COURT FILE NO.: CV-00001941-0000

DATE: 20230208

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Steven Tonner, Applicant

AND:

Real Estate Council of Ontario, Ontario Real Estate Association, Edward Barisa, Oswald Logozzo, Robert W. Eby, Robert W. Eby Real Estate Ltd., Arlene Bonilla, Rocchina Golden, Shelly Koral, Respondents

BEFORE: Justice V. Christie

COUNSEL: Self-represented Applicant

N. Vandervoort, counsel for the Respondent, Real Estate Council of Ontario

Barry Stork, counsel for the Respondents, Ontario Real Estate Association, Edward Barisa, Oswald Logozzo, Robert W. Eby, Robert W. Eby Real Estate Ltd., Rocchina Golden, and Shelly Koral

No one appearing for the Respondent, Arlene Bonilla

HEARD: January 26, 2023

At the outset of this hearing, the Applicant identified as Stephanie Tonner, and requested to be referred to as Ms. Tonner. This will be respected throughout this ruling. Having said that, the style of cause must remain as is for consistency in the court file. Further, there may be quotes from earlier proceedings where Ms. Tonner is referred to as Steven Tonner or Mr. Tonner. This court intends no disrespect to the Applicant by continuing the style of cause or by quoting earlier passages.

RULING ON request to rescind vexatious litigant order

CHRISTIE j.

Overview

[1] This application, brought by the Applicant, Stephanie Tonner, requests the following relief:

a. Rescind, void, set aside, reverse, or stay the Order made by Justice Edward Belobaba on October 23, 2006, which declared the Applicant as a vexatious litigant;

b. A declaration that the Applicant’s Charter Rights have been violated, specifically ss. 7, 8, 9 and 15; and

c. Costs of this application.

It should be noted that, in the Notice of Application, no Charter violation was alleged.

[2] The Applicant argued, in part, that the vexatious litigant order was made using “vexatious principles” and was also a violation of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194, specifically Rule 1.09 and Rules 2.01(1)(a)(b). More specifically, the Applicant argued that Justice Belobaba could not provide reasons why the small claims court action and judicial review application were frivolous, without ignoring Justice Kiteley’s stay granted on March 10, 2005. It was submitted by the Applicant that the vexatious litigant order was not proper or necessary at the time it was made and is not proper or necessary now, given that it adds extra expense to proceedings and creates prejudice toward her.

[3] All named Respondents, with the exception of Arlene Bonilla, took part in this Application, represented by counsel, and seek that the Application be dismissed with costs to them. The Respondent, Real Estate Council of Ontario (“RECO”), argued that this application should be rejected, as this application is nothing more than Ms. Tonner seeking to re-litigate matters that were deemed vexatious, and varying the Belobaba Order in any manner is not in the interests of justice. The Respondents, Ontario Real Estate Association (“OREA”), Edward Barisa, Oswald Logozzo, Robert W. Eby, Robert W. Eby Real Estate Ltd., Rocchina Golden, and Shelly Koral, argued that, based on Ms. Tonner’s conduct over the last twenty years, if the Belobaba Order is rescinded, or otherwise set aside, it is foreseeable that the Applicant will once again file additional vexatious lawsuits.

[4] It is of note that in the Applicant’s affidavit of July 19, 2022, she stated at para 5:

This Affidavit is to demonstrate that the Respondents and all the corrupt lawyers ought to be held accountable, and to reverse any and all sanctions against me, in any Court in Ontario, including the Court of Appeal.

Of course, it is not within this Court’s power to grant this relief.

[5] On this application, the focus of this court is on whether to rescind, void, set aside, reverse, or stay the Order made by Justice Edward Belobaba on October 23, 2006, which declared the Applicant as a vexatious litigant.

Background Information

[6] There has been a long history between the parties. It is important to review some of the history to put this application in its proper context. This history is not meant to be exhaustive.

[7] The Applicant holds a bachelor’s degree in Administrative Studies. She also has an accounting designation and training in public accounting.

[8] The Applicant held a real estate licence as a salesperson for twenty years – from 1985 to August 17, 2005. The Applicant was a member of RECO. This court has no reason to question the suggestion that the Applicant provided helpful service to the public for many years.

[9] In early May 2003, the Applicant claims that while attending a class at OREA, located at 99 Duncan Mills Road, North York, out of interest in property management, Oswald Logozzo interrupted the class in session by yelling, and advised Robert Eby, the instructor, to have the Applicant removed from the classroom. The Applicant states that she was “dragged out” of a “peaceful classroom”, with Mr. Logozzo claiming that the class was not paid for by the Applicant.

[10] In the days following, Oswald Logozzo, then Director of OREA, made a complaint which alleged that Ms. Tonner acted unprofessionally and contrary to RECO’s Code of Ethics while dealing with the staff at OREA and attending a property management course at OREA in late April and early May 2003. The complaint alleged that Ms. Tonner made racist and anti-Semitic statements and engaged in inappropriate conduct in the OREA setting. The Applicant argued that on or about May 2, 2003, Oswald Logozzo “displayed private information of the Applicant” used in his “complaint letter”, and that the letter was sent directly to RECO’s Allan Johnson, Registrar, for the purpose of circumventing normal complaint procedure.

[11] The complaint was referred to a panel of the Discipline Committee and a hearing was held on June 2, 2004. Legal counsel for the panel was Doug Cunningham. Anita John was the legal counsel for RECO prosecuting the case. Ms. Tonner did not attend the hearing. Ms. John summarized the facts at the request of the Chair as follows:

This is a RECO discipline hearing against Mr. Steven Tonner, who’s a sales person registered with RECO. The allegation is very simple, that he acted in an unprofessional manner by number one, verbally abusing a member of the public, number two, discriminating against people of colour of various ethnic or religious backgrounds and number three, uttering anti-Semitic remarks.

The witnesses called at the hearing were: Arlene Bonilla, an employee at OREA who claimed to have heard comments first hand; Rocchina Golden, who claimed to have heard comments first hand; Oswald Logozzo, President of OREA, who testified about the reaction of his staff; Jeremy Rakowsky, who claimed to have heard Ms. Tonner utter anti-Semitic remarks in the classroom of OREA; Robert Eby, instructor at OREA, who was in the classroom teaching on the day that certain events were alleged to have occurred; Wendy Pettitt, RECO’s compliance officer, who recommended the file proceed to discipline; and RECO’s researcher, Bruce Jackson.

[12] On June 10, 2004, the Discipline Committee released its decision dated June 2, 2004, finding that Ms. Tonner had violated RECO’s Code of Ethics, specifically Rules 9, 22 and 47. The panel ordered Ms. Tonner placed on probation for two years and ordered her to pay a penalty of $5000 to RECO within 30 days of sending the decision. In its reasons, the Panel stated in part as follows:

After considering the testimony of RECO’s witnesses, and after reviewing the documentation submitted into evidence, the Panel has concluded that Tonner did indeed breach Rules 9, 22 and 47 of RECO’s Code of Ethics. Rules 9 and 22 prohibit abusive and discriminatory conduct while a Member of RECO is “acting in a professional capacity”. The Panel has considered whether Tonner’s attendance at an OREA course, the purpose of which is to educate realtors in matters relating to the profession (including trading in real estate), entailed Tonner “acting in a professional capacity”. The Panel has determined that the answer to that question is yes.

