COURT FILE NO.: CV-22-29
DATE: 16/08/2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CATHERINE HARPER
Applicant
– and –
JANICE M.B. MACDONALD
Respondent
Jennifer Ng for Applicant
Self-Represented
HEARD: August 15, 2022
DECISION ON APPLICATION UNDER section 140 cja
Justice Sally Gomery
[1] Catherine Harper and Janice MacDonald are sisters in their sixties. They had little or no direct contact from the late 1970s to 2018. Since their father’s death four years ago, however, Ms. Harper contends that Ms. MacDonald has engaged in a pattern of meritless legal proceedings against her, as well as a stream of derogatory and abusive emails, texts and phone messages. She attempted to put an end to the communications by asking Ms. MacDonald to send messages through her lawyer. She also filed a criminal complaint against Ms. MacDonald in British Columbia. Ms. MacDonald’s conduct has continued unabated. Ms. Harper now seeks the following orders:
(i) An order under Section 140 of the Courts of Justice Act, RSO 1990, c C.43 (“CJA”) declaring Ms.MacDonald, a vexatious litigant, and prohibiting her from commencing or initiating any further proceeding against Ms. Harper, in any court, and from continuing any ongoing proceeding against Ms. Harper, in any court, without prior leave of a judge of the Superior Court of Justice of Ontario; and
(ii) A permanent injunction prohibiting and restraining Ms. MacDonald from:
i. threatening, harassing, contacting, or communicating directly or indirectly with Ms. Harper, by electronic and non-electronic means including e-mail, without prior leave of the Court; or
ii. coming within 200 metres of Ms. Harper’s home.
[2] Ms. Harper also seeks costs on a substantial indemnity on the application.
[3] Ms. MacDonald denies that she is a vexatious litigant. She says that her lawsuits have been well founded, because Ms. Harper has abused her for years and conspired in criminal acts against her. She argues that is unfair that she has so little when her sister has so much. Ms. MacDonald denies that she ever sent Ms. Harper derogatory or threatening messages. She does not contest Ms. Harper’s request restraining her from communicating with her going forward, because she says that she wants no further contact between them. Ms. MacDonald says that Ms. Harper has fabricated evidence and is lying to the court.
[4] For the reasons that follow, I grant the application for the ss. 101 and 140 orders sought by Ms. Harper. I also order Ms. MacDonald to pay Ms. Harper partial indemnity costs of $6,000 on the application.
Evidence on the application
[5] Ms. Harper filed an application record, as well as two supplementary records. They include affidavits she swore in January, and March 2022, together with an affidavit sworn by her counsel’s legal assistant in February 2022. The allegations in these affidavits are plausible because they are supported by contemporaneous documents consistent with them. The affidavits attach examples of emails and texts messages between Ms. MacDonald, Ms. Harper, and Ms. Harper’s lawyers over the past four years, the vast majority of which were written by Ms. MacDonald. They also attach pleadings and endorsements that support the affiants’ accounts. Neither Ms. Harper nor the legal assistant were cross-examined on their affidavits, and there is no reason to doubt their credibility.
[6] Ms. MacDonald filed three volumes of responding materials. The first volume contains an affidavit she swore in February 2022 setting out some of her personal history and current circumstances. Much of it focusses on alleged wrongdoing by the parties’ deceased father allegations that the police engaged in “14 years of police brutality, theft, slander, kidnappings, illegal drugging, [and] an unbelievable display of misuse of position”, culminating in the murder of Ms. MacDonald’s romantic partner, Ford Regular and the burning down of their house. Ms. MacDonald refers to a dog breeding business she ran successfully and the loss of this business, her property, and other investments, making her destitute even though her mother and her sister have money and housing. She argues that she has a claim against Ms. Harper for perjury, defamation, illegal interference in her medical care, harassment, fabrication of evidence, and being an accessory to assault causing bodily harm. The affidavit does not, however, contain any detailed allegations of fact in support of any of these claims, and no exhibits are attached.
