Court File and Parties

COURT FILE NO.: 05-322/19 DATE: 20230111 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: MOHINI PERSAUD Applicant/Responding Party – and – THE ESTATE OF RITA PERSAUD Respondent/Moving Party

Counsel: Mohini Persaud, self-represented Hershel Sahian and Peter Neufeld, for Anil Persaud, the Litigation Administrator of the Estate of Rita Persaud

HEARD: December 19, 2022

Reasons for Decision

DIETRICH J.

[1] On December 19, 2022, the respondent Anil Persaud, in his capacity as Litigation Administrator, moved for an order declaring the applicant Mohini Persaud a vexatious litigant and barring her from commencing any further proceedings, or scheduling any further case conferences; and an order dismissing her application with costs.

[2] In my endorsement dated December 19, 2022, I confirmed that, at the end of the December 19, 2022 hearing, I declared Mohini Persaud a vexatious litigant and stated that written reasons for my decision would follow. These are those reasons.

Law

[3] Section 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43 permits a judge, when 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, to order that no further proceeding be instituted by the person in any court; or that a proceeding previously instituted by that person in any court not be continued.

[4] A declaration that a litigant is vexatious may be made on a motion, as opposed to by way of application, where a full hearing of the merits of that vexatious litigant claim would not involve issues outside of the existing claim, and where it would not make sense to require a new application for relief to be issued: 56 King Inc. v. Aviva Canada Inc., 2017 ONCA 408, at para. 4.

[5] In Lang Michener Lash Johnston v. Fabian (1987), 59 O.R. (2d) 353 (H.C.), the Court identified a number of traits that are indicative of a vexatious proceeding. These traits include, but are not limited to, proceedings in which grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against lawyers who have acted for or against the litigant in earlier proceedings; the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings; and the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions. In Lang, the Court also held that the Court must look at the whole history of the matter and not just whether there was originally a good cause of action.

Analysis

[6] The whole history of Ms. Persaud’s conduct shows a persistent pattern of instituting vexatious proceedings, including in each of this Court, the Divisional Court and the Court of Appeal, and a pattern of conducting those proceedings in a vexatious manner. For example, Ms. Persaud brought motions for leave to the Divisional Court to appeal orders of Gilmore, Kimmel and McEwen JJ. for failing to follow case management directions. Each of these orders had been made at a case conference, on consent, and at Ms. Persaud’s insistence. In Persaud v. Estate of Rita Persaud, 2022 ONSC 2073, Corbett J. dismissed Ms. Persaud’s motions as abandoned (“Corbett J.’s Endorsement”). Justice Corbett found that Ms. Persaud had conducted herself vexatiously throughout the brief proceedings in the Divisional Court. While these orders were under appeal in the Divisional Court, Ms. Persaud continued to initiate hearings to seek “clarification” of McEwen J.’s order in this Court.

[7] In Corbett J.’s Endorsement, at para. 7, Corbett J. includes a description of the type of conduct that brought him to his conclusion. The conduct included Ms. Persaud’s refusal to follow court directions, her challenge to directions repeatedly after they had been made, her seeking to delay and prolong conflict, her failing to discharge her responsibility as a litigant, and her impugning the court’s conduct because it did not accord with her view on how the proceedings ought to have been managed.

[8] At para. 67 of Corbett J.’s Endorsement, he specifically permitted this Court’s reliance on his endorsement if the conduct described in it were considered to be part of an overall pattern of conduct justifying intervention to protect the administration of justice and adverse parties from vexatious conduct.

[9] The Litigation Administrator submits that Ms. Persaud’s vexatious conduct is evidenced by the fact that his counsel has received more than 455 emails from Ms. Persaud relating to her application and a related application by the Litigation Administrator in the Estate of Rita Persaud (the “Enforcement Application”). Further, there have been more than 28 hearings between the two matters, in which the central issue is the distribution of the relatively modest Estate of Rita Persaud among her six children. The Litigation Administrator further submits that most of the hearings had to do with issues raised by Ms. Persaud, many of which had already been resolved, but Ms. Persaud refused to accept the decisions, or properly appeal them.

Unpaid Court Costs

[10] Costs have been awarded against Ms. Persaud by each of the Court of Appeal, the Divisional Court and the Small Claims Court.