[13] In this court, the Applicant has raised a number of concerns regarding the Discipline Committee and its decision, including:

a. That the panel was “hand-picked”;

b. That the panel ignored the issue of jurisdiction and the Real Estate Business Brokers Act;

c. That Keith Guerts acted as a “de-facto fourth panel member”, stating, “I am sitting in the body of the panel representing the Ontario Real Estate Association”;

d. That Ms. John, the RECO prosecutor, asked witness #6:

Ms. John:….do you have any recollection of any comments Mr. Tonner made with respect to Liberals?

Witness #6: Meaning Liberal government?

Ms. John: Yes?

Witness #6: No, I…no, I have no recollection of comments about Liberals, no.

The Applicant argued before this court that this did not have central importance to the real estate industry and that section 2(b) of the Charter applies. The Applicant referred to Groia v. Law Society of Ontario, 2018 SCC 27, [2018] 1 S.C.R. 772.

[14] Following the release of the panel’s decision and reasons, Ms. Tonner brought an application for judicial review, however, this application was commenced prior to pursuing the matter with RECO’s Appeals Committee. On July 20, 2004, RECO was successful in having the application for judicial review struck by Justice Epstein on that basis. Justice Epstein awarded costs fixed in the amount of $1500 to RECO.

[15] On August 11, 2004, at the behest of Ms. Tonner, a summons was issued to the Real Estate Council of Ontario, setting out that they were charged under the Real Estate Business Brokers Act pursuant to section 50(1). The date and place alleged in the summons corresponded to Ms. Tonner’s discipline hearing before RECO’s Discipline Panel. The charges were:

a. Furnished false information in any application under this act or in any statements or return required to be furnished under this Act or the regulations;

b. Failed to comply with any order, direction, or other requirement made under this act or contravenes any provision of this act or the regulations;

c. Every director or officer of a corporation who knowingly concurs in such furnishing failure or contravenes is guilty of an offence.

[16] Following the decision of Justice Epstein, Ms. Tonner appealed the Discipline Committee’s decision to the RECO Appeals Committee.

[17] On October 27 and December 13, 2004, the appeal from the Discipline Panel was before the RECO Appeals Committee. On October 27, 2004, the matter was scheduled to proceed, however, Milton Chambers, counsel on behalf of Ms. Tonner, requested an adjournment, indicating he had been retained only two days prior. Mr. Chambers agreed to argue the case if it were adjourned to December, but would not argue the case if it proceeded that day. Over the objections of RECO that the Rules which provided a procedure for requesting an adjournment had not been followed, the Appeal Panel granted the adjournment.

[18] On December 13, 2004, Milton Chambers again appeared for the Applicant, however, the Applicant states that the lawyer was only acting “in his capacity as Barrister and not as Solicitor of Record…” Mr. Chambers made arguments on Ms. Tonner’s behalf, including that the Discipline Panel did not have proper jurisdiction to hear the matter and that the conduct complaint did not fall within the parameters of the Rules. It was argued that at the material time, while attending the class, Ms. Tonner was not acting in a professional capacity, given that attending class did not involve a transaction or trade, she was not representing a client, and there was no prospect of compensation for her as part of that process. Christopher Bredt for RECO argued that the Discipline Panel did not commit any palpable or overriding error in conducting its hearing and, accordingly, should be upheld.

[19] On December 13, 2004, the Appeal Panel dismissed the appeal and upheld the Discipline Committee penalty of $5000 and 2 years probation. The Appeal Panel stated in part:

The Appeals Committee has determined and found that the Appellant was acting in a professional capacity in the context of the findings by the Discipline Committee, and the Appeals Committee finds that the Appellant engaged in conduct unbecoming a Member whether in a professional capacity or not, and, we agree with and confirm the findings of the Discipline Committee.

They found that there was “no palpable or overriding error in the decision of the Discipline Committee below” and that the Discipline Committee “applied the proper legal test and imposed a just and proper penalty in all of the circumstances.”

[20] Before this court on this application, the Applicant raises a number of errors that she alleges were made by the Appeal Panel on December 13, 2004, including:

a. wrongly accepted jurisdiction with no “trade” or transaction in real estate. [The Applicant referred to Langer v. Real Estate Council of British Columbia, 1997 3246 (BC SC)]

b. accepted that the Real Estate and Business Brokers Act and the definition of a “trade” in real estate should “dubiously” be invalidated legislation, although duly passed by the legislature;

c. ignoring s. 2b of the Charter - Freedom of Expression;

d. The Act, common law, and the legislation is further invalidated when the Respondent is counselling through Christopher Bredt a breach of public trust aggressively citing to the Appeal Panel that, on review, the standard is based on a “palpable error” [The Applicant relied on Vanderburg and Vanderburg v. Real Estate Council of Ontario, [2007] O.J. No. 2867 (Div Ct) and Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 to argue that the standard of review is “reasonableness”.]

e. The motives for their unlawfulness is sexual discrimination against transgender women, a violation of s. 7 and 15 of the Charter.

[21] On December 15, 2004, the hearing of an application by RECO was scheduled to be heard, at which RECO was requesting to have the summons from August 11, 2004 quashed. This hearing was adjourned at Ms. Tonner’s request so that she could retain legal counsel. As a term of the adjournment, granted by Justice Chapnick, Ms. Tonner was ordered to pay RECO $300 on or before December 17, 2004, and an additional $300 on or before January 10, 2005, toward the $1500 costs award made by Justice Epstein in striking the initial judicial review application.

[22] On January 19 and 20, 2005, Justice McCombs heard RECO’s application to quash the charges against RECO from August. Ms. Tonner did not retain counsel for the hearing. Justice McCombs granted RECO’s application and quashed the information and summons against RECO from August. Justice McCombs endorsement was as follows:

The application succeeds. The information issued by the justice of the peace alleges that the proceedings against the respondent Tonner took place under the Real Estate and Business Brokers Act (“REBBA”). I am persuaded that the Real Estate Council of Ontario does not derive its authority to conduct its discipline hearing under REBBA. If I am wrong in that conclusion, I remain of the view that the proceedings were not conducted under the REBBA. It follows that the Justice of the Peace lacked jurisdiction to issue the information and the summonses. The summonses and the information are therefore quashed. Given the history of the conduct of the respondent Tonner, I am persuaded that the additional relief sought should be granted. In order will go prohibiting, without leave of the court, the issuance of any additional summonses relating to the pending hearings relating to the respondent. Further, no application for the issuance of further summonses may be made without notice to the persons or entities involved, and without their being given an opportunity to respond to the application. Costs fixed at $3000.

At this hearing, the Applicant argued that the reasons of McCombs J. were “patently erroneous” and that McCombs J. “acted not so professionally”.

[23] On February 19, 2005, the Applicant commenced an appeal to the Court of Appeal for Ontario from McCombs J’s order of January 20, 2005.

[24] In a letter dated March 8, 2005, Ms. Tonner was advised that her membership in RECO had been terminated because of her failure to abide by the deadline for payment of the penalty of $5000.

[25] On March 9, 2005, the Applicant brought an application for judicial review of the Appeal Panel decision from December. On March 10, 2005, the Applicant brought an urgent motion for an interim stay of the Appeal Panel decision. The parties appeared before Justice Kiteley. Upon hearing submissions from both sides, Ms. Tonner appearing in person, the Court ordered that, upon payment by the Applicant, Ms. Tonner, to the Respondents of $1500, as ordered by Justice Epstein, the Order of the RECO Appeal Panel, dated December 13, 2004, was stayed pending the hearing of the Applicant’s application for judicial review. Kiteley J. declined to grant a motion for security of costs brought by RECO. The $1500 was paid by the Applicant the next morning.

