Canaccede Credit LP v. Douglas K Schulz-Hallihan

COURT FILE NO.: CV-20-576

DATE: 2021-07-08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Canaccede Credit LP, Plaintiff

AND:

Douglas K Schulz-Hallihan, Defendant

BEFORE: Kurz J.

COUNSEL: Lindsay M. Kirk, for the Plaintiff

HEARD: May 27, 2021

ENDORSEMENT

Introduction

[1] On February 16, 2021 I dealt with this and two other written motions by the plaintiff (“Canaccede”) which had been assigned to me. Each of the three motions, in actions against three separate defendants (“the defendants”), seek an order of substituted service of the statement of claim. Considering the three motions within the context of their underlying actions opened a window on a manner of litigation that I felt may engage this court’s inherent jurisdiction to control its process.

[2] The three actions (“the actions”) arise from alleged debts originally owed to a bank. Two of the three proceedings are for the repayment of money owing under a personal loan. One is for the payment of a credit card debt. Each debt was sold by the creditor bank to Canaccede, a company located in London, Ontario. Canaccede proceeded to sue each of the three defendants on their alleged debts. Each action is for an amount well below the Small Claims Court’s $35,000 limit and involved a claim against a defendant who does not reside in the Halton Region. Particulars of the three lawsuits before me are:

File No. Defendant Amount of Claim Residence

576/20 Douglas K. Schulz- $7,559.77 Peterborough

Hallihan

910/20 Inderjeet Joshi $18,958.36 Peterborough

1604/20 Laura Goodchild $13,040.04 Carlton Place

[3] After considering the three basket motions, I issued an endorsement in which I advised Canaccede that “I am considering whether I can and should exercise my inherent powers to stay this proceeding so that it can be brought in the Small Claims Court of the proper territorial jurisdiction of that court (which is a branch of this court).”

[4] I was concerned with a potential abuse of process, which I explained as follows:

[6] Here, the potential abuse of process that I am considering involves suing for claims well below the Small Claims Court limit and doing so in a jurisdiction in which the cause of action does not apparently arise and the defendant does not reside. If Canaccede were to sue the three defendants cited above in Small Claims Court, it would not be entitled to do so in this jurisdiction under r. 6.01(1)(a) of the Small Claims Court Rules, which reads as follows:

6.01 (1) An action shall be commenced,

(a) in the territorial division,

(i) in which the cause of action arose, or

(ii) in which the defendant or, if there are several defendants, in which any one of them resides or carries on business; or

(b) at the court’s place of sitting that is nearest to the place where the defendant or, if there are several defendants, where any one of them resides or carries on business.

[7] I add that the cost of defending an action in the Superior Court of a jurisdiction on which the defendant does not reside and the cause of action did not arise, where the claim is far below the Small Claims Court limit may be seen to violate the goals of the Rules of Civil Proceeding, as described in r. 1.04 as follows

General Principle

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

Proportionality

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[5] In that endorsement, I indicated that I do not know how many similar statements of claim Canaccede has issued in this court. I have now learned from Canaccede’s counsel that it currently has 109 cases in the Superior Court of Justice in Milton, for amounts below the Small Claims Court monetary limit.

[6] Counsel for Canaccede has now provided its written submissions and appeared before me to make arguments on why its the actions should not be stayed or transferred to the Small Claims Court. Canaccede asserts that I should take no action but to extend the time for service of its statements of claim (due to the delay in dealing with its original basket motions) and grant it the orders of substituted service that it originally sought.

Canaccede’s Arguments

[7] Canaccede makes the following arguments in support of its position that its lawsuits for less than $35,000 in this court, against defendants who do not reside in this jurisdiction, cannot be an abuse of process. It asserts the following:

1. Actions in this court for amounts below the Small Claims Court limit, including those against out-of-jurisdiction defendants, are part of what Canaccede describes in its statement of fact and law as its “common practice.” Counsel for Canaccede asserted, without referring to evidence or authority, that its own common practice reflects the broader practice of “the legal collections industry in Ontario.” It would disrupt that practice if I found that it amounted to an abuse of process.

2. Not being able to sue for small claims court matters in this court would make it “difficult” for Canaccede and its “creditor’s rights bar” colleagues. The other side of the same coin is that Canaccede prefers this court’s process to that of the Small Claims Court for the proceedings it initiates.

3. Neither the Courts of Justice Act (the “CJA”) nor the Rules of Civil Procedure (“the Rules”) forbid Canaccede’s common practice. While s. 23 of the CJA sets out the jurisdiction of the Small Claims Court (whose financial limit is set by regulation: O. Reg. 626/00, s. 1(1) and (2)), it does not give that court exclusive jurisdiction over the claims below the $35,000 threshold. In fact, the Rules recently raised the “ceiling” on the amounts that can be claimed under its r. 76 simplified procedure but never placed a monetary “floor” on those claims. In other words, while litigants must utilize the simplified process to sue for up to $200,000 in this court, there is no minimum claim under the simplified procedure or in this court. Simply put, if the rules do not forbid it, Canaccede argues that it cannot be an abuse of process.

4. This court routinely issues statements of claim and grants default judgment on Canaccede‘s actions below the Small Claims Court limit. This, according to Canaccede, means that this court has implicitly condoned its standard litigation procedure.

5. In cases that have grappled with the issue, judges have complained about the process of suing in this court for amounts below the Small Claims Court limit. But rather than impose a more drastic remedy, they have only refused to grant costs to the plaintiff.

6. If a defendant asked Canaccede to transfer an action to their local Small Claims Court, it would agree.

7. The power to order a stay of proceedings should be exercised sparingly and only in the clearest of cases: Gowling v. Meredith, 2011 ONSC 2686, at para. 17. It should not be done here, where the defendants have not requested a stay and are not even aware of the actions against them. On the other hand, a stay would prejudice Canaccede because of the risk of running afoul of a limitation period.

Issues

[8] It is not my intent to adjudicate the merits of the actions in this endorsement. But based on the concerns set out above, the actions raise the following preliminary issues:

1. Does this court have the inherent jurisdiction to stay the actions or transfer them to the Small Claims Court without the parties’ consent?

2. Is Canaccede’s common practice of suing out of jurisdiction litigants in Milton for amounts below the Small Claims Court limit an abuse of process?

