Court File and Parties
COURT FILE NO.: CV-21-00000329-0000 DATE: March 24, 2022 SUPERIOR COURT OF JUSTICE
BETWEEN:
FINANCIAL SERVICES REGULATORY AUTHORITY OF ONTARIO Applicant – and – MOHAN JOY KURIAN Respondent – and – ALTERNA SAVINGS AND CREDIT UNION/QUINTEFIRST CREDIT UNION Intervenor
Counsel: P. Underwood, for the responding party Self Represented N. Sangrar, for the Intervenor
HEARD: January 17, 2022
Reasons for Decision
Introduction
[1] This is an application by the Financial Services Regulatory Authority of Ontario (“FSRAO”) for an order under s. 140 of the Courts of Justice Act prohibiting the applicant Mohan Joy Kurian from commencing any further proceedings in any court without leave of a judge of the Superior Court of Justice and continuing an application and Small Claims Court claim that Mr. Kurian has commenced against the FSRAO.
[2] Alterna Savings and Credit Union/Quintefirst Credit Union (“Alterna”) was made an intervenor at the direction of Mew, J. on February 16, 2021.
[3] The litigation was case managed by Justice Scott. He initially set a hearing date of November 19, 2021 for this application. It turned out he was unavailable on that date and rescheduled the hearing for January 17, 2022. He indicated in his endorsement that, due to his limited availability, he could not preside at it.
[4] I conducted a case conference under rule 50.13 on December 9, 2021. All parties confirmed that they wanted to proceed with the hearing on January 17. I set a timetable for the delivery of the records and factums. As I explained in my endorsement following the case conference, this was necessary because FSRAO believed the litigation had been resolved and delivered a notice of abandonment of its application. However, Mr. Kurian took the position that it was not.
[5] The final paragraph in my endorsement stated:
If any of the parties seek an adjournment of the hearing date, a motion for an adjournment must be made an in advance of the hearing date, returnable before me and will be heard either by telephone or Zoom.
[6] By email dated January 13, 2022 and sent to counsel and court staff, Mr. Kurian asserted that both he and Mr. Underwood were seeking an adjournment of the hearing and instead wanted another case conference. He stated that he would not be attending court on January 17. Mr. Underwood immediately replied to this email, stating that he was not requesting an adjournment nor another case conference. He made it clear that his client wanted to proceed with the hearing.
[7] At my direction, the trial coordinator emailed Mr. Kurian, advising him that the hearing would proceed on January 17 and that, if he wanted to adjourn it, he would have to serve and file an application for an adjournment immediately which I would hear on January 17. This email also stated that if I decided not to grant the adjournment, the hearing of the application would proceed and, if I granted the adjournment, I would schedule another hearing date. I was unable to hear the adjournment application before January 17 because I was presiding at a trial out of town.
[8] Mr. Kurian did not bring an adjournment application. Instead, he emailed counsel on January 16, reiterating that he would not attend the hearing but also stating he was in Belleville and “almost free” after 10:00 a.m. except for “a small in-town errand”.
[9] The hearing commenced at 10:00 a.m. by Zoom. Mr. Kurian did not call in nor contact the court. I waited another 15 minutes. I was satisfied that Mr. Kurian did not intend to appear at the hearing and therefore I proceeded with it. He did not join the hearing or communicate with courthouse staff before the hearing concluded.
[10] Although he did not appear, Mr. Kurian delivered a respondent’s application record as I directed in my case conference endorsement. He did not deliver a factum.
The law
[11] S. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 states:
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 cannot be continued,
except by leave of a judge of the Superior Court of Justice.
[12] The decision of Henry J. in Lang Michener Lash Johnston v. Fabian remains the leading case. He summarized the applicable legal principles:
(a) the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction constitutes a vexatious proceeding;
(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(e) in determining whether proceedings are vexatious, the Court must look at the whole history of the matter and not just whether there was originally a good cause of action;
(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;
(g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
[13] In Dobson v Green, 2012 ONSC 4432, Campbell, J. observed at paras. 7-8:
Generally speaking, vexatious litigants often share common characteristics. They advance claims that are often manifestly without merit. They tend to ignore adverse rulings and procedural setbacks, such as costs orders against them. They may resort to multiple, repetitive proceedings, often against the same adversary. They will sometimes similarly engage others who present themselves as an obstacle in their path. They often launch court proceedings as if unconcerned about the financial resources invariably consumed by such actions. They tend to be litigants who, with persistence, abuse the court process for their own selfish and single-minded goals. They are typically self-represented litigants who seem intent, through a series of persistent and fruitless proceedings, on wearing down their opponents through an ongoing battle of attrition.
