COURT FILE NO.: CV-19-90 (Owen Sound)

DATE: 2021-09-17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MARCO JASON FALARDEAU

Plaintiff

-and-

OWEN SOUND POLICE SERVICES BOARD, CONSTABLE THOMAS HARRIS, CONSTABLE PETER SCHULTZ AND CONSTABLE LIZA WILD, AND SERGEANT TED KITTO

Defendants

Ken Wise, for Mr. Falardeau

Larry Reimer, for the Defendants

Heather Mackay, for the Attorney General

Heard: June 15, 2021 by video conference

Before: Justice R. Chown

REASONS FOR DECISION

[1] On March 4, 2011, Justice Thompson made an order that the plaintiff Marco Falardeau is required “to obtain permission from the Superior Court of Justice prior to commencing any action against the Owen Sound Police Services Board” (OSPSB). In this motion Mr. Falardeau seeks a retroactive order granting permission to commence and continue this action, which he commenced without permission.

[2] This action is Mr. Falardeau’s fourth attempt to sue the OSPSB.

[3] In addition, Mr. Falardeau has issued another statement of claim, representing his fifth attempt, which is not the subject of this motion. It was also issued without leave.

[4] I have concluded that Mr. Falardeau has not met his onus under s. 140(4)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (CJA) to show that there are reasonable grounds for this proceeding. I deny leave and dismiss this action.

Common Features of the Claims

[5] All five of Mr. Falardeau’s actions claim damages for false arrest, assault, malicious prosecution, and breaches of his rights guaranteed by the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[6] The other allegations in the claims vary but include false imprisonment, assault, battery, trespass, wrongful detention, negligent investigation, negligent prosecution, breach of the Ontario Human Rights Code, R.S.O. 1990, c. H.19., and obstruction of justice.

Details of the Prior Claims

Action CV-02-377

[7] Owen Sound police arrested Mr. Falardeau on July 4, 1999, December 10, 2000, July 12, 2002, and September 14, 2002. Mr. Falardeau was convicted for offences arising from incidents on two of the dates indicated, and charges were withdrawn for the incidents on the other two dates.

[8] On December 23, 2002, Mr. Falardeau sued the OSPSB and six of its officers. Mr. Falardeau initially represented himself in this action. His statement of claim alluded to a cause of action but did not adequately plead a proper claim. He subsequently obtained counsel and a fresh amended statement of claim was professionally prepared. It set forth allegations which, if true, would support his claim.

[9] A status notice was issued on September 7, 2006. The action was settled by minutes of settlement and dismissed without costs on consent on November 16, 2007. The particulars of the settlement are not in the motion materials. Despite this, I infer that the claim was not successful for Mr. Falardeau because he issued a second statement of claim, action CV-08-326, discussed below, covering the same arrests and incidents. Had his first claim been successful he would not have tried again.

Action CV-04-161

[10] Owen Sound police arrested Mr. Falardeau for assault on December 9, 2003 because of a December 4, 2003 incident at a bar and restaurant called Jazzmyns.

[11] Mr. Falardeau represented himself at his criminal trial over these charges which was held on September 17, 2004. He was acquitted by Justice Morneau who found that his cross examination of the complainant raised many inconsistencies in her evidence.

[12] On June 4, 2004, Mr. Falardeau sued the OSPSB and two of its officers. Again, Mr. Falardeau initially represented himself in this action. The statement of claim closely follows the pattern and text of the fresh amended statement of claim in the first action, CV-02-377.

[13] A status notice was issued in this action on September 7, 2006. The action was dismissed for delay on December 14, 2006.

[14] That was not the end of action CV-04-161, but the motion materials do not include any explanation for how the action was restored after the administrative dismissal.

[15] However, the motion materials do include a copy of a notice of motion returnable August 6, 2010. That motion was for the appointment of the Public Guardian and Trustee (PGT) as litigation guardian for Mr. Falardeau. A letter dated September 1, 2009 indicates that Mr. Falardeau had recently undergone a psychiatric assessment and that he “may be entitled to a litigation guardian based on the assessment.” On August 6, 2010, Justice Hourigan made an order declaring Mr. Falardeau to be a party under disability and appointed the PGT as his litigation guardian.

[16] It should be noted that Mr. Falardeau’s third action, action CV-08-326, discussed below, had been commenced and dismissed by March of 2010.

[17] On March 4, 2011, Justice Thompson heard a motion in action CV-04-161 brought by the defendants for:

An Order declaring Mr. Falardeau a vexatious litigant, striking out Mr. Falardeau's pleadings in the current Action and declaring that no further proceeding be instituted by Mr. Falardeau in any court except with leave of a judge of the Superior Court of Justice.

[18] The grounds for the motion listed in the notice of motion record included s. 140 of the CJA.

[19] Justice Thompson’s order indicates that the court heard submissions by the lawyers for the parties. The order states:

1. THIS COURT ORDERS that on consent Mr. Falardeau’s claim be dismissed without costs.

2. THIS COURT ORDERS that Mr. Falardeau is required to obtain permission from the Superior Court of Justice prior to commencing any action against the Owen Sound Police Services Board.

[20] It is apparent that the dismissal was on consent. At the time, the PGT was acting for Mr. Falardeau. However, the vexatious litigant order was not made on consent.

[21] Because of the order that Justice Thompson made, I infer that this lawsuit (CV-04-161) was not successful for Mr. Falardeau. Indeed, one must go further and conclude that Justice Thompson considered that Mr. Thompson met the criteria for a vexatious litigant, meaning he had “persistently and without reasonable grounds… instituted vexatious proceedings … or … conducted a proceeding … in a vexatious manner.” Here, I am quoting the test in s. 140(1) of the CJA, which has not changed since Justice Thompson made his order in 2011.