[7] The first volume also contains other statements by Ms. MacDonald, and other documents for which little or no context is provided. The statements contain other unparticularized accusations against Ms. Harper and accounts about Ms. MacDonald’s life that are difficult to follow. The statements do not set out a coherent narrative. They are undated and unsworn.
[8] The second volume filed by Ms. MacDonald contains documents that she sought to file in response to a motion to strike an action she began against Ms. Harper in Cornwall last year. This volume duplicates some of the first volume’s documents. Other new material does not constitute evidence because it is not supported by a sworn, dated affidavit.
[9] The third volume contains caselaw that Ms. MacDonald says she prepared for other litigation. Ms. MacDonald did not mention any caselaw in her submissions at the hearing or file a factum.
[10] Ms. MacDonald was given guidance and multiple opportunities on the rules applicable to this application. It was initially set for hearing in February 2022. The hearing was adjourned, in part, because Ms. MacDonald had not filed materials. Following a case conference held on March 2, 2022, Hurley J. issued an endorsement setting out a detailed timeline and process for the parties to exchange materials. He adjourned the matter to a further case conference in April 2022, and observed that:
Litigants, whether they are represented by lawyers or not, must comply with the Rules of Civil Procedure with respect to the service and filing of documents that they intend to rely upon in court. The documents must also be in the proper format and, specifically, any evidence that will be relied upon at a hearing must be in affidavits or the exhibits attached to affidavits. I expect that to be done in this case.
[11] At the April 2022 case conference, Hurley J. noted that Ms. MacDonald had not complied with r. 38.09 (3.1), and it was not clear whether the materials she had delivered to the courthouse (by taxi) were the same as those she had delivered to Ms. Harper’s lawyer, Ms. Ng. Ms. Ng agreed to compare the two sets of documents at the courthouse, at no cost to the parties, and to upload Ms. MacDonald’s materials to CaseLines. At the final case conference in June 2022, Hurley J. noted that this had been done.
[12] I recognize that Ms. MacDonald does not have legal training or a lawyer to assist her. Most of what she has filed does not constitute evidence, however. Her materials are so deficient that I can give them little to no weight. This necessarily means that I must rely primarily on Ms. Harper’s evidence.
The parties’ history
[13] Ms. Harper has lived in British Columbia since 1978. Her husband passed away in 2016. Ms. MacDonald has lived in various places across Canada. She told the court that she currently has no fixed address.
[14] The parties’ relationship deteriorated decades ago and they did not have much direct contact from the late 1970s until 2018. In 1996, Ms. MacDonald sued their parents alleging that her father had sexually abused her. Ms. Harper filed an affidavit in that action contradicting some of Ms. MacDonald’s allegations about their childhood and expressing the belief that no sexual or other abuse had occurred while they were growing up. She believes that the lawsuit was settled by her father for a payment of $3,500 to Ms. MacDonald in return for her undertaking that she would cease all contact with her mother. Ms. MacDonald’s complaint to police alleging sexual abuse did not result in any charges being laid.
[15] The parties’ father died in September 2018. Under his will, Ms. Harper, and her brother (since deceased), each received 40% of his estate, and Ms. MacDonald 20%. BMO Trust Company was appointed as Estate Trustee under the will after Ms. Harper and her mother renounced their appointments.
[16] In 2020, Ms. MacDonald took steps to initiate a legal action in the Ontario Superior Court in Toronto (the “Estates proceeding”). The exact nature of this intended proceeding remains unclear. It does not appear that Ms. MacDonald ever obtained a court file number. Her purported statement of claim, which did not comply with pleading requirements in the Rules of Civil Procedure, was drafted in the first person, and set out grievances against Ms. Harper and others. Ms. MacDonald stated that she has a claim against Ms. Harper for slander, mental cruelty, and harassment. She complained that Ms. Harper had accumulated savings, a house, a cottage, and a monthly income, while Ms. MacDonald was unemployed because “they robbed me of all of my tools of the trade” and “millions of tax dollars” had been spent “to make sure that I do not have a job to go to”. She accused Ms. Harper of verbal abuse and of having had sex with Ms. MacDonald’s husband. She accused the police of killing her husband and referred to a former acquaintance whose grandfather ran rum to the U.S. during Prohibition and “had 13 baby bodies in their cellar”.
