Date: 1987-04-15

Docket: 553580/80

Other citations: 59 OR (2d) 353; 37 DLR (4th) 685; [1987] CarswellOnt 378; [1987] OJ No 355 (QL); 16 CPC (2d) 93

Citation: Re Lang Michener and Fabian, 1987 CanLII 172 (ON SC), <http://canlii.ca/t/1p77f> retrieved on 2015-12-15

Re Lang Michener et al. and Fabian et al.

59 O.R. (2d) 353

[1987] O.J. No. 355

Also reported at 37 D.L.R. (4th) 685

ONTARIO
HIGH COURT OF JUSTICE
 
HENRY J.

15TH APRIL 1987

Courts – Abuse of process – Multiplicity of proceedings – Vexatious litigants – Plaintiff having commenced numerous frivolous proceedings – Plaintiff declared vexatious litigant – Courts of Justice Act, 1984 (Ont.), c. 11, s. 150.

The bringing of one or more actions to determine an issue which has already been determined constitutes a vexatious proceeding. Similarly, an action is vexatious where it is obvious that it cannot succeed or that no reasonable person could reasonably expect to obtain relief. Vexatious actions include those brought for an improper purpose other than the assertion of legitimate rights, including the harassment and oppression of other parties. It is a general characteristic of vexatious proceeding that grounds and issues raised tend to be rolled forward into subsequent actions, and often supplemented with actions brought against the lawyers who acted for or against the litigant in earlier proceedings. In determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action. Where a litigant has been found to have commenced numerous frivolous and vexatious proceedings, an order forbidding the litigant from bringing further proceedings except by leave of a judge of the Supreme Court may be made pursuant to s. 150 of the Courts of Justice Act, 1984 (Ont.), c. 11.

APPLICATION for an order pursuant to the Courts of Justice Act, 1984, s. 150, for an order that the respondent bring no further proceedings except by leave of a judge of the Supreme Court.

Foy v. Foy (No. 2) (1979), 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220, 102 D.L.R. (3d) 342, 12 C.P.C. 188; Re Kitchener-Waterloo Record Ltd. and Weber (1986), 1986 CanLII 2715 (ON SC), 53 O.R. (2d) 687; Re Law Society of Upper Canada and Zikov (1984), 47 C.P.C. 42, apld Other cases referred to Fabian v. Margulies (1985), 53 O.R. (2d) at p. 381; affd loc. cit., p. 380; leave to appeal to S.C.C. refused 57 O.R. (2d) 576 Statutes referred to Courts of Justice Act, 1984 (Ont.), c. 11, s. 150

M. R. Gray, for applicants.

J. Fabian, appearing in person and representing respondent
company.

HENRY J.:– This in an application for an order pursuant to s. 150 of the Courts of Justice Act, 1984 (Ont.), c. 11, which provides:

150(1) Where a judge of the Supreme Court 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 to a judge of the Supreme Court.

(2) An application under subsection (1) shall be made only with the consent of the Attorney General, and the Attorney General is entitled to be heard on the application.

The consent of the Attorney-General has been filed as required.

The facts, as they have been placed before me in the affidavits filed, are substantially as follows:

The respondent Jozsef Fabian was the unsuccessful plaintiff in a motor vehicle personal injury action which came to trial in November, 1982. After the trial, Mr. Fabian commenced an action for damages of $12 million for loss of credibility and loss of the personal injury action against Dr. Albert Irwin Margulies, a medical doctor who submitted a medico-legal report and gave evidence for the defence at trial of the personal injury action. The statement of claim against Dr. Margulies alleged that he maliciously falsified facts in his written report and in oral testimony, thereby discrediting Mr. Fabian personally as well as his claim in the personal injury action. This statement of claim against Dr. Margulies was struck out by Labrosse J. on January 30, 1984 [53 O.R. (2d) at p. 381], as disclosing no reasonable cause of action and the action was dismissed; this decision was affirmed by the Court of Appeal:

see Fabian v. Margulies loc. cit. p. 380. Immediately thereafter Mr. Fabian commenced a second action for $42 million damages against Dr. Margulies, three solicitors in the law firm which acted for the defendants in the personal injury action, and the defendants’ insurer. The statement of claim alleged that the solicitors were negligent for stalling the personal injury action, attempting to dismiss the action, introducing fraudulent documents, and that the insurer was negligent for financing the defence of the personal injury action. The statement of claim as against the three solicitors and the insurer was struck out on April 4, 1984, by Southey J. on the basis that no reasonable cause of action was disclosed and the action was dismissed. The statement of claim against Dr. Margulies was struck out by Southey J. on the same day on the ground that it was an attempt to litigate the point already decided by Labrosse J. and, as such, it was vexatious and an abuse of process; and as well that it disclosed no reasonable cause of action; Southey J. dismissed the action. Mr. Fabian unsuccessfully appealed the orders in both actions to the Ontario Court of Appeal. He then sought leave to appeal to the Supreme Court of Canada, first from the Ontario Court of Appeal, and then from the Supreme Court of Canada itself. The Supreme Court of Canada denied leave to appeal the decisions in both actions on November 6, 1986 [57 O.R. (2d) 576n].

The respondent Jozsef Fabian is an officer and a principal of the respondent Napraforgo Construction Ltd. In 1980, Napraforgo commenced action No. 553580/80 (“the 1980 action”) against Janin Building & Civil Works Ltd. for payment pursuant to a construction subcontract. The action went to trial in September, 1984, before the Honourable Mr. Justice Holland. Fabian, who is not a solicitor, was permitted to conduct the action on behalf of Napraforgo. At the conclusion of a four-day trial, Holland J. gave judgment on September 27, 1984 [summarized 27 A.C.W.S. (2d) 379], by which Napraforgo was awarded $27,640.50, an amount which Janin had conceded was due at the outset of the trial, subject to its own counterclaim. Janin succeeded on its counterclaim, the amount to be determined by reference before the master, and to be set off against Napraforgo’s recovery on the principal claim. Napraforgo unsuccessfully appealed the judgment of Mr. Justice Holland to the Ontario Court of Appeal [summarized 37 A.C.W.S. (2d) 277], Subsequently, Napraforgo sought leave to appeal to the Supreme Court of Canada from the Ontario Court of Appeal. Leave to appeal was denied. It then applied to the Supreme Court of Canada for leave to appeal to that court; that application was dismissed on March 26, 1987. The reference to determine the amount of Janin’s recovery on its counterclaim has not yet been held in view of the pending appeals.

Meantime, the respondents Fabian and Napraforgo have commenced three further actions against Janin, its former solicitors and its present solicitors, respectively. These actions all ostensibly arise from Janin’s conduct of its defence in the main action.

The first of these three related actions, No. 16210/84, was commenced on March 23, 1984, against the law firm Harries Houser for damages of $2 million. In that action, Jozsef Fabian, as plaintiff, alleged bad faith and negligence by Harries Houser in its conduct of the defence of the 1980 action on behalf of Janin. This action was prompted by:

(a) a motion by Janin to stay the 1980 action until Napraforgo had obtained legal counsel which was withdrawn, and

(b) the delivery by Janin of its documents brief for trial.

In response to the action, Harries Houser successfully brought a motion before the Honourable Mr. Justice Galligan on May 24, 1984, to strike out the statement of claim on the basis that it disclosed no cause of action; the action was dismissed. Mr. Fabian unsuccessfully appealed the decision of Galligan J. to the Ontario Court of Appeal who affirmed that no such action lies; he then applied to the Supreme Court of Canada for leave to appeal to the Supreme Court of Canada. His application for leave to appeal was struck from the list for failure to file proper material.

The second related action, No. 17565/84, was commenced by Napraforgo against Janin on May 7, 1984 (before trial of the main action). Damages of $3.25 million were sought by Napraforgo from Janin due to Janin’s conduct of its defence in the main action. Specifically, Napraforgo alleged that Janin had included fraudulent documentation in its documents brief then prepared for trial; also included was a further claim for damages based on Janin’s refusal to pay for work performed (the subject of the main action). Without notice to Janin or its solicitors, Fabian noted pleadings closed against Janin. Janin subsequently brought a motion to strike the statement of claim as disclosing no cause of action, or alternatively, for leave to file a defence to the action. On September 4, 1984, the Honourable Madam Justice McKinlay ordered that the noting of pleadings closed be set aside and stayed all other proceedings in this action until after the trial of the main action. Despite the order of Madam Justice McKinlay staying the action, Fabian unsuccessfully attempted to bring the matter on for trial as an undefended action before the Honourable Mr. Justice Anderson on January 18, 1985, and again before the Honourable Mr. Justice Smith on April 8, 1985. Fabian then unsuccessfully sought leave to appeal the decisions of each of the Justices McKinlay, Anderson and Smith before the Honourable Mr. Justice Steele on May 24, 1985. The motion for leave to appeal was refused. Janin was unrepresented on the appearances before Smith and Steele JJ., as no notice of either hearing had been given to Janin or its solicitor. Although the action was stayed, Mr. Fabian brought a further motion before me as I shall indicate.

