Gonzalez v. Mulgrave Independent School Society

2017 BCSC 882 Gonzalez v. Mulgrave Independent School Society

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Gonzalez v. Mulgrave Independent School Society, 2017 BCSC 882 Date: 20170530 Docket: S165374 Registry: Vancouver Between: Emmanuel Cuenco Gonzalez Plaintiff And Mulgrave Independent School Society Defendant Before: The Honourable Mr. Justice Myers Reasons for Judgment Counsel for the Plaintiff: Christopher J. Watson Counsel for the Defendant: Rosalie A. Clark Place and Date of Hearing: Vancouver, B.C. May 3-4, 2017 Place and Date of Judgment: Vancouver, B.C. May 30, 2017 I. Introduction [1] The defendant - which I will refer to as Mulgrave - applies to strike Mr. Gonzalez's claim on the basis that it fails to disclose a reasonable claim, or that it is frivolous or vexatious or an abuse of process. The application is brought under Rule 9-5(1) of the Supreme Court Civil Rules. Mulgrave also applies for an order that Mr. Gonzalez be declared a vexatious litigant under s. 18 of the Supreme Court Act, R.S.B.C. 1996, c. 443. [2] As its name implies, Mulgrave runs a private school. [3] Mr. Gonzalez and his former wife, Ms. D'Atri, have three children attending the school. Under their 2008 separation agreement, the choice of school is Ms. D'Atri's and Mr. Gonzalez is responsible for the fees. [4] In this lawsuit, Mr. Gonzalez claims that surveys of students' parents conducted by Mulgrave constitute a deceptive act or practice under

the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2 (the "Act"). He claims a declaration to that effect, and an injunction. He does not claim monetary compensation. Mulgrave argues that the claim as pleaded does not constitute a cause of action under the Act. [5] The basis for Mulgrave's argument that the claim is vexatious, and that Mr. Gonzalez should be declared a vexatious litigant is based on the nature of this claim and the long history of litigation between Mr. Gonzalez and Ms. D'Atri. II. The Claim [6] Mr. Gonzalez started this lawsuit in June 2016. It focused on a survey that the school conducted to become accredited by the Council of International Schools. The survey was designed and conducted by Endicott College. The notice of civil claim refers to these surveys as the "External Surveys". [7] In December 2016, after receiving and responding to a demand for particulars, Mr. Gonzalez amended his notice of civil claim to add internal satisfaction surveys that the school administered since 2010. The notice of civil claim refers to these surveys as the "School Surveys" [8] The pleading alleges that the survey results were published on Mulgrave's website and that the results "testified as to the high quality of education and satisfaction with the School found amongst parents and others completing the Surveys". [9] The amended notice of civil claim

alleges: 13. The results of the School Surveys or the manner in which they were conducted by the School were flawed in that they: (a) failed to include in Survey responses a neutral response (neither Agree or Disagree), which when included tends to force a respondent to the Agree side of the range of possible answers; and (b) contained other defects in the online survey design, including wording, presentation, methodology, language availability, and protection of confidentiality.

14. The results of the External Surveys or the manner in which they were conducted by Endicott and others, were flawed in that they: (a) lacked any unique respondent identifier or other control designed to identify participants logging on to the Endicott or other Survey site and prevent Survey participation by unauthorized persons; (b) lacked any single-use password per eligible respondent or other control designed to identify participants logging on to the Endicott or other Survey site and prevent multiple voting or repeat Survey participation by those persons who have already completed the Survey once; and (c) lacked any specific programming controls designed to identify participants logging on to the Endicott or other Survey site and provide checks or blocks to ensure that participants were limited in the number of responses to individual questions in a Survey.

15. The defendant, its directors, officers, administrators and employees knew, or ought to have known, of the flaws in the School Surveys and External Surveys or in the manner in which the Surveys were conducted.