3. If it has the jurisdiction to do so, should this court exercise its jurisdiction to stay the actions or transfer them to the Small Claims Court?

[9] For the reasons that follow, I find that this court’s inherent jurisdiction to control its process allows it to take steps to prevent an abuse of process regarding the appropriate venue for a lawsuit. Here, Canaccede’s common practice amounts to an abuse of process, to which the court may respond. The proper response is to transfer each of the actions to the Small Claims Court where the defendants reside, while both extending the time for service and granting orders for substituted service in that court.

Issue No. 1: Does this court have the inherent jurisdiction to transfer this proceeding to the Small Claims Court without the parties’ consent?

[10] This court has the inherent jurisdiction, granted by both common law and statute, to control its process. That jurisdiction may be exercised in light of the provisions of the CJA and the Rules. As set out below, I find that this court’s inherent jurisdiction allows it to transfer actions to the Small Claims Court, even absent the consent of one or more of the parties.

[11] In 80 Wellesley Street East Limited v. Fundy Bay Builders Limited et al. 1972 535 (ON CA), [1972] 2 O.R. 280 (Ont. C.A.), at p. 282, Brooke J.A., writing for the Ontario Court of Appeal, offered this broad statement about the breadth of this court’s inherent jurisdiction:

As a superior Court of general jurisdiction, the Supreme Court of Ontario has all the powers that are necessary to do justice between the parties. Except where provided specifically to the contrary, the Court's jurisdiction is unlimited and unrestricted in substantive law in civil matters.

[12] This statement was later adopted by the Ontario Court of Appeal in Glover v. Glover et al., 1980 63 (ON CA), [1980] O.J. No. 3676 (Ont. C.A.), aff’d (1982) 1981 3010 (ON CA), 130 D.L.R. (3d) 383 (S.C.C.), at para. 19. There, the court also referred with approval to the:

“helpful article entitled "Inherent Jurisdiction of the Court" (1970), 23 Curr. L. Prob. 23, [where] Master Jacob points out that inherent jurisdiction is the reserve or fund of powers which the Court may draw upon as necessary whenever it is just or equitable to do so. He goes on to emphasize that this is not an unlimited jurisdiction and that it cannot be exercised in contravention of any statutory provision.

(See also Shoppers Trust Co. (c.o.b. Shoppers Leasing) v. Mann Taxi Management Ltd. (c.o.b. Mann Auto Services), 1993 5487 (ON SC), [1993] O.J. No. 2368 (“Shopper’s Trust”), at para. 8.)

Statutory Grant of Jurisdiction to the Superior Court of Justice

[13] Under s. 11(2) of the CJA: “[t]he Superior Court of Justice has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario.” In Endean v. British Columbia, 2016 SCC 42, Cromwell J., writing for the Supreme Court of Canada, offered a broad reading of that provision, stating:

56 Section 11(2) of the Courts of Justice Act should be read as inclusive, not exclusive. It does not explicitly provide that the powers of the court are limited to those of the courts of common law and equity in England and Ontario. In R. v. Rose, 1998 768 (SCC), [1998] 3 S.C.R. 262, this Court held that the inherent jurisdiction of superior courts can only be removed by "clear and precise statutory language": para. 133.

[14] In Endean, the Supreme Court considered the contours of a superior court’s inherent jurisdiction to control its process. It did so to determine whether superior court judges are permitted, either through statute or the inherent jurisdiction of their courts, to sit outside of their home provinces in order to preside over a pan-national class action settlement. The Supreme Court found that superior court judges in British Columbia and Ontario are empowered to do so on both grounds. It further found that superior court judges in provinces without applicable empowering provisions in class action statutes are also able to do so because of the inherent jurisdiction of their courts.

[15] In coming to those findings, the court considered the nature of a superior court’s inherent jurisdiction. Cromwell J. delineated the broad limits of that jurisdiction and the purpose for which it is to be exercised, stating:

23 The inherent powers of superior courts are central to the role of those courts, which form the backbone of our judicial system. Inherent jurisdiction derives from the very nature of the court as a superior court of law and may be defined as a "reserve or fund of powers" or a "residual source of powers", which a superior court "may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.

[16] In Re Hagos, 2018 ONSC 372, Braid J. of this court relied on CJA s. 11(2) and Endean to write at para. 21:

This concept of inherent jurisdiction as a broad, catch-all power is rooted in the oldest of cases. Nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so: see Peacock v. Bell (1667) (Eng. K.B.), as cited in 80 Wellesley St East Ltd. v. Fundy Bay Builders Ltd., 1972 535 (ON CA), [1972] 2 O.R. 280.

[17] Nonetheless, given what the court in Endean described as “the broad and loosely defined nature” of their inherent powers, superior courts should first look to their statutory powers “before dipping into this important but murky pool of residual authority that forms their inherent jurisdiction” (Endean, at para. 24). Only when they are not available should the court have recourse to their inherent powers.

[18] The exercise of the court’s inherent jurisdiction is not limitless. It must do so to control its process in such a way as to secure convenience, expediency and efficiency in the administration of justice. It is constrained by the Constitution, statutory provisions, the various rules of practice and any applicable common law rules. But, absent some such clear limitation, the court may exercise its inherent jurisdiction where appropriate: Endean, at para.62.

Stay of Proceedings

[19] Under s. 106 of the CJA, this court has the broad right, even on its own initiative, or on motion by any person, whether or not a party, to stay proceedings on such terms as are just.

[20] In United States v. Khadr, 2011 ONCA 358, Sharpe J.A., writing for the Ontario Court of Appeal described the jurisdiction to stay a proceeding when it is an abuse of process. Sharpe J.A. wrote:

[29] In R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128, [1985] S.C.J. No. 53, the Supreme Court of Canada affirmed the common law power of a superior court judge to enter a stay of proceedings to remedy an abuse of process. At p. 135 S.C.R., Dickson C.J.C., writing for the court, adopted the proposition stated by Dubin J.A. of this court in R. v. Young (1984), 1984 2145 (ON CA), 46 O.R. (2d) 520, [1984] O.J. No. 3229 (C.A.), at p. 551 O.R.:

[T]here is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings.

