Court File and Parties

COURT FILE NO.: CV-19-28233 DATE: 2024/05/29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTOPHER BEVERLEY NEWMAN also known as CHRISTOPHER WARREN BONIN Applicant – and – THE ATTORNEY GENERAL OF ONTARIO and SOO GREYHOUNDS INC. Respondents

Counsel: Self-represented (for the Applicant) S. Shoemaker, for the Respondents

HEARD: In writing

Reasons for Decision

eLLIES J.

Overview

[1] The applicant seeks leave to continue or commence proceedings against the Attorney General of Ontario and Soo Greyhounds Inc. (the “Greyhounds”) pursuant to an order I made in 2014 under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, staying certain proceedings and prohibiting him from bringing any new proceedings involving the same issues or those parties without leave of the court.

[2] For the following reasons, leave is denied.

Background

[3] In 2012, the applicant commenced seven actions in which he sought either free hockey tickets or damages for the failure to provide free tickets to hockey games in Sault Ste. Marie.

[4] In 2013, the applicant commenced an application against the Greyhounds and the Attorney General, alleging that s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19, contravened s.15 of the Canadian Charter of Rights and Freedoms because it did not compel the Greyhounds to provide him with free hockey tickets.

[5] The Greyhounds brought a “counter-application” in which they sought to stay four of the 2012 actions and the 2013 discrimination application on the basis that the applicant was a vexatious litigant. On August 12, 2014, I made an order, on consent, in which I stayed the seven 2012 actions and made procedural orders regarding the 2013 discrimination application, including deadlines for filing material.

[6] The applicant failed to adhere to the timelines I had set in the 2014 order. As a result, on January 13, 2015, I extended the timelines to roughly the end of 2014. I also ordered that the applicant pay costs to the respondents in the amount of $1,000, on certain terms.

[7] In October 2015, the applicant formally abandoned his 2013 application.

[8] Roughly five years later, he attempted to file a “requisition and request to dismiss” the counter-application under r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), which the Registrar refused to accept.

[9] This application was commenced in December 2019. It was adjourned numerous times and was finally scheduled to proceed to a hearing before a judge on August 25, 2021, peremptorily against the applicant. However, on August 23, 2021, over the objection of the Greyhounds, the matter was again adjourned at the request of the applicant. On consent, the presiding judge ordered that the application proceed in writing and imposed certain filing deadlines.

[10] For reasons not germane to my decision, the judge was unable to continue presiding over this matter and it became necessary to assign the matter to a new judge. I was the Regional Senior Judge at the time and it was my responsibility to assign that judge. However, our region suffers from a serious shortage of judicial resources. As a result, priority was given to matters that are clearly not vexatious and this application is only being dealt with now.

Analysis

[11] The relevant portions of s. 140 of the Courts of Justice Act provide as follows:

140 (1) 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.

(3) Where a person against whom an order under subsection (1) has been made seeks leave to institute or continue a proceeding, the person shall do so by way of an application in the Superior Court of Justice.

(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.

(5) Nothing in this section limits the authority of a court to stay or dismiss a proceeding as an abuse of process or on any other ground.

[12] While s. 140(4) permits the Attorney General to be heard in this matter, only the applicant and the Greyhounds have filed materials.

[13] Under s. 140(4), the court is only permitted to grant leave if the court is satisfied:

(1) that the proceeding sought to be instituted or continued is not an abuse of process; and

(2) that there are reasonable grounds for the proceeding.

[14] It is my view that the absence of reasonable grounds for seeking leave can itself be a relevant factor in determining whether an application for leave is an abuse of process. For that reason, I propose to examine the grounds for the application before turning to the question of whether the application is abusive.

The Grounds for the Application

[15] It is a hallmark of vexatious litigants that their materials contain “rambling discourse characterized by repetition and a pedantic failure to clarify”: Gao v. Ontario (Workplace and Safety Insurance Board), 2014 ONSC 6497, at para. 15. One need look no further than to the relief requested in the present application to find such discourse.