[26] RECO brought a motion for security for costs in relation to Ms. Tonner’s appeal of the McCombs Order. The motion was originally scheduled for March 4, 2005, but was adjourned to March 31, 2005 at Ms. Tonner’s request, so that she could retain counsel. RECO’s motion proceeded on March 31, 2005 before Justice MacPherson. Ms. Tonner had not retained counsel. Justice MacPherson ordered that Ms. Tonner post security for costs of the appeal in the amount of $5000 by April 15, 2005, failing which the appeal could be dismissed as abandoned. Justice MacPherson also ordered Ms. Tonner to pay RECO’s costs of the adjournment and of the motion fixed in the amount of $1000 by April 15, 2005. The Applicant argued that this was another “disingenuous motion for security for costs and, as a result of their “sphere of influence”, it was successful.

[27] On June 13, 2005, the Respondent, RECO, brought a motion for security for costs as part of the judicial review application in relation to the discipline proceedings. Ms. Tonner was present. At this hearing to rescind the vexatious litigant order, the Applicant argued that this motion was a “vexatious” and “disingenuous” motion. The Applicant also stated that the Respondent engaged the services of Milton Chambers to attend court that day on behalf of the Applicant, unbeknownst to the Applicant. The Applicant takes issue with Milton Chambers representing him on that day, stating that he was not retained. This motion for security for costs was granted by Justice Jennings, who ordered that Ms. Tonner pay into court, within 20 days, $6500 as security for costs of her application, failing which RECO could move, on notice to Milton Chambers, for an Order quashing the application for judicial review. Having been advised by counsel for RECO of past difficulties in serving Ms. Tonner, Justice Jennings ordered that notice of RECO’s motion to dismiss could be served upon Milton Chambers. It is of note that, at this motion, Ms. Tonner represented that she had paid the $1000 costs award made by MacPherson J. by way of a bank draft for some and a personal cheque for some. After the appearance, Ms. Tonner stopped payment on the personal cheque. On consent, the costs of the motion and appearance before Kiteley J. on March 10, 2005 were fixed at $1000. The court also ordered that if the security was paid, the application for judicial review was to be perfected by July 4, 2005. On this same date, the Applicant claims that she was denied access to the court file by the court clerk and questioned whether the clerk should be sanctioned, referring to Logan v. Logan, 1993 5455 (ON SC), [1993] 15 O.R. (3d) 411 (Gen. Div.) and the Rules of Civil Procedure.

[28] April 15, 2005 came and went without Ms. Tonner posting the $5000 security for costs required by MacPherson J.’s Order. As a result of a motion brought by RECO, the appeal of Justice McCombs Order was dismissed by Order of Justice Sharpe on May 10, 2005. Ms. Tonner was also ordered to pay RECO’s costs of the appointment with the Deputy Registrar to settle the form of Justice MacPherson’s order and of the motion to dismiss the appeal, fixed in the amount of $500.

[29] On July 4, 2005, the Applicant attempted to put up an “irrevocable standby letter of credit” from HSBC to the Accountant of the Superior Court in the amount of $6500 to cover the security for costs order made by Jennings J. The letter of credit was refused.

[30] RECO subsequently brought a motion to dismiss the judicial review in relation to the discipline proceedings, on the basis that the period to comply had expired by several weeks, and Ms. Tonner had not paid any funds into court and had taken no steps to perfect. The motion to dismiss was served on the Applicant through Milton Chambers, as ordered by Jennings J., through courier sent on August 8, 2005.

[31] On August 17, 2005, RECO’s motion to dismiss the judicial review from the discipline proceedings was heard by Justice Carnwath. Mr. Chambers was present, indicating that he had tried on numerous occasions to contact Ms. Tonner and had left messages notifying her of the hearing, but had not heard back and had no instructions. Justice Carnwath still invited Mr. Chambers to make submissions on his client’s behalf, and also heard the submissions of RECO’s counsel, Christopher Bredt. Ultimately, Justice Carnwath dissolved the stay ordered by Kiteley J., and dismissed the judicial review application, with costs, previously fixed of $1500 and of that day of $500, to the moving party. The Court noted that “Mr. Tonner has not complied with the terms of the order of Jennings. The fault lies with Mr. Tonner not his counsel.” The Applicant claims that Milton Chambers and Christopher Bredt conspired against her, and that the hearing is a nullity that must be set aside. The Applicant also takes issue with Milton Chambers representing her on that day.

[32] Ms. Tonner brought a motion to the Divisional Court to vary or set aside Justice Carnwath’s Order. This was heard by a full panel on November 9, 2005. The Divisional Court dismissed Ms. Tonner’s motion and ordered costs to RECO in the amount of $1500.

[33] On November 29, 2005, RECO was served with a notice of motion requesting leave to appeal the decision of the Divisional Court to the Court of Appeal.

[34] On December 19, 2005, the Applicant was charged with assault and criminal harassment in relation to Elizabeth Silcox, events that allegedly occurred between June 2, 2004 and December 16, 2005. The Applicant claims that the detective was malicious, and that the charges were “frivolous and vexatious”. The Applicant claims that the detective tampered with the video evidence creating “two versions of a fake assault”. [According to the Applicant and documentation presented, the assault charge was withdrawn on February 11, 2009. The criminal harassment charge appears to have gone to trial and, after trial on April 23, 2010, the Applicant was found not guilty on June 7, 2010. Having said that, on the information, there is reference to a common law peace bond being imposed for 12 months.]

[35] On December 29, 2005, the Applicant attended court to make a criminal complaint against Elizabeth Silcox and others. A pre-enquette was scheduled for February.

[36] On January 10, 2006, a further costs award of $250 was made against Ms. Tonner by the Registrar in relation to difficulties securing Ms. Tonner’s approval of the order of the Divisional Court as to form and content.

[37] On January 31, 2006, the Registrar of the Court of Appeal issued a notice that Ms. Tonner’s motion for leave to appeal the decision of the Divisional Court relating to the discipline proceeding would be dismissed for delay if Ms. Tonner’s factum and motion record were not filed by February 15, 2006.

[38] On February 6, 2006, the pre-enquette was held in relation to the Applicant alleging a criminal complaint against Elizabeth Silcox and others. The proceeding did not result in any charges being laid. The portion of the pre-enquette transcript provided shows that Ms. Tonner did not have representation. L. Gonet and S. Malik were present for the Crown. The matter was before Justice of the Peace Skjarum. The proposed charges were against Elizabeth Silcox, Tom Wright, John Burnet, and Allan Johnson. The Crown handed up a certified copy of the endorsement of Justice McCombs of the Superior Court, took the position that Ms. Tonner could not lay an information in court, and that what was before the court should be abandoned. The Crown further stated that if Ms. Tonner wanted to lay any further informations, she had to go back to Justice McCombs to get the authority to do so. Ms. Tonner argued against the Crown’s position on her own, and then asked for an adjournment to bring a lawyer to make the point. The Court refused this request stating: “…I think this is very clear, sir. You’re going to have to appear before the —before Mr. Justice McCombs, if that is what you wish to pursue, with your lawyer.” The Court concluded that it had no jurisdiction to act on the matter. The matter was then noted as abandoned. According to the Applicant, the act of the Justice of the Peace demonstrates a willful disregard for the rights to equal concern and respect, relying on Dowson v. The Queen, 1983 59 (SCC), [1983] 2 S.C.R. 144, in which the court made it clear that the power to stay in section 508 of the Criminal Code started only after the Justice of the Peace had made a decision to issue process and a summons or warrant was issued.