[17] Despite the lack of a court file number or a proper pleading, Ms. MacDonald requested and obtained a scheduling conference in the Estates proceeding. Ms. Harper retained counsel and attended with her lawyer at the conference, which took place on December 1, 2020. Ms. MacDonald did not serve materials articulating the basis for her lawsuit ahead of the conference, nor did she attend it. In his December 1, 2020, endorsement, Cavanagh J. directed that any further conferences in the Estates proceeding be set in consultation with Ms. Harper’s lawyer.
[18] At the hearing of this application, Ms. MacDonald said that she missed the scheduling conference because she was not informed of the date. In his endorsement, Cavanagh J. found that she was, in fact, advised of it.
[19] Following the conference, Ms. MacDonald began to barrage Ms. Harper, her lawyer, the Estate Trustee, and the court’s offices with messages by email and text. She sent a total of 74 emails from December 1 to 7, 2020 to Ms. Harper’s lawyer. She demanded that the conference be rescheduled and said she had prepared materials, but never served them.
[20] In her emails, Ms. MacDonald continued to accuse Ms. Harper and others of serious wrongdoing using vulgar and intemperate language. She described the police, for instance, as “filthy raping thieving murdering cops” and Ms. Harper’s friends as “rapehounds”. She said the police (and possibly others) had killed her husband and burned down her house. She claimed that her father had admitted to killing her aunt and said she was leaving the country to protect herself. Ms. Macdonald demanded immediate payment of $5,000 from her father’s estate and threatened further legal proceedings against Ms. Harper. She also described unsuccessful steps she had taken to swear unspecified criminal charges against unspecified individuals.
[21] On January 1, 2021, Ms. MacDonald sent the following email to Ms. Harper and Ms. Harper’s lawyer:
I have rethought this.
Somebody said Catherine [Ms. Harper] was behind the Cruelty, theft, and illegal drugging in Nfld and I couldn't see how. As she hasn't seen me since 1977, she couldn't really say anything.
On the grounds of recent events, I changed my mind on that. I am going to make her as responsible as the police, doctors and corrupt Collie breeders and neighbors. As far as the original Claim of $12.8 million, which I have decided to double because of another year of needless daily torment and harassment.
Good thinking.
[22] Based on Ms. MacDonald’s submissions at the hearing, the reference to “illegal drugging in Nfld” relates to a period that Ms. Macdonald was under psychiatric treatment, which she says was against her will and based on false information from Ms. Harper.
[23] Some of Ms. MacDonald’s messages to her sister during this period threatened her with physical harm. On December 1, 2020, Ms. MacDonald sent Ms. Harper a text stating: “I’m nailing you. PROMISE”. In a December 14, 2020, message to Ms. Harper, her lawyer, the Estate Trustee, and two court offices, Ms. MacDonald wrote that: “Nobody is treating me like this and getting away with it”. The following day, she sent an email to the same group of people saying:
[A]s soon as I get the funds from the Estate, I will proceed civilly against Mrs. Harper for four times what I get, this is a project that I am not going to abandon
I was going to hire 3 men to rape her badly for days, but my friends talked me out of it, saying that this would hurt her more
And I am going to be sure to do that, before I leave the Country
[24] Ms. MacDonald sent a further email to Ms. Harper and the Estate Trustee the same day stating: “If raping me, roomful of men, from age 2 -15 isn't a crime, neither is raping her at 60”.
[25] Ms. Harper was so alarmed by her sister’s emails and texts that she swore a criminal complaint with the RCMP in British Columbia. In her affidavit, she says that she was worried about her personal safety. I have no reason to doubt this.
[26] Ms. MacDonald continued to send emails to Ms. Harper and her lawyer about getting another scheduling conference in the Estates proceeding. On December 22, 2020, however, she sent the Toronto court office an email in which she seemingly abandoned the proceeding, saying that she would instead be “filing against my sister [Ms. Harper] in Federal Court, I have other matters than her relentlessness abuse [sic]”.