[30] Dickson C.J.C. also adopted [at para. 25] the qualification added in Young that "this is a power which can be exercised only in the clearest of cases".

[21] Sharpe J.A. added, at para. 31, that “this discretion is ordinarily exercised to ensure procedural fairness.”

Transfer of Proceedings to Small Claims Court Under the CJA

[22] A number of statutory provisions found in the CJA are relevant to the issue of a transfer to the Small Claims Court. Section 22 continues the Small Claims Court as a branch of the Superior Court. Section 23(2) allows for the transfer of actions from this court to the Small Claims Court in certain circumstances. Under that provision, the transfer is implemented by the local registrar, all parties must consent and, of course, the claim must be within the Small Claims Court’s jurisdiction.

[23] In Shopper’s Trust, cited above, MacDonald J. of this court considered the combined effect of CJA s. 11(2), cited above (granting this court “all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario.”), and s. 23(2). She concluded that s. 23(2), which only grants local registrars the power to transfer a proceeding to the Small Claims Court, does not limit the inherent jurisdiction of judges of the Ontario Court (General Division) (“OC(GD)”), the predecessor of this court, to do the same. As she wrote:

10 The Legislature's intention in enacting s. 23(2) of the Courts of Justice Act was to provide a limited transfer power to registrars. Reading both sections 11 and 23 together, I conclude that the legislature did not intend to derogate from the general jurisdiction and power of a judge of this Court to control the processes of this Court, of which the Small Claims Court is a branch pursuant to s. 22(1) of the courts of Justice Act.

[24] Accordingly, MacDonald J. found at para. 11 that “[a]ctions transferred from the General Division, whether by the registrar or by a judge, are properly before the Small Claims Court.” At para. 11, MacDonald J. added her opinion in obiter that “counsel acting in actions pending before this Court and having a value [within the Small Claims Court limit] should take the steps necessary to have such actions transferred to the Small Claims Court.”

[25] In Ali v. Schrauwen, 2011 ONSC 2158, Master C.U.C. MacLeod, as he then was, came to the same conclusion as MacDonald J. He cited CJA s. 23(2) as authority to transfer an action to Small Claims Court without consent. At para. 4, he added that “[c]ases that are within the jurisdiction of Small Claims Court ought ordinarily to be moved to that branch of this court unless there is prejudice to the other party that cannot be easily remedied”.

[26] While not mentioned in cases involving a transfer to the Small Claims Court, CJA s. 110 broadly allows a transfer or adjournment of a proceeding from “the wrong court, judge or officer” to the “proper court, judge or officer.”

[27] In Vigna v. Toronto Stock Exchange, [1998] O.J. No. 4924 (Ont. Div. Ct.), at para. 7, the Divisional Court held that the inherent jurisdiction of a superior court allowed it to transfer a matter from the Small Claims Court to the OC(GD) without the consent of the plaintiff. That inherent jurisdiction is not dependant on a statute or the Rules. In Vigna, multiple claims were brought against the defendant by numerous plaintiffs, all in relation to a single factual scenario. The motion judge dismissed a request by the defendant to transfer the claim to the OC(GD), finding that he lacked the jurisdiction to do without consent. In overturning the motion judge’s decision and ordering a transfer of the case to the OC(GD), the Divisional Court stated at para. 7:

We are of the view that he had the necessary jurisdiction inherent to his powers as a Superior Court judge to control the process of the courts. We do not mean it to be taken that a transfer should be made in every case where it is requested. It is important for the court to scrutinize the issues raised where such a request is made to determine whether those issues are capable of being justly and fairly resolved by the procedures available in Small Claims Court. In many if not most cases the Small Claims Court procedures will suffice.

[28] Accordingly, based on the authorities cited above, I find that this court has both the inherent and statutory jurisdiction to stay this proceeding or transfer it to the Small Claims Court, even absent consent.

Transfer to Another Territorial Jurisdiction

[29] Under r. 13.01.02, this court may act on its own initiative or on motion, to transfer an action to the Superior Court in the county where it should have been commenced. Before the introduction of r. 13.01.02 in 2004, the right to change the venue of a trial was seen as another element of a judge’s inherent jurisdiction. In Empson v. Cooney, [1953] O.W.N. 925 (Ont. C.A.), Pickup C.J.O. wrote at para. 4, on behalf of the Ontario Court of Appeal, without reference to a rule or statute, that:

We are of the opinion that the learned trial Judge had, in the circumstances, the power to change the place of trial to Picton if in his opinion, on evidence before him, the interests of justice require such change, but strong, cogent reasons should be shown before such a change is made in the discretion of a trial Judge.

[30] In Lauren v. Favout (1996), 1996 7964 (ON SC), 28 OR (3d) 114, Borins J., as he then was, adopted this statement of Griffiths J., as he then was, in Freeman v. Gabriel (1981), 1981 1805 (ON SC), 33 O.R. (2d) 846 (H.C.J.) regarding the impropriety of selecting a place of trial that has no connection to either party:

In my opinion it is prima facie improper to name a place of trial which has no connection with either the parties or the cause of action.

[31] It is notable that Borins J. stated that the rule previously relied upon by Griffiths J. was not included in the Rules. Thus, Griffiths J.’s decision to change the venue of trial was implicitly based upon his inherent jurisdiction to control the court’s process.

[32] In Chatterson v. M&M Meat Shops, 2014 ONSC 1897 (Div. Ct.), the Divisional Court stated that when addressing a change of venue motion under r. 13.1.02, the court must engage in a “holistic exercise” to determine whether a change in venue is appropriate and just: at para. 35. The court added at para. 37 that “whether the plaintiff's choice of venue is reasonable or not, the court retains discretion in the matter and as a result can refuse seemingly well-founded venue motions which, if allowed, would result in unfairness.”

Issue No. 2: Is Canaccede’s common practice of suing out of jurisdiction litigants in Milton for amounts below the Small Claims Court limit an abuse of process?

The Doctrine of Abuse of Process

[33] The doctrine of abuse of process is a broad and remedial common law principle. It is one which can take many forms. It was developed by the courts to protect the integrity of the adjudicative process: Intact Insurance v. Federation Insurance Co. of Canada, 2017 ONCA 73, at para. 20.

