ONTARIO SUPERIOR COURT OF JUSTICE
RE: Samir Ibrahim, Applicant
-and-
Attorney General of Ontario, Respondent
BEFORE: Robert Centa J.
COUNSEL: Ismail Idowu Salih, for the applicant
Adam Mortimer, for Penny Leach, and the Victim Assistance Program, respondents
Tara Pollitt, for the Guelph Police Services Board, respondent
Victoria Cistrone, for Guelph General Hospital, respondent
HEARD: October 31, 2022 (in writing)
ENDORSEMENT
1On November 16, 2019, Bloom J. declared Samir Ibrahim to be a vexatious litigant pursuant to s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. This order meant that Mr. Ibrahim could not continue three proceedings that he had commenced in 2015, 2017, and 2019. Mr. Ibrahim did not appeal that order.
2Instead, over two years later, Mr. Ibrahim applied pursuant to s. 140(4) of the Act for leave to proceed with the three existing actions. He also requested the recission of the order declaring him to be a vexatious litigant.
3For the reasons that follow, I dismiss Mr. Ibrahim’s application in its entirety. He has not demonstrated that there are reasonable grounds to continue these proceedings and that they are not an abuse of process. I also see no reason to rescind the order declaring Mr. Ibrahim to be a vexatious litigant.
The law
4It is important to frame this application within the statutory framework of s. 140 of the Act. A judge may declare a person a vexatious litigant when they meet the test set out in s. 140(1) of the Act:
140 (1) 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.
5A person found to be a vexatious litigant has the right to appeal that order to the Court of Appeal for Ontario as of right: Kalaba v. Bylykbashi (2006), 2006 3953 (ON CA), 265 D.L.R. (4th) 320 (Ont. C.A.), at para. 23; Royal College of Dental Surgeons (Ontario) v. Chuang, 2008 ONCA 35. As noted, Mr. Ibrahim did not appeal the order of Bloom J. that declared him to be a vexatious litigant.
6A vexatious litigant may also bring an application to start a new proceeding or continue an old proceeding pursuant to s. 140(3) of the Act and rule 38.13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The test to be met is set out in s. 140(4), which provides that:
140(4) Where an application for leave is made under subsection (3),
(a) leave shall be granted only if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding;
(b) the person making the application for leave may seek the rescission of the order made under subsection (1) but may not seek any other relief on the application;
(c) the court may rescind the order made under subsection (1);
(d) the Attorney General is entitled to be heard on the application; and
(e) no appeal lies from a refusal to grant relief to the applicant.
7I may only grant leave to Mr. Ibrahim to continue the proceedings if he proves both that the proceeding to be continued is not an abuse of process and that there are reasonable grounds for the proceeding: Falardeau v. Owen Sound Police Service Board, 2021 ONSC 6180, at paras. 49-50; Chavali v. Law Society of Upper Canada, 2005 53071 (Ont. S.C.), at para. 17; Riad v. Ontario College of Pharmacists, 2015 ONSC 6736, at para. 42; Ferenczi v. State Farm Mutual Automobile Insurance Co. (2004), 2004 34802 (ON SC), 18 C.C.L.I. (4th) 134 (Ont. S.C.), at para. 17; Hart v. Fullarton, 2021 ONSC 2559, at para. 9; Bono General Construction Ltd. v. Susin, [2006] O.J. No. 4888, (S.C.), at para. 14; 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 paras. 10-11; Lindhorst v. Centennial College, 2016 ONSC 2678, at para. 4.
8An abuse of process is the misuse of the court’s procedure in a way that is manifestly unfair to a party to the litigation or would in some other way bring the administration of justice into disrepute. Abuse of process is a flexible doctrine unencumbered by specific requirements of technical legal rules: Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, rev’d 2002 SCC 63, [2002] 3 S.C.R. 307; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 37.
9There are reasonable grounds for the proceeding when there is substance and potential merit to that proceeding. Even if a claim is not doomed to fail, it may not reveal that there are reasonable grounds for the proceeding. Justice Corbett described this standard in Chuang v. Manning, 2008 14175 (Ont. S.C.), at paras. 13 to 15:
The merits of Mr. Chuang’s claims, as pleaded against Mr. Manning, fall somewhere on a scale between “improbable” and “untenable”. Many of them are predicated on the presumption that the College was wrong, the Divisional Court was wrong, and somewhere, some day, some court will vindicate Mr. Chuang. I have no doubt that Mr. Chuang is pursuing this proceeding to relitigate these previous decisions, and this is an abuse of process.