[39] Ms. Tonner brought a motion to set aside the Registrar’s costs award of January 10, 2006, and to order RECO to pay costs in relation to the settling of Justice Kiteley’s Order of March 10, 2005. Ms. Tonner did not attend the hearing and the motion was dismissed by Justice Jennings on February 8, 2006, with costs fixed at $500 to RECO.

[40] On February 14, 2006, Ms. Tonner filed a motion record and factum at the Court of Appeal in relation to his request for leave to appeal the Divisional Court in relation to the discipline proceedings.

[41] On February 22, 2006, the Applicant was charged with disobeying a court order – Justice McCombs’ Order – in relation to the private charges attempted to be brought against Ms. Silcox and others. The Applicant claims that this was “another frivolous and vexatious charge”. The Applicant was placed on a recognizance of bail which required that she have no contact, direct or indirect, with RECO except through “verifiable and qualified” counsel. The Applicant queried in her factum at this hearing: “Doesn’t this speak volumes? Who’s running the show, here?”

[42] On April 5, 2006, the Respondent’s application was issued to have the Applicant declared a vexatious litigant.

[43] On April 10, 2006, the Court of Appeal dismissed Ms. Tonner’s motion for leave to appeal the Divisional Court in relation to the discipline proceedings, with costs to RECO fixed at $1500.

[44] On June 9, 2006, RECO’s outside counsel received, by Xpresspost, Ms. Tonner’s application for leave to appeal the Court of Appeal decision of April 10, 2006 to the Supreme Court of Canada.

[45] On October 23, 2006, Justice Belobaba heard the application, brought by RECO and OREA, for an Order under s. 140(1) of the Courts of Justice Act to declare Ms. Tonner a vexatious litigant. Justice Belobaba reviewed an application record, which included an affidavit of Elizabeth Silcox sworn June 23, 2006, in addition to hearing oral submissions of the Applicants, and oral submissions from Ms. Tonner with respect to a preliminary motion for an adjournment. In the handwritten endorsement, the Court provided reasons for a request for adjournment by Ms. Tonner being denied. Ms. Tonner asked for the adjournment in order to retain counsel and to cross-examine on the affidavits. The court found that Ms. Tonner had more than three months to do this and therefore had not been “reasonably diligent”. The court also found that based on the past, Ms. Tonner had used this “last-minute plea” for counsel before as a delay tactic. When the adjournment was dismissed, Ms. Tonner became upset and left the courtroom. The remainder of the hearing proceeded in her absence. Justice Belobaba granted the applications and said in part as follows:

This is not a difficult case. I am more than satisfied on the evidence before the court…that this Respondent has persistently and without reasonable grounds instituted vexatious proceedings in various Ontario courts in a misguided attempt to relitigate matters relating to the June 04 decision of the RECO Discipline Committee, by bringing sundry, unwarranted summons proceedings and small claims court actions.

…The litany of litigation commenced by the Respondent is a clear and persistent abuse of the court process and falls ….within the principles set out in s. 140(1) of the CJA and the relevant case law (Lang Michener)

Order to go: granting the relief sought in paras 1(a) and (b) of the Notices of Application, with the exception that the Respondent’s Leave Application that is outstanding before the SCC is not to be affected by or in included in this Order…

The official Order of Justice Belobaba reads as follows:

1. No further proceedings be instituted by the Respondent, Steven Tonner, in any court, except by leave of a judge of the Superior Court of Justice;

2. All proceedings previously instituted by Mr. Tonner in any court be stayed except by leave of a judge of the Superior Court of Justice, with the exception that Supreme Court of Canada Case No. 31490 is unaffected by this Order; and

3. Costs of each application fixed at $7500 inclusive.

[46] On January 10, 2007, the Applicant’s trial on the disobey court order charge began, referred to by the Applicant as the “political persecution trial”. The Applicant alleges that “some pages were removed by Armstrong and the court to cover up the depth of the corruption and fraud upon the judiciary and the accused, explained by the transcriptionist.” The Applicant described this as “akin to the Trials that occur in Russia” with a “biased Judge” “attempting to salvage criminal elements that were twisted and backward”. The transcript provided shows that J. Markin was representing Ms. Tonner. At the outset it was indicated that Mr. Markin was retained for a Charter motion only, not for the trial. Mr. Markin indicated that there were several issues at the trial, including: whether the charge was defective, whether the charge was premature, whether or not there had been any violation of the order, and whether the order was lawful and subject to consequence. The trial did not complete on that day. [The Applicant states that this charge was ultimately withdrawn.]

[47] The Applicant claims that, on March 7, 2007, Keith Guerts and Christopher Bredt, impersonated the Applicant, attending court before Justice Conway bringing a motion or action to manipulate Justice Belobaba’s order. According to the Respondents, on March 9, 2007, OREA’s counsel received a fax enclosing an endorsement of Justice Conway of the Superior Court of Justice. It suggested that Ms. Tonner had appeared in Court in Peel Region, without notice to OREA or RECO, and, purportedly on consent, moved to set aside Justice Belobaba’s order. Justice Conway denied the motion for lack of jurisdiction. Neither OREA nor RECO was aware of this motion and had not consented. [Ms. Tonner was subsequently charged with forgery, using a forged document and obstruction of justice in relation to these events. She was convicted by Justice Forestell of the Ontario Superior Court of these offences in 2011 and these convictions were upheld by the Court of Appeal in 2014].

[48] On April 23, 2007, the Court of Appeal for Ontario heard Ms. Tonner’s motion for an order to reinstate the appeal from the Order of McCombs J., which had been dismissed as abandoned for failure to post security for costs as ordered. Ms. Tonner was represented by Joseph Markin. According to the Applicant, the Respondents used Justice Belobaba’s order of October 23, 2006 in an attempt to stop the appeal from proceeding. The Court granted the motion and ordered that the appeal be reinstated upon the posting of the required security, provided it was posted by May 15, 2007.

[49] After Ms. Tonner failed to pay security for costs, OREA and RECO brought motions in writing to dismiss the appeal. Justice Rouleau dismissed the appeal as against RECO on June 21, 2007, and as against OREA on July 13, 2007. These motions were brought without notice to Ms. Tonner. Costs were ordered against Ms. Tonner in the amount of $500 each.

[50] On July 23, 2007, the Applicant was arrested in relation to the allegations of forgery, etc. referred to above. The Applicant was incarcerated from July 23, 2007 to December 10, 2007.

[51] On February 26, 2008, the Applicant stated that she retained a lawyer to represent her against the criminal charges. The Applicant has described events that followed which led to her being successful in obtaining leave to commence a proceeding against the lawyer, and ultimately receiving substantial damages from Law Pro. This court does not intend to detail the events between the Applicant and this lawyer here, although this court has reviewed these events. According to the Applicant, the lawyer was “bought off with membership monies of the Real Estate Council of Ontario”.

[52] On December 1, 2008, the Applicant was partially successful at the Court of Appeal on the appeal of the Order of McCombs J. It is not entirely clear how or why this matter returned before the Court, but the Court stated:

1. The respondents concede that they never sought an order relating to proceedings other than the discipline proceedings and related matters that were considered by McCombs J. and that this order was not intended to apply to any other proceedings.

2. Accordingly, paragraph (2) of the order is varied to include the words “without notice to the proposed witnesses” and Paragraph (3) of the order is struck out.

3. We are otherwise satisfied that McCombs J. properly made the order.

4. Accordingly, the appeal is allowed in part, with costs fixed at $4000 inclusive of GST and disbursements to be set off against the cost orders outstanding against the appellant.

