Court File and Parties

COURT FILE NO.: CV-23-00707991-0000 DATE: 20241023 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ED O'BRIEN, BRENDAN O'BRIEN, 2104689 ONTARIO INC., DEARWOOD HOLDINGS INC., BANGOR CONSTRUCTION LIMITED and KINSALE INVESTMENTS LIMITED Applicants – and – EVAN ARGILOFF, AMERIBUILD INC. and ARGILOFF ENGINEERING AND DEVELOPMENT CORP. Respondents

Counsel: Daniel Cohen, for the Applicants Evan Argiloff, Self-Represented

HEARD: September 24, 2024 Akazaki J.

REASONS FOR JUDGMENT

OVERVIEW

[1] The O’Briens started this application under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to preclude further litigation against them by Mr. Argiloff or any of his companies, on the ground that he is a vexatious litigant.

[2] In 2006, Evan Argiloff purchased a farm in Listowel, Ontario. He registered title to the property in the name of Argiloff Engineering and Development Inc. This company differed from Ameribuild Inc., the professional corporation of Mr. Argiloff’s engineering practice. Several years after that purchase, he went into business with Ed and Brendan O’Brien to develop a portion of the land as a residential subdivision, through their respective companies. By 2021, the Argiloff and O’Brien entities reorganized their relationship so that the O’Briens acquired control of Argiloff Engineering and Development Inc., now renamed 2104689 Ontario Inc. In September 2021, Mr. Argiloff and the O’Briens quarreled over the amount of aggregate to be excavated from the Mr. Argiloff’s lands to achieve specified grading for a park in the subdivision. The O’Briens continued to remove the material. They then terminated Mr. Argiloff as the engineer for the subdivision.

[3] That slight to Mr. Argiloff’s professional identity appeared to have sparked a personal vendetta which has now settled into a war of attrition with neither an endgame nor a point. His original two suits were dismissed procedurally. His numerous construction liens and attempts to obtain default judgment were all turned aside. Nothing came of his appeals. There are five more actions, one of which he says was a mistake, all stemming from the same failed business relationship.

[4] The substance of Mr. Argiloff’s original legal grievance with the O’Briens over the appropriation of surface materials, or over additional legal issues he later raised from the breakup of the business relations, are relevant only to balance Mr. Argiloff’s right to his day in court against the O’Briens’ right to peace from endless court cases arising from the original controversy. A s. 140 order would entail a requirement that Mr. Argiloff would not be able to institute further proceedings or continue the ones he has already started, unless he first persuaded a judge that it would not be an abuse of process and that there are reasonable legal grounds for the proceeding.

[5] Mr. Argiloff is proud to be an engineer but disclaims the skills of a litigator. If he made “procedural mistakes,” he submitted, he apologizes. Representing himself, he incurred the procedural consequences of his actions, through the accumulation of adverse costs awards and ultimately the dismissal of his original lawsuit. Instead of taking stock of his predicament and retaining a lawyer, as he was required to do for the corporate plaintiffs but did not, he restarted the process over and over again. These could not have been mistakes. As an applied scientist, Mr. Argiloff should know empirically that failure beyond a second or third attempt requires rethinking the procedure instead of continuing to repeat it and expecting a different result.

[6] For the reasons stated below, the application is granted. In doing so, I make no determination whether Mr. Argiloff or his companies are still capable of starting an action that could persuade a judge to grant leave. Ultimately, a s. 140 order would preserve his access to the court, but only after he presents a cogent rationale for permission to sue. If he is unable to do so, the O’Briens will have peace.

[7] In the reasons that follow, the s. 140 analysis boils down to one issue: Has Mr. Argiloff instituted or conducted vexatious proceedings persistently and without reasonable grounds?

SECTION 140

[8] Section 140 is a complete code. Its introduction in the 1984 version of the Courts of Justice Act superseded a separate statute called the Vexatious Proceedings Act, R.S.O. 1980, c. 523. To understand its scope and meaning, the court must read s. 140 as a whole, including its two parts.