The purpose of s. 140 of the Courts of Justice Act is to protect honest citizens and litigants and the overall integrity of the justice system against those who continually abuse the court process by engaging in frivolous and vexatious litigation. It is important to appreciate, however, that even the vexatious litigant is not forever deprived of the right to launch court proceedings. Rather, where an order is made under s. 140 of the Courts of Justice Act, such an order merely serves to require a process of judicial supervision over the initiation of such proceedings. The burden is shifted to the vexatious litigant to establish, to the satisfaction of the court, that there is a reasonable basis for the proposed proceedings. Where such justification can be provided, leave to pursue the proceeding may be granted.
[14] I can consider both judicial and non-judicial proceedings: Bishop v Bishop, 2011 ONCA 211. I can infer from a litigant’s behaviour outside the courtroom that the legal claims “are not bona fide but the product of someone who is unreasonably obsessed with a cause and likely to pursue vexatious court proceedings on an indefinite basis unless stopped”: Bishop at para. 5.
The evidence on the application
[15] The first paragraph of the applicant’s factum is a concise statement of the case against Mr. Kurian:
This application is the culmination of a six-year legal campaign by the respondent against his former business partner and their business’ former credit union. The dispute, which arises out of the allegedly improper cashing of $3000 worth of cheques and the closure of an overdrawn chequing account, has now expanded to include least five legal proceedings, myriad disciplinary complaints, and innumerable allegations of serious misconduct against opposing parties and their counsel, government regulators, and the judiciary.
[16] This legal odyssey began in 2015 with a complaint by Mr. Kurian to the Financial Services Commission of Ontario (“FSCO”), the applicant’s predecessor. This came after the breakdown of a partnership between Mr. Kurian and Rakesh Dutta who operated a restaurant together in Belleville called the Tandoori Lounge.
[17] In February, 2014, Alterna cashed three cheques drawn upon the business account, each in the amount of $1,000, which bore one instead of the two signatures required under the account agreement. When this error was discovered, Alterna offered to reimburse Mr. Kurian and Mr. Dutta but they declined this proposal.
[18] In his complaint to the FSCO in September 2015, Mr. Kurian alleged that Alterna was biased against him and had improperly preferred Mr. Dutta’s interests over his. Following an investigation, the FSCO dismissed the complaint.
[19] Mr. Kurian commenced lawsuits against Mr. Dutta and Alterna in 2016. In the action against Alterna, he sought damages in excess of ten million dollars.
[20] Alterna brought a summary judgment motion which was heard by Tausendfreund, J. in May 2018. He dismissed the lawsuit and ordered that Mr Kurian pay costs of $15,000 to Alterna, offset by $3,000 on account of the cheques that were wrongly negotiated.
[21] On the same date, Mr. Kurian commenced another lawsuit against Alterna, essentially identical to the one just dismissed by Justice Tausendfreund. This action also included a request that the FSCO take action against Alterna.
[22] Abrams, J. dismissed this lawsuit on a summary judgment motion in July 2018. He described the action as an abuse of the court’s process. In his endorsement, he stated that Mr. Kurian was prohibited from instituting any further proceeding in the Superior Court of Justice without first obtaining leave but the formal order only barred Mr. Kurian from commencing further litigation against Alterna. He awarded costs of $5,000 to Alterna.
[23] Mr. Kurian has not paid the costs ordered by Justices Tausendfreund and Abrams.
[24] What next followed were complaints by Mr. Kurian to the Law Society of Ontario (“LSO”) about Alterna’s lawyer and to the Belleville Police Service alleging criminal conduct by the credit union and members of its Board of Directors. Both were groundless and no action was taken either by the LSO or the police.
[25] Despite the judicial rebukes, his crusade against Alterna continued in full force. In addition to filing another meritless complaint with the FSRAO, he badgered staff with accusatory emails. He persisted in intimidating conduct, filing complaints about the FSRAO’s lawyer to the LSO and also with the Ontario Ombudsman.
