COURT FILE NO.: CV-21-955
DATE: 2021-10-04
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
GERALD ANTHONY Applicant
– and –
ATTILA VINCZER Respondent
COUNSEL:
Gerald Anthony in person
Attila Vinczer in person
HEARD: August 25, 2021 by Zoom videoconference
Ruling on application to declare Attila Vinczer a vexatious litigant
C. BOSWELL J.
[1] The Ontario Superior Court of Justice has a vision statement: “Independent, responsive justice, open to all.”
[2] The reference “open to all” encompasses at least two important features of the court:
(a) Court hearings are generally open to the public. See Sherman Estate v. Donovan, 2021 SCC 25, at para. 1; and,
(b) The court is generally open and accessible to all those seeking an independent and impartial decision-maker to redress a perceived legal wrong.
[3] The Court’s vision of openness does not include, however, open access to those who would abuse the court’s processes to harass others.
[4] It is unfortunately the experience of this court that the occasional litigant will attempt to use its processes as a means to annoy or harass others through the commencement of multiple meritless proceedings. Frivolous, vexatious and abusive proceedings eat up substantial resources, both in the way of court services and judicial time.
[5] To help address the mischief associated with vexatious and abusive proceedings, the Legislature has provided, at s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, that where the court finds a party to be a vexatious litigant, it may order that no further proceedings be instituted by that litigant or that any existing proceeding be prevented from continuing, without leave of the court.
[6] A vexatious litigant, according to s. 140(1), is one who 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.
[7] Mr. Anthony contends that Mr. Vinczer is a vexatious litigant.
[8] Mr. Anthony and Mr. Vinczer have been litigating with one another for several years over a mortgage granted by Mr. Vinczer and his parents to a corporation controlled by Mr. Anthony. The mortgage was secured over properties in Newmarket and Keswick which were the residential premises of Mr. Vinczer and his parents respectively.
[9] The mortgages went into default. Mr. Anthony, through his corporation, has taken steps to enforce the mortgages. Mr. Vinczer has zealously resisted those steps.
[10] Mr. Anthony seeks, in this stand-alone application, to obtain a declaration that Mr. Vinczer is a vexatious litigant together with orders that (1) Mr. Vinczer be restrained from instituting any further proceedings without leave of the court; and, (2) the following actions, all commenced in Oshawa, be stayed and not continued without leave of the court: (i) action CV-20-1141; action CV-21-863; and action CV-21-962.
[11] For the reasons that follow I am satisfied that Mr. Vinczer should be declared a vexatious litigant and that appropriate ancillary orders should follow that declaration.
[12] To put the dispute between these parties into context and to illustrate the disproportionate resources of the court that it has consumed, I will begin this ruling by setting out the history to the main proceeding between them. I will then provide an overview of the three proceedings that Mr. Anthony now seeks to stay. Next, I will describe the parties’ positions. Finally, I will provide my analysis of the live issues, which include a request made by Mr. Vinczer that I recuse myself from hearing this application.
THE TORTURED HISTORY OF ACTION CV-18-1772
The Claim
[13] At the core of the proceedings between Mr. Vinczer and Mr. Anthony is a mortgage enforcement proceeding commenced in August 2018 by Mr. Anthony’s company, 7084421 Canada Ltd. (“708”), against Mr. Vinczer and his parents, Peter and Katalin Vinczer (collectively, the “Vinczers”).
[14] 708 sought to recover the principal, interest, costs and fees associated with a mortgage – initially in an amount just over $1 million – advanced to the Vinczers and secured over their personal residences in Newmarket and Keswick.
The Default Judgment
[15] The Vinczers did not initially defend the mortgage action. Default judgment was signed by the registrar against them on November 9, 2018 for a little over $1.2 million together with possession of the mortgaged premises.
