Court File and Parties

COURT FILE NO.: CV-21-00088161-0000 DATE: 2023-08-02 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marie-Hélène Godbout and Marc Coderre, Applicants AND: William Ndze Fuhgeh, Edith Marie Marielle Bernard and Kimberly Melissa Stewart, Respondents

BEFORE: Associate Justice M. Fortier

COUNSEL: Susan Sack and Deanna Miller, for the Applicants/Responding Parties William Fuhgeh, Representing Himself, Respondent/Moving Party

HEARD: April 13, 2023

Endorsement

Introduction

[1] This is a motion by the Respondent, William Fuhgeh (“Mr. Fuhgeh”), for an Order striking the Notice of Application dated December 16, 2021 and the affidavit of the Applicant Marc Coderre sworn on December 10, 2021 (the “Coderre affidavit”).

[2] The Notice of Application dated December 16, 2021 is an application to have Mr. Fuhgeh declared a vexatious litigant pursuant to s. 140 of the Courts of Justice Act. [1] The Respondent’s motion is brought in the context of this application.

[3] Mr. Fuhgeh seeks to strike more than 50 paragraphs in the Coderre affidavit that support the vexatious litigant application and the portion of the Notice of Application that requests relief on behalf of the Respondents, Edith Bernard (“Ms. Bernard”) and Kimberly Stewart (“Ms. Stewart”).

[4] The Applicants, Marie-Hélène Godbout (“Ms. Godbout”) and Marc Coderre (“Mr. Coderre”), oppose the motion.

Background

[5] The following is a brief overview of the history leading up to the vexatious litigant application and Mr. Fuhgeh’s motion.

[6] The background to this matter begins in 2012 with Family Court proceedings involving Mr. Fuhgeh and the Respondent, Ms. Stewart, with whom he shares a child.

[7] Mr. Fuhgeh eventually re-partnered with the Respondent, Ms. Bernard. They had a child together and then separated in 2017. Ms. Bernard commenced an application in Family Court in 2017.

[8] Both proceedings, those commenced by Ms. Stewart and by Ms. Bernard, were combined in September 2017 and were case managed together for a time by Justice Audet (the “Family litigation”). The Family litigation was case managed and dealt with together on financial issues while remaining separate on parenting issues.

[9] The Family litigation was high conflict and involved numerous motions and case management conferences.

[10] The Applicants, Mr. Coderre and Ms. Godbout, are former counsel for Ms. Bernard and Ms. Stewart in the family law proceedings. Both Mr. Coderre and Ms. Godbout eventually became involved in the Family litigation as intervenors in 2019, as will be explained below.

[11] On November 21, 2017, Mr. Fuhgeh served Notices of Withdrawal in the Stewart and Bernard proceedings and was noted in default. An uncontested trial was held on December 18, 2017 before Justice Audet. Orders were made at that time in relation to the Stewart proceedings and the Bernard proceedings. Mr. Fuhgeh did not appeal the December 18, 2017 orders.

[12] In December 2018, Mr. Fuhgeh brought two motions to set aside (“motions to set aside”) Justice Audet’s decisions. Mr. Fuhgeh’s motion materials contained allegations against Mr. Coderre, Ms. Godbout, and others, including allegations of fraud, dishonesty, concealed conflicts of interest, and racially motivated bias. In essence, Mr. Fuhgeh sought to reopen the litigation by relying on r. 25(19) of the Family Law Rules which permits an order to be changed based on fraud, mistake, or lack of notice. [2] He also sought to set aside underlying interim and interlocutory relief and sought costs against both Mr. Coderre and Ms. Godbout personally.

[13] As a result of the allegations, both Mr. Coderre and Ms. Godbout retained counsel and ceased to represent Ms. Bernard and Ms. Stewart in 2019. By Consent Order made by Justice Shelston on June 28, 2019, Mr. Coderre and Ms. Godbout were made interveners to the motions to set aside.

[14] Since December 2018, Mr. Fuhgeh has sought to set aside numerous orders that were several years old, some of which had been previously unsuccessfully appealed, whereas others were appeals that had been abandoned. In addition, Mr. Fuhgeh initiated several proceedings in the Superior Court of Justice, the Divisional Court, and the Court of Appeal for Ontario, all of which are detailed in the Coderre affidavit.

