Foreword:

Yves-Marie Morissette in “The magistrature has a role to play to avert hijackings of judicial process” (2000), says:
 

Cour supérieure du Québec

Yorke v. Paskelle-Mede

1996 CarswellQue 2088, [1996] R.J.Q. 1964, [1996] Q.J. No. 5102

Edward Yorke and Margola Shuchat, Plaintiffs c. Mindy Paskell-Mede & als, Defendants

Lagacé J.C.S.

Jugement: June 28, 1996
Dossier: C.S. Qué. Montréal 500-05-014981-961

Avocat:  Mr Micheal H. Kay
Me Eric Clark
Me Stéphane Dansereau

Sujet:  Civil Practice and Procedure

Lagacé J.C.S.:

1    THE COURT, FOR REASONS TO FOLLOW, AND IN THE PRESENCE OF BOTH PLAINTIFFS:

DECLARE both Plaintiffs persistent and vexatious litigants;

DISMISS the action with costs against the plaintiffs jointly;

ORDER both Plaintiffs to refrain from instituting any further proceedings in Superior Court or from continuing those previously instituted by them in Superior Court, except by leave of the Chief Justice of the Superior Court of the Province of Quebec or the Judge appointed by him;

ORDER further the clerk of the Superior Court and other officers of the Superior Court to take measures to refuse issuing, filing, or placing on the roll, any legal proceedings presented by the Plaintiffs, except by prior leave of the Chief Justice of Superior Court or the Judge appointed by him.

Lagacé J.C.S.:

2    Defendants Mindy and Nicholl Paskell-Mede request in their motion the dismissal of Plaintiffs’action against them, on the basis that the action is frivolous, vexatious and groundless.

3    They also request that Plaintiffs be declared vexatious litigants and, consequently, preluded from instituting new proceedings without the express prior approval of the Chief Justice of this Court.

4    In counterpart, Plaintiffs have presented their own motion to strike the defence of Laurentian General Insurance and Friedman & Friedman on the alleged bases that the defence is a sham, frivolous and vexatious, an abuse of process, disclose no reasonable ground of defence and is not supported by an affidavit.

5    In their actions plaintiffs claim from Defendants, jointly an severally, an amount of 999,999.99 $ in addition to a monthly pension in the amount of 3,500 $ net for life, health insurance, a public reprimand and other doubtful, not to say preposterous conclusions.

6    The declaration is replete with various allegations, statements and accusations which reiterate in different forms what has either been alleged or decided in several cases instituted by Plaintiffs before Courts of different jurisdictions.

7    The Court has perused the cases listed in Defendants’ motion and Plaintiffs’ exhibits, and concluded that Plaintiffs’ action is but a small part of a long saga which started some years ago with the bankruptcy of Plaintiffs` business and the personal bankruptcy of Plaintiff Yorke.

8    Some of the merchandise sold in Plaintiffs’ former retail store that went bankrupt, appears to have been imported from the USA from a company known as Udisco. Plaintiffs sued Udisco and its principals for damages and complained to the RCMP, which investigated but found no grounds for prosecution.

9    While in bankruptcy, Plaintiffs complained once again to the RCMP and the Superintendent in bankruptcy concerning the activities of the trustees to their business.

10    Criminal complaints were laid and dismissed in connection with the administration of the bankrupt business. Suits against the trustees (Friedmand & Friedman), the accountants and lawyers representing Plaintiff’s Shuchat’s father (who had lent money to the business) where launched in this Court. Also involved in this action as mis-en-cause, Mr. Andrew Kavchak Superintendent of Bankruptcy Office, Mr. Jacques Pesant Senior Deputy Superintendent of Bankruptcy, The Honorable Garth Turner M.P. Minister of Revenue Canada, Mr. Lalonde Director of the Quebec Region at Revenue Canada, The Honorable Jean J. Charest Deputy Prime Minister and Minister Consumer and Corporate Affairs, The Honorable Doug Lewis Prime Solicitor General of Canada and Director of Public Security, Mr. Jean-Guy Daoust C.A., C.I.P., Mr. Guy Lavoie Director of the M.U.C. Police and The Director Corporation of C. Accountants Association of Quebec. When attempts where made to settle the Udisco and Freidman & Freidman actions, Plaintiff Yorke complained once again to the RCMP and Superintendent in bankruptcy that all was illegal and criminal. Counsel for the Attorney General of Canada were added as Defendants in these actions.

