COURT FILE NO.: CV-22-0064-00
DATE: 2022-10-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gordon R. Gravelle
G. Gravelle, Self-Represented
Applicant
- and -
Ministry of the Attorney General, Watkins Law Professional Corp., and Christopher Charles Watkins
A. Pantel, Counsel for the Responding Parties, Watkins et al
Respondents
HEARD: September 21, 2022, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Decision On Motion
Overview
[1] For reasons[^1] delivered July 11, 2018, I made an order pursuant to s. 140 of the Courts of Justice Act[^2] (Vexatious Proceedings) prohibiting Mr. Gravelle or any company he controls from continuing or initiating any proceeding in any court except by leave of a judge of this court.
[2] Mr. Gravelle brings this application for leave to continue his action (CV-17-00218) against his former lawyer, Mr. Watkins. That action is for damages for alleged negligence in representing Mr. Gravelle in civil and criminal matters.
[3] For the reasons that follow, Mr. Gravelle’s application for leave to continue the action against Mr. Watkins is dismissed.
The Facts
The Vexatious Proceedings Determination
[4] In my reasons for making the order under s. 140, I summarized Mr. Gravelle’s history in court proceedings in 46 paragraphs and then concluded:
[47] Mr. Gravelle has appeared or sought to appear in this court over 100 times since 2013. He has sought to have decisions of this court reconsidered. He has appealed to the Court of Appeal unsuccessfully.
[48] As the excerpts from decisions outlined above indicate, many of the characteristics of vexatious litigants as outlined by Campbell J. in Dobson v. Green, supra, are present in Mr. Gravelle’s litigation:
- ignoring adverse rulings and procedural setbacks
- resorting to multiple, repetitive proceedings, often against the same adversary
- launching court proceedings as if unconcerned about financial resources invariably consumed by such actions
- persistently abusing the court process
- bringing one or more actions to determine an issue which has already been determined by the court
- rolling forward issues raised previously into subsequent actions
- failing to pay costs of unsuccessful proceedings
- persistently taking unsuccessful appeals from judicial decisions.
[49] I do not question Mr. Gravelle’s sincerity when he suggests that he believes that he is not bringing unmeritorious claims. However, his record in this court and in the Court of Appeal demonstrate that his belief, although sincere, is not correct in law.
[50] At a time when court and judicial resources are strained these, as Stratus J.A. stated, “finite resources… cannot be squandered. Every moment devoted to a vexatious litigant is a moment unavailable to a deserving litigant.”
[51] Although Mr. Gravelle may not appreciate the fact, an order under s. 140 is to his advantage as well.
[52] As Brown J. in Beard Winter LLP v. Shekhdar, supra, stated:
11 An Order under section 140 is beneficial to all parties as it ensures that public resources are not wasted on vexatious litigation, protects the targets of vexatious litigation from the time and cost of mounting a defence, and also serves the litigant who is attempting to proceed with vexatious litigation by averting what would inevitably be a costly, time-consuming and futile effort: Law Society of Upper Canada v. Chavali, [1998] O.J. No. 5890 (Gen. Div.) at para. 26. [Emphasis added.]
[53] I conclude, therefore, that it is appropriate to make an order under s. 140 for all proceedings currently before the courts and for any actions that Mr. Gravelle and entities controlled by him may bring in the future[^3].
The Proposed Proceeding
[5] Mr. Gravelle commenced the proceedings against his former lawyer, Mr. Watkins, on May 1, 2017. He seeks damages for negligence in the representation in this court with respect to Mr. Gravelle’s actions against Avis Industrial and negligence in the representation in the Ontario Court of Justice with respect to impaired driving charges against Mr. Gravelle. The negligence alleged in the criminal matter is Mr. Watkins’ failure to retain an expert to argue that Mr. Gravelle should not have been convicted because of automatism caused by impairment due to medication.
[6] Mr. Watkins is a suspended lawyer. He is represented on this matter by counsel appointed by his professional liability insurer. Mr. Watkins did not file any material on the application. The statement of defence filed by his insurer denies that Mr. Watkins was retained on the civil matters, denies that Mr. Watkins was instructed to retain an expert in the criminal matter, and that, in any event, no action or inaction by Mr. Watkins would have changed the outcome of either the civil or the criminal proceedings.
The Test to be Applied in Granting Leave
[7] It is not disputed that the governing law to be applied in considering whether to grant leave is as set out in Falardeau v. Owen Sound Police Service Board[^4]and I adopt the following statements from that decision:
The test and onus under s. 140(4)
[69] The Court may only grant leave under s. 140(4) if it is satisfied that the proposed proceeding is not an abuse of process and that there are reasonable grounds for the proceedings. It is a double-barrelled test: Chavali, at para. 10; Riad v. Ontario College of Pharmacists, 2015 ONSC 6736, at para. 42; Ferenczi v. State Farm Mutual Automobile Insurance Co., 18 C.C.L.I. (4th) 134, 2004 CanLII 34802 (Ont. S.C.J.), at para. 17; Hart v. Fullarton, 2021 ONSC 2559, at para. 9.
