COURT FILE NO.: CV-21-86849
DATE: 02/02/2023
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE ESTATE OF JOHN ELLSWORTH COLBERT, deceased
BETWEEN:
MAURY J. COLBERT as Applicant for a Certificate of Appointment of Estate Trustee for the Estate of John Ellsworth Colbert
Applicant
– and –
HAZEN SPENCE COLBERT, SARAH RAE COLBERT-KAIP, and ARBOR MEMORIAL INC.
Respondents
Sean Taylor for the Applicant
Hazen Spence Colbert for himself
No one appearing for the other Respondents
HEARD: November 15, 2022
decision on APPLICATION FOR DIRECTIONS UNDER R. 75.06 and FOR ORDERS under s. 140 CJA
justice Sally Gomery
[1] The applicant applies for directions under r. 75.06 of the Rules of Civil Procedure, R.R.O. 1990, reg. 194, and for declaratory and other relief under s. 140 of the Courts of Justice Act, RSO 1990, c C.43. For the reasons set out below, the application is granted, with costs.
Overview
[2] John Ellsworth Colbert died on February 28, 2021. He was 93 years old. Mr. Colbert was a widow, his wife Diane Colbert having passed away in 2005. They had two sons, Maury J. Colbert and Hazen Spence Colbert. For ease of reference, I will refer to the two siblings by their first names. Mr. Colbert’s house at his death was located at 23 Stowgrass Crescent, in Stittsville. Maury lives in the Ottawa area. Hazen lives in British Columbia.
[3] On March 22, 2021, Hazen served a notice of action against Maury and his father’s Estate (Ontario Superior Court file no. CV-21-86088). In his statement of claim, he sought production of their father’s will and an injunction requiring “the Executor of the will, possibly the defendant, to immediately proceed with Probate as per enactment”.
[4] On March 28, 2021, Hazen filed an application (Ontario Superior Court file no. CV-21-86458). Maury says he was never formally served with this notice of application, although he was provided a copy. Hazen denies he started a separate application. I find that he did. The document is on Form 14E, it is entitled “Notice of Application”, it does not purport to amend Hazen’s earlier notice of action and adds a new respondent, and it is not filed as a pleading in the electronic court record for CV-2186088.
[5] Maury and Mr. Colbert’s Estate were named as defendants/respondents in the application, and the funeral home where Mr. Colbert was cremated was named as an intervenor. Hazen again sought production of his father’s will. He also sought an order to evict Maury from the Stowgrass house, which he alleged Maury had been occupying since their father’s death “absent legal authority and with unjust enrichment”.
[6] On April 22, 2021, Maury applied for a certificate appointing him as Estate Trustee pursuant to a designation in his father’s October 2017 will. In that will, Mr. Colbert gave a set of silver flatware and $25,000 to his grand-daughter (Maury’s daughter), Sara Rae Colbert-Kaip. He left $10,000 each to Hazen and to Mr. Colbert’s brother William, if they survived him. Mr. Colbert left the Stowgrass house and the residue of his Estate to Maury. In his application for appointment as Estate Trustee, Maury estimated the total value of the Estate to be just under $700,000, including the Stowgrass house, the estimated value of which was $440,000.
[7] On May 12, 2021, Hazen filed a notice of objection to Maury’s application for a certificate of appointment. In it, he alleges that Maury is unfit or incompetent to act as Estate Trustee; that Maury exercised undue influence over their father; and that their father did not leave a will or that the will is invalid because it is not in the proper form or was tampered with. Hazen asserts that he is the most qualified party to act as Estate Trustee and that he would be willing to move from his current residence in British Columbia to Ontario for this purpose. He nonetheless proposes that TD Canada Trust be appointed.
[8] On May 28, 2021, Hazen purportedly amended his statement of claim in his action in Court file no. CV-21-86088 against Maury and the Estate.[^1] In the revised pleading, Hazen claims that the Estate was unjustly enriched by work he did on his parents’ former house in the late 1970s, the proceeds of sale of which were used to buy the Stowgrass house. He asserts that he worked in a “slave internment camp” for his father, that his mother promised in return that he would get a house, and that he was financially dependent on his father when his father died. Hazen also alleges that his father had reduced mental capacity and was under undue influence from February 2017 on. Finally, he says that Maury’s lawyer, Sean Taylor, submitted fraudulent documentation as part of the application for a certificate as Estate Trustee.
[9] In the revised statement of claim, Hazen seeks:
(a) Revisions to Mr. Colbert’s will so that he, rather than his niece Sara Rae Colbert Kaip, would get the silverware set, and so that the bequest to Hazen would be $300,000 instead of $10,000;
(b) production from Maury and an unnamed “knowledgeable counterparty” of Mr. Colbert’s will, banking and personal information; particulars of a default judgment allegedly made against Maury in 2011; information from the Canada Revenue Agency about Maury and the Estate; and documentation relating to a truck that Maury owned or used to own.
(c) the appointment of TD Canada Trust as Estate Trustee during Litigation;
(d) an injunction preventing Maury from living at the Stowgrass house and/or an order prohibiting Maury from using the Estate’s funds to pay for his residency in the house until probate is complete;
(e) an order that no assets of Mr. Colbert’s Estate be used for the purpose of defending the action, no matter what his will might say; and
(f) a declaration that Mr. Taylor has engaged in sharp practice, to be copied to the Law Society.
[10] When Maury did not serve a defence to the action within the prescribed deadline, Hazen said he would have him noted in default. Maury responded by filing a motion to dismiss the action as disclosing no reasonable cause of action. No steps have been taken in the action since that time.
[11] Hazen has repeatedly threatened to bring many other legal proceedings against Maury and his lawyers. I will elaborate on this later in these reasons.
[12] Maury brought this application in late June 2021. He alleges that Hazen is a vexatious litigant, based on the legal proceedings he has begun since their father’s death, those he has threatened, and hundreds of emails, letters, and phone calls he has made to Maury, his lawyer Mr. Taylor, and others since Mr. Colbert’s death. Hazen has said he intends to deplete the Estate of its assets through legal proceedings and that he will not comply with any court order against him. He has accused Maury of killing their father and says that he is a drug addict and an undischarged bankrupt. He has made threats of personal harm to Maury, his daughter, Mr. Taylor and members of Mr. Taylor’s family. I will review these emails in more detail later in these reasons.
[13] Mr. Colbert’s brother William Colbert predeceased him on November 20, 2020. Hazen also challenged the administration of his estate, although he said at the hearing that he had withdrawn his notice of objection in that case.
[14] Hazen denies he is a vexatious litigant or that an order under s. 140 can even be made in the circumstances. He contends that the court cannot rely on the email evidence because the emails have not been produced in their original electronic format. He argues that, in any event, threats of proceedings, emails, and telephone messages cannot be the basis for a s. 140 order, in the absence of any prior judicial consideration of the merits of his claims.
[15] On July 7, 2021, Justice Williams granted a temporary injunction enjoining Hazen from:
(1) commencing new proceedings against Maury or his lawyers and from taking steps in any existing proceedings against any of these parties;
(2) all contact with Maury, his lawyer or their respective family members, including but not limited to attending at or near Maury’s residence, the Stowgrass house, and Mr. Taylor’s office and home (with the exception of email contact between Hazen and Mr. Taylor “in respect of matters related to this application”); and
(3) releasing the personal information or any information or photos of Maury, Mr. Taylor or their respective immediate family members, excluding Hazen.
[16] This injunction was to remain in place until this application was heard. Costs were reserved to the judge hearing the application.
[17] Hazen did not attend the July 7, 2021, temporary injunction hearing. Through a letter to Mr. Taylor, he advised that he was unable to attend that day. He did not appeal Williams J.’s order but has since taken the position that it is invalid because it was made ex parte and because Maury did not disclose relevant facts. As will be seen later in these reasons, Hazen has contravened the order.
Legal principles
[18] Under s. 140(1) of the Courts of Justice Act, where a judge of the Superior Court is 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”, the judge may order that the person may not, without leave of the court, institute any further proceeding in any court or continue a proceeding previously instituted.
[19] Because it affects a person’s access to the courts, a vexatious litigant order is an extraordinary remedy: Lukezic v. Royal Bank of Canada, 2012 ONCA 350, at para. 12. A s. 140 order does not, however, strip a person of their right to begin legal proceedings. It instead provides for judicial supervision of a party’s use of the courts to ensure there is a reasonable basis for any proceeding: Dobson v. Green, 2012 ONSC 442, at para. 8.
[20] As held in Re Lang Michener and Fabian, 1987 172 (ON SC), [1987] OJ No. 355 and affirmed recently by Justice Marc Smith in Kaufman LLP v. Kechichian and Essilor v. Kechichian, 2021 ONSC 1173, at para. 27, a vexatious litigant has typically engaged in one or more of the following behaviours:
(a) they have brought one or more legal proceedings that obviously cannot succeed;
(b) they have brought these proceedings for an improper purpose, including “the harassment and oppression of other parties by multifarious proceedings brought for other than the assertion of legitimate rights”;
(c) they have rolled over, repeated, and supplemented grounds and issues raised from one proceeding to another; and
(d) they have failed to pay the costs of unsuccessful proceedings.
