Docket: T-412-15
Citation: 2016 FC 230
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BETWEEN:
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STEVEN JOHN
TONNER
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Plaintiff
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and
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BARRY LOWRY, REMAX TWIN CITY REALTY INC.; GEORGE WATSON, ROYAL
LEPAGE THE BEACH AND BEYOND REALTY INC.; ANITA MERLO, BOSLEY REAL ESTATE LTD;
CHRIS KAPCHES, CHESTNUT PARK REAL ESTATE LIMITED; LAURA GRAHAM, SUTTON GROUP
INCENTIVE REALTY INC.; CAROLE MURPHY, COLDWELL BANKER STURINO REALTY LTD.;
TORONTO REAL ESTATE BOARD AND CHERRY BODERA;
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Defendants
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CHRISTOPHER BREDT, MORGANA KELLYTHORNE, MATHEW FURROW, AMY WESTLAND,
MARTIN ZARNET, ANITA JOHN, BRUCE CUNNINGHAM, JOHN K. BURNET, TOM WRIGHT,
ELIZABETH SILCOX, ALLAN JOHNSON, WENDY PETTITT, BRUCE JACKSON, DAVID ANDREW,
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Defendants
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BOARD OF DIRECTORS-BRUCE LAW,
DAVID ROSSI, GLENDA BRINDLE (AS REPRESENTATIVE AND CHAIRMAN OF THE BOARD OF
DIRECTORS FOR THE REAL ESTATE COUNCIL OF ONTARIO) AND THE REAL ESTATE COUNCIL
OF ONTARIO, BOARD OF DIRECTORS (REBECCA RYDER, MICHAEL APPLETON, STEVE BOXMA,
MIKE CUSANO, HOWARD DRUKARSD, PETER HOFFMAN, JODY LAVOIE, MARY SHENSTONE, HSHWANI
BHARDWAJ, BILL YETMAN), BORDEN LADNER GERVAIS.
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Defendants
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ARLENE BONILLA, ROCCHINA GOLDEN, OSWALD LOGOZZO, EDWARD BARISA,
SHELLY KORAL, ROBERT EBY, ROBERT EBY REAL ESTATE, KEITH GUERTS, MONIKA BOS, ONTARIO
REAL ESTATE ASSOCIATION, PETER MANDERVILLE, GOWLING LAFLEUR HENDERSON.
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Defendants
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BOARD OF DIRECTORS OF ONTARIO REAL ESTATE ASSOCIATION, COSTA
POULOPOULOS, PHIL DORNER, PATRICIA VERGE, RAY FERRIS, TOM LEBOUR, RICHARD
LEROUX, AZIZALI KANJEE, RON ABRAHAM, DIANE USHER, ETTORE CARDARELLI, MAUREEN
O’NEIL, LINDA MCCALLUM, DAVID REID, DIANE ERICKSON, JOHN ODDO, ANNA VOZZA.
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Defendants
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HER MAJESTY THE QUEEN IN RIGHT OF
ONTARIO AS REPRESENTED BY THE MINISTER OF CONSUMER AND BUSINESS SERVICES,
FATEMA DADA, COURTNEY HARRIS, JAMES ARMSTRONG, RONALD CHOUINARD, TORONTO
POLICE SERVICE BOARD AND WILLIAM BLAIR, JOHN LEAVER, DOUG BROWN, ONTARIO
PROVINCIAL POLICE, MATT COHEN, LAW HELP ONTARIO, DANIEL MARENTIC,
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Defendants
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ATTORNEY GENERAL OF ONTARIO AND ATTORNEY GENERAL OF CANADA,
COMMISSIONER FOR JUDICIAL AFFAIRS CANADA, CANADIAN JUDICIAL COUNSEL, OFFICE
OF THE PRIVACY COMMISSION OF CANADA, DAVID MCCOMBS, EDWARD BELOBABA, JAMES
MCNAMARA, POLOWIN J., DAVID DOHERTY, IAN JURIAN, DAVID LASKIN, DAVID
ROSENBURG, CINDY PILLA,
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Defendants
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JUSTICE OF THE PEACE F. ROSS STUART, DESJARDIN, ROMANALLI, R.
