Court File and Parties
COURT FILE NO.: CV-22-00000123-0000
DATE: 2022/10/06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SANDRA HILL REAL ESTATE LTD, Plaintiff
AND:
IRWIN DUNCAN, MICHAEL VAN BODEGOM, JAMES BENNETT, INGRID PETERS, ADRIAN HARTOG, NANCY ROBERTS, GATEWAY BUSINESS CAMPUS GP INC., ANDREW SALEM, JENNIFER HANSEN, STEVEN MATHESON, KELLY YERXA, JOSEPH WARD, EQUIFAX CANADA INC., CANADA REVENUE AGENCY, IRWIN FARUZEL, FRAUCO HOLDINGS INC., RICHARD HAZELWOOD, JOHN TAYLOR and SPRINGBANK INVESTMENTS INC., Defendants
BEFORE: Justice I.F. Leach
COUNSEL: Lay person Sandra Hill, seeking, inter alia, leave to represent the corporate Plaintiff
The Defendants not served and not appearing
HEARD: October 6, 2022
ENDORSEMENT
[1] During the hearing of “regular” motions in Woodstock this morning, Sandra Hill appeared virtually before me, seeking various forms of relief by way of motion brought without notice.
[2] In effect, (although not identified as such), it was also a motion brought before commencement of a proceeding, as no corresponding action or application had been commenced in Woodstock at the time of hearing.[^1]
[3] For reasons outlined orally to Ms Hill during the course of her appearance, and which this more expansive endorsement is intended to confirm, I dismissed the motion.
[4] By way of further background:
a. While preparing for the various matters appearing on my docket today, I noted, in relation to this matter, that there was no material available for my review via the relevant systems for the sharing of court documents electronically; i.e., via OneDrive and Caselines. In the circumstances, I contacted the Woodstock trial co-ordinator in an effort to determine what material, if any, had been filed in relation to the matter.
b. I then was advised by the Woodstock trial co-ordinator, early yesterday afternoon, that Ms Hill apparently had attended at the Superior Court Office in Woodstock presenting a voluminous physical package of motion material for filing; e.g., including no less than 425 pages of exhibits to a supporting affidavit. The court staff in Woodstock repeatedly indicated and emphasized to Ms Hill that the material was not being presented in a form suitable for filing. Without limiting the generality of the foregoing, Ms Hill was told that the material needed to be provided in an electronic format capable of being shared in that manner with the judge assigned to hear the contemplated motion. However, Ms Hill insisted that the material be accepted by the court staff, and placed before a judge as soon as possible, as she was in desperate need of justice. In the result, the motion material eventually was accepted with reluctance by the Woodstock court staff and placed on my docket for today, subject to a condition, (accepted by Ms Hill), that she would provide the court office with an electronic version of the material later that afternoon, in time for the material to be relayed to me for my review in advance of today.
c. When I followed up with the Woodstock trial co-ordinator again shortly before the Woodstock court office closed late yesterday afternoon, I was informed that Ms Hill still had not yet supplied the court office with any material in a format capable of being supplied to me electronically for review. In the circumstances, (i.e., as I realistically would have no opportunity to review the motion material properly in advance of today’s scheduled hearing), I indicated to the Woodstock trial co-ordinator that the matter should be adjourned administratively to the next available motion date. As the Woodstock trial co-ordinator also had indicated that the motion was one being brought without notice, I nevertheless asked for a copy of the relevant notice of motion to be scanned and sent to me via email for review, so that I could make a further determination as to whether a further interim direction requiring service of the motion material might be appropriate, in order to avoid any further delay.
d. When I then received the relevant notice of motion, I learned that it was no less than 48 pages in length. Apparently prepared without the benefit of any legal advice, or proper understanding of the Rules of Civil Procedure, the notice of motion also was clearly problematic for numerous reasons. Without limiting the generality of the foregoing:
i. In form and content, the document clearly strayed beyond the proper bounds of a notice of motion and frequently was more akin to a factum, including numerous case citations and quotations, (presented somewhat at random), as well as rhetorical questions and argument.
ii. The style of presentation was significantly lacking in organization and coherence, and made for a challenging read; e.g., including various fragments of complete sentences, as well as numerous passages that were confusing, incomprehensible, and/or apparently reproduced from one or more other original contexts that made little or no sense in the current context. There are, for instance, despite a reference to Ms Hill and/or Sandra Hill Real Estate Ltd, (a corporation of which Ms Hill apparently is the “sole officer and director”), as “Plaintiffs/Applicants” in the intended proceeding, the notice of motion includes multiple further references to “the applicant Gateway”; i.e., an apparent reference to Gateway Business Campus GP Inc., which appears to be identified as one of the defendants or respondents to this proceeding. The document also includes numerous complaints of very serious misconduct, (e.g., intentional fraud and professional malpractice), relating to other individuals and entities, (including various lawyers, municipal officials and court staff), who apparently are not included among the intended defendants (or respondents) listed above.
