COURT FILE NO.: CV-22-90837 DATE: 2023/04/21

SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN: SOCIAL JUSTICE NETWORK Plaintiff

- and -

GARY SWITHENBANK, JAMES CYBULSKI and HOMESTEAD LAND HOLDINGS LIMITED Defendants

BEFORE: Justice H.J. Williams

COUNSEL: No one, for the Social Justice Network Matthew Jantzi, lawyer for Gary Swithenbank and Homestead Self represented, James Cybulski

HEARD: March 14, 2023

REASONS FOR DECISION

Overview

[1] This is another case involving vexatious litigant Althea Reyes. (See: Ontario (Attorney General) v. Reyes, 2017 ONSC 3451; Adwella (aka Reyes) v. Animal Care Review Board, 2020 ONSC 7082; Tiwari v Chevalier, 2022 ONSC 3071.)

[2] Since being declared a vexatious litigant under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, by Perell J. in 2017, Ms. Reyes has not had the right to start a legal action without first obtaining leave from a judge of this court.

[3] Ms. Reyes’ response was to start actions using names other than her own. (See: Adwella (aka Reyes); Tiwari.)

[4] In this case, the defendants Gary Swithenbank and Homestead Land Holdings Limited brought a motion to dismiss the action against them, for a declaration that the action was started by Ms. Reyes and for an order for costs against Ms. Reyes. Mr. Swithenbank and Homestead argued that the named plaintiff, “Social Justice Network”, does not have capacity or standing to commence or maintain an action and that the action is frivolous, vexatious and an abuse of the process of the court.

[5] The defendant James Cybulski, who is self-represented, supported the motion.

[6] At the conclusion of the March 14, 2023 hearing, I granted the motion with written reasons to follow. These are my reasons.

Factual background

[7] Homestead owns an apartment building called “Lamplighter” located at 40 The Driveway in Ottawa. Mr. Swithenbank works for Homestead as Lamplighter’s property manager. Mr. Cybulski is a former resident of Lamplighter.

[8] Social Justice Network’s action is for damages in the amount of $250,000 for “stalking, harassment, defamation, slander, libel, targeted racism with the intent to cause and create emotional, psychological and financial hardship, loss and suffering to the Plaintiff and their staff and clients.”

[9] Before being served with the statement of claim, none of the defendants had ever heard of Social Justice Network.

[10] Social Justice Network is neither registered to do business in Ontario nor incorporated either in Ontario or federally.

[11] Unit 604 at Lamplighter is leased to a tenant named “Taijah O’Meally.” There is an occupant named “Maxine Adwella” listed on the lease.

[12] Mr. Swithenbank says that neither he nor anyone on his staff has ever met the named tenant, Ms. O’Meally, although they have communicated with her by email. Mr. Swithenbank says that at times emails sent from Ms. O’Meally (presumably emails sent from an account in Ms. O’Meally’s name) have been signed using Ms. Adwella’s name.

[13] In Adwella (aka Reyes), Vella J. found that Ms. Reyes used the name “Maxine Adwella” as an alias.

[14] Both Mr. Swithenbank and Mr. Cybulski say the person identified as Ms. Reyes in photographs which accompanied stories about Ms. Reyes in the Toronto Star and on the website of CBC News is the person they know as “Maxine Adwella” or “Maxine” who lives in Unit 604 at Lamplighter.

[15] Mr. Cybulski says that in February 2021, a woman he had seen at Lamplighter and had assumed was a fellow tenant, knocked on the door of his apartment, identified herself as “Maxine” and asked to borrow his cell phone to call her sister. Mr. Cybulski gave the woman his phone. Mr. Cybulski said the woman scrolled and used the keypad on the phone but did not appear to place a call. A few months later, Mr. Cybulski discovered that the on-line business profile of an organization known as National Collaboration for Youth Mental Health had been given a five-star review by his Google account.

[16] In Tiwari, this court found that Kamala Tiwari was an alias used by Ms. Reyes when she sued the CBC and one of its reporters over an on-line story. In the story, the CBC had reported that the head of an organization known as National Collaboration for Youth Mental Health called herself Maxine Adwella, but that Maxine Adwella had been found to be an alias used by Ms. Reyes.

[17] Mr. Cybulski had concerns from time to time about “loud and disturbing dog noises” coming from Unit 604. Mr. Cybulski made several complaints about the occupant of the apartment to Homestead, to the City of Ottawa’s By-law Enforcement Office, to Animal Welfare Services and to the Ottawa Police Service. Mr. Cybulski said he was concerned about the noise itself and because it sounded to him as though the dogs were in distress.