[9] The first part deals with the application to the court to prohibit further legal proceedings by the litigant without leave of a judge:

Vexatious proceedings

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. R.S.O. 1990, c. C.43, s. 140 (1) ; 1996, c. 25, s. 9 (17).

(2) Repealed: 1998, c. 18, Sched. B, s. 5 (2).

[10] The second part outlines the scope of the vexatious litigant’s continued right to access the court’s civil process through a leave application:

Application for leave to proceed

(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. R.S.O. 1990, c. C.43, s. 140 (3) ; 1996, c. 25, s. 9 (17).

Leave to proceed

(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.

Abuse of process

(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. R.S.O. 1990, c. C.43, s. 140 (4, 5).

[11] Section 140 has recently been amended, but the amendments took effect on October 15, 2024, after the issuance of the notice of application. Accordingly, the pre-amendment provisions quoted above apply.

[12] On its face, cl. 140(1)(a) covers the unjustified repetition of lawsuits, and cl. 140(1)(b) the conduct of a single lawsuit through repetitive unmeritorious steps. These provisions do not capture acrimonious litigation simpliciter – there are other means of managing those cases. Vexatiousness, through litigation for the purpose of annoyance or harassment, generally denotes a repeated pattern of frivolous, vexatious, and abusive proceedings, motions, and appeals, as well as other steps taken out of court. See Ontario (Attorney General) v Reyes, 2017 ONSC 3451, at paras. 19-21, surveying the case law both in this court and in the Court of Appeal; and Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at paras. 18-22, outlining the commonly experienced features of vexatious litigant behaviour. Many of the phenomena exist in Mr. Argiloff’s handling of litigation. Non-payment of costs awards, repetition of procedures, appeals from multiple interlocutory orders, and abusive treatment of adversaries, are only a few examples of conduct described in the case law.

[13] Because of the discretionary nature of the provision, the case law can only provide general guidance. In all cases, the courts have recognized that s. 140 can only be applied to exceptional cases. It can only apply to repeated and seemingly aimless conduct. Most cases of litigation misconduct can be addressed by awards of costs and other procedural sanctions, including dismissal of cases, but short of barring a party from the courthouse. To qualify as warranting a s. 140 order, the applicants’ right to be free from abusive litigation with the respondent must clearly outweigh the respondent’s right of access to the courts: Kallaba v. Bylykbashi, at para 145.

[14] I do observe that s. 140(1) uses only one of the unholy trinity of adjectives (frivolous, vexatious, and abusive) to describe proceedings in other contexts, such as in rules 2.1, 21.01(3)(d), or 25.11. The phrase, “abuse of process,” appears only later in ss. 140(4) and (5). I construe from this legislative drafting that the legislature meant the word “vexatious” to be the focus of the s. 140(1) inquiry. The absence of the word “frivolous,” in particular, signifies the availability of the s. 140 remedy even where the original underlying suit may once have had a chance of success on the merits. The word “vexatious” requires the court to examine the “totality of the circumstances,” in particular, the conduct of the litigant. The lack of a full substantive impediment to the action does not preclude the curtailment of a litigant’s right to proceed with litigation: Gaddam v. Eng, 2008 ONCA 240, at paras. 2-3.

[15] The second part of s. 140 also bears some significance to the court’s exercise of discretion under the first part to preclude the vexatious conduct, because it shows the only remaining recourse for the vexatious litigant after being subject to the order under subsection (1). One’s first impression may be that subsections (3) and (4) operate as a safety valve provision to subsection (1), by allowing the litigant to reconstitute or regularize proceedings in a more coherent and non-abusive manner. While that may be so, the s. 140(3) requirement that “there are reasonable grounds for the proceeding” coupled with the availability of rescission of the vexatious litigant order imports two additional features.