16. Notwithstanding knowing of the flaws in the School Surveys and External Surveys or the manner in which these surveys were conducted, or being in a position to determine without difficulty the flaws in the surveys or the manner in which they were conducted, the defendant, its directors, officers, administrators and employees did knowingly or recklessly publish the results thereof to parents of students in the School and parents of prospective students with the intent of influencing them in the choice of schooling for their children.

17. The reporting of the School Surveys and External Surveys results under the aforementioned conditions resulted in false or exaggerated descriptions of student and parental satisfaction.

18. The results of the School Surveys and External Surveys were published by the defendant to exaggerate the reputation of the School and to encourage parents of current and prospective students to continue enrollment with the School, or to enroll their children in the School.

25. The defendant's conduct as aforesaid was a deceptive act or practice as set forth in the Business Practices and Consumer Protection Act, British Columbia (the "Act").

26. Further, the defendant's release of the School Survey and External Survey results, together with the reports thereon, had the capability, tendency or the effect of conveying a deceptive or misleading message to the plaintiff: that the survey results could be relied upon as an accurate reflection of the quality of education at the School and the satisfaction of parents with that education.

27. The plaintiff was induced by the representations contained in the School Survey and External Survey results and the reports and representations regarding them to maintain the enrollment of his children in the School and not, despite his concerns regarding cost and quality of education, end their enrollment at the School. As a result the plaintiff has been put to cost and expense. [10] In the legal basis section of the notice of civil claim, Mr. Gonzalez pleads that, for the purposes of the Act, he is a consumer, that there has been a consumer transaction because he has paid fees to the school and that there was a deceptive act or practice by the school. [11] As I said above, the plaintiff does not claim monetary compensation; the relief he seeks is: 1. The plaintiff seeks a declaration pursuant to Section 172(1)(a) of the Business Practices and Consumer Protection Act, R.S.B.C. 2004, c.2, as amended, that the defendant's actions contravene the Act.

2. The plaintiff seeks a permanent injunction pursuant to Section 172(1)(b) of the Business Practices and Consumer Protection Act restraining the defendant from contravening the Act.

3. The Plaintiff seeks an order pursuant to Section 172(3)(c) of the Business Practices and Consumer Protection Act that the defendant advertise to the public in a manner that will assure prompt and reasonable communication to consumers, and on terms or conditions that the court considers reasonable, particulars of any judgment, declaration, order or injunction granted against the defendant.

4. The plaintiff claims its costs of this proceeding. III. Does the pleading set out a cause of action? [12] Mulgrave says the pleading fails to set out a cause of action because it: a) does not plead the necessary facts to establish that a consumer transaction with Mulgrave occurred; and b) does not plead a deceptive act or practice. [13] To succeed with this part of its application, Mulgrave must show that, assuming all facts pleaded to be true, it is plain and obvious that the claim cannot succeed: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para.

63. A. The Business Practices and Consumer Protection Act [14] Mr. Gonzalez brings his action under s. 172 of the Act. It provides, in part: Court actions respecting consumer transactions 172(1) The director or a person other than a supplier, whether or not the person bringing the action has a special interest or any interest under this Act or is affected by a consumer transaction that gives rise to the action, may bring an action in Supreme Court for one or both of the following: (a) a declaration that an act or practice engaged in or about to be engaged in by a supplier in respect of a consumer transaction contravenes this Act or the regulations; (b) an interim or permanent injunction restraining a supplier from contravening this Act or the regulations. (2) If the director brings an action under subsection (1), the director may sue on the director's own behalf and, at the director's option, on behalf of consumers generally or a designated class of consumers. (3) If the court grants relief under subsection (1), the court may order one or more of the following: (a) that the supplier restore to any person any money or other property or thing, in which the person has an interest, that may have been acquired because of a contravention of this Act or the regulations; (b) if the action is brought by the director, that the supplier pay to the director the actual costs, or a

