Court File and Parties

Court File No.: CV-23-93392 Date: 2024-02-23 Superior Court of Justice - Ontario

Re: National Bank of Canada, Applicant And: Garfield Anthony Hibbert, Respondent

Before: Muszynski J.

Counsel: Gabriele Cyr, for the Applicant No one attending for the Respondent

Heard: February 8, 2024

Reasons for Decision on Application for Vexatious Litigant Declaration

[1] The applicant, the National Bank of Canada (the “Bank”), seeks a declaration that the respondent, Garfield Anthony Hibbert, is a vexatious litigant and an order that curtails Mr. Hibbert’s ability to continue or commence new litigation against the Bank pursuant to s. 140 of the Courts of Justice Act . [1]

[2] By way of a brief background, Mr. Hibbert and his former spouse held a joint TFSA with the Bank. After their separation, Mr. Hibbert alleges that his former spouse removed funds from the TFSA without his consent. Mr. Hibbert commenced litigation against the Bank in Brampton Small Claims Court in 2019 related to the TFSA. Following a trial, Mr. Hibbert’s claim against the Bank was dismissed. Since that time, Mr. Hibbert has commenced four other proceedings against the Bank in Small Claims Court and Superior Court pertaining to the same material facts. The proceedings have either been dismissed as vexatious or are in the process of being dismissed. Mr. Hibbert appealed one of the decisions to the Court of Appeal for Ontario where the appeal was dismissed on the basis that it was vexatious.

[3] Mr. Hibbert did not file any material on the application and did not attend the hearing.

Issues

[4] The preliminary issue I must address is whether Mr. Hibbert was properly served with the application record.

[5] On the merits of the application, I must decide whether Mr. Hibbert should be declared a vexatious litigant and, if so, what reasonable measures would be required to protect the administration of justice from Mr. Hibbert’s vexatious conduct.

Position of the Parties

[6] The Bank submits that service on Mr. Hibbert should be validated as Mr. Hibbert was served by both regular mail and by email using an email address that Mr. Hibbert has used frequently to communicate with counsel both before and after the delivery of the application record.

[7] On the merits, the Bank takes the position that the best way to protect the integrity of the justice system is to issue a declaration that Mr. Hibbert is a vexatious litigant and to put measures in place to prevent him from commencing or continuing unmeritorious and vexatious litigation.

Service

[8] A hard copy of the three-volume application record was served on Mr. Hibbert by regular mail on October 10, 2023. Mr. Hibbert did not send back an acknowledgement of receipt card.

[9] Also on October 10, 2023, the Bank sent Mr. Hibbert an electronic copy of the application record to his last known email address. Mr. Hibbert did not acknowledge receipt of the application record by email.

[10] On January 30, 2024, the Bank sent Mr. Hibbert an electronic copy of the supplemental application record to his last known email address. Mr. Hibbert did not acknowledge receipt of the supplemental application record.

[11] The week prior to the hearing of the application, counsel for the Bank emailed Mr. Hibbert at his last known email address to provide him with directions on how to file materials and the Zoom link for the attendance. Mr. Hibbert did not respond to this email.

[12] The Rules of Civil Procedure require originating processes to be served personally or by alternatives to personal service. [2] Neither method of service in this case strictly conforms to the Rules. That said, I am satisfied that it is appropriate for me to make an order validating service.

[13] Gabrielle Cyr has acted as counsel for the Bank in relation to the other proceedings wherein Mr. Hibbert has sued the Bank. Mr. Hibbert routinely communicates with Ms. Cyr by email – both before and after the service of the application record – from the email address that was used for service in this case. The hard copy of the application record was sent to Mr. Hibbert at his last know address. As recently as December 2023, Mr. Hibbert listed his mailing address on court documents as the same location where the materials were sent. Further, there is no indication that the three-volume application record was returned to sender after it was mailed to Mr. Hibbert.

[14] I am satisfied that the application record, supplemental application record, and correspondence from Ms. Cyr confirming the application date were served in such a manner that they would have come to Mr. Hibbert’s attention. Pursuant to r. 16.08, service of the Bank’s material on Mr. Hibbert is validated. I am satisfied that Mr. Hibbert was aware of the application and chose not to file materials or attend to make submissions.

Vexatious Declaration

[15] Section 140(1) of the CJA provides:

Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) instituted vexatious proceedings in any court; or

(b) conducted a proceeding in any court in a vexatious manner,

the judge may order that,

(c) no further proceeding be instituted by the person in any court; or

(d) a proceeding previously instituted by the person in any court not be continued, except by leave of a judge of the Superior Court of Justice.

[16] In Re Lang Michener et al. and Fabian et al., the factors to consider in determining whether the respondents are vexatious litigants are listed as including:

(a) the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction constitutes a vexatious proceeding;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions include those brought for improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) it is a general characteristic of vexatious proceedings that grounds, and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings are vexatious, the Court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f) the failure of the person instituting the proceedings to pay costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;

(g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings. [3]

[17] I agree with the submission of the applicant that virtually all of the above noted principles are applicable to this case.

