Howell v. Cullen, 2025 ONSC 1449

Court File No.: CV-21-00662510-0000
Date: 2025-03-05
Ontario Superior Court of Justice

Between:
Steven Howell, Plaintiff
-and-
Tracy Cullen, Defendant

Before: Robert Centa

Counsel:
Steven Howell, self-represented
Mari Maimets, for the defendant

Heard: 2025-02-20

Endorsement

Introduction

[1] The Registered Insurance Brokers of Ontario is a regulatory body for insurance brokers. It regulates the licensing, professional competence, and ethics for all independent general insurance brokers in the province. To be an insurance broker in Ontario, one must hold a RIBO licence. RIBO protects the public interest by ensuring that licensees meet the requirements under the Registered Insurance Brokers Act, the regulations enacted under the Act, and the RIBO by-laws. [1]

[2] In 2020, the plaintiff, Steven Howell, applied for registration with RIBO. In his application, he admitted that he had previously pleaded guilty or been found guilty of an offence that was not related to insurance. He had charges and/or convictions dating from 1996 to 2010, relating to narcotics, weapons, and assault.

[3] Mr. Howell became dissatisfied with how RIBO was processing his application for registration. He issued a statement of claim naming Tracy Cullen, the Manager of Licencing at RIBO, as the defendant. He seeks $3.7 million for defamation. He describes the harm he has suffered as including stress, depression and anxiety, and insomnia.

[4] I dismiss this action because it is frivolous and vexatious. The legislature provided a statutory immunity for all RIBO employees acting in good faith and within the scope of their employment. Mr. Howell does not plead any facts that suggest that Ms. Cullen would not enjoy statutory immunity from his lawsuit. The evidence is uncontested that Ms. Cullen was just doing her job in the public interest, which brings her squarely within the protection afforded by the Act. Moreover, Mr. Howell admits that Ms. Cullen said nothing about him that was false. This is fatal to his defamation cause of action, and it cannot be cured through an amendment.

[5] To the extent that Mr. Howell has concerns about the registration process at RIBO, he could have and should have raised them with the RIBO Qualification and Registration Committee or appealed the QRC decision to the Divisional Court. [2] What he cannot do is sue an employee of RIBO for just doing her job.

[6] The action is dismissed with costs payable by Mr. Howell to Ms. Cullen.

A. Applicable Principles

[7] Ms. Cullen moves to have the action dismissed pursuant to rule 21.01(3)(d) of the Rules of Civil Procedure, which provides that:

(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,

and the judge may make an order or grant judgment accordingly. [3]

[8] A frivolous action is one that is readily recognizable as devoid of merit, as one having little prospect of success. [4] Put differently, a frivolous action is one that lacks a legal basis or legal merit or has been brought without reasonable grounds. [5] A frivolous application is one that will necessarily or inevitably fail. [6] A vexatious application is one taken to annoy or embarrass the opposite party or is conducted in a vexatious manner. [7] As I will explain, Mr. Howell’s action is frivolous and vexatious.

[9] Ms. Cullen also moves under rule 21.01(1)(b) to strike out the statement of claim on the ground that it discloses no reasonable cause of action. The court must read the pleadings generously and accept as true the material facts as pleaded, except if they are patently ridiculous or manifestly incapable of proof. [8] While it is true that the statement of claim does not disclose a reasonable cause of action, I prefer to deal with this action under rule 21.01(3)(d).

B. Procedure on Motion

[10] Mr. Howell was not present at 10:00, when I opened court. However, he arrived during the 15-minute waiting period set out in rule 3.03(2).

[11] Ms. Cullen filed an affidavit for use on the portion of her motion that relied on rules 25.11 and 21.01(3)(d). There were no cross-examinations and Ms. Cullen’s evidence stands unchallenged. Ms. Cullen also filed a factum.

[12] Mr. Howell, in contrast, did not serve or file a responding affidavit or factum on this motion. Rule 21.03 required Mr. Howell to deliver a factum. At the hearing, Mr. Howell said that he did deliver a responding factum and uploaded it to Case Center. Counsel for Ms. Cullen confirmed that she had not been served with any material from Mr. Howell on this motion. I advised Mr. Howell that he did not appear to have uploaded any material to Case Center on this motion. Mr. Howell provided no proof that he had served, filed, or uploaded a factum. Mr. Howell’s failure to provide any responding material on a motion to strike his action may be evidence of a vexatious approach to this litigation. As he is self-represented, I will give him the benefit of the doubt and not consider his failure to deliver written material in deciding this motion.