[21] In Lochner v. Ontario Civilian Police Commission, 2020 ONCA, the Ontario Court of Appeal endorsed a similar list of behaviours compiled by Myers J. in Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497. Additional hallmarks of vexatious proceedings noted include making inappropriate submissions in both form and content, including repeated misuse of technical terms, inappropriately ingratiating statements, ultimatums, and threats. Other signs of a querulous litigant include self-representation; “marked obduracy”; persistent reiteration and amplification; written submissions that contain much that is not legally relevant; “unsustainable allegations and gratuitous complaints against members of the legal profession”; and cessation of proceedings only when they are unable to pay legal fees and costs: Lochner, at para. 19.
[22] The lists in Re Lang, Kaufman LLP, and Lochner are not exhaustive, and the applicant need not establish that the conduct at issue has all of these hallmarks: Howie, Sacks & Henry LLP v. Chen, 2015 ONSC 2501, at para. 30.
[23] The judge hearing a s. 140 application should consider the whole history of the legal proceedings between the parties, not whether the respondent might have originally had a valid cause of action against the applicant. The judge may also consider other conduct by the respondent that demonstrated improper motives or a disregard for the court’s rules. In Bishop v. Bishop, 2011 ONCA 211, at paras. 8 and 9, the Court of Appeal adopted the following passage from Canada Post Corp. v. Varma, 2000 15754 (FC), [2000] F.C.J. No. 851 at para. 23:
A respondent’s behaviour both in and out of the court has been held to be relevant. In Canada v. Warriner, … McGillis J. noted that frivolous and unsubstantiated allegations of impropriety had been levelled against lawyers who had acted for or against the respondent. In Vojic, supra, McGillis J. took into account the fact that the respondent had failed to appear on several occasions and had shown disregard for the court. In Yorke v. Canada, … Rouleau J. considered a number of factors, including that the respondent’s proceedings in the Federal Court were replete with extreme and unsubstantiated allegations. [Citations omitted.]
[24] As observed by Campbell J. in Dobson v. Green, 2012 ONSC 4432, at para. 12:
It is not uncommon for a vexatious litigant to utilize the court process as simply part of an overall strategy of abuse and harassment. Their conduct out of court may provide evidence from which it may be inferred that court proceedings are not bona fide but merely the product of someone who is “unreasonably obsessed with a cause and likely to pursue vexatious court proceedings on an indefinite basis unless stopped.” In this way, the conduct of the vexatious litigant outside of the courtroom may be helpful in understanding his or her motivation and conduct within the litigation process.
[25] A person’s behaviour both in and out of the court may accordingly be relevant to the determination of whether they should be declared a vexatious litigant. Relevant conduct may include frivolous and unsubstantiated allegations of impropriety against lawyers who had acted for or against the party responding to a s. 140 application, and actions that show disregard for the court. An email campaign can be found to be part of an overall strategy of abuse and harassment: see, for example, GoodLife Fitness Centres Inc. v. Hicks, 2019 ONSC 4942, at paras. 65 – 70, and Harper v. MacDonald, 2022 ONSC 4734, at para. 53.
[26] A purpose of s. 140 is to prevent vexatious litigants from harassing others and forcing them to incur unnecessary legal costs; see Gledhill v. City of Toronto, 2021 ONSC 8462, at paras. 8-9. As observed by Smith J. in Kaufman LLP, a s. 140 order may also protect the respondent, by preventing her from squandering her own resources on unmeritorious claims. Finally, s. 140 protects the interests of society as a whole, by limiting the needless diversion of finite court resources to private vendettas that do not give rise to any genuine cause of action. As held by the Court of Appeal in Lochner, at para. 21: “It is important for the courts to be gatekeepers of our system of justice. Abusive litigants should be screened out of the system so that parties with true justiciable disputes may have them adjudicated by the courts.”
[27] The gate-keeping function must be tempered with the recognition that not every self-represented litigant is vexatious, and even a vexatious litigant may raise a legitimate issue that justifies consideration by a court (Lochner, at para. 22).
The evidence on this application
The applicant’s evidence
[28] The evidence filed by the applicant consists of Maury’s affidavit sworn June 23, 2021; affidavits sworn June 29 and July 5, 2021 by James Long, a law clerk at Mr. Taylor’s firm of Bradley Hiscock McCracken (sometimes referred to as BHM in correspondence between the parties); and an affidavit sworn by Vadzim Malatok, another BHM law clerk, on August 15, 2022. The affidavits attach emails and letters sent by Hazen to Maury, Mr. Taylor, and others since early 2021. Maury’s affidavit also recounts some of his family’s history, alleging that Hazen was estranged from the family after accusing his parents of sexual abuse twenty years ago.
[29] Hazen did not cross-examine any of the applicant’s affiants. He has nonetheless repeatedly claimed that some or all of them have committed perjury. He also contends that the emails attached to the affidavits are inadmissible because they have been produced in the form of print outs rather than original electronic data. He relies on R. v. Hamdan, 2017 BCSC 676.
[30] Hamdan is a criminal case that considered requirements under the Canada Evidence Act, R.S.C. 1985, c. C-5. The charges in Hamdan were based on Facebook posts allegedly made by the accused. The defence contended that the electronic data filed into evidence by the Crown could have been corrupted or altered and that print outs were incomplete and did not meet the best evidence rule. In Hamdan, Bishop J. (as he then was) ultimately concluded that the Crown’s evidence was admissible, despite issues with how it had been generated, collected, and presented.
[31] Although the Canada Evidence Act provisions governing the admissibility of electronic records do not apply to this case, there are similar (but not identical) provisions in the Ontario Evidence Act, RSO 1990, c E.23. They require a party tendering electronic records to prove their authenticity and set out how, if necessary, the party may comply with the best evidence rule.
[32] First, ss. (4) of s. 34.1(4) of the Ontario Evidence Act states that “[t]he person seeking to introduce an electronic record has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be”.
[33] In Hamdan, at para. 44, Butler J. characterised the same authenticity requirement in the federal Act as a “low threshold”. He relied on R. v. Hirsch, 2017 SKCA 14, at para. 18. The Saskatchewan Court of Appeal in that case agreed that, while authentication is required, “it is not an onerous requirement”, and could be satisfied by a witness identifying the document and presenting “some basis for authenticating it as what it purported to be”, endorsing that:
The standard of proof required is the introduction of evidence capable of supporting a finding that the electronic document is as it claims to be. In essence, the threshold is met and admissibility achieved by the introduction of some evidence of authenticity.
[34] In R. v. Donaldson, 2016 CarswellOnt 21760, at para. 25, Justice Paciocco (as he then was) cautioned that:
In order to determine what needs to be authenticated, the purpose for which the evidence is presented has to be borne in mind. In this case, the Crown’s theory is that these were Facebook messages originating from Mr. Donaldson as a result of what must be authenticated in this case is that there is an evidentiary foundation upon which it could reasonably be inferred that the messages were sent by Mr. Donaldson.
[35] Applying the principles in these cases, I find that the applicant has proved that the emails are authentic. The affidavits sworn by Maury and the two law clerks at Mr. Taylor’s office, in which they identify under oath the emails by reference to the sender, the recipient, and the date it was received, establish that the print outs are what they purport to be. The attached print outs contain the same fields that appears onscreen when an email is read in electronic form (for example, “From”, “To”, “CC”, “Subject”, “Date” and “Attachment”).
[36] The purpose of the authentication inquiry in this case is whether there is evidence upon which I could reasonably conclude that the emails were sent by Hazen. I have no problem making this finding, because the affiants state that they received the emails from him and Hazen does not deny sending them. The low threshold for proving authenticity is clearly met.
[37] With respect to the best evidence rule, ss. 34.1(5) of the Ontario Evidence Act states that “where the best evidence rule is applicable in respect of an electronic record, it is satisfied on proof of the integrity of the electronic record”. Further to ss. (5.1), integrity may be proved “by evidence of the integrity of the electronic records system by or in which the data was recorded or stored, or by evidence that reliable encryption techniques were used to support the integrity of the electronic record.” Integrity may be presumed in circumstances set out in ss. (7), which provides in part that:
(7) In the absence of evidence to the contrary, the integrity of the electronic records system by or in which an electronic record is recorded or stored is proved for the purposes of subsection (5),
(c) if it is established that the electronic record was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceeding and who did not record or store it under the control of the party seeking to introduce the record.
[38] Finally, ss. 34.1(6) specifically addresses proving the integrity of electronic records in the form of print outs:
(6): An electronic record in the form of a printout that has been manifestly or consistently acted on, relied upon, or used as the record of the information recorded or stored on the printout, is the record for the purposes of the best evidence rule.
[39] Having considered these provisions, my first observation is that there is no requirement in the Ontario Evidence Act for a party to produce emails in their original electronic form. The production of print outs is specifically contemplated.
[40] My second observation is that most of the emails in question in this case might well satisfy the best evidence rule, insofar as they were received and stored by computers at Mr. Taylor’s law firm or Ms. Lafrenière’s office have been consistently relied upon as the record of the information contained in them.