[34] The doctrine arises from the court’s inherent jurisdiction. As Arbour J, writing for the majority of the Supreme Court of Canada (LeBel J. and Deschamps J. concurring), stated in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, 2003 CarswellOnt 4328 (“CUPE”):

35 Judges have an inherent and residual discretion to prevent an abuse of the court’s process. This concept of abuse of process was described at common law as proceedings “unfair to the point that they are contrary to the interest of justice” (R. v. Power, 1994 126 (SCC), [1994] 1 S.C.R. 601 (S.C.C.), at p. 616), and as “oppressive treatment” (R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659 (S.C.C.), at p. 1667). McLachlin J. (as she then was) expressed it this way in R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979 (S.C.C.), at p. 1007:

. . . abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice.

[35] The doctrine of abuse of process is one which may be engaged to prevent injustice through legal process. Its breadth and flexibility does not require the breach of a statute or a rule. As Goudge J.A. of the Court of Appeal for Ontario wrote in a dissent in Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), reversed 2002 SCC 63, [2002] 3 S.C.R. 307, which was ultimately adopted by the majority of the Supreme Court of Canada in the same case:

[55] The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).

[36] The doctrine of abuse of process is primarily focused on preserving the integrity of the administration of justice rather than protecting the interests of individual litigants. As Arbour J. wrote at para. 43 of CUPE :

In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts. Whether it serves to disentitle the Crown from proceeding because of undue delays (see Blencoe, supra), or whether it prevents a civil party from using the courts for an improper purpose (see McIlkenny [H.L.], supra, and Demeter, supra)[^1] the focus is less on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice.

[37] It is also important to note, as the court did in CUPE at para. 51, that “[r]ather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process.”

[38] In Sangale v. Abdalla, 2013 ONSC 5655, Kiteley J. was faced with a situation somewhat analogous to the one before me: forum shopping. A wife who had commenced a divorce and custody application in Kenya (where her children and husband resided), brought another application for similar relief in Ontario. In response to the husband's motion for summary judgment, the wife withdrew portions of her Kenyan application. Kiteley J. was not persuaded by the wife’s tactics. She wrote:

26 To allow the Applicant to achieve a tactical advantage by use of a strategy that can only be described as forum shopping to defeat this motion brought by the Respondent is inconsistent with the objectives of public policy against multiple proceedings and undermines the integrity of the adjudicative process and constitutes an abuse of process.

[39] In V.F. v. Halton Children's Aid Society, 2016 ONCJ 111, while sitting in the Ontario Court of Justice, I found that a child protection proceeding commenced in that court by an allegedly alienated child was, in the circumstances, an abuse of process. The child protection proceeding was commenced in the face of an impending Superior Court custody and access trial between her parents. If allowed to proceed, the custody and access proceeding would have been stayed by operation of the governing statute at the time, the Child and Family Services Act. I found that the child protection proceeding was commenced by the child, under the control of her mother, for the collateral purpose of derailing the custody and access proceedings. She did so at a time that the mother faced the prospect of losing custody of the parties’ children. I made that abuse of process finding even though the Child and Family Services Act allowed a child to commence a protection proceeding.

[40] In Mayer v. 13143122 Ontario Inc., 2002 49412 (ON SC), [2002] O.J. No. 457 (S.C.), Cullity J. made a finding that a subrogated insurer’s claim against a defendant was an abuse of process. He made that finding because the insured had already sued for the portion of their loss that had not been covered by the insurer. Cullity J.’s decision was not based on the breach of any statute or term of the insurance contract. As he wrote at para. 5:

5 Counsel were agreed that there are no statutory provisions, or terms of the policy, that bear on the issue in the motion. In consequence, the question whether I have a discretion -- and, if so, how it should be exercised -- must be considered against the backdrop of the rules of common law and the principles of equity that govern an insurer's right of subrogation.

[41] In Paul Revere Insurance Company v. Herbin, 1996 CarswellNS 101, [1996] N.S.J. No. 88 (N.S. S.C.), Saunders J. of the Nova Scotia Supreme Court relied upon his inherent jurisdiction to prevent an abuse of process in ruling that a case must be heard in Nova Scotia’s Supreme Court rather than its Small Claims Court. Herbin arose from the termination of disability benefits that paid the insured $1,550 monthly benefits to age 65, if qualified. Mr. Herbin sued for the Small Claims Court limit of $5,000. He left open the idea of further suits against the insurer for the same disability benefits in subsequent months, as his claims for unpaid benefits again accrued.

[42] Saunders J. was concerned that the insured could sue the insurer each month for unpaid benefits, in order to stay within the Small Claims Court limit. Theoretically, the insured could have brought 69 separate claims against insurer for benefits under the policy. That could lead to inconsistent results before different adjudicators. The total claims in the Small Claims Court could have reached $500,000. Saunders J. found that the process of the Small Claims Court, with no rights of production and discovery, was not equipped for such a claim or set of claims. Considering the risk of serial claims in a court ill-equipped to deal with a case such as the one before him. Saunders J. required the entirety of the claim to be heard in the Nova Scotia Supreme Court.

[43] Herbin can be seen as offering the inverse mirror image of this case, where the wrong court is the superior one. Particularly apposite to the issues before this court, Saunders J. did not find that Mr. Herbin breached any statute or rule. Rather he relied on his superior court’s inherent jurisdiction, writing:

26 This court has the inherent jurisdiction to protect its own integrity and prevent an abuse of process. For all of the reasons stated, I would grant the relief sought by the applicant, Paul Revere Insurance Company, that is to say, the Small Claims Court action taken by Mr. Herbin is an abuse of process and his claim will be stayed. It should be commenced in the Supreme Court.

Why Canaccede’s Common Practice is an Abuse of Process Without Breaching any Statute or Rule

[44] Canaccede correctly points out that its common practice of suing out of jurisdiction defendants in this court, for amounts within the Small Claims Court limit, does not breach any statute or any of the Rules. Nothing in the Rules or the CJA prohibits a lawsuit in this court for an amount below the $35,000 Small Claims Court limit. Rule 13.1.01 (2) states that that if a statute or rule does not require a proceeding to be commenced, brought, tried or heard in a particular county, the proceeding may be commenced in any county in Ontario.