reasonable proportion of the costs, of the inspection of the supplier conducted under this Act; (c) that the supplier advertise to the public in a manner that will assure prompt and reasonable communication to consumers, and on terms or conditions that the court considers reasonable, particulars of any judgment, declaration, order or injunction granted against the supplier under this section. (4) The director may apply, without notice to anyone, for an interim injunction under subsection (1) (b). [Emphasis added] [15] Consumer, consumer transaction, deceptive act or practice and supplier are defined in the Act: Part 1 - Definitions and Application "consumer" means an individual, whether in British Columbia or not, who participates in a consumer transaction, but does not include a guarantor; "consumer transaction" means (a) a supply of goods or services or real property by a supplier to a consumer for purposes that are primarily personal, family or household, or (b) a solicitation, offer, advertisement or promotion by a supplier with respect to a transaction referred to in paragraph (a), and, except in Parts 4 and 5, includes a solicitation of a consumer by a supplier for a contribution of money or other property by the consumer; ... "supplier" means a person, whether in British Columbia or not, who in the course of business participates in a consumer transaction by (a)

supplying goods or services or real property to a consumer, or (b) soliciting, offering, advertising or promoting with respect to a transaction referred to in paragraph (a) of the definition of "consumer transaction", whether or not privity of contract exists between that person and the consumer, and includes the successor to, and assignee of, any rights or obligations of that person and, except in Parts 3 to 5 [Rights of Assignees and Guarantors Respecting Consumer Credit; Consumer Contracts; Disclosure of the Cost of Consumer Credit], includes a person who solicits a consumer for a contribution of money or other property by the consumer; Part 2 - Unfair Practices ... "deceptive act or practice" means, in relation to a consumer transaction, (a) an oral, written, visual, descriptive or other representation by a supplier, or (b) any conduct by a supplier that has the capability, tendency or effect of deceiving or misleading a consumer or guarantor. (3) Without limiting subsection (1), one or more of the following constitutes a deceptive act or practice: (a) a representation by a supplier that goods or services (i) have sponsorship, approval, performance characteristics, accessories, ingredients, quantities, components, uses or benefits that they do not have, (b) a representation by a supplier (vi) that uses exaggeration, innuendo or ambiguity about a material fact or that fails

to state a material fact, if the effect is misleading, [Emphasis added.] B. Has a consumer transaction been properly pleaded? [16] The first line of attack of Mulgrave is that Mr. Gonzalez is not a consumer because the assertion that he has paid tuition for the children is demonstrably false. Mulgrave argues that, relying on Gabbs v. Bouwhis, 2005 BCSC 1782 at para. 17, a party may not plead something known to be false. [17] Gabbs was a case dealing with an amendment application. I am not sure that principle can be used in an application under Rule 9-5(1)(a), which does not allow for evidence to be adduced. However, that is something I need not decide, because the argument fails on the facts. [18] It is true that several judgments have dealt with Mr. Gonzalez's failure to pay support and special expenses, including the tuition fees, as required by the separation agreement. For example, in September 2015, after a summary trial, I ordered that a mortgage be placed on Mr. Gonzalez's house in Whistler because he was in arrears with respect to support and special expenses, including fees for Mulgrave. I also made a declaration that Mr. Gonzalez was in breach of the separation agreement. As another example, see: Gonzalez v. Gonzalez, 2013 BCSC 548). However, it cannot be said on the evidence that the orders obtained by Ms. D'Atri enforcing the support order did not result in any

payments by Mr. Gonzalez. Moreover, it appears payments were made by him up to 2011. [19] The argument of failing to plead a consumer transaction must also be rejected on a more fundamental point of statutory interpretation. Section 172 of the Act does not require a plaintiff seeking relief under that section to be a party to the impugned consumer transaction. That is clear from the wording of the section, which states that a person may claim relief "whether or not the person bringing the action has a special interest or any interest under this Act or is affected by a consumer transaction that gives rise to the action " Further, subsection (a) allows for a declaration that a contravention of the Act is about to occur, so that a consumer transaction does not even have to have taken place. [20] As the Court of Appeal said in Ileman v. Rogers Communications Inc., 2015 BCCA 260: [51] The focus of s. 171 is on private actions for damages. In contrast, s. 172 focuses on remedies of a more public nature. In Seidel v. Telus Communications Inc. at para. 36, the majority of the Court said: As to the statutory context, s. 172 stands out as a public interest remedy (i.e. it is available whether or not the self-appointed plaintiff "is affected by a consumer transaction that gives rise to the action") as compared with s. 171 (where the plaintiff must be "the person who suffered damage or

