to r. 2.1:
| Date of issuance of claim | Court File No. | Date of dismissal |
|---|---|---|
| April 25, 2017 | 21324/17 SR | June 23, 2017 |
| December 28, 2017 | 52/17 | March 7, 2018 |
| October 22, 2018 | 18-0000198 | December 12, 2018 |
| May 24, 2019 | 19-000000090 | July 19, 2019 |
[10] Ms. Levesque’s actions were based upon:
a. Mr. Lehoux’s interaction with the Ms. Levesque in 2010 where he acted as duty counsel assisting the Respondent with a guilty plea in respect of an assault charge;
b. Mr. Lehoux’s alleged involvement in her matrimonial dispute during the years 2001 to 2006 where he drafted her separation agreement and her will; and
c. Mr. Lehoux’s refusal to represent her in legal proceedings related to domestic/sexual abuse when she sought to retain him in 2016.
[11] In each of the above matters, the Judge ruled that Ms. Levesque had failed to plead a recognized cause of action at law against Mr. Levesque and/or that her claims were barred by statute. It is incontrovertible that Ms. Lesveque does not have a viable cause of action against Mr. Lehoux arising out of his interactions with her.
[12] On September 26, 2019, Mr. Lehoux commenced this Application to have the Ms. Levesque declared a vexatious litigant.
[13] Ms. Levesque’s response to this Application to have her declared a vexatious litigant is essentially to bring more legal proceedings against Mr. Lehoux:
a. On August 26, 2020, Ms. Levesque commenced a fifth action against Mr. Lehoux as Court File No. 20-0000130 pertaining to the exact same statute-barred allegations as those contained in all previously dismissed actions. Mr. Lehoux has sought dismissal to this proceeding pursuant to r. 2.1.01, but that request has yet to be determined;
b. Ms. Levesque initiated proceedings requesting the dismissal of this Application pursuant to r. 2.1.01 as frivolous, vexatious and an abuse of process. On January 4, 2021, Myers J. concluded that the Notice of Application in this matter sets out a cognizable cause of action and on that basis held there was no reason to allow the attenuated process under r. 2.1.01 to go forwards; and
c. Ms. Levesque issued a counter-application pursuant to s. 140 of the CJA to have the Mr. Lehoux declared a vexatious litigant.
[14] In Ms. Levesque’s responding materials and submissions to the Court she also refers to other proceedings which she has commenced, been involved in or has considered bringing which relate to allegations of domestic/sexual assault by her ex-husband and others who may have facilitated this:
a. Court File No: 20070/16: Statement of Claim issued June 24, 2016 against Donald C. Wilson, her ex-husband, claiming aggravated domestic/sexual assault. It is unclear to me based upon the materials filed and her submissions what the status of the case is;
b. Court File No: 21343/17SR: Statement of Claim against Pierre Cote and Liane Levesque, dated May 15, 2017, with various claims of defamation, libel, negligence, criminal harassment all which appear to be related to claims of domestic/sexual abuse she alleges she endured from her ex-husband. On September 27, 2017, the plaintiff discontinued her action against Mr. Cote. It is unclear to me based upon the materials filed and her submissions what the status of the case is in respect of the defendant Liane Levesque.
c. Court File No: 21345/178R: Statement of Claim against Michel J. Levesque, dated May 15, 2017, claiming trespass, conflict of interest, criminal harassment and assault. This action was discontinued on December 7, 2017. Mr. Levesque nevertheless commenced another action against Michel J. Levesque on March 17, 2020 which appears to involve the same underlying facts.
d. Court File No: 17-21344 SR: Statement of Claim against former OPP officer Ayers. The plaintiff discontinued this action in March 2017.
e. Ms. Levesque considered bringing an action against her family doctor but he retired.
[15] I have reviewed all of the pleadings in these additional actions commenced by Ms. Levesque.
[16] One thing that all of these proceedings against others appear to have in common is that they appear to relate to her claim for domestic abuse/sexual assault against her ex-husband (witnesses misrepresenting what they allegedly saw to the police, etc.). In her affidavit dated October 27, 2020, Ms. Levesque states that “I believe to have reasonable grounds to continue all my actions at the Superior Court of Justice in respect to personal injury because my personal injury claims are based on aggravated domestic violence and I claim joint and several liability against numerous defendants for same losses…”. Based upon her materials and her submissions during the motion, it seems that she believes that because her claim against others relates to a claim for domestic/sexual assault against her previous husband, there is no limitation period pursuant to s.16 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Limitations Act”).
[17] Section 16 of the Limitations Act states that there is no limitation period in respect of:
(h) a proceeding based upon sexual assault;
(h.2) a proceeding based on an assault if, at the time of the assault, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the assault;
(i) they had an intimate relationship,
(ii) the person with the claim was financially, physically or otherwise dependent on the other person.