[45] Canaccede’s argument implies that those procedural entitlements (or lack of proscription on its conduct) represent the end of the discussion. While that may often be the case, it is not so here. As I have already found, a breach of a statute or a rule is not a prerequisite to a finding of abuse of process. Here, Canaccede’s common practice raises a number of fair process concerns that only become clear upon close review of the actual effect of that practice on real-life litigants in Ontario.

[46] Canaccede’s statement of claim discloses that it is located in London, Ontario, which is part of this court’s Southwest Region. Yet Canaccede’s common practice involves issuing its statements of claim in Milton, which is in the Halton Region and this court’s Central West Region. That is a jurisdiction to which Canaccede has no apparent connection.

[47] As it admits, Canaccede’s common practice is to use the Superior Court of Justice to adjudicate its claims, even when they are below the Small Claims Court monetary limit. In brief, as set out above, the reasons that it gives for engaging in that practice are that: 1) it is one shared by “the legal collections industry in Ontario,” 2) not being able to do so would make it “difficult” for Canaccede and its collections industry colleagues; and 3) it prefers this court’s process over that of the Small Claims Court.

[48] In other words, Canaccede conducts its business of collecting debts in this court that are below the Small Claims Court limit, against out of jurisdiction litigants, because it feels that doing so offers it a litigation advantage. While Canaccede’s common practice does not violate any statute or rule, it does not justify that practice by reference to doing justice, trial fairness, proportionality, prejudice, or access to justice. But this court must concern itself with those considerations.

[49] In the Canaccede v. Schulz-Hallihan case, the defendant is being sued in this court for $7,559.77 plus interest. It would likely cost him more than that amount to hire a lawyer to defend this action. He could not hire a lower cost paralegal because paralegals are not entitled to represent litigants in this court: r. 15.01(1) - (3). If he wished to retain counsel, he would have to decide whether to hire a lawyer in Peterborough, where he resides, or travel to Halton to retain counsel and argue this case (assuming that the court will resume in-person hearings in the foreseeable future). If Mr. Schulz-Hallihan wished to move to have the action transferred to the Peterborough Superior Court, his legal fees for that motion would, again, likely approach if not exceed the amount claimed by Canaccede.

[50] On the other hand, if this action had been brought in the Peterborough Small Claims Court, Mr. Schulz-Hallihan would be able to hire a local paralegal. He would be able to do so at a cost far more proportionate to the amount at issue than would be the cost of a lawyer to argue this case in Halton. He would be able to defend a claim that arose in his home jurisdiction, in that jurisdiction.

[51] In addition, if Canaccede had sued Mr. Schulz-Hallihan, Ms. Goodchild or Ms. Joshi in Small Claims Court rather than this one, a different process would apply to its claim. Section 25 of the Courts of Justice Act sets out the summary manner in which the Small Claims Court is required to determine matters before it, directing that it “shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.” While still a court of law, the Small Claims Court’s processes are more amenable than those of this court to the self-represented and unsophisticated litigant. Its processes are streamlined, without discoveries or affidavits of documents. Basically, the process calls for an exchange of pleadings, a settlement conference and a trial (see commentary to CJA s. 25 in Ontario Small Claims Court Practice, 2021, M. Zuker J. and S. Winny, 2020, Thompson Reuters Canada, Toronto, at p. 45).

[52] Particularly relevant to the issues before the court, had Canaccede sued Mr. Schulz-Hallihan, Ms. Goodchild or Ms. Joshi in Small Claims Court, r.6.01(a) of the Rules of the Small Claims Court, cited at para. 4 above, would have applied. That rule would require Canaccede to bring its action where either the cause of action arose or the defendant resides. When the claim is on a simple unpaid debt, that venue is the place where the defendant resides: Cash 4 You Corp. v. Power, [2014] O.J. No. 2131 (Sm. Cl. Ct.).

[53] In Cash 4 You Corp. v. Power, [2014] O.J. No. 2131, the experienced deputy judge of the Small Claims Court, Winny D.J., explained that rationale for the requirement that a defendant be sued where they reside, writing:

12 The venue rule in Small Claims Court is based on a policy choice by the Civil Rules Committee that convenience to plaintiffs is sacrificed in favour of convenience where the defendant resides or carries on business. The cause of action is non-payment and the non-payment cannot be deemed to have occurred where the plaintiff resides or carries on business, as has been consistently held for a century: see McNeilly v. Bennett (1915), 1915 506 (ON SC), 34 O.L.R. 400 (H.C.J.); Xerox Canada Inc. v. Neary (1984), 1984 2212 (ON CJ), 47 O.R. (2d) 776 (Sm. Cl. Ct.).

13 The defendants' ability to defend themselves may be compromised where the wrong venue is used by the plaintiff. Dealing with a distant court office may be unworkable or unduly expensive for defendants. Particularly for relatively small claims like these, that cost may deter defendants from exercising their right to respond to the claim. The system is supposed to be user-friendly, particularly for self-represented parties. The venue rule in this court favours convenience for defendants over convenience for plaintiffs.

[54] The decision of Winny D.J. in Cash 4 You Corp. v. Power was approved by Myers J., writing for the Divisional Court in Chaly v. Preferred Roadside Towing, 2018 ONSC 5935, at para. 4. There, he said: “[th]e Civil Rules Committee has made a policy choice that convenience to the plaintiff is sacrificed in favour of the convenience of the defendant.” That comment echoes that of Middleton J., writing over one hundred years earlier, in McNeilly v. Bennett, cited by Winny D.J. above, that:

the Division Courts Act, … compels the creditor to seek his remedy in the Court of the residence of his debtor unless the whole cause of action arises in some other division… [t]he legislative sympathy is entirely with the debtor, and the provisions of the Act ought to be interpreted accordingly.

[55] Thus, the r. 6.01(a) jurisdiction rule of the Rules of the Small Claims Court can be seen as a measure implemented to ensure access to justice by people who may otherwise be unable to participate in their cases. Canaccede’s common practice is a direct challenge to the principle of access to justice. By preventing people sued on smaller debts from defending themselves in their home jurisdictions, where they should be entitled to do so, it disincentivizes them from defending those claims at all.