Action CV-08-326

[22] On December 8, 2008, Mr. Falardeau filed a notice of action, followed by a statement of claim on January 7, 2009, again suing the OSPSB. At that point, Mr. Falardeau’s first action (CV-02-377) had been dismissed without costs a year earlier (November 16, 2007). His second action (CV-04-161) was dismissed for delay on December 14, 2006 but its status as of December 8, 2008 is unclear.

[23] The CV-08-326 action included the OSPSB and this time eight of its officers as defendants. It also included: the complainant in the December 2003 incident at Jazzmyns; the OPP and two of its officers; the Ministry of the Attorney General; the Crown Attorney and the assistant Crown Attorney in Owen Sound; the Saugeen Shores Police Service Board and one of its officers; three court reporters in Owen Sound; and a court clerk in Owen Sound.

[24] This claim covered the same arrests already mentioned above, i.e., July 4, 1999, December 10, 2000, July 12, 2002, September 14, 2002, and December 9, 2003. In addition, it covered an arrest on October 23, 2005 where Mr. Falardeau was charged with causing a disturbance and assaulting a police officer with intent to resist arrest. He represented himself in the criminal trial on these charges. He was acquitted on the basis that there was no evidence that anyone other than the arresting officers was present. (The offence requires that someone is affected or disturbed by the activities of the accused.) However, Mr. Falardeau was convicted of assaulting a police officer with intent to resist arrest. The reported decision, R. v. Falardeau, 2006 ONCJ 578, [2006] O.J. No. 5709 (O.C.J.), indicates at para. 7 that Mr. Falardeau assaulted an officer, apparently while under the influence of alcohol. During the incident he said that “he had a lawsuit against the Owen Sound Police and wasn’t afraid of the police.”

[25] Mr. Falardeau initially represented himself in the CV-08-236 action.

[26] The OSPSB and its officers brought a motion, originally returnable on September 4, 2009, for an order striking out the statement of claim as against them. Mr. Falardeau became agitated in the courtroom at the hearing of the motion. Then-counsel for the OSPSB observed Mr. Falardeau holding up his backpack and shouting at court security officers, “Do you think I have a bomb in here?” Mr. Falardeau also jumped over a row of chairs, leaned over the bar to pick up a counsel chair, and wielded the chair at a court security officer. Counsel and other civilians were advised by court security to evacuate the courtroom through the judge’s door.

[27] Several of the defendants brought a motion returnable January 7, 2010 for an order appointing the PGT as Mr. Falardeau’s litigation guardian. After hearing submissions from several of the parties including Mr. Falardeau, Justice Ricchetti granted the requested order.

[28] On March 12, 2010, Justice Thompson made a consent order striking out the claim against these defendants, without leave to amend. At this time, Mr. Falardeau was represented by the PGT. There was no order as to costs.

CV-18-00606108 (Toronto) / CV-19-90 (Owen Sound)

[29] The claim which is the subject of the motion before me arises from an October 5, 2016 incident which began at the H2O Lounge, a nightclub in Owen Sound.

[30] This claim alleges that Mr. Falardeau has a history of mental illness and instability, including “schizophrenia like symptoms, including delusions, paranoia, irrationality and hysteria.” It alleges that this “often causes Mr. Falardeau to act in a manner that is erratic and unstable.” The claim says Mr. Falardeau:

had a few drinks of alcohol at his home. The management of H2O apparently no longer wished to have Mr. Falardeau on the premises. The reason for this is unclear, though it may have been related to Mr. Falardeau having shown visible signs of mental instability, as caused by his “disability”. This includes Mr. Falardeau screaming, without reason. Mr. Falardeau sometimes will shout in response to music.

[31] The claim alleges that the police were called but arrived after Mr. Falardeau had left the premises.

[32] According to the allegations in the claim:

a. Mr. Falardeau then attended a Pizza Pizza restaurant.

b. While there, he “unintentionally appeared to have caused a disturbance by speaking in an elevated fashion inside of the premises.”

c. This was “a direct result of his ‘disability’” of mental illness.

d. Police arrived and arrested Mr. Falardeau very roughly, and he was injured as a result.

e. Unreasonable force was used during the arrest.

f. An inappropriate charge of being intoxicated in public was laid but later “quashed.” [In fact it was not quashed but rather it was not properly filed with the Provincial Offences Court.]

g. The arresting officer “knew or was recklessly blind to the objective evidence that Mr. Falardeau’s behaviour was not caused by intoxication, but instead, by mental illness.”

h. The police made no efforts to accommodate Mr. Falardeau’s disability even though they ought to have known that he is mentally disabled.

[33] This claim was issued in Toronto on October 1, 2018. I will review the evidence regarding this claim in more detail below.

CV-20-11

[34] This action, issued on January 23, 2020, arises from an alleged January 30, 2018 incident. Mr. Falardeau is representing himself in this action. He alleges he was accosted and assaulted by two individuals. He called the police. He alleges the police “made an improper determination” that he was the aggressor. Mr. Falardeau “did not wish to provide any information to the police service about the incident with the assailants” because of his mental state and disability. The police then improperly assumed control over Mr. Falardeau and forced him to return to his residence, “without any lawful basis to assume control over his movements and authority to demand he leave a public area.”

[35] Again, this action is not the subject of the motion before me.

[36] I have had the court file for CV-20-11 reviewed and have determined that, apart from the statement of claim, the court file contains nothing. I will deal with this claim under rule 2.1.03 Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in a separate endorsement (Falardeau v. Owen Sound Police Services Board, 2021 ONSC 6181).