[18] Ms. Levesque says that if I make an Order declaring her a vexatious litigant, she will not be able to pursue her case against her husband for sexual assault/domestic violence and against others who she feels have some responsibility for it.
[19] Section 16 of the Limitations Act does not assist Ms. Levesque with respect to Mr. Lehoux because there is no underlying basis for any claim against him relating to his refusal to accept her retainer in 2016—even if the retainer was in respect of alleged domestic/sexual abuse. I cannot conclude that her claims against all others related to sexual/domestic abuse are barred by statute or without merit on the materials before me. There was no law before me on this issue.
[20] During the hearing Ms. Lesveques was obviously distressed. She says that she suffers from post-traumatic stress disorder and has been having counselling since her separation from her husband in 2001. She did not present as someone with any malice seeking to deliberately bring false claims; she presented as a very distressed woman trying to find answers to what has gone wrong in her life.
[21] I can say with certainty that trying to find answers by repeatedly suing Mr. Lehoux is not the answer and is vexatious. However, I have concerns about foreclosing her ability to pursue these other actions which relate to alleged domestic/sexual abuse. To be clear, I am not suggesting that I have concluded that these cases have merit, but on the materials before me, and taking into account the fact that Ms. Lesveques is unrepresented, I am not prepared to foreclose her ability to pursue them.
[22] Mr. Lehoux’s counsel points out that while a vexatious litigant order restricts a vexatious litigant’s access to the courts, it does not deny the litigant access to the courts. It merely imposes a procedural step upon certain litigants in the interest of ensuring that vexatious proceedings are not pursued before our courts: R. v. Coote, 2011 ONSC 858, aff’d 2011 ONCA 563.
[23] In my view, given the nature of her other proceedings, it would be inappropriate to require Ms. Levesque to seek leave to initiate or continue any of these other proceedings. I cannot say whether there are any bases for these other claims, but if there are, it would be unfair to require someone who is already vulnerable and traumatized to have to seek leave.
[24] Counsel for Mr. Lehoux argued that the vexatious litigant order should be made as against the world, but he conceded that I had the broad discretion under s. 140 of the CJA to limit any order so that only prevents future actions against Mr. Lehoux. See for example Ballentine v. Ballentine (2003), 2003 27775 (ON CA), 65 O.R. (3d) 481 where the Court of Appeal upheld an vexatious litigant order as against one issue and SAIC Canada v. Pagourov, 2013 ONCA 563 where the Court of Appeal upheld a vexatious litigant order as against one party.
[25] I am satisfied that Ms. Levesque has instituted vexatious proceedings in this court in respect of Mr. Lehoux and conducted such proceedings in a vexatious manner within the meaning of s. 140 of the CJA.
[26] I declare that:
a. Ms. Levesque has persistently and without reasonable grounds instituted vexatious proceedings and conducted proceedings against Mr. Lehoux in a vexatious manner in the courts of Ontario within the meaning of sections 140(1)(a) and (b) of the Courts of Justice Act, R.S.O. 1990, c. C. 43.
[27] I Order that:
a. No further proceedings may be instituted by Ms. Levesque against Mr. Lehoux in any court except by leave of a judge of the Superior Court;
b. The Action previously instituted by Ms. Levesque in Superior Court File No. 20-0000130 against Mr. Lehoux is stayed and may not be continued as against him except by leave of a judge of the Superior Court;
c. The Counter-Application instituted by Ms. Levesque in Superior Court Action No. Court File No. 19-00628056 seeking a declaration that Mr. Lehoux is a vexatious litigant pursuant to subsection 140(1)(a) of the Courts of Justice Act is dismissed.
[28] With respect to costs, Mr. Lehoux sought $6,500 which I find fair and reasonable, particularly given all the proceedings he has had to bring to address this matter for which he never obtained costs.
[29] Ms. Levesque opposes this on the basis that this costs order will frustrate her efforts to pursue her other matters. Unfortunately, Ms. Levesque has brought this proceeding, made Mr. Lehoux expend costs and he is entitled to a costs order. Counsel submitted that they would not seek to enforce the order, but needed it as extra protection against further proceedings.
[30] Mr. Lehoux shall forward a draft Order to my attention as well as Ms. Levesque within 7 days of these reasons.
[31] I am dispensing with the requirement that the Order be approved by Ms. Levesque as to form and content.
Papageorgiou J.
Released: February 2, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDRÉ C. LEHOUX
Applicant
– and –
LUCIE LEVESQUE
Respondent
REASONS FOR JUDGMENT
Papageorgiou J.
Released: February 2, 2021