[56] A further advantage that accrues to a plaintiff suing in this court when the Small Claims Court is available is costs, particularly on default judgments. As Canaccede has pointed out, r. 57.05(1) allows this court to grant no costs to a plaintiff who recovers only an amount within the monetary jurisdiction of the Small Claims Court. Further, under r. 57.05(3), costs of a default judgment within the monetary jurisdiction of the Small Claims Court are to be assessed in accord with the Small Claims Court tariff. That tariff generally grants costs at a far lower scale than those awarded in this court. Further, s. 29 of the Courts of Justice Act imposes a statutory limit of 15 percent of the amount claimed in the Small Claims Court. That limit applies “unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding.”

[57] Fifteen percent of the amounts claimed against the defendants to the actions would be:

Defendant Amount of Claim 15% Costs Limit Under CJA s. 29

Douglas K. Schulz- $7,559.77 $1,133.97 Hallihan

Inderjeet Joshi $18,958.36 $2,843.75

Laura Goodchild $13,040.04 $1,956.00

[58] Yet nothing in Canaccede’s statements of claim against the Defendants make any reference to r. 57.05(1) or (3), much less CJA, s. 29. To the contrary, each of the three statements of claim in the actions includes a claim for costs on a substantial indemnity basis. That is an enhanced scale of costs that is not available in the Small Claims Court. Canaccede pleads no grounds for offering it enhanced costs.

[59] Inasmuch as one of Canaccede’s arguments is that it routinely obtains default judgments from this court, the absence of reference to r. 57.05(1) or (3), and CJA s. 29 in its pleadings is telling.

[60] I add that it is possible that, unlike Canaccede, many of the defendants whom it sues may not even know of their procedural rights. Canaccede claims that it will transfer any actions to the proper Small Claims Court venue if asked. But nothing before the court shows that its practice includes informing defendants of that offer. Nor is there any indication that, unless challenged, it seeks anything but costs at a Superior Court of Justice scale.

[61] In light of those considerations, Canaccede’s common practice does more than offer it a litigation advantage. It offers a significant disincentive to defendants to defend its actions, based purely on the amount in issue and Canaccede’s choice of court. Instead, many litigants, disincentivized from obtaining legal advice and daunted by the prospect of defending Canaccede’s action in the Superior Court of a distant jurisdiction, would not even know that they could request a change of venue.

[62] Further, it is not a great leap to assume that people who are being sued for less than $8,000 (or even approximately $13,000 for Ms. Goodchild or $19,000 for Ms. Joshi) on a loan or credit card debt may not be wealthy enough to retain a lawyer to defend the action in a distant jurisdiction, to which they or their case have no connection.

[63] In Segura Mosquera v. Rogers Communications Inc., 2020 ONSC 6024, Gomery J. considered a request to transfer an action from Small Claims Court to the Superior Court. The claim was far below the Small Claims Court limit. The Plaintiff argued that the Small Claims Court’s processes were inadequate to her desire for pre-trial discovery from the defendant. Gomery J. refused to order the transfer, finding at para. 8 that a transfer to Superior Court absent compelling reasons:

undermines the jurisdictional legitimacy of the Small Claims Court. It assumes that the procedures in that court are inadequate, when in fact they may be perfectly suitable for the resolution of a given dispute. This is a dangerous assumption in an era where access to justice is a significant problem.

[64] Gomery J. continued, finding that a transfer to Superior Court should not be allowed for “an improper collateral purpose”. She wrote that:

The discretion to transfer an action to Superior Court should not be exercised solely to permit one party to obtain a strategic advantage.

[65] These comments were made in the context of a transfer from the Small Claims Court to the Superior Court. But they are equally applicable to the decision to commence an action in Superior Court for purely strategic reasons when it should have been commenced in Small Claims Court.

Effect of Previous Costs Decisions When Actions Brought in the Wrong Court

[66] Canaccede points out that this court’s administration has not stopped it from commencing actions of amounts within the Small Claims Court’s jurisdiction or obtaining default judgment on those proceedings. It points out that even judges who have complained about litigants suing in this court when the Small Claims Court is available to adjudicate the action, have not stayed the proceedings or found them to be an abuse of process.

[67] While that may be the case, administrators are constrained by the contours of the Rules and statutes already described. Their role does not allow them to engage in the considerations that I have raised upon the facts of this case. Further, those judges who have only imposed costs consequences for suing in the wrong court deal with the individual cases before them. In those cases cited by Canaccede, the issue of the propriety of suing in this court only arose at or near the end, rather than the beginning of the case.

[68] In Shakur v. Mitchell Plastics, 2012 ONSC 1780, Broad J. was called upon to fix the costs of a proceeding where the plaintiff appears to have sued for an amount above the Small Claims Court limit but judgment was granted below that limit. Broad J. criticized the plaintiff’s conduct and punished him by withholding any costs of the action. But by the time the issue of costs arose, the merits of the case had already been determined. It was no longer open to the court to consider a transfer to a lower court. There is a vast difference between suing for an amount above the Small Claims Court jurisdiction and receiving an amount below it and suing for an amount below that court’s limit.

[69] In Shakur, Broad J. cited TD Bank v. Thind, 2010 ONSC 6974, where a bank sued a defendant in this court for an amount within the Small Claims Court limit. It did so for admittedly pragmatic reasons: the presence of the summary judgment procedure and the plaintiff’s preference for this court’s processes. When the plaintiff bank moved for summary judgment, the defendant moved to transfer the case to Small Claims Court. Gray J. rejected the defendant’s motion and granted summary judgment. But he did so for a very proportional and case specific practical reason: he found that the defendant had pleaded no real defence. Thus, there was no point in transferring the case to Small Claims Court when it was clear that there was no defence to be litigated there.

[70] Despite granting summary judgment. Gray J. manifestly rejected the plaintiff’s arguments about the practicality of its strategic use of this court. He wrote:

21 With respect, I do not think these practical considerations can override the clear policy of the legislature and the Rules Committee that cases worth less than $25,000 should be disposed of in the Small Claim Court. As pointed out by the Court of Appeal in [Van de Vrande v. Butkowsky, 2010 ONCA 230], the absence of a summary judgment procedure under the Small Claims Court Rules is deliberate. I cannot be concerned about the way in which the Small Claims Court is administered, or the way in which Small Claims Court judges make determinations on motions under that Court's Rule 12.02.

