Sep 1, 2020

COURT OF APPEAL SUMMARIES (August 24 – 28, 2020)

Aurora (Town) v. Lepp, 2020 ONCA 528 (CanLII)

[Huscroft, Zarnett and Coroza JJ.A.]

Counsel:

Charles A. Painter, for the appellant

RL, acting in person

Keywords: Torts, False Arrest, False Imprisonment, Misfeasance in Public Office, Malicious Prosecution, Civil Procedure, Striking Pleadings, Vexatious Litigants, Procedural and Natural Justice, Reasonable Apprehension of Bias, Appeals, Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 140(1), Rules of Civil Procedure, Rule 2.1.01, Peoples Trust Co. v. Atas, 2019 ONCA 359, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, leave to appeal refused, [2015] S.C.C.A. No. 488, Khan v. Law Society of Ontario, 2020 ONCA 320, Neufeld v. Neufeld, 2020 ONCA 395, R. v. S.(R.D.), [1997] 3 S.C.R. 484, Wesbell Networks Inc. v. Bell Canada, 2015 ONCA 33, Ojeikere v. Ojeikere, 2018 ONCA 372, Palmer v. The Queen, [1980] 1 S.C.R. 759, Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.)

Facts:

The respondent, RL, issued a 27-page Statement of Claim in the Superior Court of Justice against several parties including the appellant, the Corporation of the Town of Aurora (“Aurora”). In that claim, RL asserted (among other things) that numerous parties, including Aurora, had committed the torts of false arrest, false imprisonment, misfeasance in public office, and malicious prosecution. In addition to the Superior Court claim, RL had also initiated several other claims in the Small Claims Court.

Aurora brought an application before the Superior Court of Justice seeking that RL be declared a vexatious litigant pursuant to s. 140(1) of the Courts of Justice Act (the “CJA”). Aurora also brought a motion to have RL’s claim dismissed under Rule 2.1.01 of the Rules of Civil Procedure as being a proceeding that “appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court."

The application judge refused to declare RL a vexatious litigant or to dismiss his claim on that basis, but did streamline RL’s claim, remained seized of the matter and ordered strict case management. He ordered no costs.

Issues:

1. Did the application judge err by:

a. failing to declare RL a vexatious litigant pursuant s. 140(1) of the CJA;

b. failing to dismiss RL’s claim under r. 2.1.01 of the Rules;

c. displaying a reasonable apprehension of bias during the hearing; and

d. failing to order that Aurora should receive full indemnity costs in the amount of $30,668.07?

2. Should the parties be permitted to adduce fresh evidence?

Holding:

Appeal dismissed. Leave to appeal costs granted. Appeal on costs allowed.

Reasoning:

1.

a. No. First, the application judge properly focused on the Statement of Claim in his written reasons because one of the essential aspects of Aurora’s argument was that RL’s action was vexatious and abusive. Therefore, in assessing whether RL had instituted a vexatious proceeding against Aurora under s. 140(1)(a) of the CJA, the application judge was required to examine the claim and determine whether the pleadings were vexatious. Second, the application judge turned his mind to the Small Claims Court proceeding and imposed a condition on RL to abandon that proceeding before he could continue in Superior Court. Finally, the application judge did not ignore RL’s conduct in the proceeding. The application judge noted that RL had conducted himself in a troubling matter and indicated that this type of conduct would not be tolerated by the court. Rather than designating RL a vexatious litigant under s. 140(1) of the CJA, the application judge concluded that aggressive case management of the proceeding would achieve the most “expeditious, just, and least expensive” determination of the merits of the litigation. There was no basis to interfere with his decision.

b. No. Rule 2.1 is not for close calls and “should be limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process”. Judges should be cautious about allowing parties to have recourse to Rule 2.1, except where it is “plain and obvious on the face of the pleading” that the action is frivolous, vexatious or an abuse of process. The application judge carefully examined RL’s claim. He recognized that although some of the allegations and pleadings were outrageous and should be struck, there were pleadings with respect to the torts of false arrest, false imprisonment, and misfeasance in public office that a court could recognize as legitimate, even if RL’s conduct was troubling. The application judge properly took a cautious approach and the Court saw no error in his decision to permit RL’s action to proceed to the extent he did.

c. No. The submission that the motion judge displayed bias was devoid of merit. Allegations of judicial bias should not be made lightly. The application judge, like all judges, benefits from a strong presumption of judicial fairness, impartiality, and integrity that is not easily displaced. There was nothing in the record that can be seen as evidence of prejudgment or bias on his part.

d. Yes. The application judge erred in denying Aurora costs on the basis that success was divided. Although RL’s action was permitted to proceed and he was not declared a vexatious litigant, the application judge disregarded Aurora’s “overall success”. The practical effect of the application judge’s decision was that RL’s claim was trimmed down considerably and there was a condition imposed that restricts him from initiating any further motion, action, or proceeding against Aurora, its elected officials, employees, former employees, or legal counsel, without first obtaining leave of this court. Although it did not obtain the designation it sought under s. 140(1), Aurora was, nevertheless, the more successful party because it obtained aggressive case management of a pared-down claim as well as an order restricting further litigation. Therefore, Aurora was entitled to $15,000 in costs of the application, just under half the full indemnity amount it sought.

2. No. Notwithstanding that the parties had agreed not to object to the fresh evidence proposed by the other, the admissibility of fresh evidence was still a matter for the Court to determine. The evidence proposed by both parties does not meet the test for the introduction of fresh evidence.