[18] Mr. Cybulski said that in October 2022, he was with in Mr. Swithenbank’s office with Mr. Swithenbank, when the person who had identified herself to him as “Maxine” entered the office, was verbally abusive toward both men and told Mr. Cybulski that he was “in big trouble” and “would pay.”

[19] Mr. Swithenbank says the resident of Unit 604, known to him as Maxine Adwella, complained to him on several occasions that she had lost a phone. One of the allegations in the Social Justice Network action is that Mr. Swithenbank stole an iPhone from “the Plaintiff company”.

The appearance of February 9, 2023

[20] The motion was scheduled to be heard on February 9, 2023, via Zoom videoconference. Mr. Jantzi appeared for Mr. Swithenbank and Homestead. Mr. Cybulski was present.

[21] A person identified on-screen as “Rose” also attended. “Rose” said she was the plaintiff’s receptionist. “Rose” was not using the video function of Zoom. When I asked her to turn on her camera, she said she was unable to do so.

[22] “Rose” said her name was Rose Mohaned. I asked her to spell her last name. She spelled it M-O-H-A-N-E-D. I asked her to send an email to the court registrar confirming her name and her position with the plaintiff. The subject line of her email was “Rhose Mohaned”. The email address was romohamedottawa@gmail.com. When I asked “Rose” why the email address spelled Mohamed with two Ms, when she had spelled her name orally with one M and one N, she said that a mistake had been made when she first got the email address and that it was then too late to change it. I did not ask her about the discrepancy between the “Rose” on her Zoom display and the “Rhose” in the subject line of the email address.

[23] “Rose” requested an adjournment of the motion. She said the person the defendants believe is behind the action has no connection with the plaintiff. She said the defendants have shown incredible disrespect to her organization. She said the organization’s CEO, Serge Lacoursiere, would attend court on behalf of the organization at the next appearance.

[24] Although I had doubts about “Rose”, given the serious nature of the orders the moving parties were asking me to make, I granted the adjournment. In an endorsement dated February 9, 2023, I ordered the plaintiff to deliver responding motion materials no later than 10 days before the new return date of March 14, 2023. I said the delivery deadline would not be extended. I said that if the person who appeared on behalf of the plaintiff was not a lawyer, they would be required to satisfy me that they were entitled to represent the plaintiff in court. I said I would remain seized of the motion. I said I would not be inclined to grant any further adjournments.

[25] On March 10, 2023, I released an endorsement confirming that the March 14, 2023 hearing would be via Zoom. I said that anyone who wished to address the court would be required to use both the audio and the video functions of Zoom.

The hearing of March 14, 2023

[26] The plaintiff did not file any written materials prior to the March 14, 2023 hearing.

[27] A person who identified himself as Allan Morgan attended the hearing on behalf of the plaintiff. Mr. Morgan attended by telephone. Mr. Morgan said he was the chair of the plaintiff’s board. I asked him who had authorized the plaintiff’s action. There was a pause. He then said that he had. I asked what kind of organization Social Justice Network was. Another long pause. Mr. Morgan eventually said, “we help poor people.” Mr. Morgan said he was not a lawyer.

[28] Mr. Cybulski then said he had evidence that Mr. Morgan has a connection with Ms. Reyes. Mr. Cybulski said he had a corporate search that showed that Allan Morgan was a director of National Collaboration for Youth Mental Health, the organization headed by “Maxine Adwella”, which this court had found to be an alias used by Ms. Reyes. Mr. Cybulski said he could provide the court with a copy of his corporate search. (Mr. Cybulski would have had no reason to file the search prior to the hearing; he would not have known that Mr. Morgan would be appearing on behalf of Social Justice Network until Mr. Morgan identified himself at the hearing that morning.)

[29] Mr. Morgan then said that he did not want to continue with the hearing and that he wanted an “adjustment” to March 30th. I asked Mr. Morgan to confirm that he wanted an adjustment. He said yes. I asked him whether he did not in fact want an “adjournment”. He agreed.

[30] I denied the adjournment request. The matter had already been adjourned once, at the request of the plaintiff. The plaintiff had not filed any written materials, despite my order of February 9, 2023. The person appearing on behalf of the plaintiff did not appear on video, contrary to my order of March 10, 2023, was not a lawyer and had no authority to speak on behalf of the plaintiff.