[71] Having offered this comment, despite granting the plaintiff summary judgment, at para. 25 Gray J. went further to express his disapprobation of the plaintiff’s tactics. He refused to grant it any costs at all, stating:

If the plaintiff, as here, has made a deliberate decision to bring the proceedings in the Superior Court when it is clear that the Small Claims Court has jurisdiction, then, save in exceptional circumstances, the plaintiff should recover no costs. The business decision made by the plaintiff to bring the action in this Court should carry with it the business decision that it will likely receive no costs if it is successful.

[72] To the extent that Canaccede contends that the lesson of TD Bank v. Thind is that diminished costs is the price of business of doing business in this court when it should be utilizing the Small Claims Court, that lesson must be rejected. Gray J. made his view of the impropriety of a similar litigation strategy crystal clear. When he refused to transfer an action with a manifestly meritless defence to the Small Claims Court, he was acting only on the facts of the case before him. But he did not close the door to the notion of a transfer where the defence is not clearly devoid of merit. He utilized the one tool that he felt available to him express his dissatisfaction: withholding any costs to the successful plaintiff.

[73] I note that Canaccede’s common litigation practice is not limited to using this court when the Small Claims Court is the more appropriate venue for the action. It extends to using the Superior Court in a jurisdiction to which it has no connection in order to sue a litigant in a completely different jurisdiction. It does so, presumably aware of the requirements of r. 6.01 of the Small Claims Court Rules. That is a strategy which systemically disadvantages out of jurisdiction litigants in claims below $35,000.

[74] Counsel for Canaccede informs me that its common litigation practice and strategy has been repeated over a hundred times in this court; this by just one member of the collections industry in Ontario. If, when confronted with those facts, nothing is said or done, that common practice is likely to continue indefinitely.

[75] For his part, Gray J. neither considered the practice of the TD Bank outside of the bounds of the case he was adjudicating nor did he consider the issue of abuse of process. I add that Gray J.’s decision can be read as offering a warning to institutional litigants that the use of this court when the Small Claims Court is available and better suited to resolve claims such as the three before me, will not be approved indefinitely.

The Limited Resources of this Court

[76] In considering whether the three actions before me represent an abuse of process, I must consider one additional factor: the resources available in this court. At the time that these reasons are drafted, this province has not fully emerged from the ravages of the COVID-19 lockdown. While this court has made enormous strides to serve the public during this pandemic, it has nonetheless been hobbled in its ability to efficiently litigate all of the proceedings before it. A number of cases within this court’s areas of jurisdiction have been significantly delayed. This court will have to find the resources to deal with all of these cases.

[77] Thirteen years ago, Nolan J. of this court wrote in Lore v. Tortola, [2008] O.J. No. 769 (S.C.J.), about the costs of a completed action that should have been brought in the Small Claims Court. At para. 17, she wrote about the impropriety of imposing on the overtaxed resources of this court when the Small Claims Court is available, as follows:

The Superior Court of Justice is currently overburdened with cases. Parties should not be rewarded with costs in matters that should have been properly brought in another forum designed to handle claims of a specific magnitude or monetary value, such as the Ontario Small Claims Court.

[78] If this court was overburdened with cases then, how much more is that the case now, in the face of a worldwide pandemic?

Conclusion Regarding Abuse of Process

[79] In conclusion, with all of the factors set out above in mind, I find that the three actions before me and the common practice that guides their presence in this court represent an abuse of process. That practice is one that is engaged in for the practical benefit of an institutional litigant. But that benefit comes at the expense of out of jurisdiction defendant, who should be entitled to have their cases litigated in the proper court and in the jurisdiction in which they live. Canaccede’s common practice detracts from the fairness of the trial process and the right to access to justice, particularly for those of modest means. Those litigants should not be burdened by two added barriers to their access to justice.

Issue No 3: If it has the jurisdiction to do so, should this court exercise its jurisdiction to stay or transfer this proceeding to the Small Claims Court?

[80] I have found above that: 1) this court has the inherent jurisdiction to stay a proceeding or transfer it to the Small Claims Court, even absent consent, and 2) Canaccede’s common practice of suing litigants in this court for amounts within the Small Claims Court limit, despite neither party having a connection to this jurisdiction, is an abuse of process. Thus, it is necessary to offer the remedy that will most fairly resolve that abuse of process.

Why I may Consider These Issues on my own Initiative

[81] Before I do so, I wish to turn my mind to the concern that Canaccede’s arguments do not directly allude to, but which I feel that I must consider. The defendants in the actions have not yet been served with Canaccede’s statement of claim. Not only have they not raised the concerns set out above, they are likely unaware of them. I have raised them on my own initiative.

[82] Normally, the job of the court is to resolve disputes between parties, considering the facts that they muster and arguments that they raise. It is not to take on the role of advocate for one side or the other. Once the court enters the fray, it runs the risk of losing its ability to objectively determine the case before it. I have weighed that concern.

[83] The role of the judge in the modern courtroom is not that of mere passive observer. While judges may not descend into the fray, they remain the guardians of the legal process. Much has been written, for example about the role of judges as “gatekeepers” of the evidence, even absent the objection of the parties: see White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.

[84] While not directly applicable to the facts of this case, there are a number of circumstances set out in the Rules and the CJA under which a judge of this court may make procedural orders under her or his own initiative. They are:

1. Rules 2.1.01 and 2.1.02: the court may, on its own initiative, stay or dismiss a proceeding or motion that appears on its face to be frivolous, vexatious or an abuse of process.

2. Rule 13.1.02(1): the court may, on its own initiative, order that the proceeding be transferred to the county where it should have been commenced.

3. Rule 13.1.02(4): the regional senior justice in whose region the proceeding was commenced may, on his or her own initiative, order that a proceeding be transferred to another county within the same region.

4. Rules 50.02(3) and 50.03: a judge may at any time, on his or her own initiative, direct that a pre-trial conference be held before a judge or case management master. That right applies in both actions and applications.

5. Rule 50.13(1): a judge may at any time, on his or her own initiative, direct that a case conference be held before a judge or case management master.