loss"). The difference in the personal stake (or lack of it) required of a plaintiff is scarcely accidental. Section 171 confers a private cause of action. Section 172 treats the plaintiff as a public interest plaintiff intended to shine a spotlight on allegations of shabby corporate conduct .... [52] Section 172 allows virtually anyone to commence an action for a declaration that activities contravene the statute, and for injunctive relief to prevent further contraventions. Those remedies, which are of a public nature, are the focus of the section. The additional remedies provided in s. 172(3) (including restoration orders) are merely ancillary. [Emphasis added.] [21] Section 172 is therefore of surprising breadth: it allows anyone ("person" is not a defined term in the Act) to seek relief in respect of any consumer transaction in the past or one that "is about to be engaged in". In effect, any member of the public is an enforcer of the Act for the purposes of the remedies provided by the section. That includes Mr. Gonzalez. C. Has a deceptive act or practice by Mulgrave been properly pleaded? [22] Mulgrave's argument for this issue focusses on the lack of particularity of Mr. Gonzalez's claim. [23] A claim under s. 172 of the Act (or, for that matter, s. 171) must plead a deceptive act or practice, the definition of which I have set out above. The act must be one that has the

capability to mislead or deceive a consumer. [24] Paragraph 17 of the notice of civil claim states: The reporting of the School Surveys and External Surveys results under the aforementioned conditions resulted in false or exaggerated descriptions of student and parental satisfaction. This is a broad non-particularised conclusion, which follows from the pleaded premise that the survey methodology used by Mulgrave was flawed. However, although the pleading refers to specific results posted on the school website - which the parties agree are incorporated by reference into the pleading and may therefore be looked at in a motion to strike - it does not state which, if any, of the results are false. It does not say how far off the results might be. That is relevant because, for example, a 1% difference in a 97.4% positive response to the question, "I know and understand the mission or philosophy of my child's school" would be too minor to constitute a deceptive act. [25] A main focus of the pleading is that the survey methodology allowed for multiple responses by individuals, thereby skewing the results. However, it does not allege that any individuals provided multiple responses or, if they did, that they were positive as opposed to being negative. [26] The lack of particularity is also of concern with respect to the injunctive relief claimed (see below para. 38) in the context of

Mulgrave's claim that the action is vexatious. [27] Mr. Gonzalez argues that he cannot plead with greater particularity without examinations for discovery. That might be the case; nevertheless, the requirement for some degree of particularity showing a deceptive act serves to weed out frivolous claims. I think that schools would be surprised to find that they are susceptible to lawsuits under s. 172 based only on an allegation that survey methodology is flawed. If this were a claim, for example, against a drug company for publishing false test results, the claim would have to specify in what way the drug did not live up to the test results. Without providing particulars in this case, the claim remains theoretical. Even assuming that the facts in the notice of civil claim are true, all that is established is that the surveys could have potentially generated inaccurate data. [28] The pleadings therefore do not establish that representations by the defendant had the "capability, tendency or effect of deceiving or misleading a consumer". I conclude that the notice of civil claim does not properly plead a deceptive act or practice. The claim must therefore be struck. IV. Abuse of process and vexatious litigation arguments [29] Mulgrave also argues that the action should be struck on two additional grounds: it is vexatious and an abuse of process. [30] Before beginning my analysis, I