[27] On December 24, 2020, Ms. Harper sent Ms. MacDonald an email accusing her of trying to extort money from her and their father’s estate. She asked Ms. MacDonald to stop sending her emails and texts. This did not have the intended effect. Further emails were exchanged over the next day and a half, in which Ms. MacDonald said that she would seek to have Ms. Harper criminally charged.
[28] Ms. MacDonald continued to send messages to Ms. Harper, her lawyer, and others in early 2021. She repeated earlier accusations against her sister and the police and accused Ms. Harper’s lawyer of having fabricated tape recordings of calls she made to her office. She continued to press for a 50% share of her father’s estate, despite her apparent abandonment of the Estates proceeding.
[29] Ms. MacDonald’s emails suggest that, at some point, she contacted the Ministry of Attorney General seeking damages for the alleged murder of her husband and that she attempted unsuccessfully to file a proceeding in that court. She was involved in ongoing legal proceedings before the Supreme Court in Newfoundland in January 2021. When advised by a judicial assistant that unspecified interlocutory applications were being handled by Justice Khaladkar, Ms. MacDonald spontaneously mentioned, in her response, that “they just tried to poison my friend Art”.
[30] In May 2021, Ms. MacDonald began another action against Ms. Harper (court file no. CV-21-73), in the Ontario Superior Court of Justice in Cornwall (the “Cornwall action”). She claimed $5,372,500 in damages. In the statement of claim, she alleged that Ms. Harper was an “outrageous criminal” and “vicious bitch” who had engaged in harassment, threats, verbal abuse, and mental cruelty. She also accused her of fabricating evidence in the Estates proceeding and of committing perjury.
[31] Ms. Harper brought a motion to strike Ms. MacDonald’s claim in the Cornwall action on the grounds that it disclosed no cause of action. In the months prior to the motion hearing, Ms. MacDonald continued to send emails accusing Ms. Harper and others of wrongdoing. For example, in an email to Ms. Harper’s lawyer on August 10, 2021, she alleged that the Newfoundland police were bragging that they had killed three of her husbands. In an August 13, 2021 email, she claimed that her father paid the Ontario Provincial Police to kill a boyfriend.
[32] Ms. Harper’s motion to strike was heard on September 13, 2021. Ms. MacDonald did not attend the hearing. At the hearing of this application, she again insisted that she was not given the court date for the motion to dismiss. I do not believe this. The record on the motion shows that she was informed of the hearing date at least twice, once by the court’s office, and once by Ms. Ng. There is even a screenshot of Ms. MacDonald’s phone showing the time and date of the conference.
[33] Champagne J. granted the motion to strike, dismissed the Cornwall action, and awarded Ms. Harper $2,500 in costs. In her endorsement, the judge found that there was no discernable cause of action in Ms. MacDonald’s statement of claim and that its deficiencies could not be remedied through amendments.
[34] Ms. MacDonald has not appealed Champagne J.’s dismissal order. She has instead continued to send threatening emails to Ms. Harper, her lawyer, and others. On September 26, 2021, she sent Ms. Harper an email purporting to serve her with a claim before in the International Court of Justice, stating: “You are getting nailed, Bitch”. On November 5, 2021, she emailed Ms. Harper’s lawyer that “I'll nail her yet. One way or another. I am right now focusing on getting criminal charges laid.”
[35] On December 17, 2021, Ms. MacDonald sent Ms. Harper and another individual, Bonnie Saul, two “without prejudice” letters advising them that she intended to sue them unless they each paid her money. She demanded $372,500 from Ms. Harper “on the grounds of mental cruelty, slander, defamation of character, pergory [sic], which is criminal, fabricating tapes, which is also criminal, and as an accessory to crimes against my self and others as children by other family members”.
[36] Ms. Harper served this s. 140 application on January 22, 2022. In her January 20, 2022, affidavit in support of it, Ms. Harper says that Ms. MacDonald’s actions over the past two years have caused her significant anxiety, embarrassment, and legal costs. She says that Ms. MacDonald’s emails are obviously defamatory and have been copied to third parties. Ms. Harper believes that further legal actions and emails from Ms. MacDonald will not cease in the absence of an order prohibiting further communications absent a court order.