iii. In my view, the content of the notice of motion made it quite clear that the notice of motion and any supporting material needed to be served on numerous parties who obviously would be affected by the orders being sought. Without limiting the generality of the foregoing:
At the risk of great oversimplification, the notice of motion indicates that Ms Hill and/or the real estate company that bears her surname take/takes issue with various transactions, tax levies, registrations, financing arrangements, surveys and other developments that have taken place in relation to a specified real estate property; a property identified by a formal title description I will not reproduce here, (but apparently consisting of a parcel of land approximately 50 acres in size, including a 50 foot road allowance on Pinebush Road, Hespeler), and the freehold to which is said to have been purchased by Ms Hill’s parents in August of 1984.
Disputes focused on subsequent alleged dealings with that land apparently have given rise to extensive litigation in various judicial centres of this court; e.g., in Kitchener, Toronto, and Hamilton. There also are references to apparently related proceedings in the Court of Appeal. The notice of motion includes specific references, (usually with corresponding complaints), to numerous court files, lawyers, court staff, (e.g., trial co-ordinators, registrars, and a supervisor of court operations), judges and rulings.
The notice of motion seeks a multitude of orders and declarations that obviously would affect many other individuals, government officials, and various municipal and provincial government entities, including:
a. orders directing various rectifications of the land title register;
b. an injunction restraining trespass;
c. declaratory and mandatory orders confirming Ms Hill’s alleged ownership of the subject property, and which would result in various instruments and registrations indicating or suggesting the contrary being declared fraudulent or otherwise void and unenforceable, and deleted from title;
d. the setting aside of various specified orders and decisions made in the Superior Court by various identified judges and registrars;
e. declarations “authenticating” various specified municipal by-laws, as well as a foreclosure judgment and private loan transaction instrument; and
f. decisions resolving suggested constitutional questions relating to the validity or supremacy of certain provisions in the Rules of Civil Procedure, and the exclusive ability of a certain land registry office to deal with specified matters.
In my view, the limited reasons offered in the notice of motion for seeking such relief without notice were clearly inappropriate or otherwise inadequate; e.g., a protest that some of the parties and municipalities had moved without notice in that past, bald assertions that parties identified in the motion material had dealt “inappropriately” with courts in the past and would do so again if given notice of the motion, and complaints that parties identified in the motion material previously had selected inappropriate representatives and/or filed affidavits containing information extending beyond personal knowledge.
In the circumstances, I intended, at the very least, to supplement my direction concerning administrative adjournment of the motion with an indication that the moving party or parties was/were to serve the motion material on various individuals and other entities identified in the motion material, and serve a proper notice of constitutional questions in accordance with section 109 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as amended, prior to the motion being heard.
iv. There nevertheless also were further troubling references, (e.g., in paragraphs 11, 86, 87, 89 and 102 of the notice of motion), to an order or orders made by Justice Sloan in Kitchener, precluding Ms Hill and Hill Real Estate Ltd from bringing any further actions or applications concerning a property at 420 Pinebush Road in Cambridge, Ontario, without first obtaining leave from a judge of this court. Indeed, the relevant order or orders were said to form part of the various judicial rulings the current motion expressly sought to set aside. As the notice of motion before me sought no such leave, but simply embarked on substantive requests for relief in relation to land which seemed likely to be the same property referred to in Justice Sloane’s orders,[^2] and did so by way of a motion necessarily predicated on intended commencement of an intended action or application forthwith,[^3] I also contemplated the possibility of staying or dismissing the motion on my own initiative, pursuant to Rule 2.1.03 of the Rules of Civil Procedure.
e. Before I could make any further judicial directions or decisions in relation to the matter, however, I received a further communication from the Woodstock trial co-ordinator this morning, relaying correspondence sent to her by Ram Rammaya, counsel at the provincial Crown Law Office, (Civil Division), expressing a number of concerns. Specifically:
i. It was noted that the Crown Law Office represents Ingrid Peters, (a Court and Client Representative employed by the Superior Court in Kitchener), who was understood to be the subject of a motion brought by Sandra Hill Real Estate Inc., returnable in the Superior Court in Woodstock today, without Ms Peters having been served with any motion material, or having any further information as to what the motion was about.