[13] I allowed Mr. Howell to make oral submissions on the motion, which I have considered in reaching my decision. Mr. Howell’s submissions did not engage directly with any of the submissions made by Ms. Cullen, and they were generally unhelpful to me.

C. Background to Mr. Howell’s Action

[14] On June 20, 2020, Mr. Howell completed an application for a certificate of individual registration as an insurance broker. RIBO received the application on June 29, 2020. In his application form, Mr. Howell disclosed that he had previously pleaded guilty or been found guilty of an offence that was not related to insurance. He had charges and/or convictions dating from 1996 to 2010, relating to narcotics, weapons, and assault.

[15] As part of his application, Mr. Howell signed a consent permitting RIBO to collect additional information about him, including from his current or former employers, for the purpose of determining whether he was qualified and suitable to obtain a RIBO licence. The relevant portions of the application form provided as follows:

I CONSENT to the Registered Insurance Brokers of Ontario collecting such additional information about me as may be necessary to complete or verify the information contained in my application to become a registered insurance broker of Ontario. The sources the Registered Insurance Brokers of Ontario may use are athletic associations; financial institutions; police forces (federal, provincial, municipal and foreign); current and former employers; credit bureaus; business associations; foreign governments; bankruptcy offices; insurance companies; Ministries of Finance and Consumer and Commercial Relations and/or the Financial Services Commission of Ontario (formerly Ontario Insurance Commission); Employment and Immigration; Registrar General; governments of other provinces.

LEGAL AUTHORITY OF THE COLLECTION
Ontario Regulation 991, Section 5 under the Registered Insurance Brokers Act.

PRINCIPAL PURPOSES FOR WHICH THE PERSONAL INFORMATION IS INTENDED TO BE USED:

• to determine whether I am qualified and suitable to obtain the license I am applying for on this application form and to consult with other regulatory bodies.
• to use and disclose such information for purposes which are consistent with the purpose set out in the previous clause.

The undersigned applicant acknowledges and consents that RIBO may obtain any information whatsoever, from any source, as permitted by law in any jurisdiction in Canada or elsewhere.

[16] On July 23, 2020, Ms. Cullen wrote to Mr. Howell to request additional information from him about the criminal charges. She also advised him that RIBO needed assurances that Mr. Howell’s principal broker knew of Mr. Howell’s criminal record and still supported his application for a licence. This information would be provided to the RIBO QRC that would consider Mr. Howell’s application for a licence. Ms. Cullen’s message read as follows:

We have received your application and we have more information that is required.

Based on the information provided you have quite a few criminal charges from 1996 to 2010 please provide us with further information regarding the circumstances surrounding all of these charges.

We will require confirmation from you that the principal broker of the RIBO registered brokerage will be provided with the information regarding your criminal record and we will require confirmation from the principal broker of this disclosure and support of your licensing. (Your file may be required to be presented to the Qualification and Registration Committee for further review to determine suitability)

Have you received anything from FSRA re: disclosure of criminal charges and their licensing.

Also, to proceed with scheduling of examination, we will require confirmation from you that you are aware that your file may be presented to the Qualification and Registration Committee regarding suitability and if refused, you would not be refunded any examination fees paid.

[17] On May 18, 2021, Mr. Howell issued his statement of claim in this matter.

[18] On May 19, 2021, Patrick Ballantyne, the CEO of RIBO, wrote to Mr. Howell to advise him of the outcome of the QRC review of his application. Mr. Ballantyne advised Mr. Howell that the QRC proposed to grant Mr. Howell’s application for registration subject to certain conditions. The letter read as follows:

Dear Mr. Howell:

TAKE NOTICE that the Qualification and Registration Committee of the Registered Insurance Brokers of Ontario has reviewed the application for registration of Steven Andrew Howell and proposes to grant the application for registration, subject to the conditions as set out below:

1. That you provide full disclosure of your criminal record to the Principal Broker of the employing Firm and the Principal Broker will provide written confirmation to RIBO of the full disclosure.
2. That you will supply a new current dated criminal record verification prior to registration.
3. That any change in employment within two years of receiving your license will require the same disclosure and confirmation as Condition 1.

Subject to meeting the conditions, Steven Howell would be eligible for registration subject to the requirements set out in Section 5(1)(a)(ii) and (iii) of Ontario Regulation 991:

5.(1) An individual is qualified to be issued and hold a certificate of registration as an insurance broker where,

(a) the individual,

(ii) is of good character and has demonstrated reasonable grounds for belief that he or she will carry on business in accordance with law, integrity, and honesty.