11    Thereupon Plaintiffs filed a series of actions in Federal Court:

12    In T-1000-94

Plaintiffs claimed damages against Federal and Provincial (British Columbia and Québec) government officials and Ministers in relation to the Bankruptcy of their business as well as in relation to the failure of the Federal Government to criminally charge various British Columbia Government’s officials, past and present, over the abuse of Mr. Yorke as a child, by a ward of the Provincial Government as well as with respect to the release of inaccurate or false information by the authorities. They also claimed damages, for the failure of Federal Government officials to criminally charge the persons involved in the petitioning of their business into bankruptcy, Udesco and its principals as well as the persons involved in the administration of the bankruptcy.

13    In T-2091-94

Plaintiffs complained about the failure of the Barreau du Québec to take action against some of its members for their misconduct in matters in which they where involved; they also attempted to have criminal charges laid against the lawyers involved.

14    In T-2092-94

Plaintiffs complained again about the manner in which s. 5 of the Bankruptcy Act was being interpreted and applied. They asked that it be declared unconstitutional and inferred that the manner in which it was applied suggested that criminal charges be laid against those involved in the bankruptcy proceedings.

15    In T-2173-94

Plaintiffs complained that members of the Barreau du Québec, while bilingual, insisted on speaking in French before the Courts, thereby causing them a disadvantage in being unable to advise their counsel “of false, misleading and untrue statements” being made. They also complained about the manner in which the various bankruptcy proceedings were conducted by the lawyers and the manner in which the lawsuits filed by them were defended.

16    In T-2174-94

Plaintiffs complained that Bell Canada had unlawfully charged their business for advertisements in the Yellow Pages, both before and after they were petitioned in bankruptcy. Moreover they claimed that federal officials responsible for the regulation of Bell Canada, the Canadian Radio and Television Commission (“CRTC”), refused to investigate and prosecute Bell Canada and demand that it return the moneys which they had been paid for the Yellow Pages advertisements.

17    In T-6-95

Plaintiffs complained that “Her Majesty’s agents” (RCMP) had persuaded provincial and municipal investigatory agencies not to investigate and lay charges against those persons who had caused them loss, by illegal means and unlawful acts. All such accusations or allegations involve, in some manner or other, the bankruptcy of their business (Trojan Horse Hobbies).

18    In T-74-95

Plaintiffs complained that their constitutional rights were infringed upon by their cable television distributor, C.F.C.F. Cable; it failed to carry the House of Common debate in English, and did not provide translations of all non English interviews. They also sought that the C.R.T.C. or their C.F.C.F. Cable comply with their request.

19    Following these procedures in Federal Court, counsel for the Federal Government brought motions to strike these claims under Rule 419 of the Federal Court rules. Counsel for the British Columbia and Québec Governments have also brought motions under Rule 419. The purpose of such motion under s. 40 of the Federal Court Act was to suspend the requirement of further proceedings and preclude any further actions by these Plaintiffs without leave of the Court.

20    Just prior to the hearing of this motion, Plaintiffs discontinued all Federal Court proceedings except for T-1000-94 in which they sought to add further Defendants and seek additional relief. Case T-1000-94 was discontinued after the commencement of the hearing on the motion of the Federal Government to obtain an order under s. 40 of the Federal Act, the relevant portion of which reads as follows:

40.(1) Where the Court is satisfied, on application, that a person has persistently instituted vexatious, proceedings or has conducted a proceedings in a vexatious manner, the Court may order that no further proceedings be instituted by the person in the Court or that a proceeding previously instituted by the person in the Court not been continued, except by leave of the Court.

40.(2) An application under subsection (1) may be made only with the consent of the Attorney General of Canada, who shall be entitled to be heard on the application and on any application made under subsection (3).

21    On October 28th, 1996 judgment was rendered by the Federal Court of Canada issuing an order under s. 40 of the Federal Court Act against both applicants and precluding them from proceeding with their action and from instituting any further proceedings in Federal Court except by leave of the Court.

22    IIn making this order, the federal Court considered many factors; the fact that the applicants had showed disregard for the Federal Court by instituting but never pursuing seven of their eight Federal Court proceedings; that the Federal Court proceedings reiterated issues and covered mostly the same grounds as previous proceedings; the fact also that, Plaintiffs’ Federal Court proceedings were replete with extreme and unsubstantiated allegations.

23    What are the issues contained in the various cases filed in Superior Court?:

24    In S.C., Mtl, 500-05-011778-931

Plaintiffs claimed damages against attorney Bruce Taub and the firm Adessky-Poulin. Were named as mis en cause in this case, Legault et Joly, King-Haberkorn, Bob Sotiriadis all lawyers and Me Jean Blais es quality of Trustee of the Quebec Bar. On April 1995, Plaintiffs discontinued their action against Defendants Adessky-Poulin and the four mis en cause, retaining only one Defendant, Me Bruce Taub. This case is still pending and the date of hearing has been fixed to November 27, 1996.

