Court File Numbers

CV-23-82898 & CV-23-82600

Date

2025-01-16

Ontario Superior Court of Justice

Between:

The College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario
Applicants
Counsel: H. Ngan and C. Zhen

— and —

Nathalie Xian Yi Yan
Respondent
Self-Represented

Mahadai Bahadur
Applicant
Counsel: A. Windsor

— and —

Nathalie Xian Yi Yan
Respondent
Self-Represented

Heard: 8 January 2025

Decision on Application

Justice J. Krawchenko

Introduction

[1] In October 2023, both the aforenoted applications were ordered to be heard together. A timetable was established and was followed by the parties. Application records, responding records, facta were delivered.

[2] A few hours prior to the hearing of this application, the respondent served both applicants with counter applications. The relief requested in the counter applications was similar to that sought by the respondent in her previously filed responding materials, i.e. a dismissal of the applications. These late served, new materials were not considered.

[3] The applicants both sought orders under section 140(1) of the Courts of Justice Act declaring the respondent to be a vexatious litigant and a corresponding order prohibiting her from instituting any further proceedings, in any court except by leave of a judge of the Superior Court of Justice, staying previously instituted proceedings instituted by the respondent, except with leave of a judge of the Superior Court of Justice and any other term that were just.

[4] In the reasons that follow, I will summarize the facts and positions of the respective parties and will then review the law and apply the law to the facts in reaching my decision.

Applicant – The College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (“the College”)

[5] The College is a non-profit organization established under the Regulated Health Professions Act and Traditional Chinese Medicine Act.

[6] The College is mandated to regulate and govern the practice of Traditional Chinese Medicine in Ontario.

[7] The respondent is a member of the College.

[8] In October 2018, following a 6-day hearing, the respondent was found to have engaged in professional misconduct by the disciplinary board of the College (“the Disciplinary Proceedings”).

[9] The respondent received a $300 fine, her licence to practice was suspended for 10 months and she was ordered to pay costs of $65,000.00.

[10] The respondent appealed this decision to the Divisional Court; this appeal was dismissed with costs awarded against Ms. Yan of $10,000.00.

[11] The respondent then sought leave to appeal to the Ontario Court of Appeal, which was denied with costs awarded against Ms. Yan of $5,000.00.

[12] The respondent has recently sought leave to appeal the Court of Appeal’s denial of leave, to the Supreme Court of Canada. The Supreme Court of Canada has not yet dealt with this leave application.

[13] Following the disciplinary proceedings, the respondent started 21 separate actions against the College, its staff, College council members and individuals involved in the disciplinary proceedings including legal counsel and investigators.

[14] In September 2021, defendants in 13 of these actions obtained an Order to consolidate the various actions into one. Costs against the respondent in the amount of $2,000.00 were awarded. The respondent’s remaining actions against lawyers and investigators involved in the disciplinary proceedings were not consolidated, but rather those actions were struck without leave to amend, with costs awarded against the respondent totaling $28,000.00. This decision was appealed to the Court of Appeal, who dismissed same in February 2023. The respondent sought leave to appeal the Court of Appeal decision to the Supreme Court of Canada, which was denied.

[15] The respondent brought an application before the Human Rights Tribunal of Ontario against the College, which was dismissed. The respondent sought judicial review of the dismissal before the Divisional Court, which was dismissed, with costs awarded against Ms. Yan of $10,000.00.

[16] The respondent made complaints to the Law Society of Ontario against the College's external legal counsel in relation to the disciplinary proceedings, which following its review, the Law Society elected to take no further action. Ms. Yan attempted unsuccessfully to seek a judicial review of the decision to “take no further action”, in the Divisional Court. Ms. Yan then appealed the Law Society decision to the Divisional Court. This appeal was dismissed.

[17] In March 2023, the respondent commenced another civil action against the College and 17 individuals within the College as well as their external counsel, in relation to the disciplinary proceedings and the posting of the results on the College’s public register. This action was dismissed under Rule 2.1.01 on the basis that it was so devoid of merit that it was frivolous, vexatious and an abuse of process. The respondent appealed the dismissal to the Court of Appeal who dismissed it with costs against Ms. Yan totaling $7,000.00.

[18] On the eve of this hearing, the respondent served and filed a cross application, which, as was noted at the outset was not entertained.

