COURT FILE NO.: CV-22-89357

DATE: 16/01/2023

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TREVOR GOBLE, CHERIE HARPER, CHERIE WATSON, CESAR ASCANI, and ALEXANDER RICHARDS

Plaintiffs/Responding parties

– and –

ONYX COMMUNITY SERVICES

Defendant/Moving party

Self-represented

Kyle Shimon for the defendant

HEARD: November 22, 2022

decision on motion to strike

Justice Sally Gomery

[1] The defendant, Onyx Community Services ("Onyx"), seeks the dismissal of this action under rules 21.01(3)(d) and 25.11of the Rules of Civil Procedure, RRO 1990, Reg 194, on the grounds that the action is frivolous, vexatious, or otherwise an abuse of the court's processes. If it does not get this relief, it seeks alternative orders under rule 21.

[2] In the Fresh as Amended Statement of Claim, the only two plaintiffs who continue to assert claims are Trevor Goble and Cesar Ascani. They were also the only plaintiffs who contested the motion. Alexander Richards discontinued his claim and was declared a vexatious litigant in November 2022. Cherie Harper discontinued her claim on July 27, 2022. Another notice of discontinuation was filed the same day by Cherie Watson but was rejected by the court office.

[3] For the reasons that follow, Onyx's motion is granted and this action is dismissed in its entirety, with costs.

Context

[4] Onyx is a not-for-profit, community-based organization that provides services to the homeless and persons with disabilities, addictions, mental health issues, and conflicts with the police. Bryan Markle is one of Onyx's founders. Marie Pyper is its executive director. Mr. Ascani alleges that he was an Onyx director between November 2017 and February 2018. Mr. Goble says that he used to be in business with Mr. Markle.

[5] In the fresh as amended statement of claim, Mr. Ascani claims a total of $66,657, including:

• Costs of $2927 incurred to respond to a fraudulent claim brought by Onyx against Mr. Ascani in Small Claims Court file no. SC-20-157620;
• $3730 that Onyx allegedly charged Mr. Ascani to assist in having his driver's licence reinstated;
• $50,000 in estimated future losses due to Onyx using Mr. Ascani's business name, GPS Safe Solutions, forcing Mr. Ascani to rebrand as "Connected Group of Companies" registered to 14026977 Canada Inc.; and
• $10,000 for emotional harm and stress as a result of Onyx and its Board of Directors "not taking responsibility" for the actions of Brian Markle pursuant to s. 102 of the Canada Business Corporations Act and s. 124 of the Not for Profit Act.

[6] Mr. Goble claims $10,000, in general damages for "civil conspiracy and emotional harm". He asserts that Onyx is responsible for libelous, slanderous and defamatory comments made by Ms. Pyper and Mr. Markle. He alleges that Ms. Pyper attempted three times in May and June 2021 to have him falsely charged an arrested for criminal harassment and sent an email to various people at Onyx and to the police claiming that Mr. Goble was committing fraud and operating unregistered businesses. He says that Ms. Pyper and Mr. Markle jointly posted slanderous remarks on June 21, 2022 on Canada-complaints.com, claiming Mr. Goble was using aliases, lying about management, stalking employees, and harassing senior citizens, and that they posted an illicitly-filmed video on YouTube on May 11, 2022 along with a statement that Mr. Goble has mental health issues.

[7] This is not the first action taken by the five plaintiffs against Onyx. There have been at least seven other legal proceeding that one or more of the plaintiffs have previously started against Onyx, its employees, volunteers, and lawyers in the past two years in courts in Ottawa. They include:

(1) SC-21-159191 – A Small Claims Court action filed on May 12, 2021, against Onyx, its Chief Executive Officer, Brian Markle; its executive director, Marie Pyper; its lawyers; and several of Onyx's volunteers and employees. Mr. Richards was originally the only plaintiff. Mr. Goble was added later. The 164-paragraph statement of claim asserted many causes of actions, including conspiracy based on an allegation that Mr. Markle and Ms. Pyper had conspired to have Mr. Richards and Mr. Goble arrested for criminal harassment in May 2021. The action was dismissed with prejudice on July 16, 2021.