[31] I directed Mr. Cybulski to file an affidavit attaching the corporate search which showed that Mr. Morgan was a director of National Collaboration for Youth Mental Health.

[32] Mr. Morgan said he objected. He asked me how I could accept an offer today. I said that he would have to explain what he meant. There was a long pause. I asked Mr. Morgan whether someone was telling him what to say. He said no. I again asked him to explain what he meant. After another lengthy pause, he said, how can you accept an affidavit today?

[33] I took from this question that “Social Justice Network” was unhappy that I had asked Mr. Cybulski to provide me with evidence that showed that Mr. Morgan, who had identified himself as chair of the board of “Social Justice Network”, was also a director of National Collaboration for Youth Mental Health, an organization with a link to Maxine Adwella and Ms. Reyes.

[34] It was quite evident that despite his denial, someone had been telling Mr. Morgan what to say during the hearing. There had been long pauses between my questions and his answers. On two occasions, Mr. Morgan had used words that made no sense in the context and subsequently corrected himself by substituting similar-sounding words (“adjournment” for “adjustment” and then “affidavit” for “offer.”)

Mr. Cybulski’s corporate search

[35] Mr. Cybulski filed an affidavit immediately following the hearing. The affidavit attached two corporate searches for National Collaboration for Youth Mental Health.

[36] A search dated February 10, 2023 showed that Allan Morgan was a director of National Collaboration for Youth Mental Health. Other directors included Kamala Tiwari and also Serge Lacoursiere, whom both “Rose” at the February 9, 2023 hearing and Mr. Morgan at the March 14, 2023 hearing had identified as being the CEO of Social Justice Network.

[37] A search dated March 14, 2023 identified Allan Morgan as the only director of National Collaboration for Youth Mental Health. The search showed that the organization’s corporate information had been modified February 10, 2023, the day after the first hearing before me.

Mr. Morgan’s affidavit

[38] Mr. Morgan also filed an affidavit following the hearing. Mr. Morgan, who earlier in the day had not known the difference between an adjustment and an adjournment or an offer and an affidavit, complained in his affidavit that it was unjust for the court to have accepted evidence from the defendants without affording the plaintiff the opportunity to cross-examine the deponents, which was their right. Mr. Morgan also specifically complained about Mr. Cybulski being permitted to file an affidavit following the hearing of the motion.

[39] Mr. Morgan had said he was not a lawyer and I had no reason to think that he was. Ms. Reyes, however, has a law degree. “Althea Reyes is a law school graduate, but she is not licensed to practice law.”: Ontario (Attorney General) v. Reyes, at para. 2.

[40] In the title of proceeding which appeared on Mr. Morgan’s affidavit, the named plaintiff was “Social Justice Programs”, not “Social Justice Network.” In the affidavit, Mr. Morgan referred to both “Social Justice Programs” and “Social Justice Network” and said they do not have a vexatious litigant on staff. Mr. Morgan also said he does not know a Maxine Adwella.

The Issues

[41] The issues to be decided are whether the action should be dismissed, whether it was started by Ms. Reyes, and whether costs should be awarded against Ms. Reyes.

Analysis

Should the action be dismissed?

[42] I accept the defendants’ evidence that “Social Justice Network” is neither incorporated nor a business name registered under the Business Names Act, R.S.O. 1990, c. B.17.

[43] A business must be incorporated to have the capacity of a natural person. (Business Corporations Act, R.S.O. 1990, c. B.16, s 15; Canada Business Corporations Act, R.S.C. 1985, c. C.44, s 15). A business, incorporated or otherwise, must be registered under the Business Names Act to conduct business in Ontario. (Business Names Act, s. 2(1)).

[44] A person that is neither a corporation nor a business registered under the Business Names Act is not capable of maintaining a proceeding in Ontario: C&F Industrial Parts Co. v Wastecorp Pumps Canada Inc., 2011 CarswellOnt 15157, at para 1.

[45] For these reasons, I am satisfied that “Social Justice Network” lacked capacity to start the action. I would dismiss the action for this reason alone.

Was the action started by Althea Reyes?

