Court File and Parties
NEWMARKET COURT FILE NO.: CV-21-3184 DATE: 20220419 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Patricia Hudson and Gail Osso Applicants – and – Gary Tripp Respondent
Counsel: Jonathan Friedman, for the Applicants Self Represented, for the Respondent
HEARD: February 2, 2022
Reasons for Decision
Overview
1Patricia Hudson (“Pat”) and Gail Osso (“Gail”) (collectively the “Applicants”) are co-executrixes of the estate of Ross John Tripp (the “Estate”). In their initial Notice of Application the Applicants sought, inter alia, an Order that the Respondent’s Notice of Objection dated June 16, 2021, (bearing Court File No.: CV-21-00870) be withdrawn. By way of their Amended Notice of Application, the Applicants also ask that the Respondent be declared a vexatious litigant pursuant to s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
2A Notice to Objector was served on the Respondent on July 8, 2021. The Respondent did not serve a Notice of Appearance as directed by the Notice to Objector.
3The Respondent failed to attend the hearing of this application. It is understood he received the initial invitation to the zoom link, as it was sent to the email address he provided in other court documents (gary.tripp@pm.me).
4At the outset of the hearing I directed the Registrar to call the Respondent on the record. The Respondent did not answer his phone, and a message was left asking him to sign on to the zoom meeting. The Registrar also emailed the Respondent the zoom invitation. Court stood down for fifteen minutes to allow the Respondent time to sign on. When Court was reconvened, the Respondent was not in attendance.
Background
5Ross John Tripp (the “Deceased”) died testate on August 24, 2020. The Applicants and the Respondent are the only children of the Deceased.
6The Deceased was predeceased by his wife, Agnes Tripp, who died testate on April 1, 1997. Her will left the entirety of her estate to the Deceased.
7The Deceased’s will, which names the Applicants jointly as Estate Trustees, is not in dispute. The Applicants and the Respondent share equally in the residue of the Estate which, as of July 27, 2021, is valued at approximately $625,000.
Notice of Objection
8The Respondent’s Notice of Objection provides the following reasons for his objection to the Applicants’ appointment as Estate Trustees:
- There is evidence that the proposed estate trustees are unlikely to perform their duties properly.
- There is evidence that the proposed trustees have breached trust obligations in the past.
- There is evidence that hostility of the trustees towards me that will lead to the trustees failing to perform their duties.
- The proposed trustee has threatened me to this effect.
9The Respondent’s failure to attend and make submissions renders his objections bald allegations not supported by any evidence. It appears the Respondent’s objections are based on the potential that the Applicants will not fulfill their future obligations as trustees properly, but there is no explanation as to why this might be the case.
10Without supporting evidence I see no valid reason why the Applicants should not be appointed Estate Trustees. Accordingly, the Respondent’s Notice of Objection is struck.
Vexatious Litigant
11I am unable to pinpoint where the Respondent’s animus springs from, even after mining the affidavits filed by the Applicants in search of clues. Tensions may have been brewing prior to the Deceased’s death, but once he passed the Respondent appears to have determined that everyone was against him. The following events (listed chronologically) support this conclusion.
TD Bank
12The Applicants and the Respondent were equal beneficiaries of the Deceased’s TFSA account with TD Bank. To receive his 33% share, the Respondent was required to provide his SIN. He refused to do so. An employee of TD Bank, Daniel Moreira, who assisted the parties with TFSA, became the target of the Respondent’s umbrage. To wit, the Respondent’s email of December 24, 2020, to Mr. Moreira reads as follows:
I suggest TD Canada Trust legal team prepare Gary Tripp an offer to settle for the damage and injury caused to i by your criminal acts for $250,000 CDN without involving the Superior Court. Enjoy your family now, I expect you will serve time in Federal Prison for the crimes you have committed on behalf of TD Canada Trust.
13The Respondent signed the email “per; Gary Tripp, a.k.a. Courageous Raven Private Prosecutor.”
Newmarket Small Claims Court Claim: SC-21-00305
14The Respondent commenced this claim in Newmarket Small Claims Court in the spring of 2021. In addition to naming the Applicants as defendants, Mr. Moreira and another TD employee, Russ Gowan (“TD Employees”), were also named.
15The Respondent seeks $35,000 in damages for conspiracy, false pretence, theft, extortion, criminal breach of trust, unlawful bodily harm, and breach of contract. The claim is difficult to summarize. It appears to allege that the Applicants included assets which should have passed outside of the will in the calculation of the Estate. This increased the Estate’s value to the benefit of the Applicants who, pursuant to the terms of the will, are entitled to a gift of 5% of the total value of the Estate in lieu of executor’s compensation.
16Pursuant to the Small Claims Court Rules, a settlement conference (“SC”) was scheduled for October 19, 2021. Mr. Friedman, counsel for the Applicants, and Ms. Rocca, counsel for the TD Employees, were not available on October 19, 2021. Unable to obtain the Respondent’s consent to adjourn the SC, Ms. Rocca brought a motion to adjourn the SC, which was granted by Deputy Justice Di Gregorio.