(2) CV-21-87048: An action in Superior Court by Mr. Richards and Mr. Goble against Onyx, Mr. Markle, Ms. Pyper, and lawyers who had acted for Onyx, issued July 23, 2021, that is, a week after the dismissal of the earlier Small Claims Court action. Mr. Goble claimed $25,000 for false statements allegedly made by the defendants online and in emails, and $25,000 for harassment and intimidation, based on alleged false police reports made by Ms. Pyper in May and June 2021. On September 10, 2021, Mr. Goble discontinued his claims in the action.

(3) SC-21-160273 – A second Small Claims Court action by Mr. Richards on October 25, 2021. The action claimed damages for "breach of a promise" and was stayed on November 3, 2022, when Hackland J. declared Mr. Richards to be a vexatious litigant.

(4) SC-21-160275 – A third Small Claims Court action by Mr. Richards filed in October 2021, against Onyx and Ms. Pyper. In this action, the plaintiffs brought a motion alleging that Onyx's lawyer, James Moak, was in a conflict of interest and had committed professional misconduct.

(5) CV-22-88977 – A second Superior Court action filed April 8, 2022, by Mr. Goble, Mr. Ascani, Mr. Richards, Ms. Harper, and Ms. Watson against Mr. Markle. Mr. Ascani alleged that Mr. Markle charged him $3,730 to restore his driver's licence but failed to do so; that he had infringed Mr. Ascani's business name, GPS Safe Solutions, causing Mr. Ascani damages of $150,000; and had inflicted reputational damage and emotional and mental distress, giving rise to another $250,000 in damages. Mr. Goble alleged that Mr. Markel made fraudulent misrepresentations about Mr. Goble's history and actions, for which he claimed $300,000 in damages.

(6) CV-22-88993 - A third Superior Court action filed April 11, 2022, by Mr. Goble, Mr. Ascani, Mr. Richards, Ms. Harper, and Ms. Watson against Onyx for $10 million in compensatory and punitive damages for breach of confidence, breach of contract, conversion and civil conspiracy. This action was discontinued on April 17, 2022. In the statement of claim, Mr. Goble again alleged that Onyx and its representatives had engaged in a conspiracy to damage his reputation and to make him subject to false arrest. Mr. Ascani alleged that Onyx appropriated his business name, GPS Safe Solutions and falsely claimed that he owed Onyx money.

(7) CV-22-89010 – A fourth Superior Court action filed April 13, 2022, by Mr. Goble, Mr. Ascani, Mr. Richards, and Ms. Harper against Onyx's legal counsel, James Moak Professional Corporation and Emond Harnden LLP, alleging that the defendants pursued false or frivolous legal claims against them, for which they claimed $2 million in compensatory damages. The action was discontinued against Emond Harnden LLP on April 17, 2022, and against James Moak Professional Corporation on May 6, 2022.

[8] On October 5, 2021, after Mr. Goble discontinued his claim in the first Superior Court action CV-21-87048, he signed a release in return for Onyx and Ms. Pyper agreeing not to pursue him for costs. Under the terms of the release, Mr. Goble:

• Released Onyx and Ms. Pyper, as well as Onyx's officers, directors, employees, volunteers, agents, and insurers, "from any and all actions, causes of action, complaints, demands and claims whatsoever prior to or on" October 5, 2021, including any and all claims for damages arising from alleged tortious conduct;
• Agreed to commence no action against Onyx "in relation to any matter, known or unknown" to Mr. Goble, "that occurred or may have occurred prior to" October 5, 2021;
• Consented to the full dismissal of Superior Court action CV-21-87048 (although this does not appear to have happened);
• Agreed not to assist any third party, directly or indirectly, in any effort to pursue any legal against Onyx for a period of 50 years; and
• Agreed that he would be liable to Onyx for $10,000 in liquidated damages if he breached any of the terms of the agreement.

[9] In addition to the lawsuits already described, on June 11, 2021, Mr. Goble filed a complaint against James Moak, one of Onyx's lawyers, with the Law Society of Ontario. This complaint was summarily dismissed.