[16] First, a s. 140(3) leave application imports a triage function on future litigation attempts. The legal phrase, “reasonable grounds,” used in s. 140(4), denotes a low merits threshold that mirrors the “without reasonable grounds” analysis in s. 14(1). Thus, a litigant who frequently brings lawsuits precipitously would not be considered vexatious, provided the suits each contained a kernel of a cause to sue. This example contrasts with someone with a seemingly valid cause who then launches repetitive suits or motions instead of pursuing the one suit through its procedural paces.

[17] Second, the availability of rescission means the s. 140 regime could operate as a kind of purgatory from which the court affords litigants a process to redeem themselves by demonstrating a more reasonable approach to the court process. Depending on the case, this reasoning could allow courts to grant s. 140 applications more readily because they offer peace to applicants without denying access to justice.

[18] Section 140 requires the court to exercise its discretion with considerable caution, in accordance with the factual context and the dynamics between the parties. However, in exceptional and appropriate cases, it signifies the legislature’s recognition of peace from repetitive litigation as important as the right to court access.

EVAN ARGILOFF’S LITIGATION ANALYZED THROUGH THE S. 140 LENS

[19] Beyond what I stated at the outset, there is no point delving into the transactions and events prior to 2021. The relatively simple contractual disputes over the extraction of aggregates and the termination of Mr. Argiloff as the project engineer could have played out in a trial in the usual manner. The applicant diminished the legal validity of the claim for “dirt theft,” as Mr. Argiloff called it. However, if the O’Briens were not entitled to extract it, there could have been a justiciable dispute. Similarly, if their relations gave rise to an expectation of Mr. Argiloff’s lands being serviced by the sewer and water works, a lawsuit for damages could have an air of reality. The court dismissed the suits, because Mr. Argiloff took ill-advised procedural steps and refused to pay the costs awards. Dismissal and the antecedent grounds for it, not the underlying claims, are the focus of the s. 140 inquiry. How can Mr. Argiloff revive the dismissed actions? Not by simply reissuing statements of claim. Perhaps the lack of a reasonable answer to the question renders the conclusion to the s. 140 analysis self-evident.

[20] The O’Briens’ factum listed steps in the litigation in minute detail. Mr. Argiloff did not deny the steps, which I list below. For ease of reference, I set out in bold letters the seven statements of claim. However, I recognize how the construction liens, attempts to obtain default judgment, and other procedures, were sources of annoyance to the O’Briens.