[41] My final observation is that I am not persuaded that the best evidence rule must be satisfied with respect to any of the emails. One key difference between s. 34.1(5) and s. 31.2(1) of the Canada Evidence Act is that the latter suggests that the best evidence rule applies in every case where a party seeks to rely on electronic records. By contrast, s. 34.1(5) explicitly recognizes that there may be instances where the best evidence rule does not apply.
[42] In Association of Management, Administrative and Professional Crown Employees of Ontario (Egesi) v Ontario (Treasury Board Secretariat), 2017 92677 (ON GSB), one of the few cases involving an argument like that raised by Hazen here, the arbitrator wrote, at paras. 24 and 25:
The “best evidence rule” provides that where a document was referred to in evidence by a party, the party was obliged to produce the original of the document if available in its hands. The rule provides that if a party failed to do so, then secondary evidence, in the form of a copy of the document, was not admissible. The concept of an “original” document is difficult to reconcile with electronic records. The provisions of section 34.1 of the Evidence Act, in part, address this by substituting provisions for proving the integrity of an electronic record when the best evidence rule applies.
This begs the question of when does the best evidence rule apply. The best evidence rule is no longer a strict rule of admissibility. Rather, an adjudicator has discretion to accept secondary evidence, subject to issues of weight, rather than the original depending on the circumstances of the case: see Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 4th Edition, at 18.32. Where there is a dispute about the precise contents of a document, for example the terms of a contract or a will, then it may be appropriate to strictly apply the best evidence rule: see The Law of Evidence in Canada, 4th Edition, at 18.39. However, in other circumstances secondary evidence may be admissible.
[43] In Al-Sajee v. Tawfic, 2019 ONSC 3857, at para. 42, Chappel J. cited long-standing authority for the proposition that the best evidence rule does not always apply:
With respect to documents, photographs and recordings, the “best evidence rule” evolved at common law as a means of assisting in addressing the integrity requirement. This rule requires the production of an original writing, recording of photograph where the content of the item is material to the case, unless the original is unavailable for some reason other than the fault of the party seeking to adduce the evidence (Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, Sopinka, Lederman and Bryant: the Law of Evidence in Canada, 4th ed. (Toronto: Lexis-Nexis, 2009), at para. 18.31). The common law rule has evolved to the point that it is not considered to be an absolute criterion for the admissibility or exclusion of an item of evidence, but rather “a general guide for choosing the appropriate method of proof” (R. v. Shayesteh (1996), 1996 882 (ON CA), 111 C.C.C. (3d) 225, [1996] O.J. No. 3934 (C.A.), at para. 90; R. v. Papalia, 1979 38 (SCC), [1979] 2 S.C.R. 256 (S.C.C.), at paras. 6-9, 260; R. v. Betterest Vinyl Manufacturing Ltd., [1989] B.C.J. No. 2324 (C.A.), at para. 23; R. v. deKock, 2009 ABCA 225 (C.A.), at para. 26).
[44] As I mentioned earlier, Hazen does not deny sending the emails produced by way of print outs identified by and attached to the applicants’ affiants, nor does he identify any material alterations. In this context, it is unobjectionable for the applicant to prove the emails through print outs, and it would serve no purpose to require them to provide them in electronic form.
[45] I accordingly find the print outs of emails admissible. Since the applicant’s affiants have not been cross-examined, and there are no obvious internal inconsistencies or deficiencies in their evidence, I find it generally reliable.
Hazen’s evidence
[46] Hazen has filed an affidavit sworn September 23, 2022. Among other things, he alleges that:
• Although he had a falling out with his parents as a result of his allegations of sexual abuse against them, he reconciled with his father in 2005, when his mother died. He kept in touch with his father through regular phone calls, letters and cards.
• Maury moved into the Stowgrass house in December 2019 or early 2020, prevented their father from using his car, dismissed his caregiver, and denied access by his companion, all against their father’s wishes. He also took their father to events over the Christmas and New Year’s holidays in 2019, preventing Hazen from talking to him by telephone.
• Throughout 2020, Hazen had difficulty accessing his father. He asked Maury to get Mr. Colbert new hearing aids as his had failed, or to buy a phone that would convert voice to text. Maury declined these requests. At some point that year, Hazen suggested that he could visit, despite his own doctor’s recommendation that he not travel. Maury told him that they were “not set up for visitors”.
• On February 28, 2021, Maury phoned Hazen to tell him that their father had passed away. They have not spoken since, despite Hazen’s attempts to reach him. Hazen denies, however, that Maury has ever told him directly that he does not wish contact.
• On March 1, 2021, Hazen contacted the funeral home used by their family. Although a conference call was planned with Maury the next day, it did not take place. A funeral home employee told Hazen later that week that Maury directed the funeral home not to contact Hazen or provide him with information about Mr. Colbert’s funeral or documents such as the death certificate or will.
• On March 2, 2021, Hazen alleges that Maury sent him an email saying that Mr. Colbert’s will was with “dad’s lawyer”. He says that Maury’s statement was false, since the will was with Chantal Lafrenière, a lawyer who represented Maury for a time but who did not draft Mr. Colbert’s will or otherwise act for him or for his Estate.
• On March 7, 2021, Hazen received a visit at his home from two RCMP officers who said they had been asked by Maury to do a wellness check on Hazen following their father’s death. In the following day, Hazen attempted to reach Maury through third parties, including a cousin and a priest, to offer mediation on the funeral services and the settlement of their father’s Estate. Maury did not respond.
• Hazen initiated the proceeding in Superior Court file CV-86088 on March 21, 2021, because he had not heard from his brother or the funeral home in several weeks.
• In mid-April, Maury’s new lawyer (presumably Mr. Taylor) contacted him to advise that probate could only be intiated through a r. 74 application, advice that Hazen describes as false information intended to torment and gaslight him. Mr. Taylor subsequently told Hazen that his father did not wish to have him attend his funeral. Hazen again characterizes this as “false information” for which “not one shred of evidence exists” and which is contrary to discussions he had with his father.
• Hazen had understood since no later than 2005 that the Stowgrass house would be jointly bequeathed to him and Maury. He says that the house was purchased with the proceeds of sale of the family’s previous residence, over which Hazen claims a trust interest.
• Maury’s intent in obstructing Hazen’s access to the will and other information after their father’s death was to conceal his undue influence over Mr. Colbert, his bankruptcy, and his misappropriation of his father’s money. From 2010 to 2018, Maury had no sources of income and was subject to a default judgment against him for $624,000. In the past, Maury has sold marijuana and he has a criminal record.
[47] In his affidavit, Hazen admits that he was informed of the July 7, 2021, injunction hearing and received Maury’s motion materials. He chose not to attend, because he felt he had not been properly consulted about the hearing date and time; he found the scheduling of a hearing at a time equivalent to 7:00 a.m. in B.C. to be ridiculous; he had not been personally served with materials; and he believed that the judge would be obliged to adjourn the hearing in his absence. He also asserts that Justice Williams’ order cannot be enforced against him as a B.C. resident.
[48] Although he has not been cross-examined, I find there are serious problems with Hazen’s affidavit on its face.
[49] First, key parts of it do not comply with r. 4.06(2) and 39.01(5) of the Rules, which provide respectively that:
“An affidavit shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where these rules provide otherwise”.
“An affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.”
[50] Some of Hazen’s allegations are not based on Hazen’s personal knowledge and do not indicate the source of Hazen’s information and belief. For example, he says he believes that his father did not have access to anyone but Maury from March 13, 2020, to his death early in 2021, but does not say why. In a few instances he says he got information about his father’s situation from an unnamed third party whose identity he withholds to protect that person’s safety. He otherwise does not say how he supposedly knows what he alleges. He has produced emails he sent to Maury in early 2020 that indicated that they talked about their father, and this may have been the source of some of his assertions. Be that as it may, allegations in Hazen’s affidavit that not based on his direct knowledge and that do not identify the source of his knowledge have no evidentiary weight.
[51] A second problem is that many of Hazen’s allegations are unsupported, vague, speculative, or implausible. For example, Hazen accuses Maury of lying in an email about the identity of the lawyer who had their father’s will. He purports to quote directly from that email but inexplicably fails to produce it. He says that his father and he discussed funeral arrangements, but does not say when these discussions took place. He mentions other conversations he allegedly had with various people without mentioning when they happened. Hazen alleges that Maury has been jailed for contempt after failing to appear at a civil hearing, which is unlikely and another example of an allegation in respect of which Hazen fails to mention the source of his belief or produce any corroborative evidence. More than a few paragraphs of the affidavit are not statements of fact but argument or speculation. These characteristics again limit the reliance that I can place on Hazen’s affidavit evidence.