6. Rule 52.03(1): a judge may, at any time, on his or her own initiative, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in the action.

7. Rules 57.07(1) and (2): where a lawyer for a party has caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default, the court may, on its own initiative, make a costs order against that lawyer.

8. Rule 77.04(2): a judge or case management master may, on his or her own initiative, require the parties to appear before him or her or to participate in a conference call to deal with any matter arising in connection with the case management of the proceeding, including a failure to comply with an order or the rules.

9. Rule 77.05(2): at any time on or after the filing of the first defence in a proceeding to which this Rule may apply, a regional senior judge or, subject to the direction of a regional senior judge, any judge or case management master may assign the proceeding for case management under this Rule.

10. Rule 77.08: a judge or case management master may at any time, on his or her own initiative or at a party’s request, convene a case conference under rule 50.13.

11. CJA s. 106: a court may, on its own initiative, stay any proceeding in the court on such terms as are considered just.

[85] Admittedly, none of these provisions, other than that for a stay, are directly applicable. Further, each of the statements of claim in the actions disclose valid claims for a debt based on the advance of funds or use of a credit card. Those claims, in themselves, cannot be characterized as frivolous and vexatious. But as the provisions set out above illustrate, there are circumstances where a court may intervene, even on its own initiative, to protect its process. Even where circumstances are not directly covered by a statute or rule, the court’s inherent jurisdiction must allow it to step in to protect its process.

[86] The point was clearly articulated by Strathy J., as he then was, in Salimijazi v Pakjou, 2009 CarswellOnt 2013 (S.C.J.). There, he was dealing with a motion for uncontested judgment under r.19.05(1), when the defendant had failed to file a statement of defence. Strathy J. found at para. 34 that even in the absent of a participating defendant, a presiding motion or trial judge:

has a duty to both parties, even though the defendant is not present. That duty is part of the court’s duty in the administration of justice. The duty to the plaintiff is to dispense expeditious and cost-efficient justice where the defendant has ignored the court process. The duty to the absent defendant and to the public is to ensure that justice is indeed done and that manifestly unsustainable claims are not mechanically processed.

[87] Here, to require Mr. Schulz-Hallihan, Ms. Goodchild and Ms. Joshi to participate in these proceedings as presently constituted would visit upon them the very unfairness and barriers to justice that this court is duty-bound to avoid. While there are substantive claims against the defendants, they should be adjudicated in the proper court and jurisdiction. I add that it is part of my role as a judge of this court to safeguard its resources, particularly at an extraordinarily difficult time such as this. For those reasons, I find it appropriate to offer the remedy set out below upon my own initiative.

The Appropriate Remedy is a Transfer to Small Claims Court

[88] Canaccede asks that I not stay the proceedings in this court, and thus require it to issue new claims in small claims court. It cites the risk of missing a limitation period when it has sued each defendant within that period. Canaccede reminds me, as set out above, that the power to stay proceedings should be exercised sparingly and only in the clearest of cases. I agree.

[89] I find that the remedy that best cures the abuse of process is not a stay of these proceedings. Rather, the appropriate remedy is to transfer the proceedings to the Small Claims Court in the jurisdiction that the defendants reside and I so order. For Mr. Schulz-Hallihan and Ms. Joshi, that venue is Peterborough. For Ms. Goodchild, it is Ottawa. In order to properly effect the transfers and ensure that the defendants understand the manner in which they are to defend this action, Canaccede will issue an amended claim (i.e. amending its statement of claim in this action) in the Small Claims Court of the appropriate jurisdiction. That process will preserve Canaccede’s ability to sue the defendants within the relevant limitation period. To be clear, the Small Claims Court action will be a continuation of the action commenced in this action.

[90] In addition, the time resolving this matter has diminished Canaccede’s time to serve its pleadings on the defendants. Thus, I extend the time for service of Canaccede’s amended claims upon each of the defendants by a further six months, to January 8, 2022.

[91] Further, I grant an order of substituted service in regard to each of the three defendants. Canaccede will issue and serve its amended claim in the Small Claims Court, along with a copy of this endorsement upon the defendants as follows:

a. Douglas K Schulz-Hallihan: Canaccede shall serve the documents cited above on Mr. Schulz-Hallihan by delivering those documents in a sealed envelope to an adult member of the household at 3312 University Heights, Peterborough, Ontario. If an adult fails to answer the door, the envelope may be left in the mailbox or attached to the door of the residence. In addition, following such service, a call shall be made to Mr. Schulz-Hallihan at (705) 808-4695. If he answers, he shall be informed of the service as set out above. If he fails to answer, a message shall be left to the same effect.

b. Interjeet Joshi: Canaccede shall serve the documents cited above on Ms. Joshi by regular lettermail addressed to Ms. Joshi at 78 Flitton Avenue, Peterborough, Ontario K9H 0G5.

c. Laura Goodchild: Canaccede shall serve the documents cited above on Ms. Joshi in a sealed envelope addressed to her, marked “Personal and Confidential”, and left with the receptionist at her place of work, the Waterside Retirement Community, 105 McNeely Avenue, Carlton Place, Ontario. A second copy of those documents shall be mailed to her by regular lettermail, addressed to Ms. Goodchild at 150 Crampton Drive, Carlton Place, Ontario, K7C 4P4.

[92] Service on each defendant shall be effective 14 days from the last form of service set out above.

[93] There shall be no costs of any of the three motions before me.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz,

Date: July 8, 2021

[^1]: Note: these are two cases where the Plaintiff attempted to use the civil process to relitigate issues determined by criminal convictions. McIlkenny v. Chief Constable of the West Midlands, [1982] A.C. 529 (U.K. H.L.) was a decision of the British House of Lords with regard to the “Birmingham 6” . The Plaintiffs had been convicted of bombing two pubs in Birmingham, England during the Irish “Troubles” but later sued the police for assault during their interrogation. Demeter v. British Pacific Life Insurance Co., 1983 1838 (ON SC), 150 D.L.R. (3d) 249 (Ont. H.C.), at p. 264, affirmed (1984), 1984 1996 (ON CA), 48 O.R. (2d) 266 (Ont. C.A.) is a case where the Plaintiff tried to sue on his wife’s insurance policy after he was convicted of murdering her.