I cannot conclude that all of the alleged claims which Mr. Chuang seeks to assert are necessarily doomed to failure. In making such an assessment, the court does not engage in a common sense assessment of probabilities, but rather whether a claim is doomed to fail from the outset. If Mr. Chuang was not a vexatious litigant, he would be entitled to pursue some of these claims.
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.
10Mr. Ibrahim submits that he should be permitted to continue with his actions unless it is obvious that his actions cannot succeed. I disagree. While that test may be appropriate on a motion under rule 21.01(1)(b), it is not the appropriate test to be applied to the continuation of proceedings by a person found to be a vexatious litigant: Chuang, at paras. 13 to 15.
11The jurisprudence has established a number of principles that I should apply in considering this application:
a. This application is not an appeal. I am not to review the correctness or reasonableness of the decision of Bloom J. to declare Mr. Ibrahim a vexatious litigant or the fairness of the process that led to that decision: Falardeau, at para. 69;
b. The vexatious litigant must demonstrate that there is a prima facie ground for the proceedings to be permitted to be continued and that there is a genuine reason or need for the litigation to continue: Foy v. Foy (1979), 1979 1631 (ON CA), 26 O.R. (2d) 220 (C.A.), at para. 22; Chavali, at para. 17; and
c. The vexatious litigant order is a prospective case management step, designed to limit the costs imposed on the system and the other litigants, not a punitive measure: R v. Coote, 2011 ONSC 858, at para. 63; Ironside v. Roskam, 2017 ONSC 7416, at para. 20; Hok v. Alberta, 2016 ABQB 651, at para. 37.
The vexatious litigant application
12On October 3, 2019, the Guelph Police Service issued a notice of application pursuant to s. 140 of the Act seeking declarations that Mr. Ibrahim was a vexatious litigant, that he be prevented from instituting any further proceedings, and that he not be permitted to continue his existing actions without leave of the court. The Guelph Police Service asserted that Mr. Ibrahim had instituted multiple proceedings against it and other parties before the Office of Police Review Director, the Human Rights Tribunal of Ontario, the Superior Court of Justice, the Court of Appeal for Ontario, and the Supreme Court of Canada.
13Mr. Ibrahim did not file any responding evidence or submissions on the application. He did not attend the hearing of the application. He states in his affidavit that he was too ill to respond but has not provided any medical evidence or documents in support of his submission. He did not request an adjournment of the application.
14On November 26, 2019, Bloom J. declared Mr. Ibrahim to be a vexatious litigant and stayed the existing actions unless Mr. Ibrahim received leave from the court to continue them. Bloom J. ordered that Mr. Ibrahim pay $5,000 in costs of the application to the Guelph Police Service. To date, Mr. Ibrahim has not paid this costs order.
15Mr. Ibrahim states that he did not learn of the order of Bloom J. until late 2021. The Guelph Police service, however, provided evidence that it mailed the order of Bloom J. to Mr. Ibrahim at his two known addresses on November 27, 2019, including the address at which the Guelph Police Service served the notice of application. Mr. Ibrahim did not appeal the order of Bloom J.
Preliminary issue: the affidavits filed by the Guelph Police Service
16In response to this motion, the Guelph Police Service filed an affidavit of Sheila Handler, sworn June 2, 2022. Exhibit 2 to Ms. Handler’s affidavit was an affidavit sworn by Kristen Dearlove on October 2, 2019, and which was submitted on the application to have Mr. Ibrahim declared a vexatious litigant.
17Mr. Ibrahim submits that Ms. Handler’s affidavit and portions of Ms. Dearlove’s should be struck out for failing to comply with rules 4.06(2) and 39.01(5). I disagree.
18Mr. Ibrahim did not cross-examine Ms. Handler on her affidavit. If he felt the affidavit contained statements with respect to contentious facts, cross-examination would have illuminated those areas of dispute. In addition, I disagree with Mr. Ibrahim’s characterization of some of the passages in Ms. Handler’s affidavit as being either hearsay or contentious.
19Ms. Dearlove’s affidavit was before Bloom J. when he issued the order declaring Mr. Ibrahim to be a vexatious litigant. On this motion, Mr. Ibrahim asks that I rescind that order. Although this motion is not an appeal, it is helpful to me to see the evidence that was before Bloom J. on that motion. It is important that I understand the background to this litigation when I am considering Mr. Ibrahim’s request for relief.
20I do not agree with Mr. Ibrahim’s request to strike all or portions of the affidavit. To the extent that the affidavits contain hearsay or statements on contentious issues, I will keep that in mind when weighing the evidence.