[15] According to the Applicants, it is Mr. Fuhgeh’s conduct throughout the Family litigation that caused them to commence the application to have him declared a vexatious litigant pursuant to s. 140 of the Courts of Justice Act in December 2021.

[16] Pursuant to orders of Justice Shelston dated August 10, 2020, and Justice Ryan Bell dated May 31, 2021, Mr. Coderre and Ms. Godbout, as intervenors, were awarded costs in the approximate sum of $14,100 against Mr. Fuhgeh. In January 2023, Justice Summers granted the interveners’ motion to stay Mr. Fuhgeh’s motions to set aside until the costs awards against him were paid in full. Justice Summers further awarded the interveners costs of their motion in the sum of $6,500. According to the Applicants, the costs awards totaling over $20,000, remain unpaid.

[17] Mr. Fuhgeh has not yet responded substantively to the vexatious litigant application.

Position of the Parties

The Moving Party

[18] Mr. Fuhgeh seeks to strike over 50 paragraphs of the Coderre affidavit. His objections to the Coderre affidavit are found in a table prepared and filed by Mr. Fuhgeh and attached to this endorsement as Schedule “A”. The table is comprised of eight columns, each with a heading under which are listed the paragraphs of the Coderre affidavit that Mr. Fuhgeh maintains should be struck.

[19] Mr. Fuhgeh’s objections to the impugned paragraphs in the affidavit may be summarized as follows:

a) The paragraphs contain argument, opinion, legal arguments and conclusions.

b) The paragraphs contain “[i]nterpretation of and use of inference from previous Decisions as evidence”.

c) The paragraphs have been “[i]nserted for colour, atmospherics, gloss, to embarrass”.

d) The paragraphs are “[s]candalous/vexatious”.

e) The paragraphs are an “[a]buse of process, ongoing proceeding”.

f) The prejudicial value of certain paragraphs outweighs the probative value.

[20] Mr. Fuhgeh did not review or highlight the impugned paragraphs of the Coderre affidavit during his submissions or in his factum. Rather, the court was provided with the table and asked to review each paragraph in the table to determine which paragraph, if any, should be struck.

[21] Mr. Fuhgeh is also asking the court to strike the paragraph in the Notice of Application which seeks relief on behalf of the Respondents, Ms. Bernard and Ms. Stewart. Although Mr. Fuhgeh did not draw the court’s attention to the specific paragraph in the Notice of Application, I am led to assume that he is asking the court to strike paragraph 1.b. of the Notice of Application that states:

1. The applicants make application for:

b. Pursuant to Section 140 of the Courts of Justice Act, an Order that no further proceeding involving Marie Marielle Edith Bernard, Kimberly Melissa Stewart, Marie-Hélène Godbout, or Marc Coderre may be instituted by William Ndze Fuhgeh in any court except by leave of a judge of the Superior Court of Justice;

[22] Mr. Fuhgeh argues that it is incongruous for the Applicants to be seeking relief on behalf of the Respondents, Ms. Bernard and Ms. Stewart, who are their opponents in the vexatious litigant application.

The Responding Parties

[23] The Applicants argue that:

a) The Notice of Application and the Coderre affidavit are entirely proper and define the record.

b) It is not appropriate on a preliminary motion such as this to strike portions of the affidavit or to strike the application so as to vet or filter the evidence that the judge hearing the application would be dealing with.

c) In the alternative, the Court should decline to grant any relief to Mr. Fuhgeh in light of the $20,000 costs orders that he has allegedly failed to comply with.

d) Ms. Bernard and Ms. Stewart are proper and necessary parties to the Application.

The Law and Analysis

[24] Rule 25.11 of the Rules of Civil Procedure [3] provides as follows:

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.

[25] The court has broad discretion under r. 25.11 “to strike out or expunge” all or part of a pleading or court document, including affidavits. [4] However, striking an affidavit is different from striking a pleading. As held by Master MacLeod (as he then was) in Allianz Global v. Attorney General of Canada, 2016 ONSC 29, at paras. 10-11 [5], “[d]ifferent purposes are served by pleadings and affidavits and different rules apply. Specifically, affidavits are the evidentiary record for use on a motion or an application and striking the affidavit or portions of it in advance of the main hearing is a narrowing or pruning of the evidentiary record.”