SKJARUM AND L. GONET, S. MALIK
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Defendants
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ROYAL CANADIAN MOUNTED POLICE
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Defendant
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REASONS
FOR ORDER
PHELAN J.
I.
Introduction
[1]
These are the Reasons for this Court’s Order of
January 26, 2016, which granted an Order under s 40 of the Federal Courts
Act, RSC 1985, c F-7 (essentially declaring Mr. Tonner a vexatious
litigant), requiring leave of this Court before initiating any proceedings, striking
the Statement of Claim and ordering costs.
[2]
Tonner has been declared a vexatious litigant
twice in Ontario. Having been foreclosed from the provincial court system, he
now wishes to engage, in apparently the same manner, the federal court system.
That cannot be permitted.
II.
Background
[3]
Tonner’s litigation history stems from
discipline proceedings commenced by the moving party, Real Estate Council of
Ontario [RECO], the non-profit corporation that manages and regulates the real
estate industry in Ontario.
[4]
Tonner was a real estate agent and member of
RECO. In June 2004, the RECO Discipline Committee found that Tonner had
violated RECO’s Code of Ethics by making racist and anti-Semitic comments and
imposed a two-year suspension and a $5,000 fine.
[5]
Tonner then began his litigation journey. He was
unsuccessful at each step of his litigation, up to the Supreme Court of Canada,
to overturn the suspension order by RECO. In the course of which he had
numerous cost awards against him which remain unpaid.
[6]
After the disciplinary proceedings, Tonner
commenced a significant amount of litigation against RECO and others. This led
the Superior Court of Justice of Ontario [Superior Court] to issue two orders
declaring Tonner a vexatious litigant pursuant to the Courts of Justices Act,
RSO 1990, c C43.
As
a result of unrelated litigation, Tonner had previously been declared a
vexatious litigant in 1998 but that order was partially vacated in 2004.
[7]
On October 23, 2006, Justice Belobaba of the
Superior Court declared Tonner a vexatious litigant, stayed all previous
proceedings commenced by Tonner (except a case pending in the Supreme Court of
Canada) and ordered that Tonner could not initiate any proceedings except with
leave of a judge of the Superior Court.
His
appeal of that order was dismissed when he failed to pay security for costs as
ordered.
[8]
Tonner then took varying steps to re-open the
dismissed appeal including seeking leave from the Supreme Court. Those efforts
were unsuccessful.
[9]
Six years after Justice Belobaba’s vexatious litigant
order [Belobaba Order], Tonner attempted to have that Order rescinded by a judge
sitting in Perth. Justice McNamara found “absolutely no
basis” for rescission and made another vexatious litigant order
specifying that Tonner could not initiate proceedings without first obtaining
leave in writing from the Regional Senior Judge of the Central West Region.
[10]
As part of Tonner’s campaign, he procured
criminal summons from the Deputy Registrar at the Brampton courthouse directed
at a RECO representative. Justice Durno quashed the subpoenas and prohibited
anyone other than a judge of the Superior Court from issuing subpoenas at
Tonner’s request.
[11]
There is a clear pattern of Tonner repeatedly
disobeying court orders and attempting to initiate proceedings. These acts
include:
•
In 2005, despite an order prohibiting Tonner
from initiating further summons without notice to the person involved, he laid
a private charge against RECO employees for fraud and extortion without notice
and procured summons in relation to the charges. Those charges were quashed,
Tonner was arrested and charged with disobeying a court order and released on
bail.
•
In 2011, Justice Boswell of the Superior Court
stayed four proceedings issued in Newmarket contrary to the Belobaba Order.
Another action was heard and dismissed.
•
In 2011, Justice Himmel refused leave to bring a
new action in Toronto.
•
Also, in 2011, Tonner attempted to set aside the
Belobaba Order by filing a forged consent to an order to that effect. Tonner
was convicted of criminal forgery, using forged documents and obstruction of
justice. His conviction was upheld on appeal.