[37] On February 3, 2022, Ms. MacDonald delivered responding materials to this application to Ms. Harper’s lawyer. At the same time, she delivered an issued statement of claim in a new action against Ms. Harper and Bonnie Saul in the Superior Court of Ontario in Kingston (the “Kingston action”). In the statement of claim, Ms. MacDonald seeks over $1 million in damages from Ms. Harper. Paragraphs 1, 2, 5, 7, and 10 of the statement of claim in the Kingston action are effectively identical to paragraphs in the Cornwall action. Other new paragraphs recycle past allegations. Ms. MacDonald alleges that Ms. Harper is an accessory to murder, “criminally insane”, and a victim of “Nazi brainwashing”.
[38] On my review of the statement of claim in the Kingston action, it does not present allegations of material fact amounting to a coherent narrative that would allow Ms. Harper to understand the basis for the claim or allow her to defend to it. It is not possible to understand what cause of action Ms. MacDonald is asserting, what she is seeking by way of damages, the specific acts and omissions that allegedly gave rise to those damages, or the alleged causal link between the two.
[39] Ms. MacDonald attended the hearing of the application in person 90 minutes after it started. She claimed that she did not receive recent communications from the court because her computer had broken down and she had spent 20 hours hitch-hiking from an undisclosed location to the Belleville courthouse. I permitted her to make submissions, even though I found her explanation for her failure to attend virtually at the schedule time implausible.
Should Ms. MacDonald be declared a vexatious litigant?
Legal principles
[40] Under s. 140(1) of the CJA, where a judge of the Superior Court is satisfied that a person “has persistently and without reasonable grounds… instituted vexatious proceedings in any court; or conducted a proceeding in any court in a vexatious manner”, the judge may order that the person may not, without leave of the court, institute any further proceeding in any court or continue a proceeding previously instituted.
[41] As held in Re Lang Michener and Fabian, 1987 CanLII 172 (ON SC), [1987] OJ No. 355 and affirmed by Justice Marc Smith in Kaufman LLP v. Kechichian and Essilor v. Kechichian, 2021 ONSC 1173, at para. 27, a vexatious litigant has typically engaged in one or more of the following behaviours:
(a) they have brought one or more legal proceedings that obviously cannot succeed;
(b) they have brought these proceedings for an improper purpose, including “the harassment and oppression of other parties by multifarious proceedings brought for other than the assertion of legitimate rights”;
(c) they have rolled over, repeated, and supplemented grounds and issues raised from one proceeding to another; and
(d) they have failed to pay the costs of unsuccessful proceedings.
[42] The judge should consider the whole history of the legal proceedings between the parties, not whether the respondent might have originally had a valid cause of action against the applicant. The judge may also consider other conduct by the respondent that demonstrated improper motives or a disregard for the court’s rules. In Bishop v. Bishop, 2011 ONSCA 211, at paras. 8 and 9, the Court of Appeal adopted the following passage from Canada Post Corp. v. Varma, 2000 CanLII 15754 (FC), [2000] F.C.J. No. 851 at para. 23:
A respondent’s behaviour both in and out of the court has been held to be relevant. In Canada v. Warriner, (1993), 70 F.T.R. 8 (T.D.), McGillis J. noted that frivolous and unsubstantiated allegations of impropriety had been levelled against lawyers who had acted for or against the respondent. In Vojic, supra, McGillis J. took into account the fact that the respondent had failed to appear on several occasions and had shown disregard for the court. In Yorke v. Canada, (1995), 102 F.T.R. 189 (T.D.), Rouleau J. considered a number of factors, including that the respondent’s proceedings in the Federal Court were replete with extreme and unsubstantiated allegations.
[43] In Bishop at para. 9, the Court of Appeal expressed the view that “the institution of non-judicial proceedings can, depending on the circumstances, constitute evidence from which a court may infer that court proceedings commenced by the litigant 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”
[44] The purpose of s. 140 is to prevent vexatious litigants from harassing others emotionally and forcing them to incur unnecessary legal costs; see Gledhill v. City of Toronto, 2021 ONSC 8462, at paras. 8-9. As observed by Smith J. in Kaufman LLP, a s. 140 order may also protect the respondent, by preventing her from squandering her own resources on unmeritorious claims. Finally, s. 140 protects the interests of society as a whole, by limiting the needless diversion of finite court resources to private vendettas that do not give rise to any genuine cause of action.