[26] The courts have been reluctant to deal with issues of relevance and admissibility of affidavits before the hearing on the merits. As a general rule, a motion to strike paragraphs from an affidavit is made at the same time as the hearing of the primary motion or the application itself. A pre-emptive motion should only be brought in the “rarest and most extraordinary cases.” [6] Such cases would include situations where the affidavit is clearly so improper that it must be struck, or that the need to respond would give rise to unreasonable effort or cost or would result in the filing of additional voluminous material. [7]

[27] The principles that the courts have considered on motions to strike paragraphs of affidavits in advance of the main hearing are set out in the decision of Associate Justice A. Kaufman in Beraskow v. Canadian Internet Registration Authority, 2023 ONSC 1412, at paras. 14-15 [8], which reads as follows:

[14] In Allianz Global v. Attorney General of Canada, Master MacLeod (as he then was) considered the appropriateness of striking paragraphs of an affidavit on a preliminary motion. He adopted D.S. Ferguson J.’s view, articulated in Neighbourhoods of Windfields Limited Partnership v. Death, that “evidence should not be struck on an interlocutory motion unless there is some special reason to do so”. Perrell J. came to the same conclusion in Gutierrez v. The Watchtower Bible and Tract Society of Canada et al., where he held that it is preferable that the judge or master hearing the substantive motion rule on the admissibility of evidence. The rationales for this approach are:

(a) granting such a preliminary motion will encourage more such motions and contribute to cost and delay;

(b) it is unnecessary to make such rulings in advance because the motions judge will be in an equally good or better position to determine admissibility;

(c) judges frequently learn of and disregard inadmissible evidence and are presumed not to take it into account; and,

(d) the judge hearing the merits can sanction any inappropriate introduction of evidence by disregarding it and awarding costs.

[15] In addition to these compelling rationales, where the motion is brought before a judicial officer who will not be hearing the application, as in this case, there is an additional concern about usurping the application judge’s role. Moreover, striking an affidavit on a separate motion opens the possibility of two sets of appeals, which should generally be avoided. [Footnotes omitted.]

[28] Whether the motion to strike is appropriately made pre-emptively is a matter that must be considered on a case-by-case basis and each situation must be considered in context. [9]

[29] In the present case, the moving party is seeking to pre-emptively strike more than 50 paragraphs in the affidavit which supports the vexatious litigant application.

[30] Pursuant to s. 140 of the Courts of Justice Act, a vexatious litigant is a person who has persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted proceedings in any court in a vexatious manner.

[31] In Pollock v. Irmya, 2018 ONSC 2694, at paras. 19-21 [10], Justice Perell emphasizes that the focus of an application pursuant s. 140 is on the conduct of the litigant. Justice Perell further sets out in detail the kind of conduct that the courts consider in determining whether a litigant is vexatious:

[19] The case law reveals that objectionable conduct by a litigant includes: (a) bringing one or more proceedings to determine an issue that has already been determined by a court of competent jurisdiction; (b) simultaneously commencing multiple proceedings for more or less the same relief; (c) bringing proceedings that cannot succeed; (d) bringing proceedings for the purpose of harassing and oppressing the opponent; (e) bringing proceedings without reasonable cause and pursuing them in a vexatious manner; and (f) bringing a proceeding where it is obvious that it cannot succeed or where it would lead to no possible good or where no reasonable person could expect to obtain relief from the proceeding.

[20] The focus of the s. 140 application is on the conduct of the litigant, the manner in which he or she has pursued litigation before courts and tribunals and whether and to what extent his or her conduct has abused the court’s processes. In considering whether a litigant is vexatious or his or her proceeding is an abuse of process, the court may consider the behaviour of the litigant throughout the whole course of the proceedings, including interlocutory steps and appeals, the litigant’s competence, integrity and honesty, and adherence to court orders and to the rules and standards of practice.

[21] In assessing whether a proceeding is frivolous or vexatious, the court may consider such circumstances as the multiplicity of proceedings and whether the litigant has honoured previous courts’ orders, including orders to pay costs. The court may consider the litigant’s conduct inside or outside the courtroom including his or her pursuing vexatious extra-judicial proceedings. [Footnotes omitted.]