[12]
In addition to Tonner’s acts of disobeyance of
court orders and his efforts to move around judicial districts, he has engaged
in other vexatious acts including being charged with assault and criminal
assault of a RECO representative and making numerous complaints to the Law
Society of Upper Canada against various counsel; none of which have been
upheld.
[13]
In summary, Tonner, having been declared a
vexatious litigant in Ontario twice, continued to flout the court’s orders. He
has failed to pay cost awards. He has tried to use the private criminal process
by again disobeying court orders and in engaging in forgery and fraud on the
courts. He has been prepared to move about the Ontario jurisdiction in a
classic example of forum shopping.
[14]
Tonner has now taken his campaign to the Federal
Court where he has filed a 43-page Statement of Claim against these Defendants
claiming damages of $30 million in general damages, $20 million in special
damages and $11.5 million in compensatory damages and other varying monetary
claims – always in the millions of dollars.
[15]
There is no intention to try to better define
the myriad of Tonner’s claims but suffice it to say that it makes outrageous
claims without specifics, attacks the honesty and integrity of judges of the Superior
Court, and repeats many of the allegations against a number of the Defendants
already dealt with by the Superior Courts.
The
Statement of Claim is a rambling set of disconnected allegations and sweeps
within its purview almost everyone who has dealt with Tonner on his real estate
and litigation problems (and sometimes people or entities who had nothing to do
with him).
III.
Analysis
[16]
There are two issues to be determined:
a)
Should Tonner be declared a vexatious litigant?
b)
Should the claim be struck?
The Court has
already ordered both.
[17]
The Federal Court has the power under s 40(1) of
the Federal Courts Act to grant a vexatious litigant order:
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40 (1) If the Federal Court of Appeal or the Federal Court is satisfied,
on application, that a person has persistently instituted vexatious
proceedings or has conducted a proceeding in a vexatious manner, it may order
that no further proceedings be instituted by the person in that court or that
a proceeding previously instituted by the person in that court not be continued,
except by leave of that court.
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40 (1) La Cour d’appel fédérale ou la Cour
fédérale, selon le cas, peut, si elle est convaincue par suite d’une requête
qu’une personne a de façon persistante introduit des instances vexatoires
devant elle ou y a agi de façon vexatoire au cours d’une instance, lui
interdire d’engager d’autres instances devant elle ou de continuer devant
elle une instance déjà engagée, sauf avec son autorisation.
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[18]
The consent of the Attorney General of Canada
has been obtained.
[19]
A vexatious litigant is one who persistently
institutes vexatious proceedings or has conducted a proceeding in a vexatious
manner.
Relief
under s 40(1) is an exception and a serious matter; however, it does not deny a
person the use of courts, it regulates its proper use.
[20]
The characteristics of a vexatious litigant are
fairly common across all Canadian jurisdictions. In particular, Ontario
precedent lines up with Federal Court precedents. The Federal Court has
identified key indications of vexatious behaviour:
•
a propensity to re-litigate matters that have
already been determined;
•
the initiation of frivolous actions or motions;
•
the making of unsubstantiated allegations of
impropriety against the opposite party, legal counsel and/or the Court;
•
the refusal to abide by rules and orders of the
Court;
•
the use of scandalous language in pleadings or
before the Court; and
•
the failure or refusal to pay costs in earlier
proceedings and the failure to pursue litigation on a timely basis.
(see
Wilson v Canada (Revenue Agency), 2006 FC 1535 at paras 30-31, 305 FTR
250 – Barnes J.)
[21]
I accept RECO’s counsel’s submission that Tonner
displays all the recognized traits of a vexatious litigant:
(a) For
over a decade, he has been consistently re-litigating the same issues that were
before the RECO Discipline Committee in 2004 in over twenty proceedings in the
Superior Court, the Small Claims Court, the Divisional Court, the Court of
Appeal and the Supreme Court of Canada. Tonner has never been successful in
relation to any of his complaints against RECO in any of the multiple fora in
which he has sought to re-litigate these issues. It is as a result of this
re-litigation of the same issues that Justices Belobaba and McNamara issued the
2006 and 2012 vexatious litigant orders against Tonner. The Amended Statement
of Claim in the within action raises the same issues that were the subject of
the proceedings that were the basis for these two vexatious litigant orders.