[53] On July 21, 2011, Ms. Tonner was before Justice Himel in Toronto on a matter instituted against the Ministry of the Attorney General. At the outset of the hearing, Ms. Tonner advised that she wished to withdraw her application for leave to bring a proceeding where she had been declared a vexatious litigant by Belobaba J. on October 23, 2006. Counsel for RECO sought and were granted leave to intervene and supported the request that the application be dismissed. On September 1, 2011, Justice Himel refused to grant leave to bring a new action in the Superior Court in Toronto against OREA, RECO, and the Ministry of the Attorney General.

[54] On December 9, 2011, Justice Boswell of the Superior Court of Justice (sitting in Newmarket), stayed four proceedings issued contrary to the Belobaba Order, including two applications to rescind the Belobaba Order without leave, a claim against the Toronto Police Services, claims against individuals at RECO, and fresh proceedings against OREA and RECO.

[55] On several occasions in 2011, Ms. Tonner attempted to bring various motions before the Court of Appeal for Ontario without properly serving or filing materials. The motions were denied by Justices Simmons, Laskin and Rosenberg, although Justice Rosenberg did allow Ms. Tonner to appeal criminal proceedings.

[56] On January 20, 2012, Justice McNamara of the Superior Court of Justice in Perth, Ontario dismissed Ms. Tonner’s application to rescind Justice Belobaba’s Order. In fact, Justice McNamara denied Ms. Tonner leave to institute further proceedings as against a series of Defendants on the basis that Ms. Tonner sought virtually the same relief as previously sought. Justice McNamara stated:

Mr. Tonner appears to be moving from Judicial centre to Judicial centre in an attempt to have another judge of the same court provide relief that has been previously denied.

I am satisfied on the materials that there are no reasonable grounds for the proceeding and to allow it would be an abuse of process.

[57] On November 29, 2013, in Napanee, an information was sworn by PC Andrew Gibbons of the Ontario Provincial Police, alleging two charges against Steven Tonner relating to November 14, 2013, one for driving while licence was suspended (s. 53(1) of the HTA) and operating without insurance (s. 2(1)(a) of the CAIA). [The information for the HTA and CAIA charges indicates that on March 12, 2014, count 1 was withdrawn.]

[58] On December 17, 2013, Fuerst J. had a criminal matter before her. The nature of the proceedings was not exactly clear to this court. However, from the endorsement provided, initially the application of Ms. Tonner was dismissed for non-appearance. However, when Ms. Tonner appeared a little later that morning, Fuerst J. revoked her previous dismissal order and reinstated the application. Fuerst J. noted that the Crown conceded that the finding of “vexatious litigant” does not apply in the context of criminal proceedings, and on consent the application was granted, the dismissal of the proceedings by the Justice of the Peace was quashed and the matter was returned to the Justice of Peace to be heard on February 10, 2014. It is not clear what ultimately came of this matter.

[59] On July 15, 2014, Ms. Tonner brought a motion before Justice MacFarland of the Ontario Court of Appeal seeking to revive his appeal against the Belobaba Order. This motion was denied. Ms. Tonner then attempted to bring a motion to a panel to vary Justice MacFarland’s order. The motion was reinstated by Justice Simmons. On March 9, 2015, a panel dismissed the motion. Ms. Tonner applied to the Supreme Court of Canada for leave to appeal which was dismissed on July 9, 2015.

[60] On February 10, 2015, Ms. Tonner attempted to have a private information issued against Meghan Hendershott for:

a. Between November 1, 2013 and December 31, 2014, at the Township of Frontenac in the County of Lennox and Addington and the City of Brampton, did knowing that Steven Tonner was being harassed, did beset or watch the residence of Steven Tonner contrary to section 264(2)(c) of the Criminal Code;

b. Between November 1, 2013 and December 31, 2014, at the Township of Frontenac in the County of Lennox and Addington and the City of Brampton, did operate a motor vehicle on a road, Zealand Road, in a manner that was dangerous to the public contrary to section 249(1) of the Criminal Code.

It is not clear what came of this matter.

[61] On September 3, 2015, Ms. Tonner attempted to initiate a private information, in Brampton, alleging two charges against Andrew Gibbons and Maurice LaFaivre, specifically:

a. Between the 1st day of November 2013 and the 31st of December 2014, at the Township of Frontenac in the County of Lennox and Addington and the City of Brampton, did knowing that Steven Tonner was being harassed did beset or watch the residence of Steven Tonner contrary to section 264(2)(c) of the Criminal Code;

b. Between the 1st day of November 2014 and the 31st of December 2014, at the Township of Frontenac in the County of Lennox and Addington and the City of Brampton, did conspire one with the other to prosecute Steven Tonner for an offence knowing that he did not commit that offence contrary to section 465(1)(b) of the Criminal Code

The information indicates that on November 18, 2015, no process was issued on count #1. On count #2, process was to issue, however, the crown intervened and withdrew the charge.

[62] On November 10, 2015, Justice Durno quashed summonses that Ms. Tonner had obtained for Elizabeth Silcox and Edward Barisa. Justice Durno also stated that the court staff were not to sign any subpoenas Ms. Tonner sought to have issued and that they were to be brought to himself or another judge of the Superior Court for consideration.

[63] On January 26, 2016, Justice Phelan of the Federal Court found Ms. Tonner to be a vexatious litigant. The court stated in part:

[13] In summary, Tonner, having been declared a vexatious litigant in Ontario twice, continued to flout the court's orders. He has failed to pay cost awards. He has tried to use the private criminal process by again disobeying court orders and in engaging in forgery and fraud on the courts. He has been prepared to move about the Ontario jurisdiction in a classic example of forum shopping.

[14] Tonner has now taken his campaign to the Federal Court where he has filed a 43-page Statement of Claim against these Defendants claiming damages of $30 million in general damages, $20 million in special damages and $11.5 million in compensatory damages and other varying monetary claims - always in the millions of dollars.

[15] There is no intention to try to better define the myriad of Tonner's claims but suffice it to say that it makes outrageous claims without specifics, attacks the honesty and integrity of judges of the Superior Court, and repeats many of the allegations against a number of the Defendants already dealt with by the Superior Courts.

[64] On January 4, 2017, Ms. Tonner was charged with four counts of criminal harassment and two counts of indecent communication. On November 30, 2017, all six charges were withdrawn.

[65] In addition to all of the above, Ms. Tonner has also brought a number of Small Claims Court actions in relation to RECO and OREA, including:

a. On May 23, 2003, Ms. Tonner had an action issued claiming that Mr. Logozzo’s original complaint was libelous and slanderous. Ms. Tonner withdrew this action on November 3, 2003. She sought to restate it by a motion that was dismissed on January 27, 2005.

b. On April 23, 2004, Ms. Tonner had an action issued against RECO and RECO employees, including Mr. Logozzo, alleging misfeasance and abuse of power. On January 4, 2006, Ms. Tonner sought reinstatement of this claim.

c. In late 2005, Ms. Tonner commenced four small claims proceedings against various OREA and RECO employees involved in the discipline proceedings against her, including panel members and brokers. On April 6, 2006, Justice Fitzpatrick stayed all of the 2005 actions pending resolution of the application in the Superior Court to prohibit further proceedings by Ms. Tonner.

[66] On June 10, 2022, Sutherland J. ordered, in relation to the application this court is now deciding, that:

a. The applicant to comply with the Orders outlined above, until his application to rescind the vexatious litigant orders has been determined. The judge hearing the application may then determine whether the applicant may be able to bring a proceeding, be it originating or interlocutory without leave of the court.

b. The respondents need not respond to the applicant’s motion until further Order of this court.

c. If the applicant is successful on his application, then he or any of the other parties may request a conference with me by completing the required request form to set a timetable for the hearing of the served motion.