Legislative Framework

Section 140 of the CJA

[37] Counsel advised me that Justice Thompson did not give written reasons for his March 4, 2011 order. I am not aware whether oral reasons were given but not transcribed. However, as indicated, in the notice of motion which resulted in Justice Thompson’s order, the grounds included specific reference to s. 140 of the CJA. There can be no doubt that Justice Thompson made the order pursuant to s. 140(1) of the CJA, which read as follows at the time and which has not been amended:

Vexatious Proceedings

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

(a) instituted vexatious proceedings in any court; or

(b) conducted a proceeding in any court in a vexatious manner,

the judge may order that,

(c) no further proceeding be instituted by the person in any court; or

(d) a proceeding previously instituted by the person in any court not be continued,

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

[38] Section 140 also sets out the procedure for obtaining leave, which governs the matter before me:

Application for leave to proceed

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

Leave to proceed

(4) Where an application for leave is made under subsection (3),

(a) leave shall be granted only if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding;

(b) the person making the application for leave may seek the rescission of the order made under subsection (1) but may not seek any other relief on the application;

(c) the court may rescind the order made under subsection (1);

(d) the Attorney General is entitled to be heard on the application; and

(e) no appeal lies from a refusal to grant relief to the applicant.

Abuse of process

(5) Nothing in this section limits the authority of a court to stay or dismiss a proceeding as an abuse of process or on any other ground.

Rule 38.13

[39] Rule 38.13 sets out special procedural requirements for leave applications brought under s. 140(3). Mr. Falardeau did not follow this procedure. Instead of first seeking leave in a separate application, Mr. Falardeau commenced this action and then brought a motion within the action for leave. It appears this was done, at least in part, out of necessity because the end of limitation period was approaching.

[40] The defendants have courteously indicated they do not object to the matter being decided in the motion before me.

[41] For Mr. Falardeau, a better approach would have been to commence the application required by s. 140(3) well in advance of the limitation date.

[42] It would also have been better to issue a separate notice of application seeking a retroactive order, so that it would be clear that the procedure in rule 38.13 applied. As Justice Grace noted in Paccar Financial Services Ltd. v. 2026125 Ontario Limited, 2014 ONSC 456, at para. 26, the differences between a motion and an application:

are not cosmetic. By way of example only, an affidavit filed in support of a motion may contain statements of the deponent’s information and belief. An affidavit filed in support of an application must confine such statements “to facts that are not contentious”: see rules 39.01(4) and (5).

[43] In the case before me, as I will discuss below, Mr. Falardeau’s affidavit is significantly based on his belief, the source of this belief is not stated, and the facts he deposes are contentious.

[44] The action was commenced in Toronto and the motion was originally brought in Toronto, although this matter has no connection to Toronto. The matter had to be transferred to Owen Sound, which caused delay. The matter was delayed while Mr. Wise arranged a capacity assessment for Mr. Falardeau, and further delayed by the pandemic.

Justice Thompson’s Order

[45] Mr. Falardeau’s factum and the oral argument on his behalf largely focused on three concerns about Justice Thompson’s March 4, 2011 order:

a. it does not make a finding of vexatious conduct;

b. such an order cannot be confined to proceedings against a specified party; and

c. it was made on a motion, not an application as required by the CJA.

[46] I agree that a finding of vexatious conduct is required. However, it is implied in Justice Thompson’s order that he made such a finding.

[47] It is not correct that a vexatious litigant order cannot be confined to proceedings against a specified party: Bank of Montreal v. Cudini, 2013 ONSC 482, at para. 104; Peoples Trust Company v. Atas, 2018 ONSC 58, at para. 300, aff’d 2019 ONCA 359.

[48] I do agree that the order was made on a motion, while the CJA and the jurisprudence says that an application is required. This issue was squarely decided in Lukezic v. Royal Bank of Canada, 2012 ONCA 350.

[49] However, the correct place to raise all these objections would have been at the Court of Appeal. I have no authority to overturn Justice Thompson’s order on the basis that it ought not to have been made. I would add that there is no evidence in the record as to precisely what happened in the hearing before Justice Thompson. If there was an appeal, there would be a proper record to review. For all I know, the PGT on behalf of Mr. Falardeau consented to the matter being decided in the motion, just as the defendants here did not object to this matter proceeding by way of motion, despite having a very similar argument that an application was required.

[50] The CJA indicates that an application judge has authority to rescind a vexatious litigant order, but in my view that authority does not extend to rescinding the order because the motions judge thinks the judge who granted the order was incorrect. The principle of finality precludes that approach. If I am to rescind the order it must be based on the test in s. 140(4) of the CJA.

Mr. Falardeau’s Capacity

[51] In response to the suggestion that a litigation guardian is required for this proceeding, Mr. Falardeau arranged a capacity assessment. An assessment was conducted by Herta Reinmueller, an R.N. and authorized capacity assessor. Her report dated December 6, 2019 offered her opinion that Mr. Falardeau “is capable to manage his property, capable to instruct counsel and capable to understand legal issues.” She provided some history including the following:

According to his explanation, he was on ODSP until two years ago – he was not sure about the time frame. But now he receives a monthly amount of $1,913.00 from his lifelong tax free, structured annuity insurance settlement enabling him to pay for all his needs, so the ODSP was discontinued. The reason for this settlement was a car accident he was involved in when he was eight years old on Christmas day on the way to church. His brother was killed and he suffered severe head injuries necessitating years of treatments.

[52] Ms. Reinmueller also stated that Mr. Falardeau is non-compliant with the recommendation of taking valproic acid and that he disagrees with his diagnosis of schizophrenia. She continued:

He said the police interaction in 2010 labelled him with having persecutory delusional disorder. I asked him if he could explain this diagnosis. He said “I imagen [sic] that people are insulting me or hurting me, it does not really happen.” He told me the incident from 2016 in detail and asked being treated as he has been, was that in his imagination? It really never happened? And all those people who where there and saw it were only in his imagination? I asked if he really believed that those police officers wanted to hurt him – he said I know they were called by the place and it is their job to respond. But, he said, I complied, I left when asked, I was not aggressive I had no weapon, I was not dangerous, why did they have to treat me like that? Answering himself: “because I am mentally disabled I am not a person in their eyes – if they would treat an animal that cruel, they would be charged. [sic] He said, what he wanted more than any financial restitution would be their public apology.