want to address an evidentiary point that came up in the course of the hearing. Mulgrave sought to adduce transcripts from several chambers applications in the family law action between Ms. D'Atri and Mr. Gonzalez. The portions of the transcripts that Mulgrave wanted to rely on were submissions of counsel for Ms. D'Atri at those hearings, in which her counsel read or summarised portions of the affidavit evidence. The reason for approaching the matter in that manner, as opposed to introducing the affidavits themselves, was because evidence in family law is not accessible to third parties pursuant to Family Rule 22-8(5). [31] I do not think the Rule 22 should be circumvented in this manner. The rule allows the court to authorise a non-party to have access to a court file and Mulgrave could have availed itself of that procedure. Accordingly, I do not pay any heed to that evidence. [32] Returning to the issue of the abuse of process, the Supreme Court restated the concept of abuse of process in Behn v. Moulton Contracting Ltd., 2013 SCC 26: 39 In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, Arbour J. wrote for the majority of this Court that the doctrine of abuse of process has its roots in a judge's inherent and residual discretion to prevent abuse of the court's process: para. 35; see also P. M. Perell, "A Survey of Abuse of Process", in T. L. Archibald

and R. S. Echlin, eds., Annual Review of Civil Litigation 2007 (2007), 243. Abuse of process was described in R. v. Power, [1994] 1 S.C.R. 601, at p. 616, as the bringing of proceedings that are "unfair to the point that they are contrary to the interest of justice", and in R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667, as "oppressive treatment." In addition to proceedings that are oppressive or vexatious and that violate the principles of justice, McLachlin J. (as she then was) said in her dissent in R. v. Scott, [1990] 3 S.C.R. 979, at p. 1007, that the doctrine of abuse of process evokes the "public interest in a fair and just trial process and the proper administration of justice". Arbour J. observed in C.U.P.E. that the doctrine is not limited to criminal law, but applies in a variety of legal contexts: para. 36. [Emphasis added.] 40 The doctrine of abuse of process is characterized by its flexibility. Unlike the concepts of res judicata and issue estoppel, abuse of process is unencumbered by specific requirements. In Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), Goudge J.A., who was dissenting, but whose reasons this Court subsequently approved (2002 SCC 63, [2002] 3 S.C.R. 307), stated at paras. 55-56 that the doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly

unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 [C.A.], at p. 358. [Emphasis in original.] One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. See Solomon v. Smith, supra. It is on that basis that Nordheimer J. found that this third party claim ought to be terminated as an abuse of process. 41 As can be seen from the case law, the administration of justice and fairness are at the heart of the doctrine of abuse of process. In Canam Enterprises and in C.U.P.E., the doctrine was used to preclude relitigation of an issue in circumstances in which the requirements for issue estoppel were not met. But it is not limited to preventing relitigation. For example, in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, the Court held that an unreasonable delay that causes serious prejudice could amount to an abuse of process: paras. 101-21. The doctrine of abuse of process is flexible, and it exists to ensure that the administration of justice is not brought into

disrepute. [Emphasis added.] [33] As the above quote illustrates, the concepts of abuse of process and vexatious or oppressive litigation are closely related. Oppressive and vexatious litigation may be considered one type of abuse of process. Mulgrave's arguments on these points are closely intertwined because they both depend on the history of the litigation between Mr. Gonzalez and Ms. D'Atri. I will therefore deal with the arguments together. [34] The issue of Mr. Gonzalez's payment of school fees has come up in numerous proceedings between him and Ms. D'Atri. Ms. D'Atri's argument lists them as including: a) a 2013 civil action filed by Ms. D'Atri seeking to enforce on security described in the Separation Agreement; b) a 2014 application brought by the Plaintiff in the Family Law Action to vary his child support obligations and to cancel or reduce the amount of his arrears; c) a 2014 application brought by Ms. D'Atri in the Family Law Action to enforce payment of child support and extraordinary expenses under the Separation Agreement; d) a 2015 application by Ms. D'Atri in the Family Law Action to enforce payment of child support and extraordinary expenses under the Separation Agreement; e) a 2015 application by the Plaintiff in the Family Law Action to strike the Business Documents; f) a 2015 appeal by the Plaintiff of the decision dismissing the application to strike the