Analysis

[67] The issue on this application is whether this Court should rescind, void, set aside, reverse, or stay the Belobaba Order.

[68] Pursuant to section 140(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, a person who has been declared a vexatious litigant pursuant to ss. 140(1) of the Courts of Justice Act must seek leave to institute or continue a proceeding by way of an application to the Superior Court of Justice. Section 140(4) of the Courts of Justice Act provides that:

140(4) Where an application for leave is made under subsection (3),

(a) leave shall be granted only if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding;

(b) the person making the application for leave may seek the rescission of the order made under subsection (1) but may not seek any other relief on the application;

(c) the court may rescind the order made under subsection (1);

(d) the Attorney General is entitled to be heard on the application; and

(e) no appeal lies from a refusal to grant relief to the applicant.

[69] In Peoples Trust Company v. Atas, 2020 ONSC 3471, Ms. Atas had moved, without notice, for permission to apply under s. 140 of the Courts of Justice Act to rescind or set aside the vexatious litigant order made in 2018. Corbett J. stated in part as follows:

[4] Ms Atas apparently misconceives the purpose of a motion to rescind a vexatious litigants order under s.140 of the CJA. Such a motion is not for the purposes of reviewing the correctness of the original order – both in its central finding and in its details. A motion under s.140 may be brought properly where a vexatious litigant can establish that she should once again be granted unfettered access to the courts. The range of circumstances in which such an order might be appropriate are not finite, but generally they could include:

(a) Evidence that the vexatious litigant has changed and can be expected to conduct future litigation in a manner that is not vexatious.

(b) Evidence that the vexatious litigant has taken responsibility for her past misconduct, including payment of outstanding costs awards, or payments of such amounts towards those costs as she might reasonably be able to pay.

(c) Evidence that there are potentially meritorious claims that the vexatious litigant wishes to pursue to achieve justice for herself.

(d) Evidence that the vexatious litigant has moved on from the disputes and controversies that led her to engage in vexatious litigation.

[5] What a motion to rescind a s.140 order is not is a chance to re-litigate the s.140 judgment itself. At para. 19 of the Judgment, this court wrote:

Finality is itself a principle of justice, integral to the civil justice system. And Ms Atas’ record as a litigant has been inconsistent with this basic principle.

[70] In Falardeau v. Owen Sound Police Service Board, 2021 ONSC 6180, Chown J. was considering a motion by Mr. Falardeau wherein he sought a retroactive order granting permission to commence and continue an action, which he initially commenced without permission. Chown J. stated in part as follows:

[49] However, the correct place to raise all these objections would have been at the Court of Appeal. I have no authority to overturn Justice Thompson’s order on the basis that it ought not to have been made. I would add that there is no evidence in the record as to precisely what happened in the hearing before Justice Thompson. If there was an appeal, there would be a proper record to review. For all I know, the PGT on behalf of Mr. Falardeau consented to the matter being decided in the motion, just as the defendants here did not object to this matter proceeding by way of motion, despite having a very similar argument that an application was required.

[50] The CJA indicates that an application judge has authority to rescind a vexatious litigant order, but in my view that authority does not extend to rescinding the order because the motions judge thinks the judge who granted the order was incorrect. The principle of finality precludes that approach. If I am to rescind the order it must be based on the test in s. 140(4) of the CJA.

[55] "[T]he vexatious litigant is not deprived of the right to bring proceedings. Rather, the burden is shifted: the vexatious litigant must establish to the Court's satisfaction that there is a prima facie ground for the proposed proceedings": Foy v. Foy (1979), 1979 1631 (ON CA), 102 D.L.R. (3d) 342, (Ont. C.A.), at 39, leave refused [1979] 2 S.C.R. vii. (This comment was made by Justice Blair in dissent, but the same sentiment is expressed in the majority decision.)

[56] Section 140(3) of the CJA recognizes that, "notwithstanding that a person has conducted litigation in a vexatious manner in the past, he or she must still have the opportunity to demonstrate that they have a legitimate need to have recourse to the courts. However, unlike the regular process where a person may commence a proceeding as of right, in the case of a vexatious litigant, the court adopts a supervisory role to ensure that such persons may only resort to the courts where the court is satisfied that the person has a genuine reason or need to do so": Chavali v. Law Society of Upper Canada, 2005 53071 (Ont. S.C.), at para. 17.

[57] "The section itself is not directed at punishing the vexatious litigant, but rather at limiting the costs imposed on the system and other litigants from the vexatious litigant's behaviour." Ironside v. Roskam, 2017 ONSC 7416, at para. 20. A vexatious litigant order is a "prospective case management step, rather than punitive": Hok, at para. 37; Re Thompson, 2018 ABQB 87, at para. 18.

[59] A vexatious litigant order made under s. 140(3) is a discretionary order and is entitled to deference: Gaddam v. Eng, 2008 ONCA 240, at para. 1. The language of s. 140(4)(a) (“shall be granted only if the court is satisfied”) and s. 140(4)(c) (“the court may rescind the order”) also indicate that the court’s power under s. 140(4) is discretionary.

[60] The purpose of a s. 140(1) order is to protect the vexatious litigant’s litigation opponents and the justice system itself from vexatious litigation: Caplan v. Atas, 2019 ONSC 344, at para. 6(j); Ironside, at para. 19. A further purpose of the legislation is to overcome the unfair advantages enjoyed by the vexatious litigant, including:

a. “the luxury of being able to initiate proceedings and to force the other party to the expense and inconvenience of responding”; and

b. the significant onus that the responding party will bear to prove that a proceeding is an abuse of process: Foy, at para. 71.

[69] The Court may only grant leave under s. 140(4) if it is satisfied that the proposed proceeding is not an abuse of process and that there are reasonable grounds for the proceedings. It is a double-barrelled test: Chavali, at para. 10; Riad v. Ontario College of Pharmacists, 2015 ONSC 6736, at para. 42; Ferenczi v. State Farm Mutual Automobile Insurance Co., 18 C.C.L.I. (4th) 134, 2004 34802 (Ont. S.C.J.), at para. 17; Hart v. Fullarton, 2021 ONSC 2559, at para. 9.

[70] The onus is on the applicant for both elements of the test: Bono General Construction Ltd. v. Susin, [2006] O.J. No. 4888, 2006 CarswellOnt 7754 (S.C.J.) at para. 14; Riad, at para. 42; Deep v. Canada Revenue Agency (Canada Customs and Revenue Agency), 2011 ONSC 5660, at para. 16; Hainsworth v. Attorney General of Canada, 2011 ONSC 2642, at para. 11; Lindhorst v. Centennial College, 2016 ONSC 2678, at para. 4.

[71] A motion under s. 140(3) triggers a broad review focused on the conduct of the vexatious litigant who is seeking leave to proceed with the action. The totality of the circumstances must be examined: Gaddam, at para. 2.

[79] In Deep at para. 8, Justice Stinson said:

[O]n an application for leave, more must be shown than an arguable claim … an applicant for leave must proffer some evidence – and not mere allegations – to support the proposition that there is some evidentiary basis for the relief claimed in the proposed proceeding.