[70] The onus is on the applicant for both elements of the test: Bono General Construction Ltd. v. Susin, [2006] O.J. No. 4888, 2006 CarswellOnt 7754 (S.C.J.) at para. 14; Riad, at para. V42; Deep v. Canada Revenue Agency (Canada Customs and Revenue Agency), 2011 ONSC 5660, at para. 16; Hainsworth v. Attorney General of Canada, 2011 ONSC 2642, at para. 11; Lindhorst v. Centennial College, 2016 ONSC 2678, at para. 4.
[71] A motion under s. 140(3) triggers a broad review focused on the conduct of the vexatious litigant who is seeking leave to proceed with the action. The totality of the circumstances must be examined: Gaddam, at para. 2.
What is meant by “reasonable grounds for the proceeding”?
[75] The second element of the test under s. 140(4)(a) requires the applicant to show “that there are reasonable grounds for the proceeding.”
[76] The use of the phrase “reasonable grounds for the proceeding” suggests that the applicant is not required to show he is likely to succeed in his lawsuit. However, the phrase also implies that the applicant must show the proceeding has some substance and potential merit.
[77] In Chuang v. Manning, 2008 CanLII 14175 (Ont. S.C.), a s. 140(3) application, Justice Corbett said at para. 13, that the merits of the applicant’s claims fell “somewhere on a scale between ‘improbable’ and ‘untenable’.” He said at paras. 14 to 15 that he could not conclude the claims were doomed to failure, but:
the test for granting leave is not whether there is, conceptually, an arguable claim buried in the messy nonsense of Mr. Chuang's vexatious pleading. At a minimum, the court is bound to protect the target of this legal proceeding from Mr. Chuang's historic and continued misconduct as a litigant.
[78] He dismissed the application, but said the applicant could apply again if, within one year he paid all outstanding costs orders against him in all proceedings; if he paid security for costs; and if his pleadings did not raise matters which were already decided and complied with the rules of pleading.
Evidence is Required, Not Mere Allegations; Best Foot Forward
[79] In Deep at para. 8, Justice Stinson said:
[O]n an application for leave, more must be shown than an arguable claim … an applicant for leave must proffer some evidence – and not mere allegations – to support the proposition that there is some evidentiary basis for the relief claimed in the proposed proceeding.
[80] In Lindhorst at para. 4, Justice Spies said:
The test is not whether the applicant has conceptually an arguable case. The applicant must proffer evidence and not mere allegations to support the proposition that there is an evidentiary basis for the relief claimed in the proposed proceeding.
Evidence on this Application
[8] Mr. Gravelle filed an affidavit on this application. Attached as exhibits were multiple retainer agreements. One is dated October 15, 2014 and Mr. Gravelle alleges this retainer was for the criminal matter. Two subsequent retainer agreements relate to the civil matter. One of the retainer agreements, dated December 10, 2014 was a “joint” retainer of the Watkins and Zaitzeff firms and not signed by Mr. Watkins. A subsequent retainer agreement dated November 16, 2015 was directly with Mr. Watkins.
[9] A number of invoices related to the criminal matter were also attached as exhibits. There is no reference in the invoices to retaining an expert.
[10] Various documents relating to Mr. Watkins’ suspension by the Law Society were also attached as exhibits to Mr. Gravelle’s affidavit.
[11] The only direct reference in Mr. Gravelle’s affidavit to any negligence on the part of Mr. Watkins in the civil proceedings is a failure to respond to counsel prior to and to attend at a court appearance on January 28, 2016.
[12] The only direct reference in Mr. Gravelle’s affidavit to negligence in the criminal matter is an expert report filed in an affidavit from Dr. A. B. Douglas sworn October 13, 2017, and the following statements in Mr. Gravelle’s affidavit:
Watkins failed to present such evidence during my trial back on December 9 and 10th 2015. Non-insane automatism was a complete defence to my impaired charge. Failure to present such evidence amounts to further negligence and/or breach of contract by Mr. Watkins.
But for such negligence, I believe that I never would have been convicted on the impaired charge.
Positions of the Parties
[13] Mr. Gravelle argues that he has paid all outstanding costs orders, that the proposed proceeding is not an abuse of process, and that he has reasonable grounds to continue his action against Mr. Watkins.
[14] Counsel for Mr. Watkins argues any failure to retain an expert in the criminal matter or attend court in the civil action would not have made any difference to the outcome of either proceeding and that therefore, there are no reasonable grounds to allow this action to continue.
Analysis and Disposition
[15] As noted, Mr. Gravelle has the onus of satisfying the court that the proposed action is not an abuse of process and that there are reasonable grounds to proceed. Mr. Gravelle is required to show that the proceeding has “some substance and potential merit.” Evidence, not mere allegations, of substance and potential merit is required.