25    In S.C., Mtl, 500-05-013392-939

Plaintiffs claimed punitive and exemplary damages against R. Hammer Limited, one of the creditors in the bankruptcy of Trojan Horse Hobbies, and one of it’s principal, R. Hammer. Finally, Plaintiffs decided to file a desistment from their action, each party paying its own fees.

26    In S.C., Mtl, 500-05-011825-955

Plaintiffs claimed damages against The Attorney-General of Quebec, The Attorney-General of Canada, The City of Montreal and The Montreal Urban Community Police. The Attorney-General of Canada brought a motion under s. 165(4) of the Code of civil procedure asking for the dismissal of the action on the basis that the suit was unfounded in law, even if the facts alleged were true. A similar motion was presented by the Attorney General of Quebec. Just prior to the hearing of these motions, Plaintiffs discontinued all proceedings against The City of Montreal, keeping only the other two Defendants.

27    The motions of both Attorneys-General were granted and the action dismissed. The action against the two remaining Defendants has been amended twice and appears to be at a standstill. Defendants John Westlake and The Montreal Urban Community Police have not yet pleaded; however the proceeding against them appear frivolous and clearly unfounded.

28    In S.C. Mtl, 500-05-004900-955

Plaintiffs claimed damages against John Westlake, The Montreal Urban Community Police and The City of Montreal.

29    The Royal Canadian Mounted Police was impleaded in these proceedings as a mis-en-cause. Plaintiffs discontinued their proceedings against the City of Montreal and filed a notice of desistment of their proceedings against the mis-en-cause. The description of the mis-en-cause, the conclusions against Justice Canada and the wording of the desistment show complete disregard for those impleaded or not.

30    Upon receipt of a motion to dismiss under s. 165(4) of the Code of civil procedures, Plaintiffs discontinued their action only against the City of Montreal. This action, although at a standstill, is still pending against the remaining two Defendants.

31    In S.C., Mtl, 500-05-017523-901

Plaintiffs claimed damages against Udisco Ltd and three of its directors, Jack, Lyon, and Mark Kunin, on the cases that they were responsible for the bankruptcy of their company Trojan Horse Hobbies Inc. Defendants filed a plea and a counter-claim. Subsequently they presented a motion to dismiss the action under s. 165(4) of the Code of civil procedures. This motion was granted for costs only on June 15, 1994 and the case is at a standstill since. The outcome of this case appears to be more than doubtful.

32    In S.C., Mtl, 500-05-009114-933

Plaintiffs claimed damages against Friedman & Friedman, Friedman & Friedman Inc., Léon Friedman, Murray Pinsky, Elizabeth Saunders, Mr. Morris, Solange Tremblay, Ruben Kravitz and Ruben Kravitz Enrg., all trustees or persons allegedly involved in the bankruptcy of their company Trojan Horse Hobbies. Were also impleaded as mis-en-cause in this action, not less than sixteen other persons, including The Honorable Garth Turmer, The Honorable Doug Lewis, The Honorable Robert Nicholson, The Honorable Jean J. Charest and The Canadian Superintendent of the Institutional Affairs. All mis-en-cause presented a motion for discontinuance under s. 165(4) of the Civil code of procedures. This motion was granted.

33    A motion by the four Defendants, presented under art 75.2 of the Civil code of Procedure was dismissed without costs. Unfortunately the Court was not aware then of the whole problem and was not asked to declare Plaintiffs persistent and vexatious litigants. Presented differently, Defendant’s motion would probably have produce another result. However this case is fixed for pretrial conference, on November 7, 1996 and on this occasion the decision could be revised.

34    These actions in Superior Court are interrelated and share the same pattern: voluminous, inconsistent, incoherent, not to say preposterous allegations; disregard for the Superior Court by instituting but not pursuing Court proceedings against several of the persons impleaded; voluminous exhibits; reiteration of issues covering mostly the same grounds as before; extreme and unsubstantiated allegations; abuse of the process of law and harassing everyone and anyone connected or not, directly or indirectly, with the bankruptcy of Plaintiffs’ business.

35    Just prior to the hearing of Defendant’s motion, Plaintiffs presented a motion to remove the law firm Kugler-Kandestin and one of their attorney, Me Michael H. Kay from this case, on the basis that since they represented Me Bruce Taub, lawyer of the same firm, in S.C., Mtl, 500-05-013392-939, their participation in the present case would jeopardize the proper administration of Justice. This motion was dismissed for reasons expressed from the Bench.