[52] Third, some of Hazen’s assertions are contradicted by reliable evidence. For example, Hazen denies making any threats, and specifically denies threatening Ms. Lafrenière. This is contradicted by a large body of emails and letters that threaten Maury, Maury’s daughter, Mr. Taylor, Mr. Taylor’s wife, other lawyers at Mr. Taylor’s firm, and Ms. Lafrenière. He denies that any litigation was contemplated on March 7, 2021, when Ms. Lafrenière terminated her retainer for Maury. In an email sent to Ms. Lafrenière and Maury on March 6, 2021, the day before she ended the retainer, Hazen accused Maury of illegally breaking a locked box at the Stowgrass house and said he should get litigation counsel as well as a criminal lawyer.
[53] Fourth, some of Hazen’s evidence, particularly with respect to his relationship with his father, is internally inconsistent. He denies that he was estranged from Mr. Colbert, but describes him as an abusive, vengeful, homophobic man who disinherited Hazen because of his sexual orientation. In an April 11, 2022, email to Mr. Taylor, he said that he did not visit his father after 2005 in part because “I feared for my life from my sociopath father and criminally insane brother”.
[54] The many problems with Hazen’s affidavit evidence make it largely unreliable.
Is Hazen Colbert a vexatious litigant?
[55] Hazen’s conduct of the proceedings with the Estate has been vexatious, as evidenced by the following:
Hazen says he will use court processes to deplete their uncle and father’s estates and bankrupt Maury as “payback”:
[56] On January 15, 2021, Hazen wrote to Maury that he was challenging their uncle’s estate to obtain revenge for perceived historical wrongs and that he intended to deplete the estate’s value:
I have acted against the estate of William Lloyd Colbert because I am tired of the decades of deception. Decades. Will I be successful? Who knows? But I will extend the probate out until 2023 at least. When your lawyer contacts me, I will bury him in a tsunami of correspondence and we wrap things up in 2025. There will not be a dime left over to distribute. As for legal costs your lawyer will tell you ALL costs are borne by the estate. All costs. In any event there is NO legal mechanism to recover costs from me, not that I would ever pay anyhow. Settlement is always an option.
[57] In a similar vein, he wrote on March 14, 2021 to Maury:
Make no mistake about it Maury, it took me years of therapy combined with parallel legal training to replace anger/temper with court action. Years and not just once. Three intervals the last one being in 2008. I am good at what I do Maury, I know it and so does every lawyer in the Lower Mainland of BC. By July so will every lawyer in the Ottawa Valley. Notice how long some of the cases in the CSO (below) lasted. I used the legal system to put certain parties through Hell for years until their lawyers resigned and the respondents acquiesced.
[58] On May 31, 2021, after threatening to bring a Small Claims Court action in B.C. against Maury, thereby forcing him to retain counsel in that province, Hazen added: “There is nothing legal I will not do to recover the unjust enrichment, nothing”.
[59] In a June 14, 2021 email to Maury and Mr. Taylor, Hazen again referred to the use of court proceedings to obtain “payback” and to deplete their father’s Estate, even to the point of changing his will to ensure that litigation against his brother would continue after his death:
[W]hat is already likely going to be a 2-3 year litigation could easily go out 5+ years. I may be dead by then, but I have already changed my will to accommodate my successors continuing the matter. If my father can reach out from the grave to deny me, I can do the same thing to my brother. … Mr. Taylor now knows he is statute barred from getting costs out of me in BC so I am happy to sit back for the next five years and reduce the value of the financial assets of the Estate to zero. Then to have my successors take the house. It is not malice Maury, its payback. Dad obviously did not read Machiavelli. "If you intend to do harm to a man, do so much harm that you need not fear his revenge." I assure you and Mr. Taylor I will do that much harm.
[60] On November 8, 2021 letter to Mr. Taylor, Hazen made it clear that he intended to use litigation and the threat of litigation to force Maury to transfer the Estate over to him, writing: “It’s over. Maury either settles or I take the time to get control over the entire Estate and leave him living in a barn. Why would he want that outcome?”. On March 23, 2022, he again referred to using the court processes to get what was “owing to him” from his father in an email to Mr. Taylor:
If the unthinkable happens and Maury Colbert is named Estate Trustee there is not a remote possibility he will be able to complete the tasks while I exhaust every trick in the book to strike the Will. I will then just wait a few months and petition to replace him. The outcome in our matter is not going to change. The Will is going to be struck. You think that labeling me a vexatious litigant, which will not happen, and having Maury named as Estate Trustee will end my involvement. Not a chance. I will ignore the label and proceed to block every step of probate including inurnment. You thought I would give up after a year. Not a chance. I have 60 years of John Colbert owing to me and I am going to realize on every single one of them. You will be the stamp duty.
[61] In an April 4, 2022, communication to Mr. Taylor, Hazen again emphasized that he would obtain his goals without regard to the consequences and despite any authority that might resist him:
In any event, nothing could make me happier than finally burying the testator, ordering Maury Colbert out of my house (I assure you he will leave the house no matter the consequences to me), selling the house and splitting the Estate 50/50. Nothing less will be acceptable to me. You are living in a fantasy world if you think I will acquiesce to any body with contrary view or submit to arbitrary authority.”
Hazen says that he will not pay costs ordered against him
[62] I have mentioned Hazen’s January 15, 2021 email, to Maury, where he said that “there is NO legal mechanism to recover costs from me, not that I would ever pay anyhow”. Hazen’s determination never to pay any costs ordered against him has since been a recurrent theme in his communications to Maury and his lawyer. On May 31, 2021, he wrote to Mr. Taylor:
Please be clear: I am running the show, not my brother and not you. If you do not understand or accept that fact we will never complete probate. … I have already contacted the Ottawa Police and requested they accompany me to Stowgrass to remove the urn of my Uncle's ashes. I WILL NEVER pay a dime of costs.
[63] On June 2, 2021, he wrote to Mr. Taylor: “I wait your tedious vitriolic reply blubbering about costs. I do not pay costs. Never have, never will. And you are not my first rodeo.” A few days later, he wrote: “I am free to litigate with absolutely no consequences.” This was repeated again in a September 21, 2021 letter: “Cost awards can only be enforced if they are made as orders in judgements not in applications. Any costs from your Application against me, which of course there will be none, cannot be enforced on me.
[64] In some of these messages, Hazen expresses the erroneous view that costs orders will not be made against him in the context of estate litigation, or that they are unenforceable for a variety of reasons. What is most important, however, is that he has clearly stated that he will not comply with any such orders.
Hazen says he will disregard other court orders or that they do not apply to him
[65] Hazen has repeatedly stated that he will not respect any other orders made by this court, including but not limited to William J.’s July 7, 2021 order. On June 25, 2021, he wrote to Maury: “I am NOT under any authority of an Ontario judge and I will publicize whatever I want.”. Again on June 27, 2021, he told Mr. Taylor: “While you might get an order from an Ontario judge it will be a nullity in British Columbia and cannot be enforced here.” The following day, he wrote to Mr. Taylor:
I confirm I will not respect any orders issued in Ontario that violate the Charter (nor would any right minded person) including freedom of expression and the right to access the justice system including any publication ban and any branding me as a vexatious litigant. I confirm that there is no deterrent that exists in either the civil or criminal law that will prevent me from acting as I see fit that even remotely rises to the level of living with John Colbert in my youth. Any such orders will be appealed as is my right but you apparently think that if you label me vexatious I cannot appeal. Most interesting and certainly abuse of process.”
[66] On July 2, 2021, in a further email to Mr. Taylor, he reiterated that he would not comply with an order declaring him a vexatious litigant:
You are apparently somehow seeking to have me named as a vexatious litigant which you, again, somehow think would bar me from involvement in the Estate of John Colbert. Wrong. You are NOT the first party to threaten the vexatious litigant label on me. I know the requirements exceptionally well. … Now, in the event that you are successful in getting a vexatious decision designation, which you will not be, I will NOT comply with it.”
[67] On July 15, 2021, after Williams J. issued the temporary injunction, Hazen explained that he would circumvent it: July 2, 2021, in a further email to Mr. Taylor, he again affirmed that he would not comply with an order declaring him a vexatious litigant
If required, I would simply seek co-counsel who would file all required documents with the court including any document for court approval to proceed and do the rest of the work myself. It is that easy to get around being labeled a vexatious litigant. Nothing stops this train.”
[68] Four days later, Hazen again declared that he would disregard William J.’s order as well as other orders by this court, writing in a July 19, 2021 letter to Mr. Taylor:
AS THE RESPONDENT IN THE HEARING I HOLD AN ABSOLUTE AND UNEQUIVABLE [sic] RIGHT TO SUBMIT AS MUCH CORRESPONDENCE TO BHM, TO MAKE AS MANY PHONE CALLS AND SEND AS MANY EMAILS AS I DEEM NECESSARY TO RESPOND. AS A RESPONDENT TO A PROCEEDING NONE OF MY CORRESPONDENCE, PHONE CALLS AND EMAILS, EITHER IN NUMBER OR IN CONTENT CAN BE CONSIDERED VEXATIOUS. YOUR FIRM INITIATED THE PROCEEDING, YOU LIVE WITH THE CONSEQUENCES. PERIOD. INCLUSION OF CORRESPONDENCE, PHONE CALLS AND/OR EMAILS IN COURT SUBMISSIONS AS EVIDENCE OF VEXATIOUS OCCASIONS WILL BE TREATED AS ABUSE OF PROCESS AND I WILL SEEK AGGRAVATED DAMAGES, PUNATIVE DAMAGES AND SPECIAL COSTS AGAINST THE ESTATE, YOUR CLIENT AND YOUR FIRM. BE GUIDED ACCORDINGLY. … I am indeed using a scorched earth playbook exactly as you are doing, not to cause harm, but to litigate vigorously for relief, which is my right and that I will not ever allow a court to take from me even by order.