The Urgent Motion to Stay Enforcement No. 1
[16] In due course, 708 obtained a writ of possession which it sought to enforce against the mortgaged premises. The Newmarket Sheriff’s office served notice that it intended to enforce the writ on March 13, 2019. Mr. Vinczer walked into open motions court in Barrie on March 5, 2019, seeking an urgent, ex parte, motion for a stay of enforcement of the writ. I was presiding in motions court that date. I granted the stay sought by Mr. Vinczer for a period of two weeks on two conditions. First, that he promptly move to set aside the default judgment against him and his parents. Second, that he initiate an application under s. 12 of the Mortgages Act, R.S.O. 1990, c. M.40, for a determination of the amounts properly owing under the Vinczers’ mortgage to 708.
The Motion to Set Aside the Default Judgment
[17] In compliance with my March 5, 2019 order, Mr. Vinczer moved to set aside the default judgment. He did not initiate an application under the Mortgages Act. Instead, he filed what was, in essence, a second motion asking the court to examine all of the costs charged by 708 over and above the principal outstanding on the mortgage.
[18] The hearing of the motions was delayed for reasons that are not germane here. They came before me on November 22, 2019. Mr. Vinczer has been self-represented throughout the proceedings and he has spoken on behalf of his parents who, by all appearances, have been mere by-standers to the litigation. 708 was, at the time of the motion, represented by counsel, Mr. John Peirce.
[19] Both sides to the motion on November 22, 2019 made it clear to me that what they were really looking for was a summary determination of the issues between them and, more particularly, the balance owing on the disputed mortgage.
[20] In a ruling released January 15, 2020 as 2020 ONSC 217, I dismissed the Vinczers’ motion to set aside the default judgment. I nevertheless varied the default judgment to reduce it by certain amounts I found that 708 was not entitled to.
[21] I invited the parties to make written submissions on costs. They did. I issued a further ruling – this one strictly related to costs – on February 20, 2020. I ordered the Vinczers to pay $20,000 in costs to 708 within 30 days.
The Appeal to Divisional Court
[22] The Vinczers appealed my order of January 15, 2020. They launched their appeal in Divisional Court, which was a mistake given that my order was a final order in excess of the monetary jurisdiction of the Divisional Court. Any appeal of the order was properly within the jurisdiction of the Court of Appeal.
[23] At any rate, the local registrar of the Divisional Court in Oshawa errantly issued a Certificate of Stay on the basis of the Vinczers’ appeal. The Newmarket Sheriff’s office did not, however, consider themselves bound by the stay and proceeded with steps to enforce the plaintiff’s writ of possession. They served notice to the Vinczers on August 5, 2020 that they intended to enforce the writ on August 17, 2020.
The Urgent Motion to Stay Enforcement No. 2
[24] On August 12, 2020, Mr. Vinczer filed another urgent, ex parte, motion to obtain a stay of enforcement of the plaintiff’s writ. Given COVID-related restrictions on the court’s operations, the motion came before Speyer J., sitting as a single judge of the Divisional Court, in writing.
[25] Speyer J. found that the appeal had been commenced in the wrong court. She ordered it transferred to the Court of Appeal. She nevertheless held that the Notice to Vacate issued by the Newmarket Sheriff’s office was unenforceable and she ordered that no steps be taken to enforce it.
The Motion Before the Court of Appeal No. 1
[26] In December 2020, 708 moved, in writing, before the Court of Appeal for a variety of relief intended to move the appeal of my January 15, 2020 order along and to facilitate enforcement of its terms. The motion was read and disposed of by Brown J.A. in a ruling released December 17, 2020.
[27] Brown J.A. confirmed that the Vinczers’ appeal had been commenced in the wrong court. He found that the Certificate of Stay should not have been issued by the Divisional Court and was a nullity. He set it aside. He also ordered the Vinczers to perfect their appeal by January 15, 2021 failing which they were barred from bringing any further motions in the Court of Appeal without leave. In the course of his ruling, Brown J.A. characterized the Vinczers’ conduct as having “all the hallmarks of ‘stall tactics’”.
[28] Brown J.A. noted that if the Vinczers sought to stay my January 15, 2020 order, they would have to bring a motion for that relief under r. 63.02(1). He observed that if such a motion were to be filed, the reviewing judge would undoubtedly be looking for an explanation as to why the Vinczers were not repaying any of the monies advanced given that their dispute was only in relation to a fraction of the sums claimed by 708.