The 2015 Action
21The title of proceedings in the 2015 action is “Samir Ibrahim v. Guelph Police Service, Ministry of Community and Social Services, Office of the Prime Minister, and Office of the Attorney General.”1 In the action, Mr. Ibrahim seeks “damages and punitive damages for egregious conduct in the amount of $20,000,000.00”
22Mr. Ibrahim alleges that on August 3, 2013, he was arrested by members of the Guelph Police Service, assaulted during that arrest, and detained at Maplehurst jail in Milton where he was again assaulted. He also pleads that over time his Ontario Disability Support Benefits were reduced, and that he did not receive a response to the complaint that he filed with the Office of the Prime Minister of Canada.
23In October 2015, the action against the Office of the Prime Minister was struck out on consent and without costs. In April 2016, the action against the Ministry of Community and Social Services and the Office of the Attorney General was dismissed for failure to give notice as required by the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27.
24In November 2016, Fitzpatrick J. granted partial summary judgment in favour of the Guelph Police Service and dismissed the action in respect of the alleged threats and the alleged failure to provide medical and other attention to Mr. Ibrahim while he was in custody. Justice Fitzpatrick held that, although it was a “close call,” he allowed Mr. Ibrahim’s claim in respect of the alleged assault to continue to trial.
25In January 2017, the Guelph Police Service set the action down for trial. The trial was set to begin on November 27, 2017. On the first day of trial, Mr. Ibrahim requested an adjournment, which was granted on terms that Mr. Ibrahim pay $1,000 in costs thrown away and $7,000 in outstanding costs orders at least one month before the trial commenced. Mr. Ibrahim appealed the adjournment order to the Court of Appeal for Ontario, which quashed the appeal as the order under appeal was interlocutory, not final.
26The trial was rescheduled to begin on September 26, 2018. Mr. Ibrahim did not attend the first day of trial because he advised he was in the hospital. Justice Lemon adjourned the trial for the day and advised Mr. Ibrahim, through the Trial Coordinator, that the trial would start the next day and that Mr. Ibrahim should bring medical records to explain his absence. Mr. Ibrahim did not attend trial the next day. Justice Lemon adjourned the trial to October 1, 2018. Mr. Ibrahim did not attend court that day and the action was struck off the trial list.
27Mr. Ibrahim took no steps to advance the 2015 action from October 1, 2018, until the order declaring him a vexatious litigant was issued on November 26, 2019.
28If Mr. Ibrahim had not been declared a vexatious litigant, he might have been permitted to proceed with this claim. Mr. Ibrahim, however, has not satisfied me that he has reasonable grounds to proceed with the 2015 action. Mr. Ibrahim has not proffered any evidence to show that there is an evidentiary basis to continue with the 2015 action. Mr. Ibrahim must establish more than that he has conceptually an arguable case: Lindhorst, at para. 4; Falardeau, at paras. 80-81. He has not filed any evidence on this motion that persuades me that the 2015 action has substance and potential merit.
29In addition, I find that the 2015 action is an abuse of process. Mr. Ibrahim did not advance the litigation in a timely fashion before the order declared him a vexatious litigant. Mr. Ibrahim has three unpaid costs orders in the 2015 action, which total $10,500. He also has not paid the $5,000 costs order from the vexatious litigant application. Had Mr. Ibrahim paid these costs orders before bringing this application, that would have been a factor in his favour. However, he did not do so and a “trail of orders for costs that have not been paid” is one factor suggesting that an action is an abuse of process: Lindhorst, at para. 26.
30I do not grant leave to Mr. Ibrahim to continue the 2015 action.
The 2017 Action
31The title of proceedings in the 2017 action is “Samir Ibrahim v. Toronto Community Housing Corporation and Greenwin Inc.”2
32The 2017 action is brought under the simplified procedure and claims damages in respect of unpaid rent, replacement of damaged furniture and personal items, and $70,000 in punitive damages for pain and suffering. Mr. Ibrahim pleads that the defendants disregarded his rights as a tenant, harassed him about some construction work, entered his premises during the construction work, and damaged his personal property, and removed some furniture. Mr. Ibrahim pleads that he was forced out of his unit because the water was shut off and due to the damage to his personal items. He pleads that in March 2016, he was “forced to stop paying rent” to the defendants because he was no longer living in the premises.
33It appears that at least some of the claims asserted in the 2017 action should have been brought before the Landlord and Tenant Board: Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 168(2).
34Mr. Ibrahim filed no evidence on this motion to support any of the claims he has pleaded. The onus is on Mr. Ibrahim to satisfy me that there are reasonable grounds for this action to continue. He has not met this burden.
35I do not grant leave to Mr. Ibrahim to continue the 2017 action.