[32] I have reviewed the paragraphs of the Coderre affidavit targeted on this motion and I conclude that the evidence before me does not demonstrate either that the affidavit is so obviously inappropriate that it must be struck, or that the need to respond to the affidavit would require unreasonable effort or cost or result in the filing of additional voluminous material.

[33] The evidence contained in the Coderre affidavit outlines in detail Mr. Fuhgeh’s conduct throughout the whole course of the proceedings, including his conduct inside and outside the courtroom. The evidence also contains direct quotes from, or summaries of, decisions of the Superior Court, the Divisional Court, the Court of Appeal, and the Law Society of Ontario, as well as summaries and direct quotes of Mr. Fuhgeh’s submissions and other documents and correspondence that he has sent or filed throughout the course of the litigation.

[34] In my view, the evidence contained within the impugned paragraphs of the Coderre affidavit is the type of evidence that is the focus of a s. 140 application as outlined by Justice Perell in Pollock [11]. In the context of the vexatious litigant application, the conduct of Mr. Fuhgeh is most relevant and the court ought not to pre-emptively remove from the record the evidence that should be before the court on the hearing of the application.

[35] The court hearing the application will be capable of determining which paragraphs in the Coderre affidavit are opinion, and which contain arguments that are irrelevant or inflammatory. Moreover, it is for the court hearing the application to consider the evidence it seeks to rely upon.

[36] Accordingly, in exercising my discretion pursuant to r. 25.11, I decline to strike the impugned paragraphs of the Coderre affidavit in advance of the vexatious litigant application, and I defer the question of admissibility, weight, and relevance, to the hearing of the application.

[37] In addition, I decline to pre-emptively strike paragraph 1.b. of the Notice of Application. It will be up to the court hearing the application to determine whether the relief sought in that paragraph ought to be granted and whether Ms. Stewart and Ms. Bernard are necessary parties to the vexatious litigant application in order to assess the issues effectively and completely.

Disposition

[38] For the foregoing reasons, the Respondent William Ndze Fuhgeh’s motion for an Order striking the Notice of Application dated December 16, 2021, and the impugned paragraphs of the affidavit of the Applicant Marc Coderre sworn on December 10, 2021, is dismissed.

[39] The parties may file written submissions on costs, not exceeding three pages, exclusive of their respective bills of costs. The Applicants shall file their costs submissions within 20 days of the release of this decision. The cost submissions of the Respondent William Fuhgeh shall be filed within 10 days thereafter.

Marie T. Fortier Associate Justice Fortier Date: August 2, 2023

Schedule “A”

Argument	Opinion	Legal Argument/ Conclusion	Interpretation of and use of inference from Decision as evidence	Inserted for colour, atmospherics, gloss, to embarrass	Scandalous/ vexatious	Abuse of process, ongoing proceeding	Prejudicial Value Outweighs Probative value
7-13, 15-17, 19, 24,29-32, 34,35, 42, 43, 46, 47, 51, 56-60, 62, 65-67, 69, 72, 74, 76, 80, 82, 84, 88, 89, 94, 96, 108, 109, 114	7-11, 13, 15-17, 19, 32, 34, 35, 37, 38, 42, 43, 46, 47, 48, 51, 56, 57-60, 62, 69, 72, 74, 82, 84, 94, 96, 108, 109	7-11, 13 17, 19, 32, 34, 35, 42, 46, 47, 51, 56-60, 62, 72, 74, 82 108, 109	13, 18, 37, 38, 46, 48, 54, 62, 94, 100, 102, 107, 108, 110-114	13, 32, 110 114	13, 32, 110 114	110-114	13, 110-114

[1] R.S.O. 1990, c. C.43. [2] O. Reg. 114/99. [3] R.R.O. 1990, Reg. 194. [4] Ibid. [5] 2016 ONSC 29, at paras. 10-11. [6] Gutierrez v. The Watchtower Bible and Tract Society of Canada et al., 2019 ONSC 3069, at para. 28. [7] Neighbourhoods of Windfields Limited Partnership v. Death, at para. 37. [8] 2023 ONSC 1412, at paras. 14-15. [9] Neighbourhoods, at para. 31. [10] 2018 ONSC 2694, at paras. 19-21. [11] Ibid.