[29] Finally, Brown J.A. ordered the Vinczers to pay $500 in costs to 708 by December 31, 2020.
The Motion Before the Court of Appeal No. 2
[30] The Vinczers failed to perfect their appeal by January 15, 2021 as directed by Brown J.A. Their appeal was dismissed by the registrar for delay on January 27, 2021.
[31] On February 17, 2021 the Vinczers filed an urgent motion on short notice seeking to rescind Justice Brown’s order, set aside the registrar’s dismissal and extend the time to perfect their appeal.
[32] The Vinczers’ motion was dealt with in writing by Benotto J.A. She referenced Brown J.A.’s comment that the Vinczers’ conduct had all the hallmarks of “stall tactics” and she observed that, rather than move to review the order of Brown J.A. or to seek a stay pending appeal, they chose “instead to continue to delay the enforcement of the mortgages.” She concluded that the Vinczers’ conduct continued to exhibit all of the hallmarks of “stall tactics”.
[33] Benotto J.A. dismissed the Vinczers’ motions and ordered them to pay 708 its costs fixed at $750.
The Urgent Motion to Stay Enforcement No. 3
[34] Following the ruling of Brown J.A., 708 obtained a fresh writ of possession and delivered it to the Newmarket Sheriff’s office for enforcement. The Sheriff served notice that it intended to enforce the writ on March 3, 2021.
[35] On February 25, 2021 Mr. Vinczer brought a motion on short notice seeking a stay of enforcement. The motion came before me. I dismissed it for reasons reported at 2021 ONSC 1445. In the course of my ruling, I made the following two statements that Mr. Vinczer took offence to:
Para. [1] Mr. Vinczer has been playing a shell game for three years, ever since the defendants went into default under a million dollar mortgage to the plaintiff. He has just run out of moves.
Para. [6] I do not accept Mr. Vinczer’s arguments. The simple fact is, he has been gaming the system for three years. He has not paid a penny on a million dollar mortgage in that time. He and his parents have lived, payment free, in the mortgaged premises for three years. He submitted to me today that he has never denied owing the plaintiff the principal sum on the mortgage, yet he has not repaid a nickel.
The Urgent Motion to Stay Enforcement No. 4
[36] On March 2, 2021 and notwithstanding my order of February 25, 2021, the Vinczers again moved on an urgent basis for an order staying enforcement of the plaintiff’s writ of possession. The motion was served on extremely short notice. It came before McCarthy J. who dismissed it, finding, amongst other things, that it was res judicata in light of my February 25 order.
The Motion for a Certificate of Pending Litigation
[37] For reasons not clear to me, 708 moved for and obtained a certificate of pending litigation over both mortgaged premises on March 17, 2021.
[38] The certificate was vacated as against the Newmarket property by order of Casullo J. on April 29, 2021 to enable Mr. Vinczer to sell the property to an apparently interested purchaser.
[39] On May 26, 2021, de Sa J. reinstated the certificate over the Newmarket property. His order provided for a number of conditions, the gist of which was that the Vinczers were at liberty to sell their two properties. The net proceeds of any sales were to be paid to 708 up to the sum of $1.4 million, with any balance over and above that amount to be paid into court to the credit of this action. The order was premised on representations made by Mr. Vinczer to the court that he had sold the Keswick property for $953,000 and the Newmarket property for $1,199,000.
[40] On June 17, 2021, following a further hearing before him, de Sa J. released an endorsement directing that 708 was free to press on with its enforcement proceedings. It turned out that the Vinczers’s planned sales did not go through. Justice de Sa ordered that the Vinczers were not to interfere with 708’s efforts to sell the properties.
The Motion to Remove the Caution
[41] Subsequent to June 17, 2021, and notwithstanding Justice de Sa’s order, the Vinczers registered a caution against the Keswick property in an apparent effort to interfere with the 708’s efforts to sell that property. 708 had entered an agreement to sell the property with a closing date of June 24, 2021. The registration of the caution impeded the sale.