(iii) has not been convicted of any offence the nature of which renders him or her unfit to act as a broker.

The particulars are as follows:

1. THAT, Mr. Steven Howell has charges/convictions dating from 1996 to 2010 including narcotics, weapons, and assault convictions.

AND TAKE FURTHER NOTICE that you are entitled to a hearing with respect to these matters before the Qualification and Registration Committee, provided that you mail or deliver a notice in writing requiring such a hearing to the Committee within twenty (20) days of the date of this letter or within fifteen (15) days of receipt of this letter by you, whichever is later.

AND TAKE FURTHER NOTICE that if you do not require a hearing by the Committee, the Committee may consider the matter without further notice to you and may confirm the proposed decision in your absence.

Should you have any questions with respect to these matters, please do not hesitate to contact John Goldsmith, General Counsel or Jessica Harper, Director of Qualification & Registration.

[19] Mr. Howell did not request a hearing with the QRC. Instead, the required undertakings were sent to RIBO and RIBO provided Mr. Howell with registration on September 13, 2021.

D. Mr. Howell’s Action is Frivolous or Vexatious

[20] The statement of claim in this action is an unusual document. It is partly handwritten and partly typed, and none of the paragraphs are numbered. Mr. Howell seeks $3.7 million for defamation. He describes the harm he has suffered as including stress, depression and anxiety, and insomnia. Reading the claim generously, Mr. Howell seeks to recover for what he perceives to be delays in the licencing process and for defamation. I find that the action is frivolous and vexatious and should be dismissed.

[21] First, Mr. Howell alleges that Ms. Cullen was “refusing to issue [his] RIBO licence holding it as a ransom.” This allegation cannot succeed as it is obvious from the statutory scheme, as well as the letter from the CEO of RIBO, that Ms. Cullen was not responsible for issuing or not issuing the licence. It was the QRC of RIBO that evaluated and made the decision regarding whether to issue a licence to Mr. Howell and what conditions, if any, to attach to that licence.

[22] Second, Mr. Howell alleges that Ms. Cullen contacted the Financial Services Regulatory Authority of Ontario (the agency formerly known as the Financial Services Commission of Ontario) and “has greatly assisted in defaming my character now that I’ve been forced to tell my employer personal information about me intimate [sic] details about a divorce I had 13 years ago.” The statement of claim elaborated:

Defamation of Character – I think it’s pretty obvious the way that this person has forced me to relay private and personal information to my employer when my employer has not requested this information from me and directly because of that I’ve been demoted. I’ve been ignored in the office and I’m on the brink of losing my job and career.

[23] This defamation claim is clearly frivolous. In his response to a request for particulars, Mr. Howell confirmed that he was not alleging that Ms. Cullen made any false statements to FSRA. This is fatal to an action in defamation and renders the action frivolous. [9]

[24] Ms. Cullen’s unchallenged evidence is that she did not communicate directly with FSRA about Mr. Howell. In any event, in his application for a licence, Mr. Howell agreed that RIBO could communicate with FSCO, which became FSRA. No such communication could give rise to a cause of action because Mr. Howell consented to this communication as part of his application. This further demonstrates the frivolousness of the action.

[25] Third, Mr. Howell does not plead that Ms. Cullen acted in bad faith or outside the intended performance of her duties. Ms. Cullen is protected from precisely this type of action by a statutory immunity provision in the Registered Insurance Brokers Act. Section 31 of the Act provides immunity to the defendant for acts done in the good faith performance of her duties:

31. No action or other proceeding for damages shall be instituted against the Corporation, the Council, a Committee or any member of the Council or committee, or any officers, servants, agents or appointees of the Corporation, for any act done in good faith in the performance or intended performance of any duty or in the exercise or the intended exercise of any power under this Act, a regulation or a by-law, or for any neglect or default in the performance or exercise in good faith of such duty or power. [10]

[26] Justice McEwen described the meaning of good faith in a similar statutory immunity provision as follows:

Actions are carried out in good faith if they are not founded upon fraud, oppression or improper motives. The presence of good faith is established by the absence of bad faith. In any case, the onus is upon those alleging it to establish a charge of improper conduct: see Exeter (Town) v. Huron (County), [1990] O.J. No. 240. [11]

[27] Mr. Howell has not pleaded any facts that could make out bad faith conduct by Ms. Cullen. Ms. Cullen’s unchallenged evidence is that she was just doing her job. The immunity provided to Ms. Cullen by s. 31 of the Act is a complete bar to this action, rendering it frivolous.