I can confirm his ability to understand and process information and communicate his thoughts, desires and needs very well. He appreciates the possible consequences of his decisions and actions but according to him, as a “moral” person he needs to pursue what he considers right. Historically he deals with longstanding emotional issues unresolved and aggravated by post traumatic stress dealing with the fallout of this accident. Though obviously very sensitive to perceived insults and focused on his need to be accepted he is able to rationally evaluate his options. He stated financial data regarding income, expenses without referring to written notes confirming his ability to manage his property.

Analysis

Jurisprudence

[53] The following principles are applicable to this application.

Access to Justice

[54] “[A] person cannot be denied access to Canadian courts. However, that right of access is not unlimited”: Hok v. Alberta, 2016 ABQB 651, at para. 30 “There is no constitutional right to bring frivolous or vexatious cases, and measures that deter such cases may actually increase efficiency and overall access to justice”: Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31 at para. 47. See also: Bank of Montreal v. Cudini, 2013 ONSC 482, at paras. 94 to 97.

[55] “[T]he vexatious litigant is not deprived of the right to bring proceedings. Rather, the burden is shifted: the vexatious litigant must establish to the Court's satisfaction that there is a prima facie ground for the proposed proceedings”: Foy v. Foy (1979), 1979 CanLII 1631 (ON CA), 102 D.L.R. (3d) 342, (Ont. C.A.), at 39, leave refused [1979] 2 S.C.R. vii. (This comment was made by Justice Blair in dissent, but the same sentiment is expressed in the majority decision.)

[56] Section 140(3) of the CJA recognizes that, “notwithstanding that a person has conducted litigation in a vexatious manner in the past, he or she must still have the opportunity to demonstrate that they have a legitimate need to have recourse to the courts. However, unlike the regular process where a person may commence a proceeding as of right, in the case of a vexatious litigant, the court adopts a supervisory role to ensure that such persons may only resort to the courts where the court is satisfied that the person has a genuine reason or need to do so”: Chavali v. Law Society of Upper Canada, 2005 CanLII 53071 (Ont. S.C.), at para. 17.

[57] “The section itself is not directed at punishing the vexatious litigant, but rather at limiting the costs imposed on the system and other litigants from the vexatious litigant’s behaviour.” Ironside v. Roskam, 2017 ONSC 7416, at para. 20. A vexatious litigant order is a “prospective case management step, rather than punitive”: Hok, at para. 37; Re Thompson, 2018 ABQB 87, at para. 18.

The Court’s Discretion

[58] “The court has a broad discretion to control its process and to make appropriate orders where vexatious proceedings have been instituted or proceedings have been conducted in a vexatious manner, both pursuant to s. 140 of the Courts of Justice Act and as a component of the court’s inherent jurisdiction”: Peoples Trust Company v. Atas, 2019 ONCA 359, at para. 5.

[59] A vexatious litigant order made under s. 140(3) is a discretionary order and is entitled to deference: Gaddam v. Eng, 2008 ONCA 240, at para. 1. The language of s. 140(4)(a) (“shall be granted only if the court is satisfied”) and s. 140(4)(c) (“the court may rescind the order”) also indicate that the court’s power under s. 140(4) is discretionary.

The purpose of s. 140

[60] The purpose of a s. 140(1) order is to protect the vexatious litigant’s litigation opponents and the justice system itself from vexatious litigation: Caplan v. Atas, 2019 ONSC 344, at para. 6(j); Ironside, at para. 19. A further purpose of the legislation is to overcome the unfair advantages enjoyed by the vexatious litigant, including:

a. “the luxury of being able to initiate proceedings and to force the other party to the expense and inconvenience of responding”; and

b. the significant onus that the responding party will bear to prove that a proceeding is an abuse of process: Foy, at para. 71.

[61] In Kalaba v. Bylykbashi (2006), 2006 CanLII 3953 (ON CA), 265 D.L.R. (4th) 320 (Ont. C.A.) at para. 30, Justices Cronk and Juriansz said that the purpose of s. 140(1) “is to codify the inherent jurisdiction of the Superior Court to control its own process and to prevent abuses of that process by authorizing the judicial restriction, in defined circumstances, of a litigant's right to access the courts.” With that said, it has been held that s. 140 of the CJA is not a complete code: Peoples Trust Co v. Atas, 2018 ONSC 58, at para. 41, aff’d 2019 ONCA 359.

[62] In Kalaba, in dissenting reasons, but not on this point, Justice Lang referred to Foy, noting at para. 115 that the purpose of the legislation is “to prevent litigants from harassing others” and “to protect vexatious litigants from squandering their own resources.” She emphasized that the legislation “is aimed at the litigant rather than at the specific litigation,” and that “a vexatious litigant order is a serious curtailment of a basic civil right.” She added at para. 145 that “a court granting a vexatious litigant order must provide reasons that set out the relevant principles for granting such relief and then apply those principles to the facts of the case, balancing the appellant's right to be free from abusive litigation with the respondent's right of access to justice.”

Appeals

[63] An appeal as of right lies from the making of the vexatious litigant order: Kalaba, at para. 34 and para. 95. But depending on the terms of the order, once the order is made, the vexatious litigant may require leave to commence or continue any other proceeding, including other appeals: Kalaba at paras. 25 to 26 and 32; Gledhill v. Toronto Police Services Board, 2016 ONCA 37, at para. 4; Hart v. Fullarton, 2021 ONCA 438, at para. 12. This confirms that Mr. Falardeau had a right to appeal Justice Thompson’s March 4, 2011 order.

[64] There is no right of appeal from the denial of leave in an application made under s. 140(3): s. 140(4)(e); Kalaba, at para. 115, Hart, at para. 15; Chavali, at paras. 4-5.