[42] The plaintiff moved to vacate the caution. Its motion came before McCarthy J. who ordered on June 29, 2021 that the registration of the caution was improper. He ordered that it be discharged.
[43] McCarthy J. went on to order that the Vinczers were forbidden from taking any further proceedings or steps to prevent or delay the sale of the property by 708 without leave of the court.
[44] The sale of the Keswick property did proceed subsequent to June 29, 2021. I have no evidence, however, about what date the sale closed or what proceeds it generated.
The Motion Before the Court of Appeal No. 3
[45] On July 2, 2021 the Vinczers moved a third time before the Court of Appeal. They sought to set aside the order of Benotto J.A. Their motion was heard by a panel consisting of Huscroft, Roberts and Zarnett JJ.A. Their argument was that the order of Benotto J.A. amounted to a dismissal of their appeal – an order which could only be made by a panel. Their motion was dismissed, with costs payable to 708 in the amount of $1,500.
[46] The costs ordered on July 2, 2021 brought the total costs ordered against the Vinczers by various courts to $22,750. To date, none have been paid.
THE IMPUGNED NEW ACTIONS
The Kitchen Sink Action
[47] On June 30, 2020 Mr. Vinczer commenced a proceeding by Notice of Action (CV-20-1141) against 708, Mr. Anthony, D. John Peirce Professional Corporation, Peirce McNeely Associates, David Peirce, Robert McNeely, 1229393 Ontario Ltd. o/a I Finance Construction, Jacqueline Hilchuk, Steven Hilchuk, James Hilchuk and Damir Vrancic. A Statement of Claim followed on July 29, 2020 and an Amended Statement of Claim on October 5, 2020. I will refer to this claim as the “Kitchen Sink Action”.
[48] The Kitchen Sink Action is an astounding 322 pages long. It seeks $24,432,200 in damages against the named defendants, jointly and severally. It describes the damages as arising from:
a. Absolute Liability
b. Aggravated Damages
c. Amenity nuisance
d. Assault
e. Blackmail
f. Breach of Confidence
g. Breach of Contract
h. Civil Fraud
i. Conversion
j. Crimes Against Humanity
k. Criminal Interest Rate
l. Chronic Stress Disorder
m. Deceit
n. Defamation of Character
o. Detinue
p. Economic Tort
q. Emotional Stress
r. Equitable Claim
s. Extortion
t. False Pretences
u. Financial Terrorism
v. Fraud
w. Greenmail
x. Harassment
y. Intentional Tort
z. Mental Stress
aa. Pain and Suffering
bb. Physical Stress
cc. Predatory Lending
dd. Professional Liability
ee. Psychological Stress
ff. Public Humiliation
gg. Skulduggery
hh. Strict Liability
ii. Torts of Negligence
jj. Terrorism
kk. Trauma
ll. Usury
mm. Vicarious Liabilty
nn. Loss of Earnings caused by, but not limited to Negligence, Malice, Vexatious Allegations, Defamation, Breech (sic) of Trust, Breech (sic) of Confidence
oo. Violation of Fundamental Charter rights against the Plaintiffs
pp. Intentional infliction of emotional stress
qq. Unlawful depletion of equity in 462 Lake Drive South and 330 Premier Place
rr. Defendants deliberately denying quiet enjoyment and possession of primary residence properties at 462 Lake Drive South by Plaintiffs’ Peter and Katalin Vinczer and 330 Premier Place by Plaintiff Anthony Vinczer.
[49] If the wide-ranging damages sought are not enough, the Vinczers have sought injunctive relief including the following:
(a) Permanently enjoining Mr. Anthony from engaging in money lending;
(b) Permanently enjoining Jacqueline and James Hilchuk from engaging in mortgage brokering; and,
(c) Disbarring David Peirce and Robert McNeely.
[50] The Vinczers also ask that Mr. Anthony be declared a vexatious litigant.
[51] Finally, they seek an order directing the Attorneys General for Canada and Ontario to pursue criminal charges against each of the named defendants.