[16] The applicant seeks “[l]eave for a Judicial Order or direction or continuance, to institute an originating process and proceeding by Application or to treat this Application as both”. Both of what? An order, a direction, or a continuance? These are the only three disjunctive words in the request for relief. If so, then there are three alternatives, and not just two. Or is the applicant referring to “an originating process and proceeding by Application”? If so, why would he have to ask that they be treated as “both” when he sets them out as one thing?

[17] The applicant’s word choice is not born out of a complete ignorance of the law. The evidence before me in 2014 was that he was a licensed paralegal and demonstrated that he was very experienced, too experienced I would say, as a result of the plethora of legal proceedings he had commenced for various reasons since the 1990’s.

[18] Regardless of the reason for the language used by the applicant, the result is more work for the respondents and for the Court in trying to decipher and to properly analyze the applicant’s materials. Thus, what follows is my best interpretation of the applicant’s requests and the reasons behind them.

[19] The applicant seems to be making four arguments:

(1) that the counter-application was a nullity because it should have been commenced as a separate proceeding, rather than being given the same file number and treated as part of the applicant’s discrimination application;

(2) that the Registrar of the Court was wrong to refuse to allow the applicant to file materials on or about October 11, 2019, in connection with the respondent’s counter-application;

(3) that the 2014 order should be set aside as no longer being necessary because the respondent has taken no further steps since the “interlocutory” 2014 order was made; and

(4) that leave is not required because the 2014 order does not apply to the respondent’s counter-application.

[20] As I will explain, none of these arguments have any merit. I will deal briefly with each in the order in which I have listed them.

The Counter-Application

[21] Section 140 of the Courts of Justice Act requires that an application be brought where a party seeks to have someone declared a vexatious litigant. Applications are governed by r. 38 of the Rules. Rule 38.03 provides that:

If a notice of application has been served and the respondent wishes to make an application against the applicant, or against the applicant and another person, the respondent shall make the application at the same place and time to the same judge, unless the court orders otherwise.

[22] The applicant relies on the decision in Norbett & Associates Inc. v. 1434267 Ontario Ltd. (2003), 63 O.R. (3d) 477 (S.C.J), in which it was held that, notwithstanding that the heading to this rule is “counter-applications”, counter-applications do not exist under the Rules. The judge in Norbett held that a separate application must be issued with a new court file number and the two applications consolidated, converted into an action, or heard together. That was not done here. [1]

[23] There are two reasons why this argument must fail.

[24] First, the applicant has waived his right to make it. As I mentioned earlier, the 2014 order was made on consent. Before it was made, the applicant wrote to the lawyers for the Greyhounds, stating that they had improperly brought their client’s application as a counter-application and accusing them of not knowing what they were doing. Therefore, he was aware of the procedural issue before the 2014 order was made and, yet, consented to the order. In my view, the applicant’s consent to the 2014 order should be interpreted as a waiver of his right to advance this argument.

[25] Second, the Rules themselves ensure that form does not defeat substance. Rule 2.01(1) provides:

(1) A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,

(a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute; or

(b) only where and as necessary in the interest of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part.

[26] Thus, even though the counter-application was not the proper vehicle through which to claim the relief sought by the Greyhounds, it was a nullity only where the interests of justice were thwarted as a result. They were not. The fact that a completely different application was not commenced and then joined with the discrimination application had no effect whatsoever on the merits of the proceeding.

[27] Like the judge in Norbett, I would not declare the counter-application a nullity and I would certainly not set aside the order that resulted from it.

The Registrar

[28] As I noted above, the applicant formally discontinued his discrimination application in 2015. According to the applicant, four years later, the Registrar refused to allow him to file a request to dismiss the counter-application, which the applicant contends was wrong.