1. Statement of Claim #1 (Stratford), April 22, 2022, revised May 7, 2022
2. Requisition to note defendants in default, June 8, 2022
3. Motion for default judgment, June 21, 2002
4. Amended Statement of Claim, August 8, 2022
5. Motion for summary judgment, November 28, 2022
6. Further Amended Statement of Claim, December 12, 2022
7. Construction Lien #1, January 24, 2022
8. Construction Lien discharged per Heeney J. February 16, 2023, with $15,000 costs ordered against Argiloff
9. Notice of appeal from Heeney J., March 7, 2023 (served but not filed)
10. Statement of Claim #2 (Toronto), February 22, 2023
11. Amended Statement of Claim, March 14, 2023
12. Motion to note defendants in default, April 25, 2023, dismissed by Cook J. with $670 costs payable to defendants
13. Construction Liens #2 and #3, April 5, 2023, discharged by Mitchell J. on May 30, 2023, also dismissing Argiloff motion requiring lien funds into court
14. Defendants’ motion to strike Statement of Claim, May 16, 2023, adjourned by Moore J. with costs of $8,500 payable by Argiloff, consolidating Stratford and Toronto actions, and ordering Argiloff to post security for costs in the amount of $20,000
15. Costs ordered by Mitchell J. in the amount of $20,000 for motions to remove construction liens #2 and #3
16. Dismissal of consolidated Stratford action, per Grace J., July 18, 2023, for failure to post security for costs
17. Notice of Appeal from the order of Grace J., August 17, 2023
18. Notice of Appeal from the order of Mitchell J., August 18, 2023
19. Construction Lien #4, September 8, 2023
20. Costs of Stratford action awarded by McArthur J., $55,000 for the action and $10,000 for the motion, December 12, 2023
21. Settlement of draft orders arising from Argiloff refusal to approve, January 3, 2024
22. Notice of appeal from approval of draft orders, January 9, 2024, dismissed by Tranquili J. May 24, 2024
23. Notices of appeal from Mitchell, Rady, and McArthur JJ. Orders, January 11, 2024
24. Notice of appeal from Rady J. order discharging fourth lien, February 2, 2024, dismissed by Shore J. June 4, 2024
25. Statement of Claim #3 (Toronto), September 21, 2023
26. Statement of Claim #4 (Toronto), July 17, 2023
27. Statement of Claim #5 (Toronto), July 18, 2023
28. Toronto Civil Practice Court to schedule vexatious litigant application, November 22, 2023
29. Requisition to note defendants in default re September 21, 2023, statement of claim
30. Statement of Claim #6, October 19, 2023
31. Civil Practice Court, March 13, 2024, to move up application hearing due to Argiloff taking steps in the fact of stay; all proceedings stayed by Merritt J.
32. Statement of Claim #7, October 26, 2023
33. Notice of appeal from Merritt J.’s Civil Practice Court direction, March 14, 2024, dismissed by Shore J. June 4, 2024
34. Civil Practice Court, March 17, 2024, to adjourn application due to Argiloff medical procedure
35. Civil Practice Court, April 3, 2024 – no result as it was without notice to defendants
36. Civil Practice Court, April 16, 2024, Argiloff directed by Akazaki J. to bring any motion to strike the application to the hearing of the application
37. Notice of motion by Argiloff served on defendants but not filed, April 16, 2024
38. Argiloff registered a Notice of Security Interest on title to the lands, June 26, 2024

[21] Some Superior Court proceedings do require many motions, case conferences, appeals, and other steps. Actions arising from simple property and contract disputes do not warrant them. To tie the case into the s. 140 framework, the court needs to focus on three points: vexatiousness, persistence, and absence of reasonable grounds.

[22] Mr. Argiloff issued seven statements of claim, although he never served Statement of Claim #4, July 17, 2023, because it was a “filing error” on his part. For the purposes of this application, I will consider the remaining six actions because, at least in principle, the defendants cannot be vexed by a proceeding if it was not served. The overarching theme to the litigation appears to be Mr. Argiloff’s quest for instant relief, either through obstructionism such as the registration of construction liens, or immediate execution of a money judgment through default judgment. It is not haphazard, but there is a manic and impulsive aspect to it. Persistence being part of the pattern cannot be denied. Some actions do feature multiple statements of claim by the same parties, for a reason. For example, separately represented plaintiffs asserting subrogated and uninsured claims might issue multiple claims independently. Here, there is no valid reason. Moreover, the O’Briens could hardly be expected to deliver a defence when Mr. Argiloff kept amending his pleadings and issuing new ones at will.

[23] The court record from the various proceedings, as outlined in the evidence and submissions of both sides, described the above 38 litigation steps, as well as others, in considerable detail. Part of the rationale for this level of detail was to describe the repetition of steps, especially the inappropriate ones. Notably, most of the steps related to Mr. Argiloff’s attempts to obtain relief to which he was not entitled. None of them were events ordinarily expected in a civil action, such as documentary and oral discovery. There was no evidence that Mr. Argiloff took any steps intended to prepare the case(s) for presentation of evidence and arguments at trial. He kept trying to obtain judgment without affording the O’Briens procedural justice. Rather than examining every step seriatim, I will attempt to summarize the proceedings in a manner that illustrates how Mr. Argiloff had his initial suit(s) dismissed, and how he kept attempting to repeat the process without a cogent plan to achieve proper adjudication of his legal complaints.