[52] According to Mr. Anthony, this action was dismissed by the court under Rule 2.1.01 as a vexatious proceeding. He says Mr. Vinczer is appealing the dismissal, but I have no evidence one way or the other. Mr. Vinczer advised, during oral argument, that he will be seeking to amend the dismissed claim so that it is brought in a proper form.
[53] Mr. Vinczer added that Mr. Anthony was noted in default in this action over a year ago and has no standing in it. In the meantime, he asserts that I have no jurisdiction over this action because it is before the Court of Appeal.
The Bad Faith Action
[54] On May 21, 2021 Mr. Vinczer commenced an action (CV-21-863) against 708 and Mr. Anthony. He amended the claim on June 22, 2021. I will refer to this claim as the “Bad Faith Action”.
[55] Mr. Vinczer and his parents seek roughly $3.8 million in general and special damages, amongst other relief, against 708 and Mr. Anthony. They allege that 708’s mortgages over the Newmarket and Keswick properties are fraudulent. They rehash a variety of issues already dealt with in the original mortgage action. They go on to allege that 708 acted in bad faith in its contractual dealings with them and in the enforcement steps taken to realize on the mortgaged premises. They also seek damages for lost, damaged or converted chattels.
The Defamation Action
[56] On June 7, 2021, Mr. Vinczer commenced a third action (CV-21-962) against Mr. Anthony. I will refer to this as the “Defamation Action”.
[57] Mr. Vinczer seeks damages of $850,000 for defamation, plus $250,000 in punitive damages. He alleges that Mr. Anthony has made a number of defamatory statements about him, including,
(a) An email dated February 12, 2021 to my judicial assistant and Mr. Anthony’s lawyers alleging that Mr. Vinczer filed a document in the wrong court, was trying to bring an ex parte motion and would file an affidavit containing untruths;
(b) An email dated February 16, 2021 to Mr. Vinczer, his parents, a lawyer and two mortgage brokers in which he described Mr. Vinczer and his parents as having engaged in “petty, childish and unprofessional behaviour”; and,
(c) An email dated February 17, 2021 to Mr. Vinczer’s parents and a mortgage broker thanking them for “not giving in to extortion”.
THE PARTIES’ POSITIONS
[58] Both parties are self-represented. They filed voluminous materials on the application including multiple affidavits and factums. But their submissions to the court are very simple. Mr. Anthony says that Mr. Vinczer is properly characterized as a vexatious litigant because he has persistently filed meritless proceedings against Mr. Anthony and others.
[59] Mr. Anthony posits that the impugned proceedings are all collateral attacks on the original judgment I issued in the mortgage action in January 2020. Mr. Vinczer is continuing to litigate allegations that the mortgage was fraudulent and that a criminal rate of interest was charged; allegations that were subsumed in my earlier judgment.
[60] Mr. Vinczer began his submissions with a request that I recuse myself on the basis of a reasonable apprehension of bias. He says that some of the comments I made about him in my ruling of February 25, 2021 would be perceived by a reasonable person as reflecting a bias against him. Specifically, my references to him “playing a shell game” and “gaming the system”.
[61] In terms of the substantive issue on the application, Mr. Vinczer denies that he is a vexatious litigant. Most of his submissions on the application were directed, however, at the rehashing of issues that have already been fully adjudicated. He complained that 708 charged him a criminal rate of interest and he criticized my earlier conclusion that the rate was not criminal. He argued that 708 is a predatory lender. He complained that he has repeatedly tried to pay out the mortgage but he can’t get a reliable discharge statement from 708.
[62] Mr. Vinczer pointed out that he has had successes during the course of his litigation with 708. He highlighted a stay of enforcement I gave him on an ex parte basis in March 2015; the reduction in the amount owing to 708 that I found in my judgment of January 15, 2020; and successes he had responding to cross-motions brought by Mr. Anthony in the Court of Appeal.
[63] He insists that all of the proceedings he has brought against Mr. Anthony have merit. There is no basis, he submits, to conclude that any of the proceedings are meritless.
