



COURT OF APPEAL FOR ONTARIO

CITATION: Susin v. Susin, 2018 ONCA 549

DATE: 20180615

DOCKET: M49003 (C61734)

Strathy C.J.O., Feldman and Brown JJ.A.

BETWEEN

Fermino Susin

Applicant
(Respondent)

and

Dorino Susin, John Susin, Anita Rahman, Dianne
    Susin,
Sister Stella Marie, Gloria Devenz, Esther Susin
and Theresa Lensborn

Respondents
(Appellants)

AND BETWEEN

John Susin

Applicant

and

Fermino Susin, Dorino Susin, Anita Rahman,
Dianne Susin, Sister Stella Marie, Gloria Devenz,
Esther Susin and Theresa Lensborn

Respondents

Esther Susin, acting in person

Margaret A. Hoy, for the responding party

Heard: In writing

ENDORSEMENT

[1]

This matter comes before the court by way of a motion in writing to set
    aside the order of Fairburn J.A., dated March 5, 2018, dismissing the
    appellants motion to set aside the order of Gillese J.A., which required that
    the appellants each pay the sum of $15,000 into court as security for costs of
    their appeal.

[2]

The court has directed the Registrar to give notice to the parties,
    pursuant to r. 2.1.01(3) that the court is considering making an order under r.
    2.1.01(1).

[3]

Litigation among the nine Susin siblings, relating to the estate of
    their late father, has been before this court on three prior occasions.

[4]

The appellant, John Susin, appealed an order made in 2008 by Quinn J.,
    declaring him to be a vexatious litigant. His appeal was dismissed by this
    court:
Susin v. Susin
, 2009 ONCA 231. This court observed:

[T]he record shows that there was ample evidence to support his
    finding that the appellant is a vexatious litigant. His conduct in this case is
    indicative of his persistent and unwarranted pursuit of legal proceedings that
    are both meritless and frivolous. His conduct has resulted in enormous
    inconvenience and expense, over many, many years, to opposing litigants and in
    this era of strained court resources, he can no longer be permitted
    unrestrained access to the courts of Ontario.

[5]

In 2014, this court quashed an appeal by Dianne Susin on the ground that
    the order under appeal was interlocutory:
Susin v. Susin
, 2014 ONCA
    461. In so doing the court noted, at para. 3, a trail of unpaid costs orders in
    related proceedings and observed that the appeal should also be quashed on the
    basis of the appellants' persistent and unexplained failure to honour these
    costs orders.

[6]

Again in 2014, this court upheld a finding of contempt against another
    brother, Dorino Susin:
Susin v. Susin
, 2014 ONCA 733. As Blair J.A.
    noted in that case, at para. 2, [T]he Susin brothers and sisters have been
    squabbling over the estate of their late father, John Sr., since the death of
    their mother in 1998.

[7]

The proceedings in this court are only the tip of the iceberg. In her
    endorsement in this litigation,
Susin v. Susin
, 2018 ONCA 220,
    Fairburn J.A. stated, at para. 17:

Since this court dismissed John Susin's effort to have the
    vexatious litigant designation set aside almost a decade ago, at a minimum, it
    appears that he has brought motions before over fifteen different judges, on
    over twenty different days, in at least four different jurisdictions. The
    respondent has faced the daunting task of attempting to navigate his way
    through this labyrinth of litigation brought by John Susin, all the while facing
    an increasingly dwindling estate.

[8]

The result is that a relatively modest estate, consisting primarily of
    the family home, has been dissipated, leaving behind a slew of unpaid costs
    orders against the appellants.

[9]

Moreover, the continued misconduct of some of the participants in the
    proceedings, notably John Susin, has been the subject of sanctions. January
    2016, Ramsay J. of the Superior Court of Justice found that the appellant,
    Esther Susin, had facilitated her brothers [John Susins] campaign against the
    estate and his contravention of a prior order. Ramsay J. found John Susin in
    contempt
instanter
and he was committed to prison overnight.

[10]

John
    Susin has recently been found in contempt of the vexatious litigant order and
    in January of 2018 was sentenced to 30 days imprisonment:
Susin v. Susin
,
    2018 ONSC 148.

[11]

Having
    considered the submissions of the parties, the motion to set aside the order of
    Fairburn J.A., the endorsement of Fairburn J.A., and the endorsement of Gillese
    J.A., as well as the history of this litigation, we are satisfied that the
    motion is frivolous, vexatious and an abuse of process and it is dismissed, pursuant
    to r. 2.1.02(1).

[12]

Having
    considered the foregoing matters, as well as the order of Quinn J., dated July
    23, 2008, declaring the appellant John Susin a vexatious litigant, the 11-year
    history of these proceedings, which includes numerous and substantial unpaid
    costs orders against the appellants, we are satisfied that it is appropriate to
    make an order pursuant to r. 2.1.02(3) prohibiting the appellants, or any of
    them, from making any further motions in this proceeding without leave of a
    judge of this court. Any such motion seeking leave must be made
in writing
and will not be accepted unless proof of
    service on the respondents counsel is provided at the time of filing.

[13]

In
    addition, before bringing any such motion, the appellants are required to
    satisfy all outstanding costs orders made against them by judges of both this
    court and of the Superior Court of Justice, and shall file proof by affidavit
    that they have done so.

[14]

For
    these reasons, it is ordered that:

a.

the motion to set aside the order of Fairburn J.A., is dismissed, with
    costs fixed at $1,000, inclusive of disbursements and taxes;

b.

if the appellants fail to pay security for costs, pursuant to the order
    of Gillese J.A. within 30 days, the appeal shall be dismissed as abandoned; and

c.

the appellants are prohibited from making any other motions in this
    proceeding without leave of a judge of this court, on the terms set out in
    paras. 12 and 13 of these reasons, namely:


i.

any such motion seeking leave must be made
in
    writing
and will not be accepted unless proof of service on the
    respondents counsel is provided at the time of filing; and


ii.

before bringing any such motion, the appellants are required to satisfy
    all outstanding costs orders made against them by judges of both this court and
    of the Superior Court of Justice, and shall file proof by affidavit that they
    have done so.

G.R. Strathy C.J.O.

K. Feldman J.A.

David Brown J.A.