[10] Mr. Richards filed two other complaints against Onyx: a complaint with the Ontario Ministry of Labour, Training and Skills Development, alleging Onyx owed him wages; and a complaint to Corporations Canada alleging that Onyx was impermissibly soliciting funds. He withdrew the first complaint. The second was dismissed.

[11] As already mentioned, Mr. Richards was also declared to be a vexatious litigant on November 3, 2022, in an application brought by Onyx in Superior Court file CV-21-88041.

[12] Mr. Goble was declared a vexatious litigant in 2010 by the Divisional Court in Goble v. Vranjes, 2010 ONSC 2425, with respect to landlord and tenant disputes. He was convicted of fraud in 2015 under s. 380(1)(a) of the Criminal Code, RSC 1985, c C-46, and was sentenced to jail for 18 months and ordered to pay over $33,000 in restitution.

[13] Onyx and its executive director have filed an application to have Mr. Goble declared a vexatious litigant (Superior Court file CV-22-90098). This application is set to be heard on February 1, 2023. In response, Mr. Goble has brought his own application for a declaration under s. 140 of the Courts of Justice Act against Onyx and Ms. Pyper.

Analysis

Legal principles

[14] Under rules 21.01(3) and 25.11, a judge, on a motion, may dismiss an action or strike pleadings on the grounds that they are frivolous, vexatious, or otherwise an abuse of process:

21.01(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,

and the judge may make an order or grant judgment accordingly.

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

[15] In Currie v. Halton Regional Police Services Board, 2003 CanLII 7815 (ON CA), the Ontario Court of Appeal set out principles applicable to motions to dismiss a claim under r. 21.01(3)(d). It endorsed the analysis in Lang Michener et al. and Fabian et al., (1987) 1987 CanLII 172 (ON SC), 59 O.R. (2d) 353, at pp. 358-59. In that case, Henry J. identified hallmarks of vexatious proceedings. These include bringing actions:

(a) to determine an issue which has already been determined by a court of competent jurisdiction;

(b) that obviously cannot succeed, or that would lead to no possible good, or in which no reasonable person can reasonably expect to obtain relief;

(c) for an improper purpose, including the harassment and oppression of other parties as opposed to the assertion of legitimate rights;

(d) that roll over grounds and issues made in prior proceedings, repeating and supplementing them, often in the context of actions brought against the lawyers who have acted for or against the litigant in earlier proceedings.

[16] In determining whether proceedings are vexatious, a judge must look at the whole history of the matter and not just whether there was originally a good cause of action; and should consider whether the plaintiff has failed to pay costs of unsuccessful proceedings in the past or has persistently appealed past judicial decisions unsuccessfully (Currie, at para. 11).

Application of legal principles to this case

[17] This action bears the hallmarks of a vexatious proceeding.

[18] Prior to taking this action, Mr. Goble sued Onyx or its representatives five times. He also complained to the Law Society of Ontario about the conduct of a lawyer acted for Onyx.

[19] In this action, Mr. Goble asserts claims and repeats allegations made in past proceedings that were dismissed.

[20] In his first Small Claims action in 2021, he alleged that Onyx's representatives conspired to have him falsely arrested in 2021. In his second action in the Superior Court, CV-21-87048, he again claimed damages for false arrest. He also claimed that Ms. Pyper and Mr. Gable had made defamatory statements about him online and in emails and posted videos they had filmed without his permission. He made the same or similar allegations in two other Superior Court actions begun in April 2022. Mr. Goble has also sued Onyx's lawyers.

[21] Mr. Goble makes the same allegations about false arrest and defamation in para. 3 of the Fresh as Amended Statement of Claim, even though the Small Claims court action was dismissed with prejudice, and even though Mr. Goble executed a release in October 2021 in which he released Onyx from any actions based on tort as well as any action in relation to anything that occurred to that date.

[22] Suing a defendant repeatedly for the same claims is vexatious, particularly if those claims have already been disposed of. The defendant is forced to incur the cost and inconvenience of defending to the same allegations over and over again. The claims obviously cannot succeed if they were previously dismissed or if the plaintiff has released the defendant.

