Court File and Parties

COURT FILE NO.: CV-15-2498 DATE: 2023/08/30 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Elizabeth Efthymiadis and George Efthymiadis, Plaintiffs AND: Universal Protection Service of Canada Corporation, Tina Baldwin, Randy Smith, London Police Service Board, Constable Darrin Brown, Constable Monica Loueiro, Jan Hetherington, Defendants

BEFORE: Tranquilli J.

COUNSEL: Elizabeth Efthymiadis and George Efthymiadis, Plaintiffs, in person I. Andriessen, M. Shin, for the Defendants Universal Protection Service of Canada Corporation, Tina Baldwin, Randy Smith C. Bruni, for the defendants London Police Services Board, Darrin Brown, Monica Loueiro D. Elshourfa, for the defendants Minto Properties Limited, Jan Hetherington

HEARD: June 1, 2023, by videoconference

Endorsement

Overview

[1] The defendants Universal Protection Service of Canada Corporation, Tina Baldwin and Randy Smith (“Universal”) bring this motion pursuant to rule 37.16 of the Rules of Civil Procedure.

[2] This is a longstanding matter from nine-years of litigation that has yet to progress from the pleadings stage. In November 2022, I dismissed Universal’s vexatious litigant application but recommended the matter be case managed and all further motions heard by an assigned judge. I am now assigned to the matter.

[3] Universal seeks an order prohibiting the plaintiffs from making further motions in this proceeding without leave of the court. Universal submits the plaintiffs persist in bringing frivolous and vexatious motions that constitute an abuse of process, notwithstanding my decision. The remaining defendants take no position on the motion.

[4] The plaintiffs oppose Universal’s motion. The plaintiffs bring a cross-motion pursuant to rule 25.11 of the Rules to strike portions of Universal’s statement of defence on grounds that those paragraphs constitute an inconsistent pleading.

[5] Universal contended the court should not hear the plaintiffs’ motion because of several procedural regularities, including insufficient notice.

[6] The court advised it would hear both motions but would provide Universal with an opportunity to make further submissions if the disposition of the motion turned on issues to which Universal did not have a fair opportunity to address on the hearing of the motion.

Decision

[7] For the following reasons, I grant Universal’s motion for an order prohibiting the plaintiffs from bringing any further motions in this proceeding without leave of the court. I also dismiss the plaintiffs’ motion seeking to strike portions of the Universal’s statement of defence.

[8] In summary, the record establishes the plaintiffs remain committed to their pursuit to prove their cause through a seemingly endless stream of motions and appeals from those motions, notwithstanding this court’s caution of the consequences of such continued conduct. The most recent example of their strategy is the plaintiffs’ cross-motion before me, seeking to strike portions of the Universal’s statement of defence. As I will explain, the statement of defence does not disclose an inconsistent pleading. The plaintiffs’ motion essentially seeks to re-litigate previous findings from which the plaintiffs unsuccessfully appealed. This cross-motion is a further example of the conduct which justifies the relief sought by Universal.

Background

Vexatious Litigant Application

[9] The tortured history of this proceeding is set out in my reasons reported in Universal Protection Service of Canada Corporation v. Efthymiadis, 2022 ONSC 6383 and will not be repeated at length. In those reasons, I dismissed a vexatious litigant application brought by the Universal defendants. However, I cautioned the plaintiffs that if they persisted in their past conduct, they risked their litigation rights being circumscribed and overseen by the court.

[10] I recommended to the regional senior justice that all future motions in this proceeding be heard by a particular judge pursuant to rule 37.15. In December 2022, I was accordingly appointed to case manage and hear any further motions in this proceeding.

[11] The plaintiffs’ claim arises from a December 2012 incident where a security guard employed by Universal attended at the plaintiffs’ rental apartment along with London Police Service officers to warn the plaintiffs of a noise complaint. Their interaction led to this dispute. The plaintiffs claim the security guard falsely stated that Elizabeth Efthymiadis told them she was communicating with people who live underground.