Law Society of Ontario Complaint: Ms. Rocca
17The Respondent may have filed a complaint against Ms. Rocca. In his email to the Law Society of Ontario (“LSO”) dated September 8, 2021, on which he copied the Applicants and Mr. Moreira, he asked that the LSO process his attached request to report Ms. Rocca to law enforcement.
Barrie Small Claims Court Action: SC-21-1094
18On October 12, 2021, the Respondent filed a Small Claims Court Claim in Barrie against the Applicants’ lawyer, Mr. Friedman, for $35,000 in aggravated and punitive damages for breach of professional conduct or, in the alternative, aggravated and punitive damages for breach of the Criminal Code or, in the further alternative, aggravated and punitive damages for breach of the Respondent’s security of person as affirmed by the Canadian Bill of Rights.
19On October 14, 2021, the Respondent wrote to Barrie Court Services Division, using the subject line: AMBER ALERT – Notice of Intention to Obstruct Justice. His letter states in part:
SC-21-1094 pleads that law professional Jonathan FRIEDMAN did not follow Rules for fraudulent purposes, and claims damages for injury that resulted.
Friedman has revealed his plan to defeat my course of justice by filing a motion to have the claim struck on the grounds that it does not raise reasonable cause of action…
I have warned him away from his criminal path, but have concerns that his narcissistic disregard for truth and authority will prevail in highjacking his actions…
Please notify your staff of this AMBER ALERT and ensure they do not unwittingly become a party to FRIEDMAN’S offence(s)…
20Also on October 14, 2021, the Respondent emailed Mr. Friedman, advising Mr. Friedman of his intention to “initiate a new malpractice suit and private prosecution if you attempt to proceed by motion.”
21The Respondent reiterated his intention to initiate a malpractice suit and private prosecution in a follow up email to Mr. Friedman dated October 22, 2021.
22Also on October 22, 2021, the Respondent wrote to the Barrie Court Services Division Business Unit Manager, threatening to “initiate criminal proceedings against any Clerk of the Small Claims Court who provides FRIEDMAN with a hearing date for a motion to occur prior to the Rule 13 settlement conference.”
Law Society of Ontario Complaint: Mr. Friedman
23On October 9, 2021, the Respondent filed an LSO complaint against Mr. Friedman alleging breaches of the Criminal Code and/or the Canadian Bill of Rights. The Respondent indicates that his lawyer with respect to the complaint is “Courageous Raven.”
24At the conclusion of his complaint, the Respondent wrote “I hope FRIEDMAN is disbarred and put to sleep with the fish off the pier in Shanty Bay. If you can’t arrange it, Dick the Butcher knows people who can.”
Possible Action against the Court Clerk and Deputy Justice Di Gregorio
25On October 28, 2021, Ms. Rocca advised Mr. Friedman that the Respondent was threatening action against the court clerk who scheduled the SC, alleging as well that Deputy Justice Di Gregorio abused the court’s process in granting the adjournment.
26Ms. Rocca’s concerns are supported by the Respondent’s email to Ms. Sidoli of the Newmarket Small Claims Court, in which he wrote:
I have reasonable grounds to believe that you, in connection with your duties as Clerk of the Small Claims Court, committed a breach of trust to treat me equally before the law and to follow the Rules of the Small Claims Court, and are guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, in accordance with s 122 of the criminal code R.S., c. C-34, s.111.
Prepare to be served.
Application for Certificate of Appointment
27In October 2021 the Respondent issued and served an application for a Small Estate Certificate in relation to their late mother’s estate, alleging that their mother died without a will.
28The Applicants state that the Respondent is fully aware their mother died with a will, and that the residue of her estate went to the Deceased, who survived her. In serving this application, the Applicants submit the Respondent is retaliating by initiating baseless and costly litigation.
Private Prosecution
29In his Motion for Directions bearing the same court file number as his Notice of Objection, the Respondent appears to include allegations and/or a complaint of criminal activity against Pat, Mr. Friedman, and Mr. Friedman’s law clerk.
30The allegations against Mr. Friedman include perverting the course of justice and defrauding the Estate.
31In his material the Respondent refers to himself as a “Private Prosecutor, living in Grey County, Ontario.”
Threats of Violence
32Apart from launching actions and filing complaints, the Respondent has also threatened violence.
33In a December 24, 2020, email to Mart Pikkov, the Deceased’s lawyer, the Respondent admits that he “justly assaulted Ram Anand Shankar LSO#67054E to arrest his obstruction of my emancipation from indentured slavery.”
34He goes on to state:
I am preparing to commit acts of extreme bodily harm against Brian Allen Ludmer, Lorne Charles Baker, and Ram Anand Shankar to shine a spotlight on the crimes they committed in the destruction of my family, and the collapse of my person. Susan is as much a victim as me and our children. Only then can we start to heal the damage done by these vile white collar criminals. Would you kill to save Mari?