Rescinding the Order

[65] On a superficial reading of s. 140(4)(b) and s. 140(4)(c) of the CJA, it may appear that the court only has the power to fully rescind the order or to dismiss the application. That is, these paragraphs do not appear to contemplate that the court may partially rescind an order under s.140(1), for example to allow a single action to proceed. However, s. 140(4)(a) says “leave shall be granted only if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding” [emphasis added]. Reading s. 140(4) as a whole, it is apparent that the legislature intended that the court should consider leave applications on a case-by-case basis, but when doing so the court also has the discretion to rescind a vexatious litigant order completely. Justice Ducharme expressed the same view in Nourhaghighi v. Caber Management Services Inc., 2004 CanLII 34307 (Ont. S.C.), at para. 9: “The provision in section 140(4)(b) with respect to the rescission of the original order simply provides such persons with a general remedy in addition to the ability to seek leave on a case-by-case basis.”

Remedies

[66] Subsection 140(5) of the CJA preserves the court’s inherent jurisdiction to prevent abuse of process and to control its own process, leaving the court with broad power to fashion an appropriate remedy and to impose appropriate terms. As examples, see the motions court decision in Peoples Trust Company, commencing at para. 298. Consider also Chavali, where the order required the vexatious litigation to obtain leave not just to commence court proceedings but also administrative proceedings.

[67] In Boe v. Boe, 2014 BCCA 208, the appellant had a long history of applications to the British Columbia Court of Appeal. The court relied on its inherent jurisdiction to order that no process be accepted for filing from him unless he was represented by a lawyer.

[68] I have not seen any case in which a s. 140(3) application was allowed on terms that security for costs be paid; however, based on s. 140(5), I do not doubt that that is one of the options available to the court in an appropriate case.

The test and onus under s. 140(4)

[69] The Court may only grant leave under s. 140(4) if it is satisfied that the proposed proceeding is not an abuse of process and that there are reasonable grounds for the proceedings. It is a double-barrelled test: Chavali, at para. 10; Riad v. Ontario College of Pharmacists, 2015 ONSC 6736, at para. 42; Ferenczi v. State Farm Mutual Automobile Insurance Co., 18 C.C.L.I. (4th) 134, 2004 CanLII 34802 (Ont. S.C.J.), at para. 17; Hart v. Fullarton, 2021 ONSC 2559, at para. 9.

[70] The onus is on the applicant for both elements of the test: Bono General Construction Ltd. v. Susin, [2006] O.J. No. 4888, 2006 CarswellOnt 7754 (S.C.J.) at para. 14; Riad, at para. 42; Deep v. Canada Revenue Agency (Canada Customs and Revenue Agency), 2011 ONSC 5660, at para. 16; Hainsworth v. Attorney General of Canada, 2011 ONSC 2642, at para. 11; Lindhorst v. Centennial College, 2016 ONSC 2678, at para. 4.

[71] A motion under s. 140(3) triggers a broad review focused on the conduct of the vexatious litigant who is seeking leave to proceed with the action. The totality of the circumstances must be examined: Gaddam, at para. 2.

What is an abuse of process?

[72] The first element of the test under s. 140(4)(a) requires the applicant to show “that the proceeding sought to be instituted or continued is not an abuse of process.”

[73] Abuse of process is, to some extent, a self-explanatory concept: an attempt by a litigant to abuse the processes of the court. It is probably best understood by considering some classic examples:

a. a duplicate proceeding – for instance a lawsuit over an issue that was already decided in a previous lawsuit;

b. a multiplicity of motions or other efforts intended to drive up costs or delay a proceeding;

c. a proceeding or step in a proceeding taken for a collateral purpose, such as a motion to set aside an order when the proper step would have been an appeal;

d. a summons served not with the intent to secure a witness’s attendance to provide relevant evidence, but to harass;

e. repeated appeals without merit;

f. a motion brought to a court which does not have the jurisdiction to hear it: Riad, at para. 45; Direk v. Argiris & Associates, 2009 CarswellOnt 9692 [2009] O.J. No. 6395 (S.C.J.), at para. 44.

[74] “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”: Canam Enterprises Inc v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63), and cited with approval in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 37.

What is meant by “reasonable grounds for the proceeding”?

[75] The second element of the test under s. 140(4)(a) requires the applicant to show “that there are reasonable grounds for the proceeding.”

[76] The use of the phrase “reasonable grounds for the proceeding” suggests that the applicant is not required to show he is likely to succeed in his lawsuit. However, the phrase also implies that the applicant must show the proceeding has some substance and potential merit.

[77] In Chuang v. Manning, 2008 CanLII 14175 (Ont. S.C.), a s. 140(3) application, Justice Corbett said at para. 13, that the merits of the applicant’s claims fell “somewhere on a scale between ‘improbable’ and ‘untenable’.” He said at paras. 14 to 15 that he could not conclude the claims were doomed to failure, but:

the test for granting leave is not whether there is, conceptually, an arguable claim buried in the messy nonsense of Mr. Chuang's vexatious pleading. At a minimum, the court is bound to protect the target of this legal proceeding from Mr. Chuang's historic and continued misconduct as a litigant.

[78] He dismissed the application, but said the applicant could apply again if, within one year he paid all outstanding costs orders against him in all proceedings; if he paid security for costs; and if his pleadings did not raise matters which were already decided and complied with the rules of pleading.

Evidence is Required, Not Mere Allegations; Best Foot Forward

[79] In Deep at para. 8, Justice Stinson said:

[O]n an application for leave, more must be shown than an arguable claim … an applicant for leave must proffer some evidence – and not mere allegations – to support the proposition that there is some evidentiary basis for the relief claimed in the proposed proceeding.

[80] In Lindhorst at para. 4, Justice Spies said:

The test is not whether the applicant has conceptually an arguable case. The applicant must proffer evidence and not mere allegations to support the proposition that there is an evidentiary basis for the relief claimed in the proposed proceeding.