Business Documents; g) a 2015 action commenced by the Plaintiff alleging that the use and reliance of the Business Documents in the Family Law Action was a breach of the Privacy Act (the "Privacy Act Action"); h) a 2016 application by Ms. D'Atri to dismiss the Privacy Act Action; i) a 2016 appeal by the Plaintiff of the dismissal of the Privacy Act Action; j) a 2016 application by Ms. D'Atri seeking orders that the Plaintiff abide by his child support obligations and be declared a vexatious litigant; k) a 2017 application by Ms. D'Atri in the Family Law Action to enforce payment of child support and extraordinary expenses under the Separation Agreement and for distribution of the Security Funds; and l) a 2017 application to the Supreme Court of Canada by the Plaintiff for leave to appeal the decision of the Court of Appeal dismissing the Privacy Act Action. [35] Item (d) was decided by me. In my reasons referred to at para. 18 above, I said: This litigation has had a long and tortured path. I will not detail that here. I will say that I adopt the comment made by Master Baker when he denied the respondent's [Mr. Gonzalez] application to adjourn this hearing, to the effect that the respondent has been responsible for a litany of delays. He has changed counsel four times. [36] In 2016, Ms. D'Atri applied, amongst other things, to have Mr. Gonzalez declared a vexatious litigant.

The facts noted by Silverman J. and his observations in his oral judgment delivered October 14, 2016 are relevant: [12] I turn to the question of whether or not he is a vexatious litigant. The mother argues that he is, based upon a variety of factors, most importantly the procedural history that he has displayed in this and related matters, but also his conduct towards her throughout these proceedings. It should be noted that for some period of time after the agreement was signed there were no problems. It was not until she became involved with a new man that the father began to spin out of control in terms of how he responded to the various payments that were required of him. [13] That resulted in a number of concerns that are at the heart of this portion of the application. He is on his sixth lawyer, arguably his fifth, but either his fifth or his sixth. Sometimes those changes have required adjournments of various applications. On one occasion, it resulted in an order for double costs. I should note that almost always he has costs ordered against him, although on one occasion he did win an application where costs were ordered in his favour. [14] He applied, for reasons which I have no difficulty concluding were frivolous, to obtain the financial records of the mother's new male friend. When that was rejected by the court, he applied again before a different judge. It was

rejected again. He disputed, on several occasions, the mother's liberty to take the children to the United States where her family has a cottage. On one occasion, he wrote border authorities, requiring her to go to court to get a court order so that she could take them. On another, he simply indicated that he was opposed and then when she was in court to get the order, he took no position. [15] There were two Masters' orders of a variety of natures which he appealed and which he lost. He made an application to strike various documents from the mother's affidavit which he argued were not relevant to his income. He lost that. He then brought a separate action, a civil action for invasion of privacy with respect to those same documents. Issue estoppel was applied by my brother Wong. He appealed that to the Court of Appeal. The Court of Appeal dismissed that, calling it an abuse of process. [16] He has most recently commenced a lawsuit against the children's private school arguing that there are consumer protection issues arising out of the way in which they mislead the public into thinking that they are something better than they are. My own words, and it is a generalization. I will not comment on whether or not that has any basis whatsoever for proceeding, although it is clear that one potential view of it is that it is just an attempt to embarrass the mother with her children in