Original Statements of Claim #1 and #2

[24] The original April 22, 2022, action issued in Stratford did not name any parties, but it designated the O’Briens, 2104689 Ontario Inc., and Dearwood Holdings as the parties to be served. Mr. Argiloff succinctly described this claim as the one for “dirt theft.” He alleged the defendants wrongfully excavated aggregate materials from nearby or adjacent industrial property owned by Ameribuild Inc. and contravened the Aggregate Resources Act and Regulation 466/20 under the statute.

[25] The second action, started in Toronto on February 22, 2023, on behalf of Mr. Argiloff and Ameribuild, alleged the defendants damaged the sewage and waterworks system he designed for the development. The system also served Ameribuild’s land. The claim was for replacement of the system, to correct the fact that his company’s land was now landlocked from municipal services, and for damages. This action was consolidated into the Stratford action.

[26] Apart from formal pleading defects, both in form and substance, these two actions did seem to disclose an arguable legal dispute. The issue in the Stratford action would have been permission or licence to extract soil or aggregates from the plaintiff’s lands for use in the defendants’ development. The O’Briens exercised what they believed to be their contractual right to extract. Mr. Argiloff disagreed. The issue in the Toronto action would have been the existence of some property right, such as a prescriptive easement between the two lands as dominant and serviant tenements. (Mr. Argiloff’s later claim for copyright infringement for the O’Briens’ refusal to return his engineering drawings did not appear to have any merit, however.)

[27] The first two actions were consolidated under the Stratford action. I am not sure what that entailed, exactly, because a consolidation order requires specific modes of pleading which I did not see in the materials. Nevertheless, the court in Stratford dismissed the consolidated actions because Mr. Argiloff failed to post the security for costs ordered after he refused to pay the costs orders resulting from invalid lien registrations. The parties devoted a considerable amount of time arguing the intricacies of the security for costs and the dismissal of the action. Mr. Argiloff insisted that he discontinued the action just before they were dismissed. The discontinuance, he argued, meant that about $30,000 in costs orders ceased to have effect: If the orders were interlocutory, so were the costs orders.

[28] I do not need to explore the differences between a procedural dismissal order arising from failing to post security for costs and a discontinuance. Both are procedural ends to proceedings that, in theory, do not bar further proceedings unless they stipulate, they are with prejudice to further proceedings. As of July 18, 2023, the order of Grace J. dismissed the action for the wrongful excavation and the damage to the sewage and water system. Mr. Argiloff appealed the order, but it appears he never filed the notice of appeal.

[29] I inquired of counsel for the O’Briens whether the running of the limitation period was part of their argument on the application. He confirmed that it was not. I therefore need not concern myself with any limitation defence, including whether it necessitated the third statement of claim, dated September 21, 2023.

[30] The consolidated action came to be dismissed because of an order for security for costs which Mr. Argiloff or his companies failed to post. In turn, he was ordered to post security because of unpaid costs orders. He had dug himself into that hole by registering improper construction liens and by taking ill-advised steps to obtain default judgment. I will now turn to these antecedents of the dismissal order.

Construction Liens

[31] Construction liens arise from the supply of work and materials to a building site, as provided in the statutory framework of the Construction Act, R.S.O. 1990, c. C.30. I need not decide whether any of the construction liens Mr. Argiloff or his companies registered against the subdivision lands, because they were all discharged or vacated by court orders and have been deemed to have been improper. In each instance, the court released detailed reasons. The registrations of inappropriate liens on the property were the main cause of Mr. Argiloff’s large interlocutory costs liabilities.

[32] In addition to the financial effect of these liens that the O’Briens had to move to set aside, Mr. Argiloff laid down a pattern of registering liens soon after the court vacated them. This practice not only demonstrated his refusal to abide by the decisions of the court; it also amounted to slander of title because the liens clouded the title and interfered with the O’Brien companies’ financing of property development. What is clear to anyone reading the court’s decisions is that Mr. Argiloff saw the litigation process as a game of cat and mouse.