[81] In Hok, Justice Verville cited Wong v. Giannacopoulos, 2011 ABCA 277, at para. 8 for the proposition that the leave requirement is a “screening procedure” to make sure that the proposed action “is properly founded in fact and law, and will be diligently prosecuted.” The applicant must provide affidavit support for their proposed claim. Justice Verville then said, at para. 33:

Realistically, this is not a great hurdle. There is no cost to submit this material (it is not “filed”) or make this application. Filing fees only follow if leave is granted. The proposed filing had to be prepared anyway. Any person considering legitimate litigation should at least have taken the step of mustering the evidence and argument they plan to advance. Transforming that into an affidavit is a comparatively minor additional step. Courts often strike out actions that are based on bald allegations. A person subject to a vexatious litigant order should not be able to access the courts with bald allegations. This ‘evidence mustering’ requirement is therefore unremarkable and would be required for a valid claim in any event. This step does not represent “undue hardship” any more than other routine litigation steps that require documentation. [Citation omitted.]

[82] In Re Thompson, at para. 27, Justice Nielsen referred to this passage and the requirement the applicant provide an affidavit with full details of the facts of the case, and said:

I think the “best foot forward” principle also should apply when a person whose court activities are presumed suspect seeks permission from the Court to initiate or continue litigation. The applicant must establish “reasonable grounds” for its litigation, and “[depose] fully and completely to the facts and circumstances surrounding the proposed claim or proceeding”. This standard is not onerous, since it is no more than mustering the evidence that a litigant would, in any case, require for their intended litigation. That information is critical to a reviewing judge being able to say whether or not a proposed action or application is an abuse of process. Provision of that evidentiary foundation falls to the person who applies for leave. [Citation omitted.]

[83] The application in Re Thompson failed because the applicant had failed to provide an affidavit.

[84] “It should be borne in mind however, that even a vexatious litigant can have a legitimate complaint. It is not uncommon for there to be a real issue at the heart of a vexatious litigant’s case. The problem is often that the litigant either cannot properly communicate the concern or, more typically, cannot accept that the law may not provide the remedy sought despite the unfairness felt by the litigant”: Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, at para. 18. (This was stated in the context of a ruling under rule 2.1.01(3), and not a s.140(3) CJA application but is applicable in both circumstances.)

Gaddam v. Eng

[85] It is difficult to find reported cases in which a vexatious litigant has succeeded with a leave application under s. 140(3) CJA. In Gaddam, the applicant was successful at first instance, but the decision was then overturned on appeal. Although overturned, Gaddam v. Eng, 2007 CarswellOnt 9116 (S.C.), rev’d 2008 ONCA 240, remains a helpful example of a case which met the “reasonable grounds” test.

[86] Justice Nordheimer had made an order prohibiting the applicants

from commencing any application under section 140(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 for leave to proceed with a proceeding or step in a proceeding in any court in Ontario unless they complied with one of two conditions, that is, either payment of all outstanding costs awards in any and all existing or prior proceedings or the obtaining of an order of this court giving them permission to bring an application under section 140(3).

[87] It is not fully clear, but it appears that subsequent to this order, the applicants organized the purchase of a property through a trustee so that they could avoid exposing the property to seizure and sale under outstanding costs orders. The property had a problem relating to an oil tank in the basement, and an action was commenced by the trustee. There was a falling out between the applicants and the trustee. The trustee consented to a dismissal of the action over the oil tank. The applicants then brought a separate action against the trustee. This action was settled on terms that included the transfer of title for the property to one of the applicants. The applicants then brought a s. 140(3) application seeking to institute an action claiming for losses suffered in their capacity as beneficial owners of the property. That application was considered by Justice Nordheimer. He found that the intended action was not an abuse of process:

While I appreciate that the applicants may have attempted to organize the purchase of the Broadway property in a manner that was intended to defeat or avoid the effect of the section 140 order, I do not believe that apparent conduct can transform what otherwise appears to be a claim with some possible merit into an abusive process. It remains the fact that there is an outstanding issue as to whether the presence of an oil tank on the Broadway property constitutes a breach of the terms and conditions of the agreement of purchase and sale. Permitting that issue to be heard and determined does not constitute a misuse of the court's process nor is it manifestly unfair to the respondents nor would it otherwise bring the administration of justice into disrepute among right-thinking people. [Citations omitted.]

[88] Justice Nordheimer granted leave for the applicants to proceed against the defendants (other than the trustee, whom they had released) “solely with respect to the claim that is identified in the Notice of Application”. He also made an order that the case would be subject to case management.

[89] Justice Nordheimer’s description of the claim – “a claim with some possible merit” – provides insight. The oil tank was the cause of a legitimate problem. There were reasonable grounds for the proceeding.

[90] The Court of Appeal allowed an appeal. It found that the conduct of the applicants (respondents in the appeal) was an abuse of process. The court held at para. 2 that a motion under s. 140(3) triggers a broad review focused on the conduct of the vexatious litigants who are seeking leave to proceed with the action. The totality of the circumstances must be examined. However, the court did not suggest that the “reasonable grounds for the proceeding” element of the test was not met.

Anderson v. Kehler

[91] The only case I have found of a generally successful s. 140(4) application is Anderson v. Kehler, 2005 CanLII 5849 (Ont. S.C.).

[92] In March of 2000, Justice Lalonde made a s. 140(1) order against the applicant in the context of matrimonial proceedings. In December 2004, the applicant sought leave to continue her professional negligence action against her former matrimonial solicitors. Justice Roy granted leave, holding at para. 4:

In support of her application, the applicant has filed a lengthy affidavit detailing the various areas of negligence against her former solicitors. As a matter policy, it would require a very clear case of abuse for the Courts to deny a member of the public the right to take action against another individual. Further, the criteria set out in s.140(4) is a very low threshold. Finally, I am satisfied that in Lalonde J.’s order, he did not contemplate prohibiting the applicant from taking action against her former solicitors.