Application of these principles in this case
[45] Over the past two years, Ms. MacDonald has started three legal proceedings alleging serious wrongdoing by Ms. Harper. These proceedings bear all of the hallmarks of vexatious litigation.
[46] None of the legal proceedings ever had any prospect of success. Ms. MacDonald has not articulated a reasonable cause of action or even produced a coherent narrative. This was so evident in the Cornwall action that Champagne J. did not grant Ms. MacDonald leave to amend. The statement of claim in the Kingston action simply reproduces and expands on bare assertions of wrongdoing by Ms. Harper, unsubstantiated by any detailed allegations of material fact.
[47] Based on Ms. MacDonald’s focus on the unfairness of her situation compared to that of Ms. Harper in the material filed with the court, I find that these proceedings were brought for an improper purpose. These purposes were to extort Ms. Harper into giving her money, either directly, or from their father’s estate, by threatening and harassing her. In her materials on this application, Ms. MacDonald admits that she is glad that her actions have caused her sister to be anxious.
[48] In each new proceeding, Ms. MacDonald has recycled accusations against Ms. Harper made in prior proceedings, amplified, and added to them. She did not pay the costs award against her in the Cornwall action, forcing Ms. Harper to garnish the amount from Ms. MacDonald’s share of the undistributed funds left in their father’s estate.
[49] Ms. Harper has been obliged to retain lawyers to respond to Ms. MacDonald’s legal proceedings. These costs have been higher than they otherwise would have been because the lawyers have had to deal with Ms. MacDonald’s emails.
[50] Ms. Harper’s costs have also been inflated because of Ms. MacDonald’s repeated disregard of the rules governing court processes. In the Estates proceeding, she did not file a proper pleading or any material prior to or after the scheduling conference. Ms. MacDonald did not appear at scheduling conference, making it a waste of time for all concerned. In the Cornwall action, she did not file a tenable statement of claim, produce a factum, or appear at the hearing. Her statement of claim in the Kingston action is also obviously deficient. She failed to attend as directed for the hearing of this application. Her conduct prompted Hurley J. to schedule three case conferences in this application. Despite his repeated directions to her in his endorsements, and assistance given to her by Ms. Harper’s counsel at no cost, Ms. MacDonald’s materials did not comply with the Rules of Civil Procedure.
[51] In addition to causing cost and inconvenience to Ms. Harper, Ms. MacDonald’s actions in the litigation have diverted judicial resources unnecessarily and created work and stress for court staff, who have also been the target of email campaigns.
[52] Ms. MacDonald has also repeatedly threatened to sue Ms. Harper in other courts over the past two years and to make a criminal complaint against her. Ms. MacDonald’s emails refer to a potential action in British Colombia, where Ms. Harper lives, as well as other proceedings in Ontario, and before the Federal Court. These were credible threats given Ms. MacDonald’s litigation history in various provinces and before the International Court of Justice.
[53] Finally, in considering whether Ms. MacDonald is a vexatious litigant, I must take into account her emails and texts to Ms. Harper and others. Ms. MacDonald denies that she sent any abusive messages and insists that Ms. Harper and her lawyer have fabricated evidence. This is a fantastical claim on the face of the record. Ms. MacDonald has sent dozens of emails and texts to Ms. Harper and Ms. Harper’s lawyers over the past two years. In December 2020, she sent over 70 emails to Ms. Harper’s lawyer in the space of less than a week. Ms. MacDonald’s messages were derogatory, bullying, and sometimes threatening. Some were copied to third parties.
[54] Ms. MacDonald asserted at the hearing that she had a collection of 20 emails or texts that Ms. Harper had sent to her. There are some screenshots of emails from Fall 2020 that appear to originate with Ms. Harper in the responding record. Since they are not produced as exhibits to an affidavit, however, I cannot take them into account. Even if I did so, these few messages, combined with the messages at Christmas 2020, pale in comparison to the relentless flow of messages sent by Ms. MacDonald to Ms. Harper.