[71] Reviewing the Courts of Justice Act and the case law, the following principles are clear:

a. A person who has been deemed a vexatious litigant can make an application seeking to rescind the order.

b. An application requesting rescission of the order is not an appeal or review of the order itself.

c. The Court will consider the following factors, among others:

i. Whether there is evidence that the vexatious litigant has changed and can be expected to conduct future litigation in a manner that is not vexatious.

ii. Whether there is evidence that the vexatious litigant has taken responsibility for past misconduct, including payment of outstanding costs awards, or payments of such amounts towards those costs as she might reasonably be able to pay.

iii. Whether there is evidence that there are potentially meritorious claims that the vexatious litigant wishes to pursue to achieve justice for herself.

iv. Whether there is evidence that the vexatious litigant has moved on from the disputes and controversies that led her to engage in vexatious litigation.

[72] The Applicant referred to an Order made by Justice Belobaba that was overturned by the Court of Appeal on September 19, 2018. In Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761, the court was dealing with a situation wherein, in the middle of a municipal election, the Ontario legislature enacted a Bill to reduce the number of wards and councillors. The Applicants challenged the constitutionality of the Bill, which was allowed by the application judge. The application judge found that the Bill violated candidates and voters s. 2(b) Charter rights and was not justified under s. 1. The Province appealed and moved for a stay pending appeal. Using the RJR MacDonald test, the motion for a stay was granted, the court finding a strong prima facie case on appeal, referring to the ruling of the application judge as “dubious” and that “his decision blurs the demarcation between…. the protection of expressive activity in s. 2(b) and the s. 3 guarantee of the democratic rights of citizens to vote and be qualified for office.”

[73] The fact that the Court of Appeal has overturned Justice Belobaba in a completely unrelated matter has no bearing on the Order Justice Belobaba made in relation to Ms. Tonner. Lower courts are sometimes overturned by higher courts. This has no bearing on other completely unrelated proceedings.

[74] The Applicant argued that if her application for judicial review of the discipline proceedings were ever heard, the same conclusion would be reached as was reached here by the Court of Appeal. The reality is that Ms. Tonner has had numerous opportunities to challenge the findings of the discipline committee. The findings of the discipline committee were upheld by the appeal panel. Ms. Tonner commenced a judicial review of these proceedings but failed to follow the various orders of the court to have the matter heard on its merits. On this application, this court is not permitted to question the findings of the discipline committee, the appeal panel, or the various levels of court that have dismissed the judicial review.

[75] The Applicant argued that section 140(1) of the Courts of Justice Act was created by provincial legislation, with its use being randomly applied beyond the scope of its intended purpose. The Applicant argued that the legislation prohibits access to justice as guaranteed by the Charter of Rights, without expensive leave procedure. The Applicant argued that section 140(1) of the Courts of Justice Act is being used to interfere with and obstruct justice in a manner inconsistent with the right to fundamental justice in section 7 of the Charter. The Applicant argued that it is difficult to see how section 140(1) was utilized in this case, given that none of her cases in small claims court have been heard, and a judicial review has not been heard because of the unlawful obstructionist behaviour of the Respondents and their dubious lawyers.

[76] The Applicant referred to the case of Lang Michener LLP v. Goldbourn, [2007] O.J. No. 4941 (S.C.). This case involved a determination of whether the Respondent should be declared a vexatious litigant pursuant to s. 140 of the Courts of Justice Act. In two years, Ms. Goldbourn had commenced eleven actions in the Superior Court of Justice against various Defendants, including hospitals, universities, doctors, court officials, government officials, family members, and the law firm, Lang Michener LLP. At paras 5 and 6, the court concluded as follows:

[5] At the outset, it should be noted that some of Ms. Goldbourn's actions were never served and some have been voluntarily discontinued. None of the actions brought by Ms. Golbourn have had a trial, and she has not had a day in court where the merits of her claims could be weighed. She is self-represented. She is litigating not re-litigating, and at this time, I cannot conclude that she is a vexatious litigant.

[6] For that reason and others, I conclude that the Applicants have not satisfied me that an order should be made under s. 140 of the Courts of Justice Act, but I conclude that the Remaining Action - as it is presently pleaded - is an abuse of process. Exercising the court's inherent jurisdiction over its own process, I strike out the pleadings in the Remaining Action with leave to amend. There should be no costs for this Application.

Justice Perell made it clear that a section 140 Order is a “rare order and a person is to be denied access to the courts only for the clearest and most compelling reasons” (para 9).

[77] While certainly the principles enunciated in Lang Michener are applicable to the Applicant’s argument, the facts in Lang Michener were very different. In stark contrast to Ms. Goldbourn’s circumstances:

a. Most of Ms. Tonner’s proceedings have been served and pursued with vigor;

b. Ms. Tonner has had many many days in court, some of which she has participated in, and some not;

c. With respect to the merits of her claims in relation to the discipline proceedings, Ms. Tonner did not appear at the original discipline proceeding, even though she had an absolute right to appear and participate fully. Ms. Tonner appealed to the appeal panel, was represented by counsel and was present personally. Ms. Tonner attempted to pursue judicial review at the Divisional Court, Court of Appeal, and Supreme Court of Canada, however, she did not do what the court ordered her to do to have her matter heard.

[78] It is clear from the Applicant’s written submissions and oral submissions that this application seeks to question everything that has occurred since the complaint to RECO was initiated and onward. For example:

a. The Applicant argued that the discipline committee exceeded their jurisdiction, in that there was no “trade” in real estate at issue in the proceedings and that “acting in a professional capacity” must necessarily relate to “trade” due to section 3 of the Real Estate Business Brokers Act. The Applicant referred to Langer v. Real Estate Council of British Columbia, [1997] B.C.J. No. 1444 (S.C.). Mr. Langer applied to the court for a declaration that the decision to hold an inquiry and hearing by the Real Estate Council of British Columbia be set aside as unauthorized by Section 20(1) of the Act, a declaration that the decision of the Council be set aside as invalid as it exceeded its jurisdiction, and an interim injunction on the cancellation of the petitioner’s licence. The Court relied on Hooper v. Real Estate Council (British Columbia), New Westminster Registry SO-2058, January 20, 1995, confirmed by the BCCA, Vancouver Registry CA020002, March 28, 1996, citing it as authority for the following:

[10] It is clear to me that Hooper is authority for the proposition that in the absence of clear statutory authority to the contrary a real estate licensee should not be subject to loss or suspension of his licensee for doing an act in his own behalf as principal of a private corporation where the doing of the act in itself does not otherwise require the holding of a real estate license or offend the enabling legislation.

[17] It is clear that the Court in Hooper at page 7 stated that it is only when an act is done as an agent as defined in the Real Estate Act that a license is required and further that the relevant question was whether the Hooper's were agents of the buyers. The Court held that at the time of preparing the contract the Hoopers were acting as officers of the seller and 3246 (BC SC) were known by the buyers at that time to be sellers and principals.

The court found that the petitioner was acting as a principal of a company and not as licensee or agent for any party at the time of the relevant matters. As a result, the hearing committee was found to have exceeded its powers of jurisdiction in disciplining.

b. The Applicant argued that the appeal panel was misled into applying the wrong standard of review and erred in not providing a de novo hearing. The Applicant relied on Vanderburg and Vanderburg v. Real Estate Council of Ontario, [2007] O.J. No. 2867 (Div Ct), Groia v. Law Society of Ontario, 2018 SCC 27, [2018] 1 S.C.R. 772, and Canada (Minister of Citizenship and Immigration) v.Vavilov, 2019 SCC 65 to argue that the presumptive standard of review for administrative decisions is reasonableness.

c. The Applicant argued that the Respondents violated his section 7 and section 15 Charter rights, as a result of the discrimination demonstrated by interfering with the administration of justice and stay granted by Justice Kiteley in March 2005. The Applicant referred to and relied on the case of Khadr v. Canada (Prime Minister), 2010 SCC 3, [2010] 1 S.C.R. 44, a case involving a Canadian citizen who had been detained by the U.S. military at Guantanamo Bay and interviewed using questionable techniques. The Court found that Canada actively participated in a process contrary to its international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person, guaranteed by s. 7 of the Charter, not in accordance with the principles of fundamental justice. The court also found that Mr. Khadr was entitled to a remedy under s. 24(1), stating that the executive is not exempt from constitutional scrutiny. The Court declared the Charter violation but left it to the government to decide how to respond.