[12] The plaintiff Elizabeth Efthymiadis unsuccessfully pursued two applications before the Human Rights Tribunal of Ontario against the defendants. Universal filed two reports regarding its employee’s encounters with the plaintiffs during the HRTO process. The plaintiffs see these reports are important to their claim against the defendants.

[13] The plaintiffs commenced this action in November 2015. George Efthymiadis is the brother of Elizabeth Efthymiadis. His standing in this litigation is in issue, as is the limitation period for their causes of action, among other issues.

[14] In any event, the plaintiffs make numerous allegations regarding the defendants’ investigation of the noise complaint. At its core, the plaintiffs’ action turns on the contents of those two reports produced by Universal during the HRTO process. They allege the documents contain false, malicious, and unlawful allegations that have stigmatized them. They also maintain they are crucial to responding to the limitation defence raised by Universal.

[15] The matter has failed to progress beyond the pleadings stage due to several procedural issues from which the plaintiffs unsuccessfully sought to appeal, including up to the Supreme Court of Canada.

[16] Of note, the plaintiffs brought a motion for summary judgment against the defendants. That motion has long since stagnated in breach of its litigation timetable due to a protracted dispute concerning the admissibility of the reports filed by the Universal defendants in the HRTO process, and now, these motions.

[17] In their statement of defence, the Universal defendants plead that all submissions and representations made to the HRTO, including disclosure of documents, are absolutely privileged and may not be relied upon in support of any cause of action.

[18] In reasons reported at 2022 ONSC 1358, Justice Rady dismissed the plaintiffs’ motion for leave to rely upon the reports. The court found the plaintiffs relied upon documents produced by Universal during the HRTO process to ground their claim against Universal. The court held those documents were subject to an implied undertaking as they were produced in the administrative tribunal process.

[19] The Court of Appeal quashed the plaintiff’s appeal as Justice Rady’s order was interlocutory in nature: 2022 ONCA 554. The plaintiffs then brought a motion to the Divisional Court to extend the time to seek leave to appeal of the order.

[20] Before the hearing of that motion, this court heard the vexatious litigant application.

Events Since the Vexatious Litigant Application

[21] The plaintiffs’ motion for an extension of time to bring a motion for leave to appeal the order of Rady J. was heard by a single judge of the Divisional Court on November 25, 2022. Justice Nishikawa dismissed the plaintiff’s motion by reasons reported at 2022 ONSC 6755. She concluded the justice of the case did not support an extension of time to file a motion for leave to appeal.

[22] The plaintiffs sought to have Nishikawa J.’s decision reviewed by a panel of the Divisional Court, pursuant to s. 21(5) of the Courts of Justice Act. However, their motion was out of time pursuant to rule 61.16. The plaintiffs apparently then sought to bring a motion seeking an extension of time for a review of Nishikawa J.’s decision. The plaintiffs told this court there was a misunderstanding with the Divisional Court as to the necessary next steps. In any event, the plaintiffs told this court there was nothing more they could do to advance an appeal of Justice Rady’s order as the Divisional Court reportedly would not respond to their request to advance their motion for leave to appeal.

Analysis

[23] The factors relevant to a vexatious litigant application are well understood and need not be repeated: Lang Michener v. Fabian. I agree that these same principles apply on a 37.16 or “mini-vexatious litigant” motion: Direk v. Attorney General of Ontario, 2011 ONSC 6375 at para. 7.

[24] Notwithstanding my express caution, the plaintiffs have persisted in resorting to using the court rules to pursue patently unsuccessful appeals. The action is stagnant, some nine years into the litigation. Their efforts are contrary to the objective of the rules to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits: rule 1.04.

[25] I endeavoured to give the plaintiffs an opportunity to advance their claim without supervision; however, the pattern has repeated itself and threatens to continue, as evidenced by their cross-motion, which I shall now address.

[26] The plaintiffs told the court that once they decided their efforts to appeal Justice Rady’s order had come to nought, they focused their efforts on responding to Universal’s motion. So, it came that they brought the cross-motion to strike those portions of Universal’s statement of defence that claim privilege over the two reports filed with the HRTO.