[18] In each case, Mr. Hibbert’s litigation against the Bank relates to the alleged unauthorized transfer of funds out of his jointly owned TFSA. This litigation history is as follows:

a. Brampton Small Claims Court (SC-18-5844) – Action dismissed following trial. Costs awarded to the Bank in the amount of $4,441. No appeal.

b. Brampton Small Claims Court (SC-19-5725) – Action commenced one month after the original decision dismissing the claim based on the same facts. Bank brought motion to dismiss the action on the basis that it is frivolous, vexatious, and an abuse of process – which remains outstanding.

c. Brampton Superior Court (CV-22-0906) – Action commenced against Bank, including defamation allegations against the deputy judge that dismissed the original action. Court exercised discretion to dismiss the proceeding pursuant to r. 2.1.01 of the Rules. In dismissing the action, Fowler Bryne J. noted that Mr. Hibbert’s claim was a repetition of his previous claim which was dismissed and had “all the hallmarks of a vexatious claim”.

d. Toronto Superior Court (CV-22-687619) – Action commenced was a photocopy of his prior pleading in a different city. Action was dismissed pursuant to r. 2.1.01 of the Rules by Koehnen J. Mr. Hibbert appealed the decision to the Court of Appeal, which was also dismissed (COA-22-CV-0409). The Court of Appeal stated: “…the appellant cannot commence a new action each time he fails in a previous action.”

e. Toronto Small Claims Court (SC-23-8114)– Action brought against National Bank Investments, National Bank of Canada’s investment arm, in relation to the same facts involving the TFSA. The Bank has invited the Small Claims Court to exercise its discretion to dismiss the proceeding on its own initiative pursuant to r. 12.02(3) of the Rules of Small Claims Court. This proceeding remains outstanding.

[19] There has only been one costs award against Mr. Hibbert to date in relation to the first Small Claims Court action. Mr. Hibbert has not paid that costs award. I am satisfied that the Bank has had to incur substantial costs in defending the numerous, unmeritorious proceedings brought by Mr. Hibbert.

[20] Mr. Hibbert has written to Ms. Cyr requesting a “fear settlement” from the Bank and threatening to drag litigation out in the court system.

[21] On the evidence before me, I am satisfied that the public, and the integrity of the justice system, require protection from Mr. Hibbert. I am satisfied that Mr. Hibbert will continue to launch baseless litigation unless he is restrained from doing so by virtue of a vexatious litigant declaration.

[22] Based on the totality of evidence before me, I find Mr. Hibbert to be a vexatious litigant within the scope of s. 140 of the CJA.

[23] Having found Mr. Hibbert to be a vexatious litigant, the next step is to determine what reasonable measures are required to protect the administration of justice from Mr. Hibbert’s vexatious conduct.

[24] The Bank has not proposed that Mr. Hibbert be stripped of the right to commence litigation in perpetuity. Rather, it has been suggested that an additional step be required before Mr. Hibbert can begin a lawsuit in Ontario against the Bank or any of its affiliates. Specifically, the Bank submits that Mr. Hibbert be required to obtain leave from the court before starting such a claim. I agree. The requirement that Mr. Hibbert obtain leave will ensure that he is not precluded from advancing meritorious litigation while preventing him from abusing the court process. It strikes an appropriate balance.

[25] There are at least two live Ontario actions by Mr. Hibbert against the Bank or its affiliates. I find that it is appropriate to stay any ongoing litigation commenced by Mr. Hibbert against the Bank or its affiliates until such time as Mr. Hibbert obtains an order granting him leave to continue the same. Specifically, Brampton Small Claims File No. SC-19-5725 and Toronto Small Claims File No. SC-23-8114 are hereby stayed until such time as Mr. Hibbert obtains leave of a judge of the Superior Court of Justice pursuant to s. 140(3) of the CJA.

Costs

[26] The Bank seeks costs of the application on a substantial indemnity basis in the amount of $39,752.23, inclusive of HST and disbursements.

[27] The costs of the application include preparing the original application record, a supplementary application record (to document more recent communication and developments in the GTA proceedings), a factum, and attending at the hearing of the application. Despite the voluminous record, I find that the amount claimed is excessive.

[28] In the circumstances, I find that it is fair and reasonable to fix costs payable from the respondent to the applicant in the amount of $15,000 inclusive of HST and disbursements.

Order to Issue

[29] An order shall issue as follows:

1. THIS COURT ORDERS that service of the Notice of Application, Application Record, Supplemental Application Record and Factum on the Respondent, at the mailing and email addresses set out in the affidavits of service dated October 10, 2023 and January 30, 2024, is deemed to be valid.

2. THIS COURT DECLARES that the Respondent has, persistently and without reasonable grounds, instituted vexatious proceedings against the Bank and conducted these proceedings in a vexatious manner, pursuant to s. 140(1) of the Act.

3. THIS COURT ORDERS that no further actions, appeals, applications, or other proceedings may be instituted or continued by the Respondent against the Bank, or any of its affiliates, officers, directors, employees or agents, in any court, except by leave of a judge of the Superior Court of Justice pursuant to s. 140(3) of the Act.

4. THIS COURT ORDERS that all existing actions, appeals, and applications brought by the Respondent against the Bank, or any of its affiliates, officers, directors, employees or agents, in any court, including (but not limited to) the actions bearing court file number SC-19-5725 and SC-23-8114, shall be and are immediately stayed except and until such time as the Respondent has obtained leave of a judge of the Superior Court of Justice pursuant to s. 140(3) of the Act.

5. THIS COURT ORDERS that the Respondent shall deliver a copy of this Order, and the copy of the Reasons for Decision herein, to any person or body with whom he initiates or continues any complaint, action, appeal, application or other proceeding, including any court, administrative body, tribunal and/or regulatory body.

6. THIS COURT ORDERS that the Respondent shall forthwith pay costs of the application to the Bank fixed in the amount of $15,000 inclusive of disbursements and HST.

Muszynski J. Date: February 23, 2024

Footnotes

[1] R.S.O. 1990, c. C. 43 [CJA].

[2] R.R.O. 1990, Reg. 194 [Rules] at r. 16.01(1).

[3], [1987] O.J. No. 355.