35The Respondent signs the letter “Sincerely, Per: Raven Courageous Raven, son of Ross Tripp, father to and protector of Austin Tripp and Sam Tripp.”
Issues
36Having determined at the outset of these reasons that the Notice of Objection raises no valid objection and should be struck, it remains for me to determine is whether the Respondent should be declared a vexatious litigant.
The Law
37Section 140(1) of the Courts of Justice Act provides as follows:
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.
38Lang Michener Lash Johnston v. Fabian (1987), 37 D.L.R. (4th) 685 (Ont. H.C.), remains the leading case in vexatious litigant determinations. In his decision Henry J. summarized the applicable legal principles, at p. 691:
(a) the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction constitutes a vexatious proceeding;
(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(e) in determining whether proceedings are vexatious, the Court must look at the whole history of the matter and not just whether there was originally a good cause of action;
(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and
(g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
39For a litigant to be vexatious, their conduct is not required to fall within the scope of each of the Lang Michener categories.
40Additionally, as the Court of Appeal held in Bishop v. Bishop, 2011 ONCA 211, leave to appeal refused, [2011] S.C.C.A. No. 239, on a vexatious litigant application the court can consider both judicial and non-judicial proceedings. Thus, it is open for me to infer from a litigant’s behaviour outside the courtroom that 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.” See Bishop, at para. 9.
Analysis
41The Respondent clearly satisfies some of the criteria to be applied when making a vexatious litigant determination. The grounds and issues raised in the Small Claims Court actions are tenuous at best. It can also be said that these actions are brought for an improper purpose, being to harass and oppress rather than to assert legitimate rights. And the Respondent has brought actions against the lawyers who have acted against him.
42Conversely, the Respondent has not brought any actions to determine an issue which has already been determined by a Court of competent jurisdiction. There are no outstanding costs awards against him, and he has not persistently taken unsuccessful appeals from judicial decisions against him. When examining the entire history of this matter, the events complained of have arisen only since the Deceased’s passing, and most over the last year.
43Contrast this with other litigants who have been declared vexatious. In many cases their egregious behaviour went unabated for years, with a multiplicity of proceedings, appeals, outstanding costs awards, etc. being racked up.
44In Bishop, for example, the respondent waged a “scorched earth” approach for over five years, commencing lawsuits, filing appeals, and lodging complaints against anyone who took the view opposite to his. Likewise, the respondent in Lang Michener brought proceeding after proceeding and appeal after appeal against doctors, corporations, lawyers, and the Attorney General of Ontario over a similar time period. The respondent in Dale Streiman & Kruz LLP v. De Teresi (2007), 84 O.R. (3d) 383 (Ont. S.C.), was declared a vexatious litigant after commencing 73 actions over ten years, serially litigating against the same parties over the same facts and issues.
45In using these examples, I should not be taken to hold that a defined timeframe must elapse before a litigant is declared vexatious. I can readily envision a situation where one could, in a short period of time, commit sufficient acts to be declared vexatious.
46The purpose of s. 140(1) of the CJA 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”: Dobson v. Green, 2012 ONSC 4432, [2012] O.J. No. 3593, at para. 8.
47Vexatious litigation is unrelenting and unwarranted, and a vexatious litigant is dogged in her or his pursuit of an ideal. The Respondent is obviously a thorn in the side of many, but his actions have not yet risen the to the level of “vexatious,” within the meaning of s. 140(1) of the CJA.
48I have empathy for the plight of the Applicants, as well as the others who have found themselves in the Respondent’s line of fire. This is particularly true of Mr. Friedman, who is carrying out his obligations to his clients in a manner that should be applauded. However, on the record before me, it cannot be said that the Respondent falls within the category of litigants “who continually abuse the court process by engaging in frivolous and vexatious litigation”: GoodLife Fitness Centres v. Hicks, 2019 ONSC 4942, at para. 71. Even taking into account the extra-judicial proceedings, this is not an instance that warrants impeding the Respondent’s important right to access the courts.
49That said, the Respondent’s threats of physically violent behaviour are of grave concern. Regrettably, declaring the Respondent vexatious will not satisfactorily remedy such conduct. I would urge the targets of the Respondent’s threats to take the steps necessary to protect themselves, including the involvement of law enforcement.
Conclusion
50The Applicants enjoy partial success. The Respondent’s Notice of Objection is struck, and the balance of the relief sought in the Notice of Application is granted.
51The Application to have the Respondent declared a vexatious litigant is dismissed.
52Draft Order as amended shall issue.
Costs
53I did not invite costs submissions at the conclusion of the hearing. However, given the partial success of the Applicants, all costs incurred in respect of the administration of the Estate, shall be borne by the Estate on a full indemnity basis.
CASULLO J.