[11] In an email to Ms. Persaud, dated May 16, 2022, sent by court staff on the instruction of Corbett J., the Divisional Court reported to Ms. Persaud that notwithstanding that courts do not ordinarily award costs in case management proceedings, the Divisional Court would depart from the principle because counsel for the respondent was required to read and digest an extraordinary volume of communications from Ms. Persaud. Justice Corbett found that the respondent should be indemnified for the costs, “all precipitated by Ms. Persaud’s vexatious misconduct as a litigant.” In the same email, Corbett J. confirmed that he did not accept Ms. Persaud’s argument that her misconduct was not “intentional”, and that she did not know any better because she was a self-represented litigant. Corbett J. described her conduct as “egregiously vexatious on its face.” Costs of $5,000 were awarded against Ms. Persaud, which, as of the hearing date of this motion, had not been paid.

[12] In the Small Claims Court, costs were awarded against Ms. Persaud on July 7, 2022 for not appearing. The plaintiff was awarded for its wasted costs. As of the hearing date of this motion, those costs had not been paid.

[13] On August 10, 2022, Ms. Persaud was the moving party on the appeal to the Ontario Court of Appeal but failed to perfect her appeal. Her appeal was dismissed for delay and costs were awarded against her. As of the hearing date of this motion, those costs had not been paid.

Vexatious Conduct in this Court

[14] With respect to Ms. Persaud’s recent vexatious conduct in this Court, the Litigation Administrator relies heavily on two email messages, dated December 12, 2022 and December 13, 2022, respectively, authored by Ms. Persaud.

[15] On December 12, 2022, Ms. Persaud sent an email to the Toronto Estates List, with a copy to counsel to the Litigation Administrator, Girga Persaud (a non-party to her application or the Enforcement Application), Chabiraj Persaud (a non-party to her application, and the respondent in the Enforcement Application) and Chandra Ramkissoon (a non-party to either application but a beneficiary of the Estate of Rita Persaud). In this email, Ms. Persaud advised the Court that she was moving the Litigation Administrator’s Enforcement Application (to which she is not a party) and her application to another venue. Though not disclosed in the email, Ms. Persaud later disclosed that the new venue would be a court in Vancouver, British Columbia. She stated that she was doing so due to “the poisoned environment that resulted from special circumstances of sexual harassment and disability already documented.” Ms. Persaud noted that she had the consent of the other party, Chabiraj Persaud, to do so. She also stated that she had the consent of Ms. Ramkissoon. Ms. Persaud stated that in light of her motion to make the transfer of the matters to another venue, the motion to declare her a vexatious litigant could not proceed on December 19, 2022, as scheduled.

[16] The Litigation Administrator submitted that Ms. Persaud’s notice of motion to transfer the matters to a Vancouver court, dated December 14, 2022, was served on the Litigation Administrator on December 18, 2022, the day before the hearing, at 10:30 p.m., and it did not include a return date. The title of proceeding was incorrect as Ms. Persaud had again attempted to add parties to her application for which she had not sought leave. The Litigation Administrator took issue with Ms. Persaud’s claim that her “disability” had been “already documented.” He correctly asserted that despite the clear guidance of the Divisional Court and this Court on the nature and extent of the evidence required to obtain an adjournment based on “disability”, Ms. Persaud had not produced sufficient evidence.

[17] In the December 12, 2022 email, Ms. Persaud went on to state that because of her health condition, it takes her longer to prepare materials and that the parties have known about this limitation since April 2022. She further stated that, for the same reason, she would not be attending the hearing of the Litigation Administrator’s motion for an order declaring her a vexatious litigant. As noted, Ms. Persaud did not offer sufficient documentary evidence in support of her medical condition. In the same email, Ms. Persaud warned that if the hearing proceeded, she would appeal, and she added that “[m]ore prejudiced hearings at this venue are only increasing costs and delaying these matters.”

[18] Also in the December 12, 2022 email, Ms. Persaud again raised the subject of her efforts to define the scope of her own disclosure requests and complained that she has not received the disclosure needed to advance her application. This complaint is a particularly good example of Ms. Persaud’s vexatious conduct in the nature of an issue being rolled forward and repeated, when the issue of disclosure has already been resolved. This matter has been the subject of several case conferences sought by Ms. Persaud. In addition to the production already ordered by McEwen, and Gilmore JJ., on April 20, 2022, I granted Ms. Persaud broad production of the documents she submitted that she needed to advance her application. Ms. Persaud was responsible for preparing the draft order and obtaining approval of its form and content from the other parties. Ms. Persaud prepared a draft order that was inconsistent with my endorsement and involved another attempt by her to add respondents to her application and to add parties to an application brought by her brother Girga Persaud (“Girga Persaud’s Application”), including lawyers and their respective law firms involved in the proceedings relating to the Estate of Rita Persaud. Ms. Persaud has never sought leave to add respondents to her application. To date, Ms. Persaud has not submitted a proper draft order reflecting my endorsement.