[28] In addition, the action appears to be vexatious. RIBO is charged with the responsibility of protecting the public interest by regulating insurance brokers in the province. Mr. Howell had the right to appear at the QRC to make submissions. He did not do so. Mr. Howell could have appealed the decision of the QRC to the Divisional Court. He did not do so. Instead, he appears to have focussed his anger on Ms. Cullen and named her as the defendant in this litigation. It appears that he did so to target, annoy, or embarrass her, which is the hallmark of a vexatious proceeding. [12]

[29] For the reasons set out above, I dismiss the action pursuant to rule 21.01(3)(d) because it is frivolous and vexatious.

E. Costs

[30] Ms. Cullen seeks her costs of the action on a partial indemnity basis, fixed in the amount of $28,498.86, inclusive of disbursements and HST. Mr. Howell submits that Ms. Cullen should not receive any costs.

[31] Fixing costs is a discretionary decision under s. 131 of the Courts of Justice Act. In exercising my discretion, I may consider the result in the proceeding, any offer to settle or to contribute made in writing, and the factors listed in rule 57.01 of the Rules of Civil Procedure. These factors include, but are not limited to, the following:

a. the result in the proceeding;
b. the experience of the lawyer for the party entitled to the costs, as well as the rates charged and the hours spent by that lawyer;
c. the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
d. the amount claimed and the amount recovered in the proceeding;
e. the complexity of the proceeding;
f. the importance of the issues; and
g. the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding.

[32] Rule 57.01(1)(f) provides that the court may also consider “any other matter relevant to the question of costs.”

[33] In exercising my discretion to fix costs, I must consider what is fair and reasonable for the unsuccessful party to pay in this proceeding, and balance the compensation of the successful party with the goal of fostering access to justice: Boucher v. Public Accountants Council (Ontario), paras. 26 and 37.

[34] Ms. Cullen was completely successful on this motion, and I have no doubt that this matter was important to her. Mr. Howell sought $3.7 million in this proceeding, and while that damages claim was probably unrealistic, even without considering the flaws in the statement of claim, it required her to take the action seriously.

[35] The motion did not raise complex legal issues and did not require the preparation of a lengthy evidentiary record or cross examinations. There were several other attendances that required preparation and consideration.

[36] I am mindful of Mr. Howell’s representation that he is of limited means, although he did not file any evidence of impecuniosity.

[37] On balance, I think it is fair and reasonable for Mr. Howell to pay $15,000. This amount will properly balance compensation to Ms. Cullen while maintaining the goal of promoting access to justice. This is an amount Mr. Howell could reasonably expect to pay if he was unsuccessful in his action.

[38] For these reasons, I fix the costs of the action at $15,000, inclusive of disbursements and Harmonized Sales Tax, and order Mr. Howell to pay that amount to Ms. Cullen within 30 days of the date of this order.

Robert Centa
Date: March 3, 2025

References

[1] Registered Insurance Brokers Act, R.S.O. 1990, c. R.19.
[2] Registered Insurance Brokers Act, at s. 21.
[3] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, at rr. 21.01(1) and (3)(d).
[4] Gill v. MacIver, 2023 ONCA 776, at para. 3; Lavallee v. Isak, 2022 ONCA 290, at para. 19; Pickard v. London Police Services Board, 2010 ONCA 643, 268 O.A.C. 153, at para. 19.
[5] Hons. Todd L. Archibald, Stephen Firestone, and Tamara Sugunasiri, Ontario Superior Court Practice (LexisNexis Canada Inc., 2025) (annotation to rule 2.1); Van Sluytman v. Orillia Soldiers' Memorial Hospital, 2017 ONSC 692, at para. 11.
[6] R. v. Haevischer, 2023 SCC 11, 480 D.L.R. (4th) 577, at para. 67.
[7] Gill, at para. 3; Lavallee, at para. 19; Pickard, at para. 19; and Henderson v. Wright, 2016 ONCA 89, 345 O.A.C. 231, at para. 20.
[8] Furney v. Hazan, 2025 ONCA 73, at para. 8.
[9] In addition, the statement of claim does not plead all of the elements of a cause of action in defamation, which would also justify striking the claim out under rule 21.01(1)(b).
[10] Registered Insurance Brokers Act.
[11] Sampogna v. Smithies, 2012 ONSC 610, 94 M.P.L.R. (4th) 320, at para. 16.
[12] Gill, at para. 3; Lavallee, at para. 19; Pickard, at para. 19; and Henderson, at para. 20.