[69] In a lengthy letter to Mr. Taylor on August 9, 2021, Hazen wrote that he would consider any decision favourable to Maury “as a nullity to me”, “I know better than the court based on my experience with it to date”. He said that he would disregard any finding by this court that he was in contempt, even if he were jailed as a result:
The risk and deterrent effect of a conditional discharge matters even less to me than a vexatious litigant designation which, as you know, matters not at all. The same applies to contempt. I would not even acknowledge let alone comply with a caution, nor a decision of contempt. I could be incarcerated and the minute I am released I go right back to my mission doubling down with the viciousness of a pack of hyenas. (…) The no contact order in the endorsement is nullified. Again, it was not properly constituted. Ontario Superior Court has no jurisdiction against me, a non-resident, in such matters when I am outside the Province which I am. (…) Let me reiterate that I will NOT comply with a vexatious litigant designation albeit none will be made. Let me remind you, litigation is my life. I love it and I am damn good at it. I genuinely do not think you and my brother understand that seeking relief in the courts through probate law is only a first step. If I fail in probate, which of course I will not, I will turn to Canadian laws of restitution and unjust enrichment separate from the Will of the Estate to seek ½ the value of 23 Stowgrass independent of the Will. There are NO limitations in Canada on claims under restitution which is treated as an alternative to a tort. Any vexatious litigant designation, order of no contact, action that I am in contempt etc gets ripped up and I race forward like the Tasmanian devil and mow through anyone in my way like a hot knife through butter. I have been waiting 40 years for restitution and I am damn well going to get it in financial terms or PIK. Any court or other authority that tries to stop me I will respond to relying on the Finney case in the SCC while winning solicitor-based costs as an SRL. (…) How much of a haircut does BHM take when you are replaced by my counsel or the TD’s counsel? That is something I can do no matter how many vexatious litigant designations and orders that I am in contempt pile up against me.”
[70] This letter also reinforces that Hazen’s conduct is motivated by his conviction that he is owed restitution by his father for events decades earlier, as opposed to the grounds in his notice of objection.
[71] Hazen reiterated his belief that he was not obliged to comply with Williams J.’s order in further communications to Mr. Taylor on September 21, 2021 (“I am free to act as I want without the obstruction and interference of Justice Williams impeached endorsement notwithstanding that I expect my complaint to the Society will result in a process striking the endorsement”); November 8, 2021 (“Please stop whining about the silly endorsement which is a nullity”); January 24, 22: (“The Honourable court's endorsement that I do not contact you is moot and cannot be enforced. … The trump card is Pintea v Jones. No order against a self represented litigant can be made by a court unless the court makes itself available to explain the order to the SRL. Justice Williams is offside to Pintea by making orders absent me in the courtroom.”); and March 24, 2022 (“Ontario Superior Court has no jurisdiction over me regarding any of the orders you crafted through malfeasance. The first step after the case management conference is a hearing to strike the endorsement and nullify the July 7, 2021 hearing due to your misconduct and for lack of jurisdiction of the court under Rule 21.01 (3) (a).”); and June 23, 2022: “I am NOT under the jurisdiction of ANY civil court in Ontario.”)
[72] Finally, in a March 25, 2022 email to Mr. Taylor, Hazen stated that he would move to Mexico to avoid complying with orders of any Canadian court, writing: “I note that I have made peace with my maker. I hold Mexican citizenship and I am not under ANY publication ban by ANY Canadian court if I decide to use that citizenship”.
Hazen routinely threatens to bring other legal proceedings
[73] Although he has to date only initiated two legal proceedings against Maury (in addition to the notice of objection), Hazen has threatened a host of other legal actions against Maury, his lawyer, and others connected with his father’s Estate. He has, at various times, said he would bring the following proceedings:
• A motion for contempt if Maury does not respond to an email within 72 hours which, according to Hazen, could “result in the police attending your place of business or home and detaining you” (March 23, 2021);
• A Small Claims action or other civil action in B.C. (May 6, May 17, May 31, and August 9, 2021);
• A “production order for the probate of [their mother’s] Estate” (May 28, 2021);
• An application to the Ontario Human Rights Tribunal against the Estate and Maury alleging that Mr. Colbert discriminated against Hazen in his will (June 2, 2021);
• An action against Anne Moxley, who swore an affidavit that she witnessed Mr. Colbert signing his October 2017 will (June 5, 5021);
• An application for a lien against the Stowgrass house so that he could remove Maury from the property or require him to pay rent (June 7, 2021);
• An action against Mr. Taylor alleging that he was conspiring with Maury to conceal sexual assaults committed by Mr. Colbert and another individual (June 27, 2021);
• An action against Mr. Taylor for defamation;
• An application to obtain a declaration that Maury is dead, if Mr. Taylor failed to provide proof to Hazen’s satisfaction that he was still alive (February 17, 2022);
• An unnamed process to determine whether Mr. Taylor’s license to practice law should be revoked (April 4, 2022);
• An application to grant a national organization for self-represented litigants intervenor status in this proceeding (April 7, 2022);
• A criminal complaint against Mr. Taylor (April 11, 2022).
[71] Hazen has also stated his intention to amend his statement of claim in his March 2021 action in various ways and to seek to cross-examine a long list of individuals, including the family members of Maury and Mr. Taylor. He has also described various appeals or judicial review he will seek to challenge Williams J.’s order.
Hazen threatens to report Maury to the police or says he has already done so
[74] According to Hazen’s emails and letters, he has reported Maury to police or may do so, and he has suggested that Maury’s interaction with police could result in violence because Hazen told them that Maury has a gun.
[75] On March 18, 2021, Hazen wrote to Ms. Lafrenière after she had terminated her retainer for Maury:
As an officer of the court I am requesting you disclose to me the name and coordinates of the accountant for Maury Colbert and the Estate so I can apply for alternative service to the accountant. Failing that I will have to ask the court for an order that the Ottawa Police detain Maury until a judge or similar justice can serve him. Such an occasion can be rife with conflict and is a last resort.
[76] He followed this up with the following email to Maury the next day:
I contacted the Ottawa Police and provided them all the information I hold. You are going to be removed from the property. Lord knows where you will go. … Maury you are my brother. I implore you not to continue on this path. You are risking a jail term or worse. The police know you have a gun. When they come to remove you they will have guns drawn.
[77] On March 25, 2022, Hazen again threatened Maury with arrest. He also said that he had arranged to have Maury’s daughter, Sara, arrested when she arrived in Canada:
I will request that the Ottawa Police arrest you if you are found on the [Stowgrass house] or within 10 km of it. I pray you are not in the house when I arrive in Ottawa. The Ottawa Police have already agreed they will attend with me and clear out anyone who is not on the land title certificate. Good riddance. … Oh BTW, I am working on another application to have your daughter arrested when she lands in Canada for dad’s service. There are only 4 airports she can arrive [sic] and I have them all covered. I am good at what I do brother.
[78] On July 15, 2021, Hazen again represented to Mr. Taylor that he had reported his brother to police and had told the police that Maury had a gun:
I have reported my silver flatware set as stolen to the Ottawa Police Service. I have provided a detailed description of it. The police will find my brother and will question him. I will caution the police my brother has a criminal record, a boundless bankruptcy, is driving a 2011 Tiguan reported totaled in an Ottawa ice storm and has a long gun. Now, Sir, are you finally convinced at how serious I am. If Maury does not return the silver flatware set along with the Bunnies Picnic, I report the art next. Take your vexatious litigant application Sir, wrap it around a wire brush and stick it up your Giggy.
Hazen makes other threats
[79] On June 4, 2021, Hazen sent the following chilling email to his brother:
A friend of mine from Sacramento today told me a story today about a dog. The dog had been with his guardian for six years. The guardian had financial and health problems and was worried he could not keep the dog but relied on an expected bequest in his father's will. When the father passed he did not leave a bequest to the guardian because he did not like his lifestyle - he lived a genuine gay life. Ten months later the guardian had no choice but to give up his dog. He then drove to his sister's home who inherited and shot her dead in front of her children in the house. He then drove over to his sister's lawyer's office and shot dead her lawyer. He then drove to the police station and gave himself up. He received 4 years.
[80] Three days later, Hazen sent an email telling Maury:“You allowed that bitch Diane and her spawn Susan to fuck things up. I am going to get revenge no matter the consequences.”