[33] On January 10, 2024, Rady J. made the following order in a motion to discharge one of the construction liens, akin to a s. 140 order:

Retroactive to September 8, 2023, the plaintiff, his employees, servants, agents, successors, assigns and corporations are prohibited from making any further registrations to the Lands, without the express, written order made by a Justice of the Ontario Superior Court of Justice which has been issued and entered.

[34] It appears Mr. Argiloff found a way around this injunction, by registering a Notice of Security Interest on title to the lands, on June 26, 2024.

Default Proceedings

[35] On its face, rule 19 seems to provide a mechanical procedure for obtaining a speedy judgment by waiting until the time to deliver a defence expires and pouncing on the defendant’s technical default. In practice, the strict time limit is rarely observed. Plaintiffs can obtain default judgments from registrars for liquidated obligations such as debts. The registrar will usually reject any default requisition involving an uncertain basis for liability and will require a motion to a judge. In the case of such motions, despite what rule 19 states, the cost and delay of motions to set aside default judgments has led to the practice of notifying the defendants of default proceedings before acting: Casa Manila Inc. v. Iannuccilli, 2018 ONSC 7083, at paras. 11-17.

[36] To the uninitiated, the court might appear to flout the strictures of rule 19. Rule 2, however, describes rule non-compliance as curable irregularities. A self-represented individual can be excused for trying to obtain judgment using the rule 19 procedure, even when the defendant is expected to retain a lawyer and defend. After an unsuccessful attempt, or an order setting aside a default, the litigant should learn that the rule cannot be employed to short-circuit the course of justice. Mr. Argiloff did not learn from this experience.

[37] The chronology in this litigation includes no less than four attempts to obtain default judgment, as well as a motion to require the O’Briens to prepay the judgment that Mr. Argiloff expected to obtain in one of the proceedings. (That idea was not without a logical base: If the O’Briens could obtain an order for security for costs, why should Mr. Argiloff not be entitled to security for judgment?) Whatever the merits of the dispute between Mr. Argiloff and the O’Briens, the prospect of future attempts to take precipitous litigation steps can only add to the stress and cost of the O’Briens and their lawyers’ vigilance. The serial attempts to use the rule 19 default process qualify as vexatious steps in the proceedings. They also led to more adverse costs orders against Mr. Argiloff.

Unpaid Costs Leading to Dismissal of the Two Actions

[38] Instead of heeding the cumulative effect of the costs orders, Mr. Argiloff told the O’Briens, “Keep dreaming leprechauns” and that he would pay the costs once they paid for the allegedly stolen fill. That refusal to pay the costs led to the order for security for costs, and his refusal to post security led to the dismissal of the consolidated actions by Grace J. on July 18, 2023. Despite Mr. Argiloff’s claim to excellence in engineering as a foil to his lack of excellence in civil litigation, litigation and engineering require a basic understanding of process, cause and effect, and accountability.

[39] As I mentioned above, Mr. Argiloff’s contention that he did not owe the costs because they were made in interlocutory orders before he discontinued the actions did not deter the court from dismissing the actions. In making that submission, he professed to have knowledge and an upper hand over the O’Briens’ lawyers. Humility in his comportment in court, but hubris outside court: This calculus tends to show the madness and method of a vexatious litigant going beyond the mistakes of a self-represented party.

Additional Proceedings

[40] After the dismissal of the first two combined actions, Mr. Argiloff brought five more. One of them, he said, was a filing error and was not served.

[41] The third action made claims arising from the same sewer and water system grievances as the second action. The fourth was for a copyright infringement claim based on the O’Briens failure to return his original engineering plans. The fifth and sixth were difficult to understand, but Mr. Argiloff clarified that it was essentially a claim for slander of title on his company’s property arising from a collateral mortgage registration. There was some question during the hearing how he intended to remove the instrument if the action were to proceed. The seventh action was the filing mistake.