[29] This argument ties into the applicant’s first argument that his discrimination application and the counter-application were separate proceedings. While that is technically true under the Rules, the counter-application was clearly a response to the discrimination application. The 2014 order was made as a result of the counter-application and there was no relief left to be granted in that application. The only live application after the 2014 order was made was the discrimination application. That application was abandoned in 2015. Therefore, the Registrar was right not to allow the applicant to file further materials with respect to either application.

Further Steps in the Counter-Application

[30] This argument fails for the same reason the last one failed: the 2014 order finally disposed of the counter-application.

[31] The 2014 order was not an interlocutory order; it was a final order. No further steps were necessary, save and except for compliance by the parties with the portions of the order requiring them to take steps in connection with the applicant’s discrimination application which, as I have pointed out, the applicant failed to do before finally abandoning it.

The 2014 Order

[32] This argument is based on the same flawed premise that underlies the last two arguments, that is, because the discrimination application and the counter-application were supposed to be constituted separately, they maintained separate “lives”.

[33] As I have stated, the 2014 order was made as part of the discrimination application. The fact that the relief requested should have been made in a separate application that would later have been joined with the relief requested in the discrimination application does not limit the scope of the 2014 order. That order was made in connection with both proceedings. One need only look at the order to know this. The Greyhounds are referred to as the “Respondent/Counter-Applicant” and the preamble refers to both the discrimination application and the counter-application.

The Abusive Nature of the Current Application

[34] As set out above, the test under s. 140(4) requires the court to consider both the grounds for the application and whether it is an abuse of process. As also set out above, I believe that the absence of any merit to an application is itself a factor to consider in the abuse analysis. For the foregoing reasons, I conclude that there are no reasonable grounds for the application. I will now briefly address what I consider to be other indications that the application is an abuse of process.

The Unpaid Costs Order

[35] In Lang Michener Lash Johnston v. Fabian (1987), 59 O.R. (2d) 353 (Ont. H.C.), p. 359, Henry J. held that the failure of a person to pay the costs of unsuccessful proceedings was a factor to be considered in determining whether proceedings are vexatious.

[36] The applicant has failed to pay the costs I ordered him to pay in 2015.

The Number of Motions

[37] In Lang Michener, Henry J. also held that a respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

[38] In this case, the applicant has already brought at least three motions relating to interim orders. As far as I can tell, none of them proceeded. Certainly, none of them appears to have been successful.

The Length of the Applicant’s Factum

[39] In Gao, Myers J. included as one of the hallmarks of querulous litigants the fact that their submissions often consist of “many, many pages”: Gao, at para. 15.

[40] At the time he ordered that this application proceed in writing, the presiding judge also ordered that the applicant limit his written submissions to 20 pages. However, the applicant’s factum is 45 pages long, not including attachments. I cannot find any endorsement in the file granting the applicant leave to file a lengthy factum. Even if such an endorsement exists, the excessive length of the factum is abusive, especially when combined with its nearly incomprehensible nature.

The Issues Involved

[41] Finally, in both Gao and Lang Michener, the court pointed out that the bringing of multiple proceedings to try to re-determine issues which have already been determined is characteristic of vexatious litigation: Gao, at para. 14; Lang Michener, at p. 358.

[42] In my view, this is exactly what is being attempted here. More than five years after the 2014 order was made, the applicant is attempting to thwart the order and to drag the respondents back into the litigation mud.

Conclusion

[43] For the foregoing reasons, I find that there is no reasonable basis upon which to grant the relief sought and that this application is an abuse of process. The application for leave is, therefore, dismissed.

[44] The Greyhounds shall have 30 days within which to make written submissions with respect to the issue of costs, which submissions shall be limited to 5 typewritten pages, excluding attachments. The applicant shall have 60 days within which to respond. His submissions shall be similarly limited in length. The court will not review submissions that do not comply with this direction.

M.G. Ellies J.

Released: May 29, 2024

Footnotes

[1] Although I agree that there is no such thing as a “counter-application” under the Rules, I will continue to refer to the application under s. 140 of the Courts of Justice Act as the counter-application in these reasons for the sake of simplicity.