[64] Summing up his submissions, Mr. Vinczer said he is continuing to fight a fraudulent mortgage instrument. And he complained that he has never had his day in court. He has a fundamental right, he says, to be duly heard.
ANALYSIS
The Bias Issue
[65] The test to be applied when an allegation of reasonable apprehension of bias is made is clear. In R. v. Nero, 2016 ONCA 160, at paras. 28-33, Watt J.A. identified five basic principles that apply:
(a) The apprehension must be reasonable, held by right-minded persons, applying themselves to the question and obtaining the required information about it. The court must consider what an informed person would conclude after viewing the matter realistically and practically and having thought the matter through;
(b) The apprehension of bias must rest on serious grounds in light of the strong presumption of judicial impartiality;
(c) The onus of demonstrating the apprehension of bias lies with the party alleging its existence;
(d) The inquiry is fact-specific; and,
(e) Allegations of bias or of a reasonable apprehension of bias should be advanced as soon as reasonably possible.
[66] I accept that Mr. Vinczer raised his concern about a reasonable apprehension of bias in a timely way. I do not accept that a reasonable and informed person would conclude that a reasonable apprehension of bias exists in the circumstances here.
[67] I reach my conclusion for four broad reasons.
[68] First, adverse rulings do not, on their own, demonstrate bias. See Oz Merchandizing Inc. v. Canada Professional Soccer League Inc., 2021 ONCA 520, at para. 59.
[69] Second, Mr. Vinczer has not demonstrated that he was subject to any procedural unfairness by me on the occasion in question, or on any of the other numerous times he has appeared before me during the course of the mortgage proceedings.
[70] Third, Mr. Vinczer has not demonstrated that the impugned comments in the February 25, 2021 ruling were made in bad faith.
[71] Fourth, the impugned comments were accurate and fair.
[72] To be fair, Mr. Vinczer is not suggesting that he has ever been subject to procedural unfairness. Nor is he overtly complaining about the result on February 25, 2021. He restricted his submissions to concerns about the quality of the references to him “gaming the system” and “playing a shell game”.
[73] Admittedly, references of that nature do not paint Mr. Vinczer in a positive light. They both speak to his efforts to avoid paying the amounts justly due to 708. And they suggest that those efforts have not always been undertaken in good faith. In my view, those are very legitimate comments.
[74] Recall that at least two judges of the Court of Appeal have referred to Mr. Vinczer’s actions as having “all the hallmarks of stall tactics”. That sentiment, though expressed in different language, is the same as the sentiment I expressed in my February 25, 2021 ruling. Mr. Vinczer has been using the court’s processes in a manner designed to delay and hinder 708 in its legitimate efforts to enforce its security.
[75] The summary of proceedings I set out earlier more than adequately demonstrates the lengths to which Mr. Vinczer has gone to avoid enforcement of the judgment against him and his parents.
[76] A reasonable person, informed of the circumstances of this case, would, in my view, consider the descriptive phrases I used in my February 25, 2021 ruling, unflattering but true. They are not the product of bias, but of a good faith and objective assessment of the evidence before the court and of the history of the proceedings.
[77] Mr. Vinczer has not, in the result, met the onus of displacing the strong presumption of judicial impartiality and has not persuaded me that it is appropriate that I recuse myself from the hearing of this application.
[78] I will go on, therefore, to an assessment of the request that Mr. Vinczer be declared a vexatious litigant.
The Vexatious Litigant Issue
[79] Recall that the Courts of Justice Act defines a vexatious litigant as one who has persistently and without reasonable grounds, instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner.