[23] After being served with this motion, Mr. Goble and Mr. Ascani amended their statement of claim, adding new allegations about defamatory statements and videos posted by Mr. Markle and Ms. Pyper in 2022. As noted in Currie, this is typical of vexatious proceedings, in that old claims are recycled and supplemented by related claims.

[24] This is the fourth time Mr. Ascani has sued Onyx, Mr. Markle, or Onyx's lawyers. Mr. Ascani's claims about his company, GPS Safe Solutions, and the reimbursement that Onyx allegedly owes him, have appeared consistently in his lawsuits against Onyx. Like Mr. Goble, he has sued Onyx's lawyers. He has not signed a release and his claims have been dismissed by a court. On their face, however, Mr. Ascani's claims have no prospect of success. He seeks recovery of costs awarded in another proceeding, which amounts to an impermissible collateral attack on decisions made by another court. He alleges defamation based on statements made in a pleading, which are protected by absolute privilege. Beyond this, all of Onyx's alleged misconduct towards Mr. Ascani, and Mr. Ascani's awareness of it, occurred more than two years before he filed this action in May 2022. His claims are therefore time-barred.

[25] Mr. Richards, a person who has been declared a vexatious litigant as against Onyx, has joined forces with Mr. Goble and Mr. Ascani in their lawsuits. It is possible for a person with a legitimate claim to sue alongside a person who is acting for improper purposes, I have, however, already found that Mr. Goble and Mr. Ascani's claims obviously lack merit and that their proceedings bear the hallmarks of vexatious proceedings. There is, moreover, ample evidence that Mr. Goble and Mr. Richards have acted in concert not only in the context of legal proceedings but also in letter and email campaigns designed to threaten and harass Onyx's representatives and lawyers.

Disposition

[26] I conclude that the action should be dismissed in its entirety under r. 21.01(3)(d). Although Mr. Richard, Ms. Watson, and Ms. Harper remain as named plaintiffs on the Fresh as Amended Statement of Claim, the pleading does not contain any claims by them or allegations on which claims could be based.

[27] Onyx seeks costs on a substantial indemnity basis in the amount of $22,346 or, in the alternative, partial indemnity costs of around $15,000.

[28] Although substantial indemnity costs are exceptional, they are warranted here. Mr. Goble and Mr. Ascani alleged that Onyx and its representatives had engaged in intentionally wrongful and even criminal conduct, including fraud, civil conspiracy, intimidation, harassment, intentional infliction of emotional distress, and illegal interception of private communications. Onyx is a not-for-profit community services organization. It says that the allegations have caused, and may continue to cause, significant harm to Onyx's reputation and to its ability to operate effectively. I have no reason to doubt this.

[29] The costs claimed by Onyx are reasonable. In the original statement of claim, the plaintiffs claimed almost $200,000 in damages. Although they reduced the damages claimed significantly in August 2022, their conduct of the litigation has driven up costs. The plaintiffs completely redrafted the statement of claim after being served with this motion and filed fourteen volumes of materials totaling over 2300 pages. The hourly rates charged by Onyx's lawyer are consistent with market rates, and senior counsel on the file delegated much of the work to a junior lawyer. Finally, the defendants' own cost submissions show that the plaintiffs' costs are within the range that Mr. Goble and Mr. Ascani should have expected to pay. Had they been successful on the motion, Mr. Goble and Mr. Ascani argued that they were entitled to a total of $24,200 in fees, despite being self-represented.

[30] The motion is therefore granted and the action dismissed, with costs of $22,346 payable by Mr. Goble and Mr. Ascani.

Justice Sally Gomery

Released: January 16, 2023

COURT FILE NO.: CV-22-89357

DATE: 16/01/2023

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TREVOR GOBLE, CHERIE HARPER, CHERIE WATSON, CESAR ASCANI, and ALEXANDER RICHARDS

Plaintiffs/Responding parties

– and –

ONYX COMMUNITY SERVICES

Defendant/Moving party

DECISION ON MOTION TO STRIKE

Justice Sally Gomery

Released: January 16, 2023