[93] It appears the applicant’s spouse had been the moving party in the motion for a vexatious litigant order and the applicant’s matrimonial lawyers were the subject of the intended proceeding. I note also that the applicant had filed a lengthy affidavit as to the merits of her intended claim against her former matrimonial solicitors.

[94] Further details about the case are reported in a later motion decision, reported at Anderson v. Kehler, 2007 CanLII 6929 (Ont. S.C.). Ultimately, the case was dismissed for delay. A distinguishing feature of the case from the case before me is that the target of the new action was not a previous target of the vexatious litigant.

[95] Respectfully, I do not agree that the criteria set out in s. 140(4) is “a very low threshold.” In my view, the test, “reasonable grounds”, is a moderate threshold. The applicant is not required to show they are likely to succeed in its lawsuit but must show more than a conceptually arguable case. Considering the purpose of the legislation – to prevent a litigant who has been shown to be vexatious from wasting court resources and inappropriately harassing others with the court’s processes, while allowing claims to proceed for which reasonable grounds have been shown – the applicant must show his case has some evidentiary basis, some potential merit, or some reasonable prospect for success.

Application of These Principles

“Only if the court is satisfied that the proceeding … is not an abuse of process”

[96] Mr. Falardeau’s litigation conduct does not rise to the level of vexatiousness described in many of the reported cases:

a. He has previously commenced three lawsuits against the OSPSB. This lawsuit is the fourth, and a fifth one has been commenced but not yet pursued. This pales in comparison to the dozens of proceedings or interlocutory motions that some vexatious litigations have spawned.

b. Ten years passed between his last lawsuit and this action.

c. There is no evidence that Mr. Falardeau has any outstanding unpaid costs awards.

d. There is no evidence that he brought inappropriate motions in the proceedings, although the claims were “plagued by inactivity.”

[97] Mr. Falardeau has articulated a new feature in the subject lawsuit. He alleges he has been discriminated against based on prohibited grounds, namely disability. Since Mr. Falardeau’s last lawsuit, high profile cases have given rise to greater public concern about police interactions with persons with mental health problems.

[98] The involvement of Mr. Wise provides some assurance that Mr. Falardeau’s action may be pursued on a reasonable basis; however, this assurance is undermined somewhat by the fact that Mr. Falardeau had competent counsel in one of his prior claims and there can be no assurance that Mr. Wise will remain involved.

[99] Mr. Falardeau’s current lawsuit is very similar to his previous ones and the target of the litigation is the same; however, this action does not otherwise have obvious features of an abuse of process. It is about a different incident, and it is not an effort to relitigate a previously dismissed claim.

[100] Mr. Reimer argued persuasively that the most recent statement of claim (CV-20-11) is concerning as it suggests Mr. Falardeau may be unable to conduct the litigation appropriately. The CV-20-11 claim references a January 27, 2018 incident. It was issued in January of 2020, well after the initiation Mr. Falardeau’s current motion, at a time when he had retained Mr. Wise to bring the motion, and when he must have known an order granting leave to initiate the action was required. This is “continued misconduct as a litigant” of the kind that the vexatious litigant order was intended to prevent.

[101] Despite the strong point Mr. Reimer makes, overall, I am satisfied that this claim, CV-19-90, is not an attempt to abuse the process of the court.

“Only if the court is satisfied … that there are reasonable grounds for the proceeding”

[102] I will now consider the second element of the test.

[103] The full extent of Mr. Falardeau’s affidavit as to the merits of his claim is the following paragraph from his two-page December 7, 2018 affidavit:

My legal representative has already prepared a Statement of Claim, which has been filed, in anticipation of this motion. I have attached it as "Exhibit A". I wish to state that all the facts contained therein are true and correct, to the best of my knowledge and belief.

[104] The same approach was used in Lindhorst. In that case, Justice Spies said at para. 10 that the applicant had not established reasonable grounds for his proceeding. It appears that the statement of claim there was defective and did not contain adequate particulars. The same cannot be said here. The statement of claim does set forth a short statement of the facts on which the claim is based. It contains adequate particulars to support some of the causes of action pleaded. However, it is not detailed, so Mr. Falardeau’s sworn evidence that the statement of clam is true and correct is of limited utility.

[105] Mr. Falardeau’s affidavit also includes a copy of disclosure records he received from the Crown in connection with his charges arising from the incident, but I have not been pointed to anything in those notes which is helpful to his cause. Indeed, there is much in these records which, if accepted, would be devastating to Mr. Falardeau’s claims and which he has not refuted or responded to in any way. I will return to this.

[106] Mr. Wise submitted on behalf of Mr. Falardeau that because the case is about “a violent interaction” there is no other evidence available to Mr. Falardeau other than his own evidence and the police notes. He argued that the balance of the evidence is in the hands of the defendants and will be canvassed in the discovery process.

[107] In response, Mr. Reimer argues that the arrest giving rise to the subject claim is the eighth arrest or detention giving rise to legal action by Mr. Falardeau, and this is his fourth action against the OSPSB. He argues that with this level of experience, one might expect more detailed efforts to preserve evidence. He argues that Mr. Falardeau should have provided witness statements, photos of injuries, and medical records. He also argues that the admissions in the statement of claim alone make it “questionable that this action has any legs.”

[108] From the pleading itself, it is apparent that witnesses were present during at least part of the events in question. As to medical records, the pleading contains a long list of psychological injuries but no detail about physical injuries, so it is not surprising that photos of injuries do not exist. However, Mr. Falardeau’s affidavit does not provide an explanation for why there are no witness statements or medical records. If, as Mr. Falardeau deposes, the facts contained in the statement of claim are “true and correct,” there should be some medical or psychiatric or psychological support for his medical and psychological diagnosis, prognosis, and treatment.