[81] In addition to the email saying that Maury’s daughter would be arrested on her arrival in Canada, Hazen has sent other messages threatening her. On June 16, 2021, he left a voicemail for Maury asking for her address, saying I’ve got somebody in Ireland who is willing to pay a visit to her, her place, but we need to be sure of where her- she lives… .” On June 3, 2021, he told Mr. Taylor that he would issue a press release stating that he and Maury were “using the memorial as a negotiating pawn in the Estate matter”, and including their photos, home addresses, and telephone numbers, as well as photos of Maury’s daughter and Mr. Taylor’s wife.
Hazen accuses Maury of illegal acts
[82] Hazen has accused his brother of criminal acts including theft and murder. On March 6, 2021, he wrote to Maury, copying his lawyer at the time, Ms. Lafrenière:
You broke into the lockbox dad used to keep in the master bedroom closet, without an authoritative witness such as a police officer, and you took out the will. You did not photograph the occasion. You did not memorialize it in writing. You have no claim on the house. You do not live there, your name is not in the land title office, and you do not rent or have a lease. So you first broke into the home. Then you tampered with the will. … Maury, I would add a litigator and a criminal attorney to your team.
[83] On March 26, Hazen told Ms. Lafrenière that Maury had stolen items from the Stowgrass house and had destroyed their father’s will:
It appears that Maury Colbert has either destroyed the original will of John Ellsworth Colbert or fled the jurisdiction with it along with as much as he could pack from 23 Stowgrass into a vehicle. … What Maury Colbert has done or is doing is unprecedented in my life. Destroying a will or fleeing with it to avoid orders under a bankruptcy process is a serious criminal act never mind the civil law and torts involved.
[84] The next day, Hazen told Ms. La Lafrenière that Maury had a gun and also might commit arson, beliefs that he apparently shared with the Ottawa police:
I have every reason to believe that Maury Colbert or someone acting on his behalf will attempt to recover and destroy all copies of the will of John Ellsworth Colbert He is in possession of a firearm. It is a long gun. The police have been notified locally but have advised me they can do nothing unless Maury commits a crime. I expect he will use force and if not successful may burn down buildings to destroy the will. … He is on the run from some unsavoury people.
[85] On January 19, 2022, Hazen told Ms. Lafrenière in an email that Maury had committed “outright criminal fraud’ in the Estates of both their uncle William Colbert and their father.
[86] In June 2021, Hazen told Mr. Taylor that Maury had killed their father. In two separate emails on June 18, 2021, Hazen wrote:
My position is that my brother killed my father. … The first step of the criminal would be to get the body cremated before any other family member could attend to it and to prevent any family from observing the crime scene. Then to deny all documents to me. Then to never take calls, never to return calls, never to return emails. And then the red flag. To lawyer up immediately and refuse to say ONE WORD to anyone except through legal counsel. You are conflicted in this matter Sir.
I believe my brother may have killed my father after setting up the inheritance and having pilfered from the Estate. The evidence I have likely does not rise to the bar for criminal charges. It does rise to the bar in the civil court. Homicide would be new to my brother to the best of my knowledge, but just an extension of his criminal life.
[87] The same day, Hazen wrote directly to Maury that "there is absolutely enough evidence that dad's death was a homicide caused by you. Which means you are statue barred from inheriting ANYTHING.”
[88] Hazen has persisted in the allegation that Maury killed their father, stating in a September 20, 2022 email to Mr. Taylor: “I genuinely believe my brother killed my father. But I doubt I can prove it since Maury directed he be cremated with no advice to me or anyone. Of course he killed my father. I recommend you find a criminal attorney to sit second chair with you.”
Hazen regularly accuses Maury’s lawyers of unethical or illegal conduct
[89] Hazen has repeatedly accused both Ms. Lafrenière and Mr. Taylor of unethical or illegal conduct.
[90] On March 5, 2021, Hazen told Ms. Lafrenière that she had “violated several canons of the Law Society and outright lied regarding the Rules of Civil Procedure.” The next day, he directed her to “please explain how much trouble my brother is in now”, adding that: “A cynic would say you have been an accomplice.”
[91] Hazen has frequently accused Mr. Taylor of sharp practice. On June 3, 2021, he wrote to Mr. Taylor:
Your defence to my claim has now shifted to an allegation that I am estranged from my family and that neither my uncle nor father would have wanted me to attend their funerals. Other than a lawyer admitting to defrauding their own client, that statement is the sharpest piece of legal correspondence I have seen in my life. Only someone with serious mental health problems or a sociopath would put those words in formal correspondence in an Estate matter 3 months after the death of a father.
[92] The same day, Hazen made this same allegation to one of the other lawyers in Mr. Taylor’s firm:
Now Mr. Taylor claims his motion [to dismiss Hazen’s notice of action] triggers Rule 9 and prevented me from filing the note in default and amending the civil claim. Not only is he wrong, his behaviour is textbook sharp practice. …. What Mr. Taylor wrote is unacceptable and violates so many canons I cannot begin to list them. I will put his letter in front of the court and seek the rebuke of Mr. Taylor by the court with special double costs awarded to me. I will get them. You are not my first rodeo.
[93] On June 21, 2021, Hazen sent an email to Mr. Taylor saying that he had lied to him and “violated virtually every rule in the Ontario Superior Court rule system.”. A month later, he sent him a letter accusing him of having engaged in “systemic sharp practice” and “systemic abuse of process because Mr. Taylor had said that he would put Hazen’s correspondence between them before the court.
[94] By August 2021, Hazen was accusing Mr. Taylor of potentially criminal behaviour. On August 9, 2021, he wrote:
Your approach to the matter is not the vigorous support of your client’s interest. It exhibits a clear conflict of interest, is juristic malfeasance and may well rise to the level of criminal. … I am particularly concerned regarding your violation of Rule 3.2-5. … I will seek relief at our case management triage as I am legally allowed including seeking an order of contempt against you for your sharp practice such as bait-and-switch re the motion and application which I will lay out in detail… .
[95] On August 20, 2021, he supplemented his previous accusations with an accusation of perjury not only by Mr. Taylor but by others in his firm:
Why are you and your client systemically abusing process and your firm committing sharp practice against me through occasions such as the meritless, perjurious, vexatious Application instead of engaging in settlement? Why did your client make allegations of sexual assault the focus of his affidavit and the Application when they are subordinate to both the bankruptcy and the unjust enrichment which are virtually ignored except for lies including your lies about limitations? In how many other particulars has your client and BHM lied in affidavits and in correspondence to me? How many of your letters are punctuated by lies? When will your client and your firm cease perjury, lying, abuse of process and sharp practice against me and the justice system?
[96] On September 21, 2021, he repeated the perjury allegation, writing that Mr. Taylor had “engaged in lawyer misconduct including, but not limited to, submitting two affidavits to the court which you knew were perjurious and committing sharp practice including, but not limited to, the creation of the orders you submitted to the court.” Two weeks later, on October 1, 2021, he added allegations of harassment.
[97] Hazen has not relented in accusing Mr. Taylor of misconduct, for example in letters on December 20, 2021, and on January 27, April 4, July 5, and July 13, 2022. On April 26, 2022, he stated in an email that: “I have never even observed let alone experienced so much misfeasance and misconduct in a legal matter than I have with you and your client.”
Hazen threatens Maury’s lawyers, their colleagues and family members
[98] Hazen has threatened both Ms. Lafrenière and Mr. Taylor, as well as Mr. Taylor’s colleagues and family.
[99] This began on March 5, 2021 when, upset that Ms. Lafrenière had not returned his calls as quickly as he wished, he suggested that he knew where she lived, writing:
I have the best internet and telephone line tracer in Ontario on my team. You alleged you were travelling and that is why you could not respond to me. Yet your call to me tonight came from a land line in the Ottawa Valley, in fact I can tell you the exact address.
[100] The next day, Hazen warned Ms. Lafrenière and Maury that they would ignore his instructions to them at their peril:
I caution each of you to cease obstructing my private affairs. Chantal you are well aware that I am referred to locally as a brawling litigator, a reference I hold dear. Also I am referred to as loud, obnoxious and brash. I have that reference framed. Maury, you label me an emotional vampire. Baby, you ain’t seen nothing. I sent a seasoned female lawyer storming out of a BC Supreme Court courtroom in tears in 2016. The Clerk was as white as a ghost and the judge made his way out the back door like a bat out of hell. The undersigned has no filter and no sacred cows. I will use every legal tool available to seek relief. Ignore my entirely legal advice at each of your peril's. Am I clear?
[101] Later that day, Hazen wrote a further email to Ms. Lafrenière, cautioning her that he would hold her responsible “for ANY misfeasance by Maury Colbert.” She terminated her retainer that week. Ten months later, seeking to obtain information from her, Hazen wrote to Ms. Lafrenière that she would regret having agreed to represent Maury. In his January 19, 2021 email, he implied that her successor, Mr. Taylor, had gone missing after attempting to obstruct Hazen:
You made the mistake of getting involved with Maury Colbert when he came to you in December 2020, you will regret it. But your relief will be on Maury Colbert not on me. Do not remotely attempt to obstruct me in this matter. Mr. Taylor tried it. Now he has gone AWOL. Am I clear?