[42] The new suits gave rise to a new series of lien claims and a claim to a security interest in the project lands, all flouting the injunction against the registration of further liens.

[43] It would be fair to state that all claims in the various statements of claim arose from the subdivision venture in which the parties were engaged prior to the first lawsuit. Mr. Argiloff has mined the same business venture as the factual source for all the claims. With time, Mr. Argiloff could conceivably pick over his memories of that relationship and find more grounds to sue the O’Briens. That he might very well do so is not indicative of a valid cause or grievance but, rather, the use of litigation as an outlet for a vendetta. Coming after Grace J.’s dismissal order, the following words from the Court of Appeal in Gaddam, at para. 3, appear directly on point:

If the respondents are allowed to proceed, the appellants will be put to the expense and aggravation of further litigation in a matter they had every reason to believe was settled.

Incivility and Allegations of Lawyer Misconduct

[44] Mr. Argiloff’s use of the word, “leprechauns,” to refer to the O’Briens could not have been anything other than the insertion of ethnic disparagement into the legal dispute, referring to the presumed Irish heritage of the described individuals. The unfiltered introduction of personal insults did not end there.

[45] In para. 49 of her decision of May 31, 2024, arising from one of Mr. Argiloff’s motions for leave to appeal to the Divisional Court, Shore J. stated that Mr. Argiloff had claimed, without foundation, that the O’Briens’ lawyers were under investigation by the Law Society for theft and embezzlement. What is even more concerning was the judge’s observation at para. 50 that Mr. Argiloff has reported the lawyers to the Law Society. This appears to demonstrate a strategy to create a disciplinary record to support his corruption allegation. Ordinarily, complaints to professional regulators do not enter the issues in litigation before this court. However, professional complaints against an opponent’s lawyers do tend to indicate vexatious litigation behaviour.

Requirement of a Lawyer

[46] Individuals have a right to represent themselves in court. Corporations do not. It came out quite readily at the hearing that Mr. Argiloff had no direct cause of action in any of the matters in his personal capacity. The land rights and business interests were held by corporations. His engineering practice operated out of a professional corporation. Thus, the statements of claim in which he was the plaintiff were groundless, and the ones in which his companies were plaintiffs had to have been issued by a lawyer. He never applied for leave to represent the companies.

[47] The refusal to retain a lawyer to handle the claims could have been the result of impecuniosity, but there was no evidence of that. Mr. Argiloff’s avowal of “mistakes” in the litigation combined with his refusal even to consult a lawyer indicated a lack of interest in pursuing his legal rights in a manner that a reasonable person would expect to result ultimately in justice and vindication.

Conclusion about Mr. Argiloff’s Litigation

[48] I return to the thought that the original grounds for the litigation, the removal of aggregates and the interference with the underground services, had at least an air of reality. Those two first actions, as consolidated, represented Mr. Argiloff’s chance to have his claims adjudicated on the merits. Whatever pleading defects those suits featured could, at least in theory, have been cured if he prosecuted the actions in an orderly and earnest manner. Instead, he instituted a campaign of harassing procedures and refused to accept the costs consequences of his actions.

[49] After the first failed attempts, these were not missteps or procedures undertaken by lack of legal knowledge. It is irrational behaviour to lose repetitively in a dispute-resolution process and expect that one day there will be a different result. Litigation differs from engineering in that the result at trial can be unpredictable, but it is similar to engineering in that the procedures are governed by rules. Any legal grounds animating the suit at the outset have ceded space to Mr. Argiloff’s volition and disdain for his opponents and their lawyers.

[50] Although decisions applying s. 140 tend to describe vexatious litigants in terms of abuse and drain on public court resources, the statute addresses the role of courts as the outlet for the peaceful resolution of all manner of disputes. This includes situations where litigants have, by their conduct, jeopardized their right to pursue their claims. The value of s. 140 is not only to provide peace to parties such as the O’Briens, but it also provides a last hope, albeit faint one, for litigants prepared to break the pattern of behaviour that led to an order under the first part of s. 140 and harbour a capacity to pursue their claims in a reasonable manner.