[19] In addition to matters directly concerning the applicant, its staff and legal counsel, the College also relied on the following examples of alleged meritless proceedings instituted by the respondent:

a. 2019/2021 - The respondent commenced a Human Rights Tribunal application against Mohawk College, where she was a student, which was dismissed. The respondent sought a reconsideration of the dismissal, which was also dismissed.

b. 2021/2022 - The respondent commenced a small claims court action against a legal information website for defamation, for having posted the disciplinary proceeding decision. This claim was dismissed, with costs awarded against Ms. Yan of $3,824.58. The respondent appealed this to the Divisional Court, who dismissed the appeal and ordered costs of $7,500.00 against her.

c. 2022 - the College relied on the Bahadur matter, which will be reviewed in due course.

d. 2023 – Ms. Yan brought an action against a classmate at Mohawk College, this claim was struck with costs awarded against the respondent of $3,800.00. Ms. Yan appealed the dismissal to the Court of Appeal, who dismissed her appeal and awarded costs of $6,000.00 against her.

e. 2023 - Ms. Yan commenced an action against her Mohawk College professor, this claim was struck with a costs award made of $3,000.00 against the respondent. This decision was appealed to the Court of Appeal who dismissed the appeal with costs awarded of $5,000.00 against her.

f. 2023 - Ms. Yan commenced a claim against a website called “The Local” in relation to her running for office in the Toronto mayoral election. Reference was also made to a claim commenced against the Hamilton Spectator newspaper.

[20] The respondent has accumulated costs awarded against her of over $161,000.00, which she has not paid.

[21] The College argued that Ms. Yan had demonstrated a pattern of engaging the civil litigation system with ulterior motives, by instituting numerous and varied proceedings for reasons other than for the actual redress of meritorious claims, and further, that in doing so, she had breached the norms of litigation, by conducting unwarranted attacks on parties and their counsel through unwelcome, unnecessary or unwarranted communications in an attempt to intimidate and harass others as part of her litigation strategy.

Applicant – Mahadai Bahadur

[22] The applicant Mahadai Bahadur posted a negative Google review about the respondent’s traditional Chinese medicine practice, using an alias. The review was in relation to the respondent’s care of Bahadur’s father, who was the respondent’s patient.

[23] The respondent initiated a defamation action, which suffered from procedural irregularities regarding the naming of parties. When advised of the irregularities, the respondent “amended” her claim adding Bahadur as the named defendant, filed it and ultimately noted the newly named Bahadur in default. This amendment was done without consent or leave of the court. This issue was addressed at a case conference in August 2023, at which time the respondent refused to consent to the striking of her “amended” claim. In November 2023, Bahadur was successful in her motion to set aside the noting in default and to strike the amended statement of claim with costs awarded against the respondent of $4,377.39.

[24] On December 18, 2023, the respondent served a Notice of Appeal to the District Court in relation to the setting aside of default and striking of her amended claim. On December 20, 2023, the respondent also served and filed an appeal with the Court of Appeal for Ontario. The Court of Appeal entertained a motion to quash the appeal and did so, awarding costs against the respondent in the amount of $4,000.00. The original action, complete with the improperly named defendant has not proceeded any further.

[25] In relation to this litigation, Bahadur was required to serve the respondent with a trespass notice, to stop her from attending at her parents’ home.

[26] Bahadur provided evidence of numerous unwelcome, unnecessary, or unwarranted communications from the respondent directed to her counsel Ms. Windsor, they were unflattering and rude. These communications were sent by email and the respondent copied same to the members of Ms. Windsor’s law firm for the purpose of causing embarrassment to Ms. Windsor.

[27] Bahadur also seeks a declaration that the respondent is a vexatious litigant.

Respondent – Nathalie Xian Yi Yan

[28] The respondent was self-represented but was well versed in the rules of civil procedure and the law.

[29] While Ms. Yan has served and filed her responding records and facta in both applications, neither addressed the vexatious litigant issue. Instead, the respondent repeated her case specific version of events, provided irrelevant information that was the subject matter of previous hearings and determinations and made generalized complaints about injustice towards her.

[30] In short, the respondent’s materials filed in both applications were confusing and convoluted and of little assistance to this court and no coherent legal position could be gleaned from them.