36    A provision similar to s. 40 of the Federal Act has no equivalent in Quebec. Similar provisions however exists in Ontario and British Columbia. The law of British Columbia concerning vexatious litigants has been upheld by the Supreme Court of Canada.

37    Where the law is silent, the inherent jurisdiction of the Court may be exercised, in any given case, by summary process1. This jurisdiction include, “in the case of an abuse of process, (the power for the Court) to stay or dismiss the action or impose terms as it thinks fit”2. And “summary process does mean that the court adopts a method of procedure which is different from the ordinary normal trial procedure3″. For this reasons and in view of all the files and the facts herein described, the Court has refused Plaintiffs the right to call witnesses and to hold an inquiry on motions which do not necessitate the hearing of witnesses. The proceedings instituted by Plaintiffs must therefore be judged on their face value. The multiplicity of the proceedings, the nature of the allegations and the manner by which Plaintiffs implead several persons in Court’s proceedings to desist subsequently, constitute an abuse of the Court’s process. Such abuse is prejudicial not only to the Court but even more to the persons impleaded without valid reasons. Therefore a proper remedy must be found to prevent any such recurrence.

38    As decided in Droit de la famille-924. The Court must exercise its inherent jurisdiction to dispose of a file in the case of an abuse of process:

La jurisdiction inhérente des juges de la Cour Supérieure nous vient du droit anglais et a toujours été reconnue par les Tribunaux. Dès 1886, la Cour Suprême reconnaissait l’existence d’une telle juridiction dans l’arrêt In re Sproule5 …every Superior Court has incident to its jurisdiction an inherent right to inquire and judge of the regularity of its process.

39    À la même époque, le Conseil privé, dans l’arrêt Metropolitan Bank Ltd. C. Pooley⁶:

But from early Times (I rather think, tough I have not looked at it enough to say, from the earliest Times) the Court had inherently In its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing.

40    The Civil code of procedures confirm this inherent jurisdiction at art. 46:

The Courts and the judges have all the power necessary for the exercise of their jurisdiction. They may, in the cases brought before them, even of their own motion, pronounce orders and reprimands, suppress writings or declare them libelous, and make such orders as are appropriate to cover cases where no specific remedy is provided by law.

41    This power of art. 46 of the Civil code of procedure was invoke in Charbel c. Bélanger⁷ to dismiss the case on the basis of abuse of the Court’s process:

Its is manifestly unjust that the Defendants should be subjected to unending costs, inconvenience and anxiety because of the Plaintiffs inability to get along with any lawyer, and his suspicions that everyone is plotting against them.

Accordingly, this is one of the exceptional situation where the Court is justified in exercising its inherent jurisdiction so as to terminate litigation, for the reason that it constitutes an abuse of the Court’s process.

To the same effect see Anglsperger c. Caisse populaire Saint-Vincent-de-Paul de Montréal⁸, and Précis de procédures civiles du Québec⁹.

42    Seeing that Plaintiffs are persistent and vexatious litigants and that their actions against Defendants and others appear groundless and constitute an abuse of process, dismissal of the present action will remedy only part of the problem.

43    It is also necessary to declare Plaintiffs persistent and vexatious litigants. and to adopt, for the future them in Superior Court, a method of procedure which is different from the ordinary normal trial procedure. Therefore Plaintiffs will be ordered to refrain from instituting any further proceedings in Superior Court or from continuing those previously instituted by them in Superior Court pf the Province of Québec or the Judge appointed by him.

44    The clerk of the Court will also refuse to issue, file or place on the roll, any proceedings presented by the Plaintiffs except by prior leave of the Chief Justice of the Superior Court or the Judge appointed by him.

Solicitors of record:

Kugler Kandestin
Clark Latraverse
Byers Casgrain

Notes de bas de page
 
¹   Stevens & Sons, 1970, “Current legal Problems” p. 25, 27

²   Supra p. 28

^{3   Supra p. 29}

⁴   (1983) C.S, p. 1139 at p. 1141 and 1142, Judge André Forget

⁵   (1885 1986) 12 R.C.S.: 140, 181

⁶   (1885) 10 A.C. 210, 221

⁷   S.C., Mtl. 500-05-010354-858, Judge J.H. Gomery, p. 19

⁸   S.C., Mtl. 500-05-013173-909, 1892-06-05, Judge Downs, SOQUIJ no. 92-1052

⁹   S. 69