[102] In a May 20, 2021 letter, Hazen wrote that his strategy had implications not only for Mr. Taylor, but anyone in Mr. Taylor’s firm and “anyone dependent” on him:
I cautioned you re the scorched earth playbook. You ignored me. Scorched earth does not mean only Maury Colbert, it means every lawyer in your firm, every employee in the firm, you and by extension anyone dependent on you.
[103] On June 2, 2021, Hazen threatened to visit Mr. Taylor’s office and his home:
Once I arrive in Ontario I can come to your office 3-4 times a day instead of sending correspondence. I do not go to lawyer's homes when they are female and live alone or with children. Men are a different bucket of fish. I find such approaches a refreshing change from the stuffy atmosphere of the courtroom. Do you?
[104] As already mentioned, Hazen wrote an email a day later saying that he would publish Maury’s daughter’s phone number, address, and photo. He likewise threatened to publish a photo of Mr. Taylor’s wife, along with their home address and telephone number.
[105] In his August 9, 2021, letter to Mr. Taylor, Hazen threatened to report to the authorities that Bradley Hiscock McCracken was involved in money laundering in order to shut the firm down:
If BHM resists me in any way including putting any part of this correspondence and/or any correspondence subsequent to July 7, 2021 before the court, I will request FINTRAC freeze the firm’s lawyer’s trust account pending a review re money laundering. … I will shut down BHM if required if you continue to obstruct me from legally retrieving my stolen property and closing out the Estate including applying to the court to vary the terms of the Will which is my right as the son of the deceased. My father did not respect my wishes while he was living. I won’t respect his when he is dead. You can obstruct or high tail it out of Dodge. (…)
My father’s bank account is frozen as per my direction. It will take a court order to unfreeze it. I again caution you on even trying to get such an order, consequences to you and BHM detailed earlier in this letter.
[106] The excerpts I have produced represent but a sample of Hazen’s communications over the past 22 months. Consistent with his threat at the outset to bury Maury and his lawyers in a “tsunami” of correspondence, he has since sent them hundreds of emails and letters. Between April 28 and June 15, 2021 alone, he sent Mr. Taylor 109 emails, or an average of 2.22 emails every day. After Williams J. issued the July 7, 2021 order, Hazen expressed the view that it did not limit the quantity of communications he could continue to send to Mr. Taylor.
[107] Hazen has engaged in other vexatious conduct. On May 4, and 6, 2021 and again on January 19, 2022, Hazen left voicemail messages for other lawyers in Mr. Taylor’s firm after not getting a return phone call from Mr. Taylor right away. In these messages, Hazen expressed the view that he had the right, “under the Rules and under the canons of the Law Society of Upper Canada”, to call every lawyer in the firm until one of them phoned him back. In the January 2022 messages, he said that he would be calling, emailing, and faxing every lawyer at the firm three times a day, going forward, until Mr. Taylor responded. He added that, if anyone complained to police that he was harassing them, “I’ll ignore them the same way Mr. Taylor ignores me”.
[108] Hazen has called the competence and honesty of court staff and judges into question. For example, he expressed the view that Mr. Taylor was being “enabled” in misconduct by the registrar and the court; he has referred to “systemic institutional bullying by the Ontario Superior Court” towards himself as a self-represented litigant; and he has accused Williams J. of “jural misconduct”. A contemptuous attitude towards court personnel and judges is another hallmark of a vexatious litigant.
[109] Hazen has begun proceedings for relief that he cannot possibly obtain. In his amended statement of claim in file CV-21-86088, he seeks an injunction prohibiting Maury from living at the Stowgrass house pending the completion of probate; orders against unnamed parties; and wholesale re-writing of his father’s will. In the original statement of claim and his application, he sought to force the probate of the Estate.
[110] Hazen’s conduct has significantly increased Maury’s legal costs. Every time he has sent a letter or email to Maury’s lawyers, they have had to spend time reading them, determining whether any response is needed, and advising their client about them. I infer that the volume, content, and tone of his communications was one of the reasons why Ms. Lafrenière terminated her retainer. Hazen has in fact boasted that she was intimidated by what she had heard about his modus operandi in legal proceedings in B.C. Maury was obliged to make a motion for a temporary injunction to restrain Hazen from communicating him directly or coming near him, Mr. Taylor, or their respective families.
[111] This sort of behaviour could, in most cases, be addressed eventually through a costs order. Hazen however boasts that this court’s has no jurisdiction over him, that its decisions are not enforceable against him, and that he will not comply with its orders, in particular costs orders. This is not an idle boast, as he has defied Williams J.’s order by calling Mr. Taylor’s colleagues and sending Mr. Taylor emails and letters discussing matters outside of this application.
[112] In Dobson v. Green, 2012 ONSC 4432, at para. 7, Campbell J. described vexatious litigants as “typically self-represented litigants who seem intent, through a series of persistent and fruitless proceedings, on wearing down their opponents through an ongoing battle of attrition”. The battle waged by Hazen primarily takes the form of emails and letters rather than proceedings, but the intent is the same. He has stated that his legal strategy is to put opponents “through Hell” until their lawyers resign and they are forced to settle. He has declared that his legal strategy — the tsunami of letters and emails, the threats to bring legal proceedings, the intimidation of Maury and his lawyers, his threats against their family members — are tools in a campaign to wreak vengeance on his late father and reduce his Estate to zero, thereby depriving Maury of the Stowgrass house and impoverishing him. This is an improper purpose.
[113] Hazen argues that he cannot be found to be a vexatious litigant because his claims have never been adjudicated and found to be unmeritorious. He further argues that nothing he does in connection to his notice of objection can be taken into consideration under s. 140 in the Courts of Justice Act.
[114] It is true that most s. 140 applications involve a litigant who has repeatedly sued or complained against a party (and, often, their lawyer). Multiple proceedings are not a prerequisite for a finding that someone is a vexatious litigant, however. Section 140(1) identifies two circumstances where relief may be sought: where a person has instituted vexatious proceedings or where they have “conducted a proceeding in any court in a vexatious manner”. On a straightforward reading of the provision, evidence of multiple proceedings is not required where a person has conducted a single proceeding vexatiously.
[115] Hazen argues that his notice of objection does not constitute a “proceeding” as the term is used in s. 140. He relies on s. 1.03(1) of the Rules of Civil Procedure, where “proceeding” is defined as “an action or an application”.
[116] The definition of “proceeding” in s. 140 of the Courts of Justice Act is not the same as the definition in the Rules. The term “proceeding” is not defined in the Act and it is used to refer to a wide array of matters. Among other things, proceedings include appeals (s. 6(1)) or any other matter “arising from a case” (s. 6(4)); prosecutions under the Criminal Code or the Provincial Offences Act (s. 40(2)); and proceedings before a board or tribunal (s. 109). The Act also refers generally to the conduct and costs of proceedings, which could include costs of a motion. Nothing in the Act suggests that the term “proceeding” in s. 140 would exclude a notice of objection filed in response to an application for a certificate of estate trustee.
[117] I furthermore note that the vexatious conduct at issue here is not confined to Hazen’s conduct in relation to the notice of objection. He has also begun an action as well as a separate application against Maury and the Estate. In these proceedings, as in the notice, he makes allegations that figure in his email and letter campaigns.
[118] Hazen argues that other reported cases involve misconduct over a long period of time. Where, however, an applicant can prove obviously vexatious conduct by a respondent, they do not need to suffer for years before seeking the court’s intervention to curb the misuse of the justice system for improper ends.
[119] In any event, Hazen’s use of vituperative emails to leverage settlement of grievances is not confined to this case. In Colbert v. District of North Vancouver, 2018 BCHRT 40, the B.C. Human Rights Tribunal described his interactions with the Council for the District of North Vancouver between 2010 and 2018. Hazen had sent over 800 messages to councillors, the mayor, and District Staff. These messages included demeaning comments about the councillors’ appearance; threats against councillors, their spouses and children; verbal attacks against the legal counsel for the District; and promises to retaliate if the District did not engage in settlement discussions with him. When the Council adopted a policy to redirect his mail to the municipal clerk, Hazen filed a human rights complaint alleging that the District was discriminating against him because he is gay and has advocated for LGBTQ issues. The Tribunal dismissed Hazen’s complaint on the grounds that it had no reasonable prospect of success and ordered him to pay costs.
[120] Hazen’s vexatious behaviour in this case mirrors the conduct described by the B.C. Human Rights Tribunal. Even though Hazen’s conduct in this file dates only from January 2021, I consider his actions in that matter relevant to my conclusions here.
[121] Although he is atypical insofar as he has so far only brought two proceedings against Maury in addition to his notice of objection, Hazen has threatened to bring many more. He has openly admitted that his primary purpose in engaging in litigation and threats of litigation is to exhaust his brother, financially and otherwise, so that he will agree to give him a greater portion or all of their father’s Estate. He is furthering this purpose through a relentless campaign of emails and letters to Maury and his lawyer. His actions prompted Maury’s first lawyer to resign. Hazen has boasted that he will disregard court orders and make false reports to the police and other authorities. He has in fact done so. If he does not get his way, Hazen has threatened to string out the probate process for years. At the hearing before me, he confirmed that his will contains directions to his executor to continue to pursue ongoing litigation against the Estate.