The 2019 Action
36The title of proceedings in the 2019 Action is “Samir Ibrahim v. Guelph Police Service, Guelph General Hospital, Penny Leach, Manager for Victim-Witness Assistant Program, Victim Witness Assistance, Forest Heights Long Term Care.”3 The claim was issued on February 15, 2019
37In this action, Mr. Ibrahim seeks damages of $50,000,000. He pleads that his mother passed away on March 16, 2017. In his statement of claim, Mr Ibrahim alleges that on March 11, 2016, the police arrived at his house and assaulted him. They then arrested him and took him to the police station where he was detained. During his absence, his mother was taken to Guelph General Hospital. He could not see his mother as the hospital issued a notice to him under the Trespass to Property Act, R.S.O. 1990, c. T.21. He later found out that some of his mother’s possessions and jewellery were missing. His mother was transferred without his knowledge to Forest Heights Long Term Care Facility, where she passed away.
38Counsel for Penny Leach and the Victim-Witness Assistance Program submit that I should not grant leave to Mr. Ibrahim to continue this action against Ms. Leach or the Program. The statement of claim does not contain any allegations against either Ms. Leach or the Program. They are mentioned in the title of proceedings but nowhere else in the claim. Mr. Ibrahim does not plead any material facts that are capable of supporting a civil action of any kind against them.
39In his affidavit on this motion, Mr. Ibrahim says the following:
I believe that Penny Leach, and the Victim-Witness Assistance Program unjustly colluded with the Guelph Police to labelled [sic] me a criminal, violent person, and encouraged the Guelph General Hospital to take out unjust trespassing order against me.
40Mr. Ibrahim has not pleaded a viable cause of action against either Ms. Leach or the Program. He has not filed any evidence that satisfies me that there are reasonable grounds to continue this proceeding against them.
41Mr. Ibrahim’s statement of claim makes the following references to the Guelph General Hospital or Forest Heights Long Term Care:
I was arrested and taken to the police station for 24 hours with no food, medication. On a next day when I came home, I could not find my mother. She was taken to Guelph General Hospital. I found this information only one week later.
When I went to see my mother, I could not. The Hospital put the trespassing on me so I could not see my mother. Every time I called the hospital were very-very nasty towards me.
Later I found out that lots of my mother's cloth and jewelry were gone. I never got it back.
My mother was I the good health when she left home, she could walk and see well but during her being at the Hospital her health got worse, because of a long depression and always being in her worries about me, because I was her only child. I never knew that she had stiches at her forehead or an operation.
I could not see her for seven months or more, and never knew that she was transferred from the Guelph General Hospital to the Forest Heights Long Term Care in Kitchener, where she stood for several more mother before her death. Personal of Forest Heights asked me for more cloths and jewelry for her to wear, that were also never returned to me.
42In his affidavit on this motion Mr. Ibrahim stated as follows:
The Guelph General Hospital unlawfully prevented me from seeing my mother after she was admitted following the fall. This refusal and the trespassing order the Hospital issued against me, mislabelled me, and caused me undue psychological stress. I also have a reason to believe the inability to see me must have caused her psychological distress and caused her health to deteriorate.
Concerning the defendant Forest Heights Long Term Care, they failed to look after my mum and allowed her to die. They also received items from me for my mother which they did not return after her death.
43Even if he has pleaded a good cause of action against Guelph General Hospital and Forest Heights Long Term Care, which I doubt, he has not proffered any evidence to show that there is an evidentiary basis to continue with this proceeding. Mr. Ibrahim must establish more than that he has conceptually an arguable case: Lindhorst, at para. 4; Falardeau, at paras. 80-81. I am not satisfied that there are reasonable grounds for this proceeding to be continued against Guelph General Hospital and Forest Heights Long Term Care.
44That leaves the claim against the Guelph Police Service. This is the second time Mr. Ibrahim has sued the Guelph Police Service for an unlawful arrest and the unnecessary use of force. He states in his affidavit:
The fact of this claim is different to the case CV-15-547 and CV-17-2227. However, like the CV-15-547, this claim arises from the excessive force used on me by officers of the Guelph Police Service against me and the injuries they caused me when they came to arrest me.
I was violently arrested at the house I shared with my mother. The officers alleged that I assaulted my mother and caused her to fall at home. I was taken to the Guelph police station and detained. My mother, who was 85 years old, had tripped and fallen. I was attempting to get her up and take her to the hospital when the police arrived. I later understand from the police interview that somebody called the police to report that I caused my mother to fall. Upon the prosecution realizing the witness was unreliable, they dropped the charges against me.
