





CITATION:
Bishop v. Bishop, 2011
          ONCA 211



DATE:  20110317



DOCKET: C52841



COURT OF APPEAL FOR ONTARIO



Rosenberg, Moldaver and Feldman JJ.A.



BETWEEN



Christine Catherine Bishop and Anne Alma McGourty



Applicants (Respondents)



and



James Michael Bishop



Respondent (Appellant)



James Bishop, in person



Annette Casullo, for the respondents



Heard: March 15, 2011



On appeal from the order of Justice R. Dan Cornell of the
          Superior Court of Justice, dated October 5, 2010.



ENDORSEMENT



[1]

The appellant appeals from the order of Cornell J. of
    the Superior Court of Justice dated October 5, 2010 declaring him to be a vexatious
    litigant pursuant to s. 140 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, and (1) prohibiting him from
    continuing any proceeding, including any appeal, in any court governed by the
Courts of Justice Act
without first obtaining
    leave of a judge of the Superior Court of Justice; and (2) prohibiting him from
    commencing any proceedings or appeal in any court governed by the
Courts of Justice Act
without first
    obtaining leave of a judge of the Superior Court of Justice.

[2]

The appellant submits that the motion judge erred in
    making that order, essentially for two reasons.

[3]

First, the appellant submits that the court proceedings
    instituted by him were few in number and they were not vexatious; rather, they
    were brought in good faith on the basis of his sincerely held belief that his
    sisters (the respondents) had used a power of attorney to misappropriate large
    sums of money from their mother before she died. He therefore takes issue with
    the motion judges finding that the proceedings instituted by him were vexatious.

[4]

Second, the appellant submits that in finding him to be
    a vexatious litigant, the motion judge erroneously took into account numerous
    non-judicial proceedings, including complaints to various professional bodies against
    individuals who had either opposed him in his attempt to expose his sisters
    alleged wrongdoings or who had allegedly failed to provide him with competent
    advice and service.

[5]

We would not give effect to either of these grounds of
    appeal.

[6]

The motion judge provided comprehensive reasons for
    concluding that the appellant met the criteria identified in
Re Lang Michener et al. and Fabian et al.
(1987), 59 O.R. (2d) 353 (H.C.), to be declared a vexatious litigant under s.
    140(1) of the
Courts of Justice Act
.
    At paras. 15 and 16 of his reasons, the motion judge summarized his findings in
    this regard:

It is readily apparent that Mr. Bishop has
    satisfied most, if not all, of the criteria to be applied in determining if
    someone is a vexatious litigant. He has brought one or more actions to
    determine an issue that has already been judicially determined. In each case,
    there was no reasonable basis for the position that was being advanced by him.
    His scorched earth approach to this matter constitutes harassment and
    oppression of not just his siblings, but of anyone else who has been associated
    with this matter. Despite a thorough review by various independent agencies and
    the courts, it is now clear that Mr. Bishop refuses to accept that his concerns
    are unfounded. Mr. Bishop has continued with a multiplicity of proceedings in
    an effort to re-litigate the matter. In addition, Mr. Bishop persists in taking
    unsuccessful appeals from judicial decisions.

Mr. Bishop has had his day, indeed more than one
    day, in court. He refuses to accept the independent and impartial decisions
    which have been rendered and doubtless would continue on this unreasonable
    course of conduct for, to use his own words, another twelve years on this one
    if I have to ....

[7]

In our view, the motion judge was justified in
    concluding that the appellant is fixed in his belief that the
respondents
misappropriated funds from his late mother and
    that nothing short of a vexatious litigant order will prevent him from continuing
    his crusade against them in the courts indefinitely. Contrary to the submission
    of the appellant, the record amply supports those findings.

[8]

As for the second ground of appeal  that the motion
    judge improperly took non-judicial proceedings into account  we agree with the
    principle enunciated by Dawson J. in
Canada
    Post Corp. v. Varma
, [2000] F.C.J. No. 851 at para. 23:

A respondents behaviour both in and out of the
    court has been held to be relevant. In
Canada
    v. Warriner
, (1993), 70 F.T.R. 8 (T.D.), McGillis J. noted that frivolous
    and unsubstantiated allegations of impropriety had been levelled against
    lawyers who had acted for or against the respondent. In
Vojic, supra
, McGillis J. took into account the fact that the
    respondent had failed to appear on several occasions and had shown disregard
    for the court. In
Yorke v. Canada
,
    (1995), 102 F.T.R. 189 (T.D.), Rouleau J. considered a number of factors,
    including that the respondents proceedings in the Federal Court were replete
    with extreme and unsubstantiated allegations.

[9]

We would simply add to that statement by noting that in
    our view, the institution of non-judicial proceedings can, depending on the
    circumstances, constitute evidence from which a court may infer that court
    proceedings commenced by the litigant are not
bona fide
but the product of someone who is unreasonably obsessed
    with a cause and likely to pursue vexatious court proceedings on an indefinite
    basis unless stopped.  In this case, we
    are satisfied that the motion judge was entitled to look to the extra-judicial
    proceedings commenced by the appellant in assessing the
bona fides
of the legal proceedings he had commenced and was
    continuing to pursue.

[10]

For these reasons, we would dismiss the appeal and uphold
    the motion judges order.

[11]

The appellant also submits that the motion judge erred
    in fixing costs against him in the amount of $28,146.57. We see no basis for
    granting leave in this case. The appellant has not identified any error in
    principle and the costs award is not unreasonable. Accordingly, leave to appeal
    costs is denied.

[12]

With respect to the appeal, we are satisfied that the
    respondents should have their costs on a partial indemnity basis in the amount
    of $10,000, inclusive of disbursements and applicable taxes. Rule 49 relating
    to the cost consequences of offers to settle
does
not
    apply to appeals.


Signed:           M.
    Rosenberg J.A.

M.
    J. Moldaver J.A.

K.
    Feldman J.A.