[79] These arguments by the Applicant make it obvious that this application is being used as a vehicle to re-litigate issues that have already been decided. This court, on this application, has no power or authority to question the decisions already made in relation to the discipline proceedings.

[80] It is also clear from the Applicant’s written submissions and oral submissions that this application seeks to question the reasonableness and correctness of Justice Belobaba’s Order and the very legislation upon which that order was based. For example:

a. The Applicant argues that section 140(1) of the Courts of Justice Act should be declared void or vague, arbitrary or capricious. She refers to section 706(2) of the Administrative Procedure Act, American legislation, which instructs courts reviewing regulation to invalidate any agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The Applicant argues that section 140(1) restricts the right to access to fundamental justice and the right to be heard in any court, as proceedings become costly and unfairly tainted against the moving party.

b. The Applicant queried whether s. 140(1) of the Courts of Justice Act discriminates against a group of individuals – violating s. 15 of the Charter, relying on Andrews v. Law Society (British Columbia), [1988] 1 S.C.R. 143, in which the Court defined discrimination (pp. 174-175). According to the Applicant, the Respondents have discriminated against her as a transgender person, limiting her rightful access to justice and to be heard.

c. According to the Applicant, the Respondents used s. 140(1) of the Courts of Justice Act to prohibit a criminal appeal process more than once, which she argued can be construed as a violation of s. 139 of the Criminal Code and a violation of s. 7 of the Charter.

[81] This court does not have a proper record upon which to question the validity of s. 140 of the Courts of Justice Act as a piece of legislation. As to the Respondents use of s. 140, this is once again a demonstration of the Applicant seeking to re-litigate issues that have already been decided and upon which this Court has no power or authority to review.

[82] The Applicant questions many other court orders. She believes that “there is a pattern under the past Provincial Government to allow entities, Government Agencies, individuals in position of money and power to write their own perceived statute without accountability”. She believes that the legal system has no internal controls to oversee corrupt lawyers. She believes that there has been a vicious attack on her life, liberty and security for 19 years, using corrupt lawyers, which is an afront to a civil society. Again, this court, on this application, has no ability to review the many wrongs alleged by the Applicant.

Conclusion

[83] Ms. Tonner has been declared a vexatious litigant on four separate occasions:

a. General Division - Justice Bell – January 27, 1998 [rescinded and set aside on April 20, 2004 – with certain specific restrictions remaining in place for up to two years.]

b. Superior Court of Justice - Justice Belobaba on October 23, 2006

c. Superior Court of Justice - Justice McNamara on January 20, 2012

d. Federal Court – Justice Phelan – January 26, 2016

[84] It is not for this court to question the validity of those orders made at the time. It would appear that the orders were deemed necessary as a result of various litigation brought or attempted against the Real Estate Council of Ontario, Ontario Real Estate Association, the Board of Directors of OREA, and associated individuals.

[85] It would appear that following the Belobaba Order, Ms. Tonner attempted to bring additional proceedings against OREA, RECO and other parties, without leave, in contravention of the Belobaba Order.

[86] This court has carefully considered all of the facts and circumstances presented in this case by all parties.

[87] This court agrees that rescinding or altering the Belobaba Order at this time would risk Ms. Tonner burdening the Court’s resources with additional vexatious lawsuits. It is clear from Ms. Tonner’s written material on this application, all of which this court has reviewed, and the oral submissions made, that Ms. Tonner continues to take issue with the 2004 Discipline Proceeding and everything that has flowed from it. Ms. Tonner continues to hold the view that she was unfairly treated and that errors were made that must be corrected. Ms. Tonner questions the integrity of many judges including Justice Belobaba, making very serious allegations indeed. There is no question that Ms. Tonner will continue to pursue her objectives if permitted.

[88] Even though the courts have been very clear that an application to rescind or vary a vexatious litigant determination is not a review of the correctness or reasonableness of that order, this is partially what Ms. Tonner seeks to do on this application. The Notice of Application demonstrates this very clearly, wherein Ms. Tonner states that the Order:

a. was made by a Judge, mistakenly acting without jurisdiction and in breach of natural justice or on incorrect legal principles;

b. is overly broad, arbitrary, and potentially capricious;

c. was obtained for an improper purpose and with no real reason provided for issuing such an order;

d. was made without the presence of the Applicant and was made “with a serious conflict of interest”; and

e. does not demonstrate a path of reasoning.

[89] This Application is a clear attempt to re-litigate issues that have already been decided and which this court is not permitted to review or question.

[90] Ms. Tonner’s submissions do not reflect that she has changed. In fact, the written and oral submissions show a consistent and persistent desire to continue down the same path as she has been on for many years.

[91] Ms. Tonner most certainly does not take any responsibility or ownership for her past conduct or admit she has been at fault in any way. In fact, Ms. Tonner continues to question any court order or result that has not concluded in her favour, including the Belobaba Order and many others set out above. Ms. Tonner has failed to pay some of the costs orders made against her.

[92] Ms. Tonner has not demonstrated a potentially meritorious claim that she wishes to pursue to achieve justice for herself. Ms. Tonner raises many things that she takes issue with, but all seem to stem from the original discipline proceedings and what has flowed from those proceedings. Ms. Tonner wishes to relitigate issues that have already been before the courts and were determined.

[93] Unfortunately, Ms. Tonner continues to question the discipline proceedings in 2004 and everything that has happened since. Ms. Tonner has most certainly not moved on. While she stated in her reply submissions that she has moved on, her voluminous written submissions, and oral submissions on this hearing, demonstrate the complete opposite.

[94] The onus is on Ms. Tonner on this application. She was required to demonstrate to this court that she can be trusted with being “granted unfettered access to the courts”. Ms. Tonner has not met that onus. In fact, Ms. Tonner has left this court with no doubt that the order under s. 140(1) must continue.

[95] It must be remembered that Ms. Tonner is not forbidden from commencing litigation. The existing order simply means that Ms. Tonner must seek permission from the court before proceeding. Section 140(3) of the Courts of Justice Act is very clear – that a person who has been declared a vexatious litigant pursuant to s. 140(1) of the Courts of Justice Act must seek leave to institute or continue a proceeding by way of an application to the Superior Court of Justice. In making the determination, the Court must only be satisfied that the proposed proceeding is not an abuse of process and that there are reasonable grounds for the proceedings. Frankly, this is not a lot for the court to ask of any litigant. Litigation only makes sense when it is absolutely necessary. Litigation should not be the first step in a dispute, rather it should be the last.

[96] This application is dismissed.

[97] If the parties are unable to agree on costs of this Application, the court will accept a two-page written submission on costs from each party, to be filed with the court, and sent by email to Bev.Taylor@ontario.ca, no later than Friday, February 17, 2023 at 4:30 p.m.

Justice V. Christie

Date: February 8, 2023