(b) Tonner
has instituted numerous frivolous and vexatious motions and applications,
including to revive dismissed or abandoned applications and appeals, to rehear
appeals, to appeal interlocutory motions, and to issue multiple subpoenas in
relation to baseless private criminal charges.
(c) Tonner
has made numerous unsubstantiated allegations to the Law Society concerning
counsel for RECO, many of whom are also named defendants in the within action.
There are also numerous judges and justices of the peace named as defendants,
against whom Tonner had made unsubstantiated and scandalous allegations. His
allegations against Justice Belobaba are particularly scandalous. For example,
the Amended Statement of Claim pleads:
The
Plaintiff states and pleads that the defendant Belobaba is an anti semitic
racists and a big community thug and bully and is known to defeat the course of
justice. The defendant along with his co-conspirators should be stripped of
their life, liberty and security and their beds should be put out on the
street.
[…]
(d) As
discussed above, Tonner has refused to obey numerous court orders, and has been
charged criminally for failing to do so.
(e) Even
a cursory reading of the Amended Statement of Claim in the within action, and
nearly all the materials Tonner has filed in any of the proceedings he has
commenced, reveals gratuitous use of scandalous language. For example, the
Amended Statement of Claim in the within action pleads:
All of the
front line defendants declared an act of war and hate intended squarely at the
Plaintiff and indeed used their own aggression to further hi-jacking the
criminal justice system as a means of Extortion to stop and prevent the
Plaintiff from exercising his legal remedies in small claims court, Superior
Court, Divisional Court and the Court of Appeal for Ontario.
…
The
Plaintiff states and pleads that the “Big Wolf” is a evil emperor bully and a
big coward and rules the defendants to varying degrees (see para 15-33) except
the fraud artist Keith Guerts directly or indirectly or by proxy…
[…]
(f) Tonner
has failed to pay over $51,000 of the outstanding cost awards against him in
favour of RECO. Numerous proceedings he has instituted have been dismissed for
delay.
[22]
Against that backdrop Tonner has now filed a
mish mash of a Statement of Claim that seeks to canvass all the past issues,
adds a few current ones and seeks to engage the Federal Court process.
[23]
Common sense, judicial comity and economy
dictate that this Court take into account the experience of other courts in
relation to Tonner. This has been done in this Court before; Mazhero v Fox,
2011 FC 392, 387 FTR 244.
[24]
The Federal Court need not wait for the ensuring
burden of Tonner’s type of conduct to fall upon it. There is no reason to doubt
that Tonner will continue his vexatious conduct in this Court.
[25]
An Order under s 40(1) ensures a balance between
the right of every litigant to have access to this Court and protecting the
Court and other parties from wasteful, frivolous unnecessary and unmeritorious
claims. There is no good reason not to grant s 40(1) relief.
[26]
With respect to the Statement of Claim, it
pleads against persons and entities over whom, and in the context advanced,
this Court would not appear to have jurisdiction.
[27]
Absent anything more, it is not clear that this
Court has neither personal nor subject matter jurisdiction over such entities
as Her Majesty the Queen in Right of Ontario, over judges of the Ontario court
system, Ontario court staff, provincial Crown counsel or police officers.
[28]
Even if this Court did, it is impossible because
of the way matters are pled, to discern the specific cause of action over which
this Court has jurisdiction. In respect of federal entities, it is still
impossible to discern a proper cause of action.
[29]
Further, the pleadings are so interconnected and
crossed over that it would be futile to sever some claims and leave others.
[30]
The only sensible result is to strike the whole
of the claim. If Tonner wishes to reinstitute proceedings, he will have to
obtain leave pursuant to Rule 40(1).
[31]
Lastly, costs were requested by RECO. The award
of costs is for them only. Unless requested, the Court’s Order need not be
amended to clarify this award.
"Michael L. Phelan"
Ottawa, Ontario
February 22, 2016
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