[55] Ms. MacDonald’s actions have made Ms. Harper anxious and concerned for her safety. Her reaction is reasonable, in the circumstances.
[56] I find that Ms. MacDonald been using litigation, and threats of litigation, to harass Ms. Harper and to attempt to extort money from her, rather than to assert any legitimate claim against her. Ms. MacDonald’s view is capture by her assertion at the hearing that “This woman owes me.” Ms. MacDonald thinks her sister has ruined her life and will, left unchecked, continue to being unmeritorious lawsuits against her.
[57] I am accordingly satisfied, on the evidence, that Ms. MacDonald is a vexatious litigant and that it is appropriate to order that she can no longer initiate any legal proceedings against Ms. Harper, in any court, without prior judicial authorization from a judge of the Ontario Superior Court of Justice. As a result, she will have to obtain judicial authorization before taking any further steps in the Kingston action.
Is Ms. Harper entitled to an injunction limiting communications from Ms. MacDonald?
[58] Ms. Harper seeks a permanent injunction prohibiting Ms. MacDonald from contacting or communicating directly or indirectly with Ms. Harper, by electronic and non-electronic means, including but not limited to e-mails, without prior leave of the Court, or from coming within 200 metres of Ms. Harper’s home.
[59] I would have hesitated to grant this order based on the Ontario Court of Appeal’s decision in Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, which emphasizes the exceptional nature of permanent injunctions, in particular those retraining speech. At the hearing, however, Ms. Macdonald said that she has no objection to the injunction sought by Ms. Harper. She repeatedly stated that she has no desire to have any contact with her sister, and that Ms. Harper has fabricated evidence that Ms. MacDonald has in the past sent her harassing emails, text messages, and voicemail messages.
[60] During the hearing, I reviewed the specific terms of the order sought by Ms. Harper with Ms. MacDonald. She affirmed that she does not wish to communicate with Ms. Harper except to the extent that it is required for ongoing litigation. The proposed terms would permit Ms. MacDonald to communicate with Ms. Harper’s counsel with prior court authorization, which Ms. MacDonald would presumably seek when she if and when she seeks authorization to initiate or continue any legal proceedings against Ms. Harper.
[61] I am satisfied that Ms. MacDonald understands the implications of the proposed injunction and that she consents to it. I am therefore granting this relief.
Disposition
[62] The application is granted for the proposed order pursuant to s. 140 CJA and a permanent injunction prohibiting Ms. MacDonald from any further communication, or contact, with Ms. Harper without prior court authorization.
[63] Ms. Harper is entitled to some costs on the application. She seeks substantial indemnity costs of $16,414. She argues that Ms. MacDonald’s conduct of the litigation, and the allegations she has made, justify a departure from the practice of awarding only partial indemnity costs. Ms. MacDonald did not take issue with any of the items in the bill of costs submitted by Ms. Harper’s lawyer. She took the position that any cost award would be ridiculous, given her conviction that her sister has ruined her life, leaving her without a home, a business, or any income.
[64] Assuming that Ms. MacDonald is telling the truth about her current circumstances, it is arguably pointless to grant Ms. Harper any meaningful costs. I am also not convinced that substantial indemnity costs are warranted. On the other hand, it would send the wrong message to Ms. MacDonald, and to other litigants who use the court system for improper purposes, if I denied Ms. Harper partial recovery for the reasonable but significant legal fees she has been forced to pay as a result of her sister’s vexatious behaviour.
[65] Taking all factors into account, I grant Ms. Harper partial indemnity costs in the amount of $10,000 inclusive of fees, disbursements, and HST.
Justice Sally Gomery
Released: August 16, 2022
COURT FILE NO.: CV-22-29
DATE: 16/08/2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CATHERINE HARPER
Applicant
-and-
JANICE M.B. MACDONALD
Respondent
Decision on applicantion under section 140 cja
Justice Sally Gomery
Released: August 16, 2022