The third related action, No. 14903/86, arising out of Janin’s defence to the main action was brought by Mr. Fabian as plaintiff against Janin’s present solicitors, Lang Michener Lash Johnston, and Daniel R. Dowdall, the solicitor who has had conduct of the file throughout the time Harries Houser and Lang Michener have acted for Janin. The writ of summons was issued October 14, 1986. In the statement of claim, Mr. Fabian claims damages of $9.2 million. The conduct complained of includes the use of the allegedly improper document book filed by Janin’s former solicitors, Harries Houser, and the submissions made by Mr. Dowdall at the trial of the main 1980 action and before the Court of Appeal. Mr. Fabian acknowledged to me in court that these matters had already been raised before Holland J. at the trial and also before the Court of Appeal and the Supreme Court of Canada on his application for leave to appeal. This action was in substance similar to No. 16210/84 against Harries Houser, which Galligan J. dismissed.

Fabian has indicated to the solicitor for Janin on various occasions that he would drop the related actions against Harries Houser and Lang Michener if Janin would make a settlement favourable to Napraforgo in the 1980 action.

Awards of costs have been made against Fabian and Napraforgo, and have not been paid. Mr. Fabian has indicated on numerous occasions that he is on welfare and has persistently declined to have counsel represent Napraforgo as required by the rules of civil procedure.

Mr. Fabian has taken appeals in all the actions which have been determined at the Supreme Court of Ontario level. In more than one action, he has sought leave to appeal to the Supreme Court of Canada first from the Ontario Court of Appeal and subsequently from the Supreme Court of Canada itself, and has been unsuccessful on all occasions.

Mr. Fabian has, on several occasions, attempted to note pleadings closed without notice, and has taken interlocutory applications and appeals without notice to the solicitors for the responding party.

Fabian has made numerous allegations of bad faith and bias against Janin, Janin’s solicitors, solicitors acting for the defendants in the personal injury action.

Mr. Fabian also commenced legal proceedings in the Supreme Court of Ontario against the Attorney-General of Ontario by issuing a writ of summons on May 7, 1984, together with a statement of claim, in action No. 17563/84. Mr. Fabian’s claim against the Attorney-General was for malicious false imprisonment, conflict of interest, police harassment and damages of $1,854,000.

In response to these proceedings the Attorney-General brought a motion to strike out the statement of claim as disclosing no cause of action, being frivolous and vexatious, and raising matters which were res judicata. That motion was heard on July 9, 1984, by Griffiths J., who ordered that the statement of claim be struck out and the action dismissed. Mr. Fabian appealed that decision to the Court of Appeal; the appeal was heard on January 24, 1986, by a panel of three judges: Brooke, Morden and Finlayson JJ.A.; the appeal was dismissed and Mr. Fabian was ordered to pay costs if demanded.

Mr. Fabian subsequently sought leave to appeal to the Supreme Court of Canada, claiming that the Court of Appeal had “admitted malice concerning malicious false imprisonment” by the Attorney-General. Application for leave to appeal was heard by a panel composed of Blair, Thorson and Grange JJ.A. on November 3, 1986, and leave to appeal was refused. Following that, Mr. Fabian served a notice of motion in the Supreme Court of Canada for an extension of time and leave to appeal to that court. The application for leave to appeal was heard by the Supreme Court of Canada on January 27, 1987, and was dismissed by endorsement issued March 26, 1987.

I have been referred to the following judicial decisions by counsel for the applicants: Foy v. Foy (No. 2) (1979), 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220 at p. 226, 102 D.L.R. (3d) 342 at p. 348, 12 C.P.C. 188 (Ont. C.A.); Re Kitchener-Waterloo Record Ltd. and Weber (1986), 1986 CanLII 2715 (ON SC), 53 O.R. (2d) 687 at p. 693 (Ont. S.C.); Re Law Society of Upper Canada and Zikov (1984), 47 C.P.C. 42 (Ont. S.C.).