[109] Mr. Wise suggests that if this matter proceeds, Mr. Falardeau will attempt to secure evidence and admissions through the discovery process. The case would then presumably rest on the fact that the charge against Mr. Falardeau was not pursued, and on the combination of Mr. Falardeau’s testimony and admissions or other inculpatory evidence obtained in the examinations for discovery and at trial.

[110] The claim details behaviour on the part of Mr. Falardeau prior to his arrest as follows:

• Mr. Falardeau unintentionally appeared to have caused a disturbance by speaking in an elevated fashion inside of the premises.

• Constable Harris was aware that Mr. Falardeau had prior interactions with the police, which resulted from conduct related to his mental disability. In fact, this informed his decision to request assistance from other police officers after arriving at Pizza Pizza.

• Constable Harris was informed that at H2O, Mr. Falardeau had only had a few drinks of alcohol, and thus, his erratic behaviour, including screaming without reason, could not be ascribed to alcohol, and thus, must be ascribable to some mental delusion.

• The police officers on scene all witnessed Mr. Falardeau making irrational and paranoid statements, such as that the police were the "mafia”.

• In fact, Constable Harris witnessed Mr. Falardeau making other outrageous statements, and in fact, believed nothing he was saying was coherent. For instance, Constable Harris noted that Mr. Falardeau stated that his birthday was at the "beginning of time". He also witnessed Mr. Falardeau counting backwards, without any reason.

[111] These allegations are made to support the position that the police knew or should have known Mr. Falardeau was not intoxicated, but rather, that he was in the midst of a mental health crisis. The central allegation in the claim is that despite this the police arrested Mr. Falardeau for public intoxication, and that doing so was, in effect, dishonest. Further, Mr. Falardeau alleges that in making the arrest, the police used unnecessary force. The claim admits, however, that Mr. Falardeau did not comply with the police attempt to place him under arrest, asserting that the attempt to arrest him was done “ambiguously.”

[112] The manner in which Mr. Falardeau’s version of events is put in evidence (by adopting the statement of claim as true and correct) means that Mr. Falardeau’s evidence includes a considerable amount of speculation and advocacy. For instance, he says that Constable Harris was “informed” that Mr. Falardeau’s erratic behaviour “could not be ascribed to alcohol, and thus, must be ascribable to some mental delusion.” Mr. Falardeau does not state the source of this information or that he believes it is true.

[113] I emphasize here that Mr. Falardeau has made allegations in a pleading, and the only support that is offered to show that there are reasonable grounds for this proceeding is the single line in Mr. Falardeau’s affidavit, described above, that the allegations in the statement of claim are “true and correct.”

[114] I accept Mr. Wise’s submission that prior to examinations for discovery, Mr. Falardeau’s ability to obtain evidence is limited. But in litigation one party will always have an onus, and for this motion Mr. Falardeau has the onus to show, with evidence and not mere allegations, that “there are reasonable grounds for the proceeding.” Because he has previously abused the court’s processes, he must now be able to meet that onus before putting the defence to the expense of examinations for discovery. The argument that the applicant expects to be able to prove his claim through the discovery process holds no water where the claimant has been found to be a vexatious litigant.

[115] I return now to the police disclosure records which Mr. Falardeau has included in his motion record. He has said nothing in his affidavit to refute the content of the police disclosure. The notes of Sargeant Kitto, Constable Harris, and Constable Wild are included, along with a police synopsis of the events. The events described in these records suggest that Mr. Falardeau was significantly intoxicated in public and caused a public disturbance and nuisance at H2O Lounge and at Pizza Pizza. According to these records, staff at H2O asked the police to stand by as they asked Mr. Falardeau to leave the premises, which he did. However, the police were advised that he was shouting and bothering other customers and they wanted him to leave. The fact that the staff at H2O said he only had a couple of beers there does not mean they thought he was sober.

[116] The notes indicate that Mr. Falardeau then told Constable Harris he would go home. But he did not.

[117] The notes indicate that Constable Harris was later approached by two members of the public who advised that Mr. Falardeau was inside the Pizza Pizza yelling and screaming. The notes indicate that Mr. Falardeau’s speech was slurred, his eyes were glossy and blood shot, he was unsteady on his feet, and he smelled of alcohol. He was not making sense. As indicated, he did not cooperate with his arrest. Mr. Falardeau was then subdued and brought to the ground. He was belligerent when read his rights. Mr. Falardeau is described as unsteady on his feet and swaying back, forth, and side to side while in the cell block area. He was found to have a small amount of tar like substance believed to be hash in his pocket. He remarked to Sgt. Kitto that he was intoxicated by mixing alcohol with prescription medication. The notes are consistent with the police position that they believed Mr. Falardeau was intoxicated.

[118] None of this content is refuted in Mr. Falardeau’s affidavit.

[119] My conclusion is that Mr. Falardeau has not met his burden to show that there are reasonable grounds for this action. This conclusion does not rest on the truth of the police records. Rather, it rests Mr. Falardeau’s failure to meet his onus, which would include providing evidence which responds to the content of the notes. Mr. Falardeau does not say how much he had to drink. He does not deny that he had hash in his pocket or deny using it. He does not deny the signs of intoxication that the police observed. He acknowledges that he failed to cooperate when arrested.

Disposition

[120] Mr. Falardeau’s motion fails on the second element of the test in s. 140(4)(a). He has not shown there are reasonable grounds for this proceeding.

[121] The motion is dismissed.

[122] If costs are requested, the respondent shall file written submissions of not more than 3 pages plus bills of costs, offers to settle or other supporting documentation, by September 29, 2021. Mr. Falardeau shall file responding submissions, with the same page limit, by October 13, 2021.

Chown J.

Released: September 17, 2021