[80] The rationale underlying s. 140 was discussed by Blair, J.A. in his dissenting opinion in Foy v. Foy (1979), 1979 1631 (ON CA), 26 O.R. (2d) 220. Though he was describing provisions of the Vexatious Proceedings Act, that legislation preceded the present s. 140 of the Courts of Justice Act and the rationale remains the same. Blair, J.A. described the object of the legislation as follows:
It is not difficult to perceive the object of the Vexatious Proceedings Act. The protection afforded honest litigants by the exercise of the Court's inherent jurisdiction to control abuse of process is subject to a serious limitation. It can only be exercised ex post facto. The vexatious litigant has the luxury of being able to initiate proceedings and to force the other party to the expense and inconvenience of responding. The severe financial burden which can be inflicted on a responding party is made obvious by this case. Moreover, the onus of proving that a proceeding is an abuse of process will always be on the responding party. Clearly the purpose of this legislation was to overcome the unfair advantage enjoyed by a vexatious litigant and, in cases where an order is made under the Act, to place upon him the onus of establishing that any proposed proceedings are not an abuse of the process of the Court. Significantly, the 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.
[81] More recently, Myers J., of this court, described the mischief caused by vexatious litigants and the difficulties encountered by those responding to vexatious proceedings in the following terms:
Experience teaches that vexatious litigant proceedings can be very expensive and often serve just to give a vexatious party yet another opportunity to inflict the very harms that the process is designed to end. To obtain a vexatious litigant order, an applicant must commence a separate proceeding and prove that the target has persistently and without reasonable grounds instituted vexatious proceedings or has conducted proceedings in a vexatious manner. The requirement to show persistence has meant that litigants must endure several vexatious proceedings prior to bringing a vexatious litigant proceeding. While courts have recognized that vexatious litigants can inflict substantial costs on the opposing parties and significant systemic costs, the harm is amplified by the need to endure multiple frivolous proceedings before section 140 applies. Moreover, an application for a vexatious litigant declaration is a separate legal proceeding. This gives the vexatious litigant a platform from which to repeat all of her or his vexatious conduct. The respondent in a vexatious litigant proceeding has all of the rights of a respondent to a regular application -- i.e. to file evidence, to cross-examine, to summon third party witnesses, to bring motions, and, especially exhausting and expensive, the right to or to seek leave to appeal at every step of the way. In virtually all of these cases the respondents are impecunious and will not be able to pay the costs awards that they invariably rack up along the way to being declared vexatious litigants. Furthermore, as legal proceedings are protected from the laws of defamation, some vexatious litigants will use the process to publicly defame the applicants or others with no accountability.
See Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497 at para. 8.
[82] Myers J. went on to describe the characteristics typically seen with vexatious litigants. They include:
(a) The commencement of multiple proceedings in an effort to re-determine already determined issues;
(b) Rolling forward grounds and issues from prior proceedings;
(c) Persistent pursuit of unsuccessful appeals;
(d) Failure to pay cost awards;
(e) Bringing proceedings for a purpose other than the assertion of legitimate rights; and,
(f) Bringing proceedings where no reasonable person would expect to obtain the relief sought.
See Gao, at paras. 14-15.
[83] Gao has been cited with approval by the Court of Appeal on a number of occasions including, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, at para. 9, leave to appeal refused, [2015] S.C.C.A. No. 488; Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 13; Rallis v. Myers, 2019 ONCA 437, at para. 5; and Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720 at para. 20.
[84] In Lochner, the Court of Appeal referenced an article written by Justice Yves-Marie Morisette of the Court of Appeal of Quebec entitled, "Querulous and Vexatious Litigants as a Disorder of a Modern Legal System", 24 Can. Crim. L. Rev. 265. At pp. 275-275, Justice Morisette described a querulous litigant as one often exhibiting the following characteristics. He or she:
(a) Is self-represented;
(b) Demonstrates a stubborn attitude;
(c) Persistently reiterates and amplifies;
(d) Makes arguments that are unintelligible or highly confusing;
(e) Files written submissions that do not contain much that is legally relevant to the dispute and which are written in a distinctive style;
(f) Markedly fails to conduct due diligence in the advancement of claims;
(g) Exhausts all rights of appeal any time there is an adverse judgment;
(h) Makes unsustainable allegations and gratuitous complaints against members of the legal profession; and,
(i) Ceases proceedings only when unable to pay legal fees and costs.
[85] The Court of Appeal cautioned, at para. 22 of Lochner, that of course not all self-represented litigants are vexatious and that even a vexatious litigant may raise a legitimate issue requiring consideration by a court.