[122] I conclude that Hazen has conducted proceedings in a vexatious manner and that the applicant is entitled to a declaration to this effect under s. 140 of the Courts of Justice Act.
What other orders should I make?
[123] Section 140(1) provides that, where a judge concludes that a person is a vexatious litigant, the judge may order that no further proceeding be instituted by the person in any court, and a proceeding previously instituted by the person in any court may not be continued, except by leave of a judge of the Superior Court. Courts have, however, recognized that it may be appropriate and necessary for the court to control own processes by making orders against vexatious litigants beyond what is specifically contemplated at s. 140.
[124] I am ordering that, unless he first obtains leave from a judge of this court, Hazen is not permitted to institute any other proceedings against Maury, either in his personal capacity or as an estate trustee, or against the Estate of John Ellsworth Colbert or the Estate of William Lloyd Colbert, or against any lawyer or law firm that has acted for Maury or Mr. Colbert or William Colbert or either Estate, or to institute any other proceedings in connection with either Estate. Hazen is likewise prohibited from taking any step with respect to his action in court files CV-21-86088 or CV-21-86458 or in respect of his notice of objection that gave rise to this proceeding, CV-21-86849, unless he first obtains leave from a judge of this court. I am appointing myself as the case management judge with respect to these proceedings as well as any proceedings involving the Estate of William Lloyd Colbert. This means that I shall adjudicate any motions for leave brought by Hazen pursuant to this order.
[125] Maury asks that I strike Hazen’s notice of objection under r. 2.1 or r. 21.01(3)(d), noting that s. 140(5) of the Courts of Justice Act provides that: “Nothing in this section limits the authority of a court to stay or dismiss a proceeding as an abuse of process or any other ground”. Maury argues that there is no evidence to support any of the grounds raised in the notice of objection. Even if there were, he contends that a vexatious pattern may justify the striking out of pleadings, as held in Hudson v. Trip, 2022 ONSC 2371, at paras. 9 and 10.
[126] This request is not without merit.
[127] As held by the Court of Appeal in Johnson v. Johnson, 2022 ONCA 682, which endorsed analysis in Neuberger v. York, 2016 ONCA 191, 395 D.L.R. (4th) 67, and Seepa v. Seepa, 2017 ONSC 5368, a person seeking to challenge a will in Ontario or the appointment of an estate trustee under a will must meet a minimum evidentiary threshold. Based on the evidence to date, most, if not all, of Hazen’s objections to Maury’s appointment appear to be groundless. There is some evidence that Maury has been in financial difficulty. That evidence, at least so far, falls short of establishing that he is personally bankrupt or insolvent such that his appointment is barred under s. 3(1) of the Trustees Act, RSO 1990, c T.23, or that Maury is otherwise incompetent to act as an estate trustee. There is no evidence indicating that Mr. Colbert lacked the capacity to execute his October 2017 will. The opposite is in fact true: correspondence tendered by Hazen shows that his father was planning to travel to Florida in 2018, and there are no concerns raised about any cognitive decline until April 2020. There is likewise no credible evidence of any undue influence exerted by Maury or any evidence suggesting that the October 2017 will is inauthentic or that it has been tampered with.
[128] I nonetheless conclude that it would be premature to exercise the gatekeeper function in Johnson, Neuberger, and Seepa., and that Maury’s allegations are not so obviously devoid of merit that they should be struck under r. 2.1 or r. 21.01(3)(b). The situation is distinguishable from that in Hudson v. Trip, where the objector failed to file any evidence or to attend a hearing. Although I have grave concerns about the reliability of Hazen’s evidence, and although his motivations for challenging Maury’s appointment as estate trustee are deeply suspect, I find he should have a further opportunity to present evidence and argument on his notice of objection.
[129] I am therefore prepared to grant Hazen leave to participate in the proceedings arising in this case, CV-21-86849, subject to certain conditions.
[130] In cases including Landmark Vehicle Leasing v. Marino, 2011 ONSC 1671, Dobson v. Green, and Anthony v. Vinczer, 2021 ONSC 6481, courts have barred vexatious litigants from seeking leave to take any further steps in proceedings until they had paid all outstanding costs awards against them.
[131] Maury has been successful on the main issue on this application, Hazen’s designation as a vexatious litigant, and so is entitled to costs. I have not yet received his costs outline but his legal fees to date were described by Mr. Taylor as “staggering”. This is not surprising given Hazen’s conduct. Hazen has said over and over again that he will never pay any cost orders by this court. One of his stated intentions is to deplete their father’s estate, leaving Maury with nothing.
[132] At the hearing of this application, Hazen dismissed his repeated avowals that he would never pay costs as hyperbole. He denied that he has ever failed to comply with a cost order, but then admitted that he had failed to pay costs in one case in B.C., at least “for a while”. Hazen then undertook to pay costs awards by this court … but only if he agrees with them. This did not persuade me that concerns about Hazen’s willingness to comply with court orders are misplaced.
[133] Given these circumstances, and assuming the parties will be unable to agree on costs, I am ordering Maury to serve and file a costs outline, not to exceed three pages in length, and any supporting documents, by February 13, 2023. Maury shall have until February 27, 2023, to serve and file any responding submissions, which shall not exceed three pages in length, and any supporting documents. Once I have fixed costs, Hazen shall have 30 days to pay them. If he fails to do so, he will not have leave to contest Maury’s application for appointment as Estate Trustee of Mr. Colbert’s Estate or to take any other steps in any other litigation against Maury or the Estate, and I will adjudicate Maury’s application for a certificate of appointment without any further hearing. If Hazen pays costs ordered, Maury shall obtain a return date from the case management office for a hearing on an order under r. 75.06(3). I will convene a case management conference with the parties once that that date is fixed to provide directions on a timetable and other procedural matters.
[134] Maury also seeks an order requiring that Hazen be represented by a lawyer in any further litigation against him. Such an order was made by the Court of Appeal in Lochner, which parallels this case in some ways. Hazen, like Mr. Lochner, can be described as a “lifestyle litigator”; Hazen’s stated mission is to promote the rights of self-represented litigants, and he is very proud of his track record before the courts in B.C. Lochner however involved an individual who engaged in an “unyielding course of harassment extending for more than a decade”, “extraordinary circumstances” that demanded “exceptional” relief: Lochner, at para. 34. At this point, I do not find the circumstances in this case so extraordinary as to deprive Hazen of the ability to represent himself.
[135] Finally, Maury seeks to transform Williams J.’s temporary order into a permanent injunction. He contends that Hazen has committed the torts of intentional infliction of mental suffering, intimidation, and intrusion on seclusion, and that final injunctive relief is needed to protect against further tortious conduct threatened by Hazen. In his affidavit, Maury says that his brother’s threats have caused severe emotional distress to him and his family, and to Mr. Taylor and his wife. Hazen denies that Maury has proved the constituent elements of any tort.
[136] On the limited current record, I am unable to determine whether the torts claimed by Maury are made out. I do find it appropriate to extend Williams J.’s temporary order to the resolution of the proceedings between the parties, either by way of final judgment, discontinuation, or settlement.
[137] As a result, as long as proceedings in court files CV-21-86088, CV-21-86458, and CV-21-86849 are ongoing, Hazen is prohibited from:
• contacting Maury or his immediate family directly through any means;
• coming within 100 metres of Maury’s residence or workplace, or the residence or workplace of any immediate family member;
• coming within 100 metres of the residence or workplace of Sean Taylor;
• contacting Sean Taylor, except by email for the purpose of scheduling any procedural step, responding to specific requests made by Mr. Taylor, paying a cost order, or serving pleadings or other documents under the Rules;
• contacting any immediate family member or work colleague or partner of Sean Taylor, by any means; or
• releasing any personal information or photographs of Maury or members of his immediate family (except for Hazen himself) or releasing personal information or photographs of Sean Taylor or Mr. Taylor’s immediate family.
Disposition
[138] The application is granted in part, with costs to be fixed. Given the history, I do not find it realistic to expect the parties to confer on the order to issue. The applicant shall instead serve and file a draft order consistent with these reasons for my review. If the parties are unable to agree on costs, they shall make submissions on this issue as set out above in paragraph 133.
Justice Sally Gomery
Released: February 2, 2023
COURT FILE NO.: CV-21-86849
DATE: 02/02/2023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MAURY J. COLBERT as Applicant for a Certificate of Appointment of Estate Trustee for the Estate of John Ellsworth Colbert
Applicant
– and –
HAZEN SPENCE COLBERT, SARAH RAE COLBERT-KAIP, and ARBOR MEMORIAL INC.
Respondents
decision on APPLICATION FOR DIRECTIONS UNDER R. 75.06 and FOR ORDERS under s. 140 CJA
Justice Sally Gomery
Released: February 02, 2023
[^1]: It is unclear whether the revised statement of claim was validly amended, since it is not identified as an amended statement of claim on its face and not all changes to the original statement of claim are identified through underlining or marginal bars.