[51] While I suspect Mr. Argiloff has spent his opportunity to obtain redress, s. 140 allows him at least one more opportunity to obtain legal advice to find out for himself whether there is anything the courts can do for him. If he squanders that opportunity, the likely result is that any application for leave will be rejected, and any further resort to the courts will be turned down by the intake registry.

COSTS

[52] The applicants have filed a Bill of Costs and seek an award of full indemnity costs, in the total amount of $63,295.57. They cite the rationale in NDrive, Navigation Systems S.A. v. Zhou, 2024 ONSC 2259, at para. 6, that vexatious litigant applications benefit the public generally and compel the applicants to shoulder a great burden.

[53] Having regard to the purpose, structure and wording of s. 140, I respectfully shy away from turning the provision into a form of judicial ostracism or an opportunity to throw the book at a self-represented individual. The sanction should be restrained at least marginally to mirror the faint hope under the second part of s. 140 to seek leave of the court. Accordingly, I award the applicants their costs on a substantial indemnity basis, in the total amount of $50,000.00, inclusive of fees, disbursements and HST.

ORDER

[54] Based on the foregoing, I am satisfied that Mr. Argiloff, by himself or through his corporations, has persistently and without reasonable grounds instituted vexatious proceedings in this court and has conducted proceedings in a vexatious manner.

[55] I therefore grant the following orders:

1. A declaration that Evan Argiloff, Ameribuild Inc., and Argiloff Engineering and Development Corp. are vexatious litigants as that term is defined pursuant to s. 140 of the Courts of Justice Act, RSO 1990, c C 43.
2. An Order prohibiting Evan Argiloff, Ameribuild Inc., Argiloff Engineering and Development Corp, or any of their employees, servants, agents, successors, assigns, or corporations, directly or indirectly, from initiating or continuing any Action, Application, motion and/or proceeding, without obtaining leave of a Judge of the Ontario Superior Court of Justice against: (i) The Applicants, the Applicants’ employees (past, present or future) and/or members of the Applicants’ Board of Directors (past, present or future); (ii) Any other corporation connected to the Applicants; and, (iii) Any lawyers employed by the Applicants (past, present or future).
3. An Order dismissing, or in the alternative, permanently staying any Action and/or proceeding already commenced by Argiloff, Ameribuild Inc., Argiloff Engineering and Development Corp, or any of their employees, servants, agents, successors, assigns, or corporations against: (i) The Applicants, the Applicants’ employees (past, present or future) and/or members of the Applicants’ Board of Directors (past, present or future); (ii) Any other corporation connected to the Applicants; and, (iii) Any lawyers employed by the Applicants (past, present or future).
4. An Order granting the Applicants their costs of this Application on a substantial indemnity scale in the amount of $50,000.00, inclusive of fees, disbursements and HST; and,
5. An Order discharging any registration made by the Respondents, or any of their employees, servants, agents, successors, assigns, or corporations, made against any lands owned by the Applicants, and directing the Land Titles Registrar to give immediate effect to this Order;
6. An Order prohibiting the Respondents, or any of their employees, servants, agents, successors, assigns, or corporations, from making any registration against any property owned by any of the Applicants without first obtaining leave of a Judge of the Superior Court of Justice; and,
7. An Order that the within Order takes immediate effect without the need for issuance or entry, and dispensing with the requirement that the Respondents approve a draft.

[56] The applicants may provide the court with a draft order for signature, without the approval of the respondents.

Akazaki J.

Released: October 23, 2024 O'Brien et al. v. Argiloff et al, 2024 ONSC 5864 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: O’Brien et al. v. Argiloff et al. REASONS FOR JUDGMENT Akazaki J. Released: October 23, 2024