ii. It was noted that others thought to be defendants to this new Woodstock proceeding, (i.e., James Bennett and Nancy Roberts), also had not been served with the relevant motion material, and similarly lacked any further knowledge about the motion.[^4]
iii. In the circumstances, the correspondence from Mr Rammaya asked that the motion not be heard until proper service had been effected.
iv. The correspondence from Mr Rammaya also noted that Ms Hill and her real estate company have been “precluded from bringing any action/application in relation to a property at 420 Pinebush Road, Cambridge, Ontario without leave of a Judge”, and attached copies of the relevant Order made by Justice Sloan on December 10, 2021, and a corresponding amending endorsement made by Justice Sloan on February 18, 2022. In that regard, I note that paragraph 2 of the relevant Order reads as follows: “AND THIS COURT FURTHER ORDERS, that on the Court’s own motion the Applicants/Plaintiffs, Hill Real Estate Ltd and Sandra Hill, are precluded from bringing any further actions or Applications concerning the subject property referred to in this Application, which includes 420 Pinebush Road, Cambridge, ON, except by leave of a Judge of the Superior Court of Justice.”
[5] Such was the state of affairs when I then was required to embark on the hearing of other matters this morning.
[6] As it happened, Ms Hill apparently did not receive notice regarding the intended administrative adjournment of the motion before joining the virtual “waiting room” being maintained by my registrar. When this matter was reached on the previously circulated court docket for today, I accordingly had my registrar admit Ms Hill into the virtual “hearing room” so that I could speak with her directly.
[7] In doing so, I outlined my concerns regarding inability to review the relevant motion material in a timely way, (because of Ms Hill’s failure to follow through in a timely way on her undertaking to provide the court office with that material in an electronic format), and the need for service of the motion material on affected parties before the motion could be heard. I also expressed my disquiet about permitting Hill Real Estate Ltd and/or Ms Hill to proceed with the motion, having regard to the order made by Justice Sloane on December 10, 2021.
[8] In the course of her comments to me, Ms did not dispute that the motion before me concerned the same Pinebush Road property as the one referred to in Justice Sloan’s order. Nor did Ms Hill deny that Justice Sloane’s order was intended to preclude Hill Real Estate Ltd and/or Miss Hill from proceeding with any further action or application proceeding relating to that property unless and until leave to do so was obtained from a judge of the Superior Court of Justice.
[9] To the contrary, Ms Hill essentially reiterated and emphasized her view, already set forth in the notice of motion, that Justice Sloan’s order intending to restrain or prevent such further litigation was one of the alleged injustices that the current motion was intended to “set aside” as an alleged “miscarriage of justice”; e.g., insofar as it was made without notice, and was said to be “contradictory or inconsistent” with other court orders, “unwarranted”, “inconsistent” with the suggested “primary policy” of Rule 1.04 of the Rules of Civil Procedure to determine every civil proceeding on its merits, and “so clearly wrong as to amount to an injustice”.[^5] Indeed, Ms Hill emphasized that it was the refusal of staff in other courthouses to accept her motion material, because of Justice Sloan’s order, that had led to Ms Hill travelling to the courthouse in Woodstock, in pursuit of a more amenable forum.
[10] In my view, there accordingly was no doubt that Justice Sloan’s order applied to the motion Ms Hill had managed to file with the Superior Court office in Woodstock.
[11] Without limiting the generality of the foregoing, I think nothing should turn on the technicality that Hill Real Estate Ltd and Ms Hill were attempting to proceed with the hearing of a motion, rather than an action or application, concerning the same Pinebush Road property in Cambridge. In my view, embracing such an approach would permit the clear intent of Justice Sloan’s order to be circumvented far too easily, and condone an abuse of process. Moreover, as already alluded to above:
a. In order to bring a motion without having commenced a proceeding, (by way of action or application), Hill Real Estate Ltd and Ms Hill essentially are obliged to rely on Rule 37.17 of the Rules of Civil Procedure, which reads as follows: “In an urgent case, a motion may be made before the commencement of a proceeding on the moving party’s undertaking to commence the proceeding forthwith”. [Emphasis added.]
b. A party’s ability to proceed with a motion pursuant to Rule 37.14, without yet having commenced a proceeding, accordingly is predicated on that party’s ability to commence such a proceeding forthwith; i.e., an ability to immediately bring an action or application addressing the same subject matter.
c. In the situation before me, neither Hill Real Estate Ltd nor Ms Hill has that ability, or the ability to provide the requisite undertaking in that regard mandated by Rule 37.17, given their acknowledged failure to obtain the leave required by Justice Sloan’s order.