[46] For the following reasons, I am satisfied that the action started in the name of “Social Justice Network” was actually started by Ms. Reyes:

• In 2020, this court found that Ms. Reyes uses the name Maxine Adwella as an alias;
• A person who uses the name Maxine Adwella lives in Unit 604 at Lamplighter;
• Mr. Swithenbank and Mr. Cybulski have had uncomfortable encounters with the occupant of Unit 604; Homestead is attempting to evict the occupant of Unit 604;
• Before being served with the statement of claim, none of the defendants had heard of or had anything to do with “Social Justice Network”;
• Ms. Reyes has a history of suing people and organizations who have crossed her;
• Ms. Reyes has a history of starting legal actions using a name other than her own;
• The defendants have identified the person living in Unit 604 at Lamplighter as being the person identified as Ms. Reyes in photographs accompanying media reports about Ms. Reyes;
• Maxine Adwella, a name used by Ms. Reyes, was the name of the head of the organization National Collaboration for Youth Mental Health;
• Allan Morgan, who attended the March 14, 2023 hearing on behalf of “Social Justice Network” is a director of National Collaboration for Youth Mental Health;
• Another director of National Collaboration for Youth Mental Health was Kamala Tiwari;
• In 2022, this court found that Kamala Tiwari was an alias used by Ms. Reyes.

[47] In summary, I find the action started in the name of “Social Justice Network” is another in a series of actions started by Althea Reyes to harass people or organizations she is unhappy with. Once again, Ms. Reyes has used a name other than her own to start an action without seeking leave of the court, as her status as a vexatious litigant requires her to do. As a vexatious litigant, Ms. Reyes has no right to start a legal action without leave. As such, the action is an abuse of the process of the court and shall be dismissed on this basis.

Costs

[48] Mr. Swithenbank and Homestead seeks costs payable by Althea Reyes. Mr. Cybulski does not seek costs.

[49] The costs of Mr. Swithenbank and Homestead, inclusive of fees, disbursements and HST amount to $10,285.26 on a full indemnity basis, $9,256.73 on a substantial indemnity basis and $6,171.16 on a partial indemnity basis.

[50] Section 131(1) of the Courts of Justice Act provides that the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court. Although discretionary, a court must fix costs on a principled basis. (Davies v. Clarington, 2009 ONCA 722, at para. 40). Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the factors the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing, in exercising its discretion under section 131 of the Courts of Justice Act to award costs. These factors include the principle of indemnity, including the experience of the lawyer involved, the hourly rate and the hours spent. They include the complexity of the proceeding and the importance of the issues. They also include certain conduct of the parties, including conduct that may have shortened or lengthened the duration of the proceeding or that was improper, vexatious or unnecessary.

[51] The Court of Appeal has made it clear that the fixing of costs does not begin and end with a calculation of hours times rates. It says the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay rather than an amount fixed by the actual costs incurred by the successful litigant. (Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 26).

[52] In Davies, the Court of Appeal noted that it had repeatedly said that elevated (that is to say, full or substantial indemnity as opposed to partial indemnity) costs are warranted in only two circumstances: (1) where specifically authorized through the operation of an offer to settle under rule 49.10; or (2) where the losing party has engaged in behaviour worthy of sanction. Substantial indemnity costs are only awarded in rare and exceptional cases. (St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280, at para. 92).

[53] In my view, this is one of the very rare cases in which full indemnity costs are warranted. This is at least the third time that Ms. Reyes, who was declared a vexatious litigant six years ago, has further abused the process of the court by using an alias to start an action to harass people who have made her unhappy. This duplicitous and self-indulgent waste of the defendants’ and the court’s time is most certainly conduct worthy of sanction.

[54] The defendants Mr. Swithenbank and Homestead shall have full indemnity costs fixed in the all-inclusive amount of $10,000.

[55] The costs shall be payable by Ms. Reyes.

[56] Under Rules 1.05 and 26.01, I order that the defendants shall have leave to amend the title of proceeding of the action, to identify the plaintiff as “Social Justice Network also known as Althea Reyes.”

Disposition

[57] In conclusion, I make the following orders:

1. I declare that the plaintiff’s action was commenced by Althea Reyes, a vexatious litigant;
2. The action is dismissed on the basis that the plaintiff Social Justice Network had no standing to commence the action, on the basis that it was commenced by a vexatious litigant, Althea Reyes, who had no right to commence an action without leave of the court and on the basis that the action is an abuse of the process of the court;
3. Althea Reyes shall pay the defendants Gary Swithenbank and Homestead Land Holdings Limited their costs on a full indemnity basis fixed in the all-inclusive amount of $10,000; and
4. The defendants shall have leave to amend the title of proceeding of the action so that the plaintiff is identified as “Social Justice Network, also known as Althea Reyes.”

Justice H.J. Williams Released: April 21, 2023