[31] In oral submissions, the respondent attempted to minimize her litigation history and associated conduct, suggesting that a) with regards to the numbers of people sued, she had initially acted on the advice of pro bono counsel and that she was simply trying to seek justice and may have made some mistakes along the way, that she then tried to correct, as best she could, b) with regards to her conduct, she was not a lawyer but rather a medical person and did not appreciate that her litigation tactics were inappropriate and c) her outstanding costs would be paid at some point in the future when the respondent sold her home.

The Law

Section 140 Courts of Justice Act (“CJA”)

[32] Section 140(1) of the CJA provides that a judge of this Court may issue an order prohibiting a person from instituting further proceedings and staying any previously instituted proceedings by that person 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.

[33] The Court must be satisfied that the impugned activity was persistent, that it was without reasonable grounds and that the impugned conduct was vexatious.

[34] While persistence and lack of reasonable grounds in litigation are more easily identifiable, in determining whether conduct was vexatious, the court is assisted by examining the conduct against recognized indicia of vexatious proceedings, as were set out in Re Lang Michener et al. v. Fabian et al., 59 O.R. (2d) 353, those being:

a. bringing one or more actions to determine an issue that was already determined by a Court of competent jurisdiction,

b. pursuing matters that obviously cannot succeed,

c. pursuing matters that lead to no possible good,

d. pursuing matters that no reasonable person could expect to obtain relief,

e. bringing an action for an improper purpose, including harassment, oppression of other parties, not to assert a legitimate right, but rather for other purposes,

f. rolling forward grounds and issues from one matter into subsequent actions, related, and supplemented, often with actions brought against the lawyer or staff that were involved in proceedings or acted against that litigant in prior proceedings,

g. failure of the litigant instituting proceedings to pay costs of unsuccessful proceedings, and

h. persistently undertaking unsuccessful appeals from decisions made.

Application of the Law to the Facts

[35] In determining whether the respondent is a vexatious litigant, the entire evidentiary record set out in both applications must be considered, globally, including references in that record to the respondent’s litigious conduct that did not directly involve both applicants.

[36] Dealing first with persistence. I accept the evidence of both applicants setting out the respondent’s litigation history. The record is replete with evidence of the respondent’s persistence in litigation, including numerous meritless appeals of decisions and appeals of the appeals.

[37] Turning to the question of whether the proceedings were instituted without reasonable grounds, with regards to the College, after exhausting her legitimate appeal rights to the disciplinary proceedings, the multiple proceedings instituted by the respondent were not meant to obtain relief or to assert a legitimate right but rather were meant to harass and oppress and to somehow seek vindication from conclusion reached in prior proceedings. With regards to Bahadur, although when instituted, the respondent’s initial claim may have been a good cause of action, it was her subsequent conduct in deliberately not following proper procedure to remedy deficiencies in her claim, taking out improper orders, instituting appeals that had little chance of success were also evidence of proceeding without reasonable grounds. Additionally, the referenced litigations that did not involve either the College or Bahadur, also served as clear examples of proceedings brought without reasonable grounds.

[38] In answer to the question of whether the respondent has acted in a vexatious manner, her global litigation history revealed a pattern of conduct, all which corresponded to the indicia of vexatious proceedings. The respondent’s litigious conduct has impacted many people and organizations and has resulted in significant costs awards against the respondent, which have not been paid by her.

[39] On these facts and employing the three-step test set out above, I have no hesitation in finding that the respondent is a vexatious litigant.

Conclusion

[40] For the foregoing reasons, I find that the respondent has instituted vexatious proceedings and has conducted them in a vexatious manner as set out in section 140 of the CJA.

[41] An order shall issue setting out the following:

a. No further proceedings be instituted by Nathalie Xian Yi Yan, in any court, except by leave of a judge of the Superior Court of Justice pursuant to section 140(3) of the CJA

b. That proceedings previously commenced by Nathalie Xian Yi Yan, are not to be continued except by leave of a judge of the Superior Court of Justice, with the exception of her current outstanding leave application before the Supreme Court of Canada and an appeal under section 140(2.3) of the CJA.

[42] If the parties cannot agree on costs of these two applications, they shall make written submissions of no more than 3 pages, double spaced, plus costs outlines and any settlement offers as follows:

a. The Applicants shall deliver their submissions by no later than 31 January 2025.

b. The Respondent shall deliver her submissions with respect to each application by 14 February 2025.

c. The Applicants shall deliver any reply submissions, by 21 February 2025.

Released: January 16, 2025
Justice J. Krawchenko