The failure to attend on January 28, 2016
[16] The failure to attend on January 28, 2016, by Mr. Watkins related to a motion to strike a second action brought by Mr. Gravelle against the same defendant. The grounds for that motion were that this second proceeding was statute barred as it was commenced more than two years from the alleged breach of contract and that the action was an abuse of process as it duplicated the claims made in a prior action which included claims already struck by a September 22, 2014, order of Pierce J.
[17] In Gravelle v. A-1 Security Manufacturing Corp.[^5] I set out the endorsement made by Pierce J. on January 28, 2016, which noted that Mr. Gravelle did not appear and set argument for February 24, 2016 with a timetable for filing responding materials. On February 4, 2016, Mr. Gravelle sought to adjourn that motion date. In her reasons[^6] Pierce J. dismissed the request for an adjournment and the motion proceeded before me on February 24, 2016. I struck the action as statute barred and as an abuse of process[^7]. The Court of Appeal dismissed Mr. Gravelle motion to extend the time to perfect his appeal of that decision as “without merit”. Juriansz J.A. stated:
The order under appeal struck the appellant’s action, in large measure, as an abuse of process. The judge found the claim duplicated claims in action CV-13-0385 and reinstates claims already struck by the September 22, 2014 order of Pierce J. The appellant does not take issue with this but responds that the new claim added defendants and is based on different law. He says that a party can refile a second claim pleading the same cause of action based on, for example, Texas or Virginia law, and it would not be res judicata. I do not accept this proposition. In my view the appeal is devoid of merit. Considering the appeal has no merit and that the action struck was an abuse of process, I consider the court can reasonably deny the important right of appeal, especially when prejudice to the respondent and the overall demands of justice are considered. [Emphasis added.]
[18] The action was found to be without merit and an abuse of process. Although it was likely negligence for Mr. Watkins to fail to attend on January 20, 2016, that failure to attend did not alter the merits of the action and did not alter the fact that the application was without merit. Based on the totality of the circumstances, the civil claim against Mr. Watkins does not have some substance or potential merit.
The Impaired Charge
[19] On December 10, 2015, Mr. Gravelle was convicted of operating a motor vehicle while impaired by drug.
[20] The trial judge concluded that Mr. Gravelle had voluntarily consumed zopiclone, a sleeping pill, which he knew might impair his ability to operate a motor vehicle. The trial judge observed that Mr. Gravelle was familiar with the drug, which he had taken for about seven years, and which had a warning on its label. Moreover, Mr. Gravelle knew the effect of the drug.
[21] Mr. Gravelle appealed to the Summary Conviction Appeal Court and his appeal was dismissed[^8]. On this appeal, he argued that he had a defence based on non-insane automatism. The summary conviction appeal judge noted that no expert psychiatric evidence was called to prove non-insane automatism.
[22] His application to appeal that decision to the Court of Appeal was dismissed[^9] for a number of reasons. Simmons J.A. considered proposed fresh evidence in the form of an affidavit of a psychiatrist, Dr. Alan B. Douglass, who was a sleep disorders specialist. Simmons J.A. concluded that the proposed fresh evidence would not be admitted on appeal as it was “entirely speculative” and provided “no specific opinion” concerning whether Mr. Gravelle was aware he was driving at the time or concerning Mr. Gravelle’s mental state at the time.
[23] Even if Mr. Watkins was negligent or in breach of contract for failing to retain an expert at trial, presenting this evidence at trial would not have resulted in an acquittal. Based on the totality of the circumstances, the claim against Mr. Watkins for failing to retain an expert does not have some substance or potential merit.
[24] Accordingly, Mr. Gravelle’s application for leave to continue his action against Mr. Watkins is dismissed.
[25] The respondent is entitled to its costs of this application. The respondent shall deliver its cost submissions, limited to three pages plus costs outline plus authorities, within 20 days. Mr. Gravelle will have 15 days thereafter to file his cost submissions, subject to the same limitations. If no costs submissions are received within 20 days, then costs will be deemed settled.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: October 26, 2022
COURT FILE NO.: CV-22-0064-00
DATE: 2022-10-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gordon R. Gravelle
Applicant
- and -
Ministry of the Attorney General, Watkins Law Professional Corp., and Christopher Charles Watkins
Respondents
DECISION ON MOTION
Newton J.
Released: October 26, 2022
[^1]: Avis Industrial Corporation v. Gravelle, 2018 ONSC 4317. Affirmed 2019 ONCA 172. [^2]: RSO 1990, c. C.43. [^3]: Avis Industrial Corporation v. Gravelle, 2018 ONSC 4317. [^4]: 2021 ONSC 6180. [^5]: 2016 ONSC 1486. [^6]: 2016 ONSC 935. [^7]: 2016 ONSC 1486 at. Para. 20 to 30. [^8]: 2016 ONSC 8099. [^9]: R. v. Gravelle, Court of Appeal 20170808 Docket M47610 (C63466).