[27] The plaintiffs argue the two reports are a bedrock of their claim. Among other issues, they assert it was their discovery of those reports during the HRTO proceeding that grounded their discovery of a civil action against the defendants and refutes a limitation period defence.

[28] The plaintiffs assert that Universal’s pleading as it relates to asserting privilege over the reports should be struck as they conflict with Universal’s Affidavit of Documents, where those same reports are listed in Schedule A.

[29] While the plaintiffs appeared to concede their efforts to appeal Rady J.’s decision were at an end, I infer from their cross-motion and submissions that they may be under the impression that striking those paragraphs from Universal’s statement of defence will remove the roadblocks to their litigation strategy in being able to rely upon those very reports.

[30] The problems with their submissions are manifold. I need only address two.

[31] First, the fact that Universal listed the impugned reports in Schedule A of their Affidavit of Documents, thereby suggesting those items were relevant and not privileged, does not raise an inconsistent “pleading” that triggers rule 25.11. It is evident from rule 25.01 that an Affidavit of Documents is not a “pleading”. Rather, an Affidavit of Documents is a tool to be used in the discovery of the issues raised in the pleadings. Therefore, there are no inconsistencies in Universal’s statement of defence as it relates to the relevance or admissibility of those reports.

[32] Second, the plaintiffs’ motion appears to be a collateral attack or re-litigation of Rady J.’s order and underlying findings where she prohibited the plaintiffs from relying upon the Universal documents filed with the HRTO.

[33] On that motion, the plaintiffs argued the Universal defendants waived privilege over the two reports as they listed those documents in Schedule A of their affidavit of documents. Justice Rady expressly noted that the listing of a document in Schedule A of an affidavit is not a concession of either relevance or admissibility. She observed there seemed to be some confusion as to the identification of the Schedule A and B documents and recommended that it be corrected by Universal pursuant to rule 30.07. Unfortunately, those defendants did not follow her advice by the time of this motion. I find nothing turns on this but caution the defendants to put their best foot forward on any future appearances in this proceeding.

[34] Accordingly, the plaintiffs’ cross-motion, in substance, appears to be a renewal of their unsuccessful motion before Justice Rady and an effort to rely on those documents. I also acknowledge Universal’s concerns about lack of notice and form.

[35] I commend the plaintiffs’ intelligence and resourcefulness. I condemn their conduct. Their continued unsuccessful appeal of Justice Rady’s order and then this cross-motion are further instances of litigation misconduct, now in defiance of a court warning. It is time for the court to intervene and direct that all further motions by the plaintiffs in this proceeding are subject to leave of this court.

Conclusion

[36] For these reasons, Universal’s motion is granted, and the plaintiffs’ motion is dismissed.

[37] Universal submitted a bill of costs seeking substantial indemnity costs of $9,782.13. Substantial costs are not warranted but costs payable to the Universal defendants are justified.

[38] On a partial indemnity basis, I order costs of $2,000 payable forthwith by the plaintiffs to the Universal defendants.

Case Management Directions

[39] The parties are directed to confer upon an updated litigation timetable and file same with the court for my approval by September 22, 2023.

[40] If the parties are unable to agree on the updated litigation timetable, then they shall notify the court by September 22, 2023, and request a case conference. The parties will confer on three dates at which they are available at 8:30 am for the teleconference in the weeks of October 9 and 15, 2023. The parties are expected to file their proposed draft timetables in advance of the case conference for the court’s consideration.

[41] If the parties or a party fails to confirm a schedule or the case conference, the court will proceed to set the date for the conference. All parties/their counsel are expected to attend.

[42] In the absence of the plaintiffs’ participation in the updated litigation schedule or in being available for a case conference, this court may use its discretion to strike the action.

[43] An order from these reasons may be issued without the consent or approval of the plaintiffs.

Justice K. Tranquilli Date: August 30, 2023