



COURT OF APPEAL FOR ONTARIO

CITATION: Peoples Trust Company v. Atas, 2019 ONCA 359

DATE: 20190506

DOCKET: C64955

Tulloch, Huscroft and Harvison Young
    JJ.A.

BETWEEN

Peoples
    Trust Company, David Brooker, Taras Kulish, Moses Muyal,

Michael
    Harold Kimberly, Irene Mary Kimberly, Stancer Gosssin Rose, Raymond Stancer,
    Michael Hart Rose, Rose and Rose, Blair Coleman Rose, Scott Kelly, Rahul
    Shastri, Ira T. Kagan, David Winer, David Sloan, Baker Schneider Ruggiero,
    Patrice Cote, Ron Hatcher, Steinberg Morton Frymer LLP, Michael John Mitchell,
    Nicholas Carlos Canizares, David Hart Bresver, Bresver Scheininger &
    Chapman LLP, Rui Ruivo, Frank Pa, Atlantic (HS) Financial Corporation, Tom
    Pires, Mega Corp, Krishan Chahal, and Nutan Chahal

Applicants (Respondents)

and

Nadire Atas and 626381 Ontario Limited

Respondents (Appellants)

Nadire Atas, acting in person

Christina J. Wallis, for the respondent Peoples Trust
    Company

Yoginder Gulia, for the respondents Krishan
    Chahal and Nutal Chahal

Gary Caplan, for all remaining respondents

Heard: April 12, 2019

On appeal from the judgment of Justice D.L. Corbett of
    the Superior Court of Justice, dated January 3, 2018, with reasons reported at
    2018 ONSC 58.

REASONS
    FOR DECISION

[1]

The appellants were declared vexatious litigants pursuant to s. 140 of
    the
Courts of Justice Act
, R.S.O. 1990, c. C. 43. The appellants raise
    a number of related arguments on appeal. For the following reasons, the appeal
    is dismissed.

[2]

The appellants argue that the application judge  who was acting as case
    management judge for the underlying litigation and the s. 140 application  had
    no jurisdiction to hear the s. 140 application. We disagree. The application judge
    addressed this issue at paras. 234-249 of his reasons. We see no error in his
    conclusion that he had jurisdiction to hear the application on the facts of
    this case.

[3]

In the course of the more than 4-year process of case managing the
    underlying litigation, the application judge did not conduct any settlement
    discussions or hold a judicial pre-trial in respect of the underlying
    litigation or the s. 140 application. This distinguishes the present case from
    the authorities cited by the appellants. In addition, the appellants did not
    appeal from the application judges ruling dated June 30, 2015, made when this
    issue was first raised by the appellants, that he had jurisdiction to hear the
    s. 140 application.

[4]

We also disagree with the submission that the application judge erred in
    finding that the appellants had acted in a vexatious manner in defending proceedings
    brought against them, or in requiring the appellants to seek leave prior to
    taking any further step in defending such proceedings.

[5]

The court has a broad discretion to control its process and to make
    appropriate orders where vexatious proceedings have been instituted or
    proceedings have been conducted in a vexatious manner, both pursuant to s. 140
    of the
Courts of Justice Act
and as a component of the courts
    inherent jurisdiction. This jurisdiction extends to the conduct of litigants in
    defending proceedings. We are satisfied that this was an appropriate case,
    given the history and record of the matter before the court, for the
    application judge to require the appellants to seek leave before taking any
    step in a proceeding in which they are defendants.

[6]

The argument that the application judge erred in finding that the court
    had jurisdiction to make a pre-screening
Chavali
order
[1]
similarly fails. The application judge thoroughly canvassed the issue of his
    jurisdiction to make the
Chavali
order at para. 304 of his reasons and
    did not err in determining he had jurisdiction to make the order.

[7]

We also find no error with respect to the terms of the pre-screening
Chavali
order, as incorporated in the judgment. Among other things, the order
    requires the appellants to: (1) obtain permission from the designated case
    management judge prior to bringing any application under s. 140(3) of the
Courts
    of Justice Act
to obtain leave to proceed with a proceeding or a step in a
    proceeding in any court in Ontario; (2) provide the judgment and application
    judges reasons to any non-Ontario court or any administrative body, commission
    or tribunal in which the appellants seek to initiate or continue a proceeding;
    and (3) prior to commencing any criminal proceedings or to making a complaint
    to a peace officer, provide the judgment and the application judges reasons to
    the peace officer or judicial officer, as appropriate. The order does not
    purport to control the process of administrative bodies, criminal courts, or
    non-Ontario courts who, upon being made aware of what the Superior Court has
    held with respect to the appellants being vexatious litigants, may control
    their own processes as they see fit.

[8]

The appellants also argue that the application judge erred in his
    assessment of the evidence and findings of fact on the s. 140 application. We
    find no merit to this argument. It is an attempt to re-litigate the issues that
    were before the application judge, which is not the role of this appeal court.
    The application judge carefully and painstakingly reviewed the evidence in the
    course of his reasons and there is no basis to disturb his findings:
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235.

[9]

We do not agree with the appellants submission that continued case
    management, and particularly the
Chavali
order, is unfair to Ms. Atas
    as a self-represented litigant
.
At the core of the courts
    jurisdiction under s. 140 of the
Courts of Justice
and pursuant to its
    inherent jurisdiction is the discretion to control its process and prevent the
    abuse of its process. Unchecked, abusive and vexatious proceedings consume
    scarce resources at the expense of
all
litigants, including other self-represented
    litigants who deserve ready access to justice. This is particularly true in
    this post-
Jordan
world in which all players in the judicial system,
    including judges, are obligated to ensure and facilitate more timely access to
    the courts:
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631, at para.
    116.

[10]

The
    appellants are mistaken in their suggestion that the application judge is
functus
    officio
and cannot continue to case manage the proceedings. While the
    application judge is
functus
as to the determination that the
    appellants are vexatious litigants, that doctrine does not apply to the
    continued case management of the underlying proceedings pursuant to both the
Rules

and the terms of the
    judgment, which includes the
Chavali
order.

[11]

Finally,
    the appellants argue that the application judges costs orders dated February
    7, 2017 (in relation to the appellants recusal motion) and October 19, 2018
    (in relation to the s. 140 application) should be set aside. We disagree. The
    appellants have not identified any error in the application judges exercise of
    his discretion as to costs that would warrant intervention from this court:
Hamilton
    v. Open Window Bakery Ltd.,
2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

Disposition

[12]

For
    the forgoing reasons, the appeal is dismissed. The respondents are entitled to
    their costs of the appeal, fixed in the all-inclusive amount of $16,690.

M. Tulloch J.A.

Grant Huscroft J.A.

A. Harvison Young
    J.A.





[1]
See
Chavali v. Law Society of Upper Canada
, [2006] O.J. No. 2036 (S.C.).