[12] Although Ms Hill suggested that the seeking of such leave was the object of the motion before me, I disagree and indicated that disagreement to Ms Hill. Without limiting the generality of the foregoing:
a. The notice of motion makes it abundantly clear that Hill Real Estate Ltd and Ms Hill do not accept and attempt to work within the preliminary framework established by Justice Sloan’s order; i.e., an order effectively requiring Hill Real Estate Ltd and Ms Hill to obtain permission in advance, from a judge of this court, before commencement of any further legal proceedings seeking substantive relief concerning the relevant Pinebush Road in Cambridge.
b. To the contrary, the notice of motion includes an attack on the legitimacy and/or propriety of Justice Sloan’s order, and merely includes a request for that order to be set aside as part of the wide-ranging substantive relief the motion immediately seeks without the required leave having been granted.
c. Although Ms Hill relied on her inclusion of the words “leave of the court” in paragraph 1 of the relevant notice of motion, that paragraph, (as I noted in my comments to Ms Hill), clearly does not seek the leave contemplated by Justice Sloan’s order. It instead seeks leave, pursuant to Rule 15.01(2) of the Rules of Civil Procedure, to allow Ms Hill to speak on behalf of Hill Real Estate Ltd, as an exception to the general rule requiring a corporation to be represented by a lawyer.[^6] The simple fact of the matter is that the current motion does not seek the leave contemplated by Justice Sloan’s order. Instead, it immediately advances requests for substantive relief concerning the same Pinebush Road property in Cambridge without that leave having been obtained.
d. Moreover, I think it axiomatic that Ms Hill and her corporation are required to seek and obtain leave to commence a further proceeding concerning the relevant property before placing any other requests for substantive relief relating to the relevant property before the court for consideration and determination. The court, as well as parties who would be affected by the granting of such relief, otherwise formally would be called upon to spend time and resources addressing such substantive issues before resolution of the threshold question of whether leave to embark on any such litigation should be granted, thereby defeating the usual purpose of such orders.
[13] In the circumstances, I did not think service of the filed motion material and resulting participation and submissions from the intended defendants or respondents were required for me to recognize and determine that the current motion must be dismissed.
[14] In my view, permitting the motion to proceed in its current form, without leave to initiate such litigation having been sought properly on notice to parties who would be affected, and without such leave having been granted, clearly would condone a violation of Justice Sloan’s order; an order which apparently has not been appealed, and which must be respected.
[15] For the above reasons, and as I indicated to Ms Hill, an order shall go dismissing the motion.
[16] Although existence of the motion apparently came informally to the attention of some of the parties who would have been affected by the relief being sought, it seems that no individuals or other entities were served with the motion material, and they accordingly were not called upon to take any formal steps in response to the motion. In the circumstances, the motion is dismissed without costs.
Justice I.F. Leach
Date: October 6, 2022
[^1]: In that regard, it should be noted that the style of cause employed at the outset of this endorsement, (describing Sandra Hill Real Estate Ltd as a “plaintiff’ and various individuals and other entities as “defendants”), merely reflects the manner in which the matter appeared on my formal docket for today. No such style of cause appears in what was presented to me as the relevant notice of motion for this matter which, (for reasons outlined below), was the only document provided to me at the time of this endorsement’s preparation. Moreover, although the indicated “Plaintiff” on my docket was “Sandra Hill Real Estate Ltd”, I note that the notice of motion, while lacking a style of cause, refers to the relevant plaintiff/applicant corporation as “Hill Real Estate Ltd”, (or “HRE”), and apparently to Ms Hill personally as one of the “plaintiffs/applicants”.
[^2]: As noted above, the description of the “subject property” set forth in the notice of motion indicates that it is located on Pinebush Road in Hespeler, and I believe I can take judicial notice of the fact that Hespeler, (along with Galt and Preston), was one of the three communities which were joined to form the city of Cambridge, Ontario.
[^3]: See Rule 37.17 of the Rules of Civil Procedure.
[^4]: I note that, while possibly not identified as “defendants” per se, Mr Bennett, (apparently counsel to “municipal defendants” including the Corporation of the City of Cambridge and The Regional Municipality of Waterloo), and Ms Roberts, (apparently counsel representing Gateway Business Campus GP Inc.), are both mentioned and accused of misconduct in the notice of motion I have reviewed.
[^5]: See, for example, paragraphs 11, 86, 87, 89 and 90 of the notice of motion.
[^6]: For purposes of the hearing before me today, (and only to that limited extent), I necessarily permitted Ms Hill to speak to me on behalf of the Hill Real Estate Ltd as well.