[26] Then came this application. The notice of application repeats many of the complaints of unlawful conduct made in the past. It is a confusing and almost incomprehensible amalgam of factual and legal allegations. Mr. Kurian did not file an affidavit in support of it.
[27] While the application was pending, Mr. Kurian served a notice of motion seeking to examine several FSRAO employees. He also commenced a lawsuit in the Belleville Small Claims Court against the FSRAO. He made multifarious allegations of corrupt and iniquitous conduct by the FSRAO and its employees.
[28] In July 2021, Williams, J. heard a motion in Mr. Kurian's action against his former business partner Mr. Dutta. She dismissed multiple claims advanced against local lawyers and the LSO. In her endorsement dated September 27, 2021, she wrote:
Those portions of the plaintiff’s motion relating to Kristian Bonn and/or Bonn Law Firm are dismissed. A lawyer owes no duty to an opposite party in a lawsuit. There is no basis in law for the relief sought by the plaintiff against Mr. Bonn or Bonn Law Firm.
Those portions of the plaintiff’s motion relating to the Law Society of Ontario are dismissed. The plaintiff seeks production of certain documents from the LSO. I am satisfied that the Law Society Act prohibits the LSO from producing the documents the plaintiff seeks and prevents this court from making a disclosure order in respect of the documents.
Those portions of the plaintiff’s motion relating to Todd Storms and Templeman LLP are dismissed. As previously noted, a lawyer owes no duty to an opposite party in a lawsuit.
Further, there is no basis in law for the relief sought against Mr. Storms or Templeman LLP.
The plaintiff’s request for an order that would require the Canada Revenue Agency to produce documents relating to the principal of PRC Metal Fabrication is denied. The CRA is not a party and was not served and would be prevented from producing the documents the plaintiff seeks for privacy reasons.
[29] Mr. Kurian’s truculent conduct has continued unabated. He has bedeviled court staff with numerous emails; pursued further criminal investigations of FSRAO and Alterna in communications with the Belleville Crown Attorney’s office and the police; and raised claims of judicial misfeasance.
[30] On October 30th, 2021, Mr. Kurian filed a notice of abandonment of his application. He executed a release and consent to the dismissal of the Small Claims Court claim. In reliance upon this apparent resolution of the litigation, the FSRAO withdrew the vexatious litigant application.
[31] The settlement fell apart when Mr. Kurian reneged on it. He did not file an affidavit of service for the notice of abandonment and so it could not be formally filed. He declined to sign the consent for the dismissal of the Small Claims Court lawsuit. As a result, FSRAO had to refile the vexatious litigant application.
[32] Mr. Kurian has not appealed any of the orders made in any of the litigation he has pursued.
[33] In his respondent’s application record, Mr. Kurian makes numerous irrelevant allegations and repeats the pattern of personal attacks on opposing counsel and the judiciary. There is no substantive response to this application.
Analysis
[34] Mr. Kurian may have a valid legal claim against Mr. Dutta arising out of the breakdown of their business relationship. But his abusive legal campaign against the FSRAO and Alterna needs to end and the only means to accomplish this is a declaration that he is a vexatious litigant.
[35] His current claims against FSRAO and Alterna are patently without merit. The judicial rejection of the same or similar complaints has not deterred him. If anything, they seemed to have added fuel to the fire. He has sought to browbeat his opponents into submission by attempting to intimidate their employees with repetitive and groundless complaints.
[36] When these attempts failed, he targeted lawyers and the judiciary with baseless imputations of corrupt behavior. All of this is done without any ostensible concern for the truth of the allegations or their impact on the reputations of the individuals he has pilloried.
[37] His disingenuous refusal to honor the settlement with FSRAO and his intentional failure to attend at the hearing of this application conclusively demonstrate that he does not consider himself bound by the rules of court or court orders. His actions, both inside and outside the courtroom, reveal a continuing disrespect for the administration of justice.
[38] It is evident that he believes he can litigate with impunity: if he is unsuccessful with one claim, he will not appeal the decision but simply start another one; if a complaint to a regulatory authority is rejected, he will refile it; if costs are awarded against him, he will not pay them; if people do not accede to his wishes, he will harass them with spurious complaints; and, based on his recent behavior, he will attend court only when he wants to.