[86] I have considered the typical characteristics of a vexatious litigant, as identified in Gao and Lochner, and I have concluded that Mr. Vinczer exhibits many of them.
[87] He is self-represented, but I put little weight on that.
[88] He is, by his own admission, seeking, through a number of different proceedings, to get his day in court to finally air out all of his grievances against 708 and Mr. Anthony in relation to what he considers to be a fraudulent mortgage.
[89] He has rolled issues over from proceeding to proceeding. The Kitchen Sink Action and the Bad Faith Action both involve a re-hashing of issues that were addressed, or should have been addressed, in the mortgage action. The Defamation Action is of a different ilk, but it remains deeply connected to the mortgage proceedings.
[90] He persistently reiterates and amplifies the same complaints raised in the mortgage action.
[91] He has made persistent appeals to the Court of Appeal, all unsuccessful to date.
[92] He has advanced claims that no reasonable person would think likely to succeed. This is particularly so in the Kitchen Sink Action, which has rightly been dismissed as frivolous and vexatious under r. 2.1.01. It is axiomatic, in my view, that the Kitchen Sink Action was astoundingly prolix, confusing and verging on unintelligible.
[93] He has made scurrilous and unsustainable claims against legal counsel.
[94] He has had one claim summarily dismissed on the ground that it is frivolous and vexatious (the Kitchen Sink Action) and on two prior occasions he has been enjoined from bringing specific further proceedings without leave (Order of Brown J.A. dated December 17, 2020 and Order of McCarthy J. dated June 29, 2021).
[95] And he has failed to pay any of the costs awarded against him.
[96] Looking broadly at the history of the mortgage action proceedings, I think it entirely fair to conclude that Mr. Vinczer has conducted that proceeding in a vexatious manner. He made a terrible deal with 708 at a time he was desperate for financing. He doesn’t want to pay 708 what it is owed according to that terrible deal, nor what I ordered him to pay in the judgment dated January 15, 2020. He has demonstrated an intention to do anything and everything he can to delay and hinder enforcement of the judgment through increasingly meritless motions, appeals and collateral actions.
[97] Having said all of that, I am alive to the fact that there may be some merit to some of Mr. Vinczer’s claims. In consideration of that possibility, I make the following observations:
(a) If there is any merit to the Kitchen Sink Action it is buried under such a mountain of prolixity that it is not readily apparent;
(b) Most of the allegations in the Bad Faith Action relate to issues that were already litigated in the mortgage action. Whether Mr. Vinczer can make some hay in relation to allegations that Mr. Anthony interfered with his ability to privately sell the mortgaged premises is an open question, as is the claim for damages for lost or destroyed chattels. All that is to say that there may be merit to some, but not many, of the allegations in this action; and,
(c) The Defamation Action appears to me unlikely to succeed for a number of reasons. Even if I am wrong about that, it appears to me to be a case where damages would be nominal.
[98] On balance, I am satisfied that Mr. Vinczer bears a significant number of the hallmarks of a vexatious litigant. He meets the definition of that term found in s. 140 of the Courts of Justice Act. It is appropriate that a declaration should issue under that section that he is a vexatious litigant. Additional ancillary orders should be, and are, made. They include:
An order that no further proceeding may be initiated by Mr. Vinczer, on his own behalf or on behalf of his parents, in any court without leave of that court;
An order that the Bad Faith Action and the Defamation Action may not be continued without leave of the court. It will be Mr. Vinczer’s onus to satisfy the court that the claims advanced in those actions are sufficiently meritorious that it is in the interests of justice that they continue; and,
No motion for leave may be initiated unless and until Mr. Vinczer has paid all of the outstanding cost orders against him.
[99] If the parties are unable to agree on the issue of the costs of this application, they may make written submissions to me, not to exceed two pages in length. Mr. Anthony’s submissions are to be served and filed by October 15, 2021 and Mr. Vinczer’s by October 29, 2021.
Boswell J.
Released: October 4, 2021