[19] Instead of addressing the merits of her application in the December 12, 2022 email, Ms. Persaud accused the respondent’s lawyers of coming up with a vexatious defence to prejudice and prevent her application from advancing. Ms. Persaud went further and accused judges of this Court of prejudicing her application as retribution and facilitating the respondent’s lawyers’ “bald allegations and procedural maneuvers.” Ms. Persaud concluded the email by confirming her decision to transfer her application to another province where the merits of the case would not be overshadowed by the “irregularities of these proceedings.”

[20] The Litigation Administrator submitted that Ms. Persaud’s email is replete with examples of vexatious conduct. That is, she claimed to have the consent of another party to transfer her application, but the consent was from Chabiraj Persaud, who is not a party to her application. The consent from Ms. Ramkissoon is meaningless, as Ms. Ramkissoon is not a party to any ongoing proceeding relating to the Estate of Rita Persaud in this Court. The Litigation Administrator also submitted that Ms. Persaud’s allegations of racial prejudice and preferential treatment for white lawyers are unsubstantiated. The Litigation Administrator further submitted that Ms. Persaud’s claim to be medically unable to pursue her application at this time is unsupported by proper medical evidence, even though Ms. Persaud knows the standard of evidence required to adjourn a matter on these grounds. In the Corbett J. Endorsement, Corbett J. found the doctors’ notes submitted by Ms. Persaud to be “insufficient to grant an adjournment.” I made a similar finding in a proceeding in this Court. Ms. Persaud has not provided any further medical evidence of her condition since the findings made by Corbett J. and me, other than some evidence from a Ms. Mackenzie who is alleged to be Ms. Persaud’s support worker. However, Ms. Mackenzie declined to produce any clinical records on the grounds of privacy.

[21] The Litigation Administrator submitted that he served his notice of motion for an order declaring Ms. Persaud a vexatious litigant on Ms. Persaud on August 5, 2022 and that, at that time, Ms. Persaud stated that she needed a year to address her medical issues. Yet, in December 2022, Ms. Persaud asserted that she needed one year before she can respond to the motion. Notwithstanding Ms. Persaud’s failure to provide the necessary evidence in support of her indirect request for an adjournment, she simply warns the Court that if the motion proceeds, she will appeal the decision.

[22] The Litigation Administrator also submitted that notwithstanding the broad production rights that Ms. Persaud was given regarding her own application, she has done nothing to pursue them. Her application, and Girga’s Application, which is very similar to Ms. Persaud’s, were scheduled to be heard on August 18, 2022. Neither applicant proceeded on the hearing date. A subsequent scheduling appointment was set for September 19, 2022 to reschedule the applications. Neither applicant appeared at the scheduling appointment. The applications have not been rescheduled, and neither applicant has sought to reschedule her or his application.

[23] The second email on which the Litigation Administrator relies is dated December 13, 2022. Ms. Persaud sent this email to counsel to the Litigation Administrator, and copied Girga Persaud, Chabiraj Persaud and Ms. Ramkissoon, none of whom is a party to her application. In this email, Ms. Persaud recycled materials she compiled for various hearings in her application and the Enforcement Application and provided a link to those materials. The materials consist of thousands of pages.

[24] Ms. Persaud again raised her inability to update her materials because of her health issues. Ms. Persaud sent an email to my assistant at 9:37 a.m. of the morning of the hearing of this motion in which she wrote: As I'm sick, I was not able to prepare materials properly and, so, filed materials prepared before getting sick. I am in the process of changing venues since I don't believe a fair hearing can be had at this court - counsel was already notified, so not sure why he is proceeding. At any rate, I will only be making a brief appearance to advise her Honour. I've attached my Factum, as well as, my email to the parties and court.

[25] In the December 13, 2022 email, Ms. Persaud again raised the matter of the scope of her production requests, ignoring the fact that she was granted broad production rights but failed to properly finalize the order and obtain the approval of its form and content. Instead, she attempted to obtain an order for additional relief unrelated to the production ordered. Rather than pursue the production granted by the orders of McEwen, Gilmore and Kimmel JJ., Ms. Persaud appealed those orders to the Divisional Court, resulting in the Corbett J. Endorsement.