[39] As Justice Campbell stated in Dobson, the authority granted by s. 140 to declare someone a vexatious litigant should be exercised rarely and “must be reserved for those cases where the normal rules of court seem unable to reasonably control a litigant”.[1] This is such a case.
Disposition
[40] For these reasons, I make the following order:
THIS COURT DECLARES THAT Mohan Joy Kurian: a) has persistently and without reasonable grounds instituted vexatious court proceedings and has conducted court proceedings in a vexatious manner within the meaning of ss. 140(1) (a) & (b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”); and b) is a vexatious litigant pursuant to s. 140 of the CJA.
THIS COURT ORDERS that Mohan Joy Kurian is prohibited from instituting any proceeding or continuing any proceeding previously instituted in any court, except and until such time as he has obtained leave by a judge of the Superior Court of Justice pursuant to s. 140(3) of the CJA and as provided for in this order.
THIS COURT ORDERS THAT with the exception of the action bearing court file no. 16-0320-00 against Rakesh Dutta, all existent actions, claims, and applications brought by Mohan Joy Kurian be and are immediately stayed except and until such time as he has obtained leave pursuant to s. 140(3) of the CJA and as provided for in this order.
THIS COURT ORDERS THAT Mohan Joy Kurian shall immediately deliver a copy of this Order to any person or body with whom he initiates or continues any claim, proceeding or complaint, including any court, administrative or regulatory body, the police, and the Crown Attorney’s office.
THIS COURT ORDERS THAT the requirement for Mohan Joy Kurian to approve this or any other draft order is dispensed with.
[41] As indicated, this order does not apply to Mr. Kurian’s lawsuit against Mr. Dutta bearing court file number CV-16-0320-00 as it is currently constituted. In order to prevent any misunderstanding of this exception, Mr. Kurian may continue that lawsuit but he cannot pursue any type of legal claim against FSRAO, Alterna or any parties not currently named as defendants in it without first obtaining leave of the court.
[42] Following the hearing, FSRAO and Alterna delivered written submissions on costs. FSRAO is seeking costs on a partial indemnity basis from August 27, 2021 to November 11, 2021 of $5,959.50 and costs on a full indemnity basis after that date of $13,692.50. The total amount claimed, inclusive of HST and disbursements, is $22,208.46.
[43] Alterna’s claim on a partial, substantial and full indemnity basis inclusive of HST and disbursement is, respectively, $11,857.22, $17,647.61 and $19,577.61.
[44] The amount of hours and the hourly rates are reasonable. Although the legal principles are well settled, this type of application usually requires, as it did in this case, a comprehensive factual record that necessarily takes significant time and effort. I view this application as akin to a moderately complex summary judgment motion.
[45] I do not find that Mr. Kurian’s conduct in the litigation (i.e. his response to the vexatious litigant application) warrants an award of substantial indemnity costs before he resiled from the settlement. From that point forward, he engaged in the type of reprehensible conduct that is worthy of sanction by way of substantial indemnity costs: Davies v. Clarington (Municipality) et al., 2009 ONCA 722. The amount of costs should be elevated because of his unjustified decision to renege on the settlement agreement, his failure to comply with the directions contained in my case conference endorsement and his wilful failure to attend court.
[46] I find that a fair, reasonable and proportionate amount, that is consistent with the reasonable expectations of the parties, would be $15,000 inclusive of HST and disbursements.
[47] Alterna acknowledged in its submissions that, as a general rule, an intervenor is neither liable nor entitled to costs but they can be awarded in certain circumstances: Canadian Union of Postal Workers v. Canada (Attorney General), 2017 ONSC 6503.
[48] Although Mr. Kurian’s application named only FSRAO as a respondent, it was clearly aimed also at Alterna. As Mew, J. recognized, Mr. Kurian was in effect seeking relief against it. In these circumstances, Alterna is entitled to costs but the amount should be relatively modest. FSRAO carried the weight of the s. 140 application. I find that a fair, reasonable and proportionate amount on a partial indemnity basis would be $5,000 inclusive of HST and disbursements.
[49] In summary, I order that Mr. Kurian pay costs of $15,000 inclusive of HST and disbursements to FSRAO and $5,000 inclusive of HST and disbursements to Alterna. Both amounts are payable within 30 days in accordance with rule 57.03.
Date: March 24, 2022
Hurley, J
Footnotes
[1] Paragraph 6 of Dobson v Green, 2012 ONSC 4432.