45Mr. Ibrahim admitted on cross-examination that the arrest took place on March 11, 2016. He issued the statement of claim in the 2019 action on February 15, 2019, which is well beyond the two-year limitation period. Mr. Ibrahim has provided no evidence that he did not discover his claim at that time and the action is almost certainly barred by the provisions of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. Mr. Ibrahim has not persuaded me that there are reasonable grounds to continue this action against the Guelph Police Service.
46In addition, given his history of litigation and complaints against the Guelph Police Service, I find that the 2019 action is an abuse of process.
47I do not grant leave to Mr. Ibrahim to continue the 2019 action.
Vexatious litigant declaration
48Mr. Ibrahim seeks an order pursuant to s. 140(4) to rescind the order of Bloom J. that declared him to be a vexatious litigant. I decline to rescind that order.
49Mr. Ibrahim has a long history of litigating frequently against public institutions.4 He has a long history of litigating in ways that are abusive. This includes making inappropriate, disrespectful, and abusive comments about counsel for opposing parties. The language he used in voice-mails and in court about counsel for the opposing party is extremely troubling. After one such episode, Sproat J. commented as follows:
[Counsel for the provincial defendants] Mr. Kettles' response to the Statement of Claim was a letter which was intended to be, and should have been, helpful to Mr. Ibrahim. Mr. Ibrahim, however, responded by leaving a series of voicemail messages for Mr. Kettles which were insulting, profane and which could well be regarded as threatening. Mr. Ibrahim repeated a number of these comments in court before Mr. Reece [a social worker assisting Mr. Ibrahim] prevailed upon him to stop. I am not in a position to know whether or not Mr. Ibrahim's complaints have any validity. I can, however, say that making unfounded allegations against counsel is not going to be helpful to accomplishing his stated goal of moving this case forward.
50Mr. Ibrahim’s material filed on this motion has not persuaded me that he has learned anything from his past mistakes or that he will not commit similar transgressions in the future if I rescind the vexatious litigant order. Indeed, during the cross-examination on the affidavit he filed on this application, which was conducted on June 24, 2022, Mr. Ibrahim gave the following answers:
Q. In 2014 you started an action against T.T.C.?
A. Same thing too. Same thing. I have a good case, I went all the way to nine judges in Supreme Court in Ottawa. There is absolutely ... they are useless. If I am in the power, in the government, I would tell all the nine judges, termination. Judges are not fair. Judges is not fair at all. And they make what, $250,000.00 and I make, and my wife, 50 years here in Canada only five, $6.00 an hour. What's he doing? What they are doing? Nothing. Nothing.
Q. So your opinion is that judges don't treat you fairly?
A. Absolutely, hundred percent, yes. Yes, yes, yes.
Q. But not . ..
A. Supreme Court, down to the judges I never see an honest judge. The court crooked. Once you go for T.T.C. or you wants to go for Human Rights or when you go, that's it. Lose hundred percent. Doesn't matter if they broke the law is still they are good. Samir Ibrahim is immigrant, garbage person, no good.
Q. And is that why you choose not to follow judge's orders?
A. Why ... well, you tell me, what exactly you want me to do. I went to all judges, they not fair….
51In addition, in paragraph 14 of the affidavit he filed on this application, he repeats allegations related to the police withholding medication and medical attention while in custody. These allegations were dismissed by Fitzpatrick J. on the motion for summary judgment. 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: Re Lang Michener et al. v. Fabian et al., (1987), 1987 172 (ON SC), 37 D.L.R. (4th) 685 (Ont. H.C.), at para. 19.
52I find that Mr. Ibrahim was and remains a vexatious litigant. I decline to rescind the order made by Bloom J.
Conclusion and costs
53For the reasons set out above, I dismiss Mr. Ibrahim’s application in its entirety, with costs payable to the respondents.
54If the parties are not able to resolve costs, each respondent may deliver its costs submission of no more than three double-spaced pages to be emailed to Theresa.Finelli@ontario.ca on or before November 16, 2022. Mr. Ibrahim may deliver a single responding submission of no more than five double-spaced pages on or before November 23, 2022. No reply submissions are to be delivered without leave.
Robert Centa J.
Date: November 9, 2022
Footnotes
- Court File CV-15-00000547-0000.
- Court file CV-17-00002227-0000.
- Court file CV-19- 00058728-0000.
- Complaint to the Office of the Independent Police Review Director (file closed October 22, 2012); Ibrahim v. Guelph Police Service, [2014] OHRTD No. 1611; Ibrahim v. Law Society of Upper Canada, [2013] OHRTD. No. 860; Ibrahim v. Toronto Transit Commission, 2014 ONSC 3291, 2015 ONSC 3912, 2016 ONSC 234, [2016] S.C.C.A. No. 231.