[26] In this same email, Ms. Persaud complained that she was not allowed to speak at the hearing of the Enforcement Application. This is untrue. Even though Ms. Persaud was not a party to the proceedings, she routinely interjected, interrupted counsel and insisted that she was a party. This conduct in and of itself is vexatious and contributed to additional costs of the hearing for the parties involved. Ms. Persaud concluded the December 13, 2022 email by confirming her intention to “change the venue” for the applications relating to the Estate of Rita Persaud.

[27] The Litigation Administrator submitted that the case for declaring Ms. Persaud a vexatious litigant is overwhelming.

[28] I agree. Ms. Persaud declined to participate in the Litigation Administrator’s motion, and to argue against a declaration that she is a vexatious litigant. She appeared at the outset of the hearing to advise the Court of her intention to transfer the applications relating to the Estate of Rita Persaud to a court in Vancouver, British Columbia, where they would all be heard together. Ms. Persaud had no evidence to support the Vancouver Court’s willingness to accept such a transfer, though she submitted that she had contacted the Vancouver Court, which had agreed to the transfer. Ms. Persaud also advised the Court that she would not stay for the hearing because she was ill, and that the hearing should be adjourned owing to her illness. Ms. Persaud then left the videoconference hearing. She reappeared briefly, left again, and made no submissions in response to the Litigation Administrator’s submissions.

[29] There is considerable evidence of Ms. Persaud’s vexatious conduct in the emails of December 12, 2022 and December 13, 2022 alone. Add to this the fact that Ms. Persaud has sent more than 455 emails to counsel to the Litigation Administrator, and the fact that she bears some responsibility for the fact that there have been 28 proceedings relating to the Estate of Rita Persaud, several of which were case conferences initiated by her. On each of seven of these case conferences, Ms. Persaud sought to have McEwen J.’s production order “finalized” or “clarified.”

[30] Ms. Persaud has three outstanding costs awards against her from three different courts.

[31] The record shows that Ms. Persaud persists in taking steps that are inappropriate, irregular and vexatious. She routinely ignores the direction of the Court, and instead lashes out at the Court and the judges presiding over the hearings, including making serious allegations against them.

[32] Among these inappropriate steps are Ms. Persaud’s decision to place a caution on the title to the residence in which the late Rita Persaud had been residing, after McEwen J. had ordered the discharge of a Certificate of Pending Litigation and the sale of the residence. An additional court proceeding was required to obtain an order to remove of the caution, which added expense to the transaction, and it delayed the closing. Ms. Persaud has scheduled hearings, which she did not attend, even when the hearing date was peremptory on her. The hearing of her own application is one such example.

[33] Each of Gilmore and Kimmel JJ. set detailed timetables for advancing Ms. Persaud’s application. Ms. Persaud did not comply with either timetable. Justice Kimmel’s endorsement specifically denied Ms. Persaud any opportunity to bring a motion to amend the timetables set or to cure any perceived irregularity relating to McEwen J.’s production order.

[34] Based on Girga Persaud’s evidence, Ms. Persaud has deceived this Court by sending emails via Girga Persaud’s email address pretending to be Girga Persaud in an effort to make statements in Girga’s Application that align with her interests in her own application.

[35] For all of these reasons, it is appropriate that Ms. Persaud be declared a vexatious litigant.

Disposition

[36] The following orders shall issue:

1. Mohini Persaud, also known as Mohini Singh, is hereby declared a vexatious litigant.
2. Mohini Persaud, also known as Mohini Singh, is precluded from instituting any proceeding in any court in Ontario except by leave of a judge of the Superior Court of Justice.
3. Mohini Persaud shall require leave of a judge of this Court to proceed with her application.

Costs

[37] These reasons are being released simultaneously with my Reasons for Judgment in the Enforcement Application. The issue of costs in the two applications are intertwined. Any party seeking costs shall submit a Costs Outline.

[38] In my endorsement of December 19, 2022, I sought the availability of the parties for a two-hour hearing on the matter of costs on either of two dates. Only the Litigation Administrator provided his availability to the Court. The hearing on the matter of costs will proceed on April 21, 2023 at 10 a.m. If, having reviewed the Costs Outlines submitted by the parties seeking costs in either application, I require additional written costs submissions in advance of the hearing on April 21, 2023, the parties will be so advised.

Dietrich J. Released: January 11, 2023