From these decisions the following principles may be extracted:

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

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

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

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

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

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

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

There are three additional matters to which I must refer. Although he had unsuccessfully sought leave to appeal the decisions of McKinlay, Anderson and Smith JJ. before Mr. Justice Steele, who refused leave, Mr. Fabian brought a further motion before me to reopen that matter and, in effect, again to seek leave to appeal from the decisions of those four judges; I dismissed that motion on March 6, 1987, on the ground that he had already exhausted his rights of appeal.

Second, at the same time as I heard argument in the present application on April 3rd, I heard the remainder of the motion brought before McKinlay J. on September 4, 1984, in No. 17565/ 84, which action had been stayed by her until after the trial of the 1980 action in Napraforgo v. Janin [unreported]. As Mr. Fabian and Napraforgo had exhausted all avenues of appeal in the 1980 action, I dealt with the remainder of the motion, lifting the stay to do so. The statement of claim seeks damages for $3.2 million for:

(a) refusal by Janin to pay for work done under the subcontract; this is a claim already raised and adjudicated by Holland J. at trial in the main (1980) action;

(b) added is a claim for damages for destruction of Napraforgo’s business by the failure of Janin to pay for the work done; that claim ought to have been made at trial before Holland J. and it is now too late to do so and becomes res judicata as a result;

(c) introduction of fraudulent documents, a matter already raised at the subsequent trial and in later proceedings including the appellate courts;

(d) using the legal system to obtain money under false pretenses; complaints of conduct of defendant’s counsel, alleged perjury of a witness and the alleged falsity of documents were all raised, as Mr. Fabian agreed in court, before Holland J. and in the Court of Appeal and Supreme Court of Canada (on application for leave to appeal) in the 1980 action. Otherwise, Holland J. has disposed of the claim and counterclaim in his judgment which awarded relief to both parties and was upheld on appeal.

I therefore concluded that the matters raised in the action which was before McKinlay J. raised matters and grounds of relief which had already been disposed of or should have been raised in the main 1980 action. Those matters are by now res judicata and the continuation of action No. 17565/84, in my opinion, constitutes an abuse of the process of the court. I have therefore dismissed that action.

Third, at the same time I heard the motion brought by Lang and Michener as defendants in the action brought against them by Mr. Fabian, to strike out the statement of claim as disclosing no reasonable cause of action. I was unable to find a proper cause of action on the statement of claim and I accordingly struck out the statement of claim and dismissed the action; I add that, in that proceeding, matters were raised with respect to the conduct of the defence by Janin and its counsel and a witness which Mr. Fabian alleged was improper, fraudulent and misleading, matters which had already been disposed of in the 1980 action tried by Holland J. and raised also in the Court of Appeal and on the application for leave to appeal to Supreme Court of Canada. The action against Lang, Michener must be regarded as vexatious and an abuse of the process of the court, and I have struck out the statement of claim and dismissed it.

On the basis of the foregoing facts, including the three matters which I disposed of in the motions before me, the conclusion is inescapable that Mr. Fabian’s conduct as a litigant, as appears from the over-all review of his numerous proceedings in the courts, has brought himself within all of the principles emerging from the judicial decisions to which I have referred.

I have no hesitation in finding on the factual material before me that he has instituted vexatious proceedings in this court and in the appellate courts, and has conducted proceedings in the courts in a vexatious manner, within the meaning of s. 150(1) of the Courts of Justice Act, 1984.

I, therefore, have endorsed the application record that the following order shall issue:

(a) an order that no further proceedings be instituted by Jozsef Fabian and Napraforgo Construction Ltd. in any court, except by leave of a judge of the Supreme Court;

(b) an order that proceedings previously instituted by Jozsef Fabian against Harries Houser in Supreme Court Action No. 16210/84 and against Lang Michener Lash Johnston and Daniel Dowdall in Supreme Court Action No. 14903/86 not be continued except by leave of a judge of the Supreme Court;

(c) an order that proceedings in Supreme Court Actions Nos. 53358/80 and 17565/84 by Napraforgo Construction Ltd. against Janin Building & Civil Works Ltd. not be continued, except by leave of a judge of the Supreme Court, save and except for the reference to determine the amount due to Janin on its counterclaim, which was ordered by Mr. Justice Holland on September 27, 1985, following the trial in action No. 53358/80.

If costs are asked, the matter may be spoken to.

Order accordingly.