that school. [17] Those are just some of the applications that suggest a flavour of what is the basis of this aspect of the application. In addition to that, there are numerous e-mails between the mother and the father about various issues that concern them. The mother's e-mails all contain the flavour of a businesslike attempt to be civil and just deal with business whereas the father's tend to border on the abusive and unreasonable. [37] There has been a history of Mr. Gonzalez raising issues at the last minute in order to obfuscate court hearings. When the matter was before me in 2015, Mr. Gonzalez applied for short leave to vary the separation agreement, which I denied. When Silverman J. heard the matter approximately a year later, Mr. Gonzalez was still talking about an application to vary or set aside the separation agreement: [4] The father has indicated that he may be applying to amend his pleadings to indicate that the separation agreement, or at least parts of it, are "invalid" and to seek a reduction of those various payments. His counsel indicates he has instructions to proceed on that basis, but that application to amend has not yet occurred. The trial, apparently, is set for September of 2017. [38] The lack of particularity and vagueness of Mr. Gonzalez's claim is of concern because he is seeking an injunction. If that were granted it would have to be on the most

general terms and would have the court - at Mr. Gonzalez's behest - supervise or enforce the methodology of future surveys. It would be a recipe for endless litigation. [39] The history of the litigation between Mr. Gonzalez and Ms. D'Atri, the weak tenor of this claim and the fact that he claims no monetary relief convince me that the claim is nothing more than an attempt to embarrass Ms. D'Atri, whether as an end in itself or with the goal of creating pressure on her in the ongoing family litigation. It is also an attempt to embarrass Mulgrave and therefore brought for an improper purpose. It is frivolous and vexatious and an abuse of process. It ought to be struck on those grounds. V. Should Mr. Gonzalez be declared a vexatious litigant? [40] In the application brought before Mr. Justice Silverman, to which I referred above, he declined to declare Mr. Gonzalez a vexatious litigant; however, he did grant an order under s. 221 of the Family Law Act, S.B.C. 2011, c. 25, noting that it had a lower threshold then a vexatious litigant application brought under s. 18 of the Supreme Court Act. [41] Mr. Gonzalez argues that I should not reconsider the matter because nothing has changed since Silverman J.'s ruling. He argues, therefore, that under the doctrine of abuse of process, the matter ought not to be re-litigated. [42] While it is true that the current action was brought to

Silverman J.'s attention and referred to by him, he was not focused on the merits of this action as I am because of the nature of this application. I am not being asked to reconsider his decision; rather, I am being asked to consider the issue in the context of the decision I have reached above. The issue of whether a person is a vexatious litigant is not something fixed in time and must be viewed in accordance with circumstances at the time of the application. I think it appropriate for me to consider Mulgrave's application at this time. [43] Section 18 of the Supreme Court Act provides: If, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court. [44] In Dawson v. Dawson, 2014 BCSC 44, Barrow J. summarised the considerations for a vexatious litigant application: [22] In Bergeron v. Gillstrom, 2009 BCSC 1616, Burnyeat J. found that Ms. Bergeron was a vexatious litigant and prohibited her from making further applications either in the context of the family law proceeding in which the

vexatious determination was made or other proceedings, without leave of the court. In the course of reaching this conclusion, he adopted the principles set out by Henry J. of the Ontario High Court of Justice in Re Lang Michener Lash Johnston v. Fabian et al. (1987), 59 O.R. (2d) 353. In that case, Henry J. was faced with an application brought under s. 150 of the Courts of Justice Act, 1984 (Ont.), c.

11. That provision is similar but not identical to s. 18 of the Supreme Court Act. Henry J. reviewed various decisions relating to the Ontario statute and, from those decisions, distilled the following seven principles: (a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding; (b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious; (c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights; (d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings; (e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action; (f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be

considered in determining whether proceedings are vexatious; (g) respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings. [45] The history outlined above shows that virtually all the above criteria, with the possible exception of (f), are applicable. [46] Mr. Gonzalez has constantly litigated unmeritorious points and failed to live up to court orders. If he has ever paid support or expenses under the separation agreement since 2011 without the necessity for a court order, it has been a rarity. He has persistently brought unmeritorious claims in an attempt to apply pressure on Ms. D'Atri and in doing so has used legal proceedings to obtain improper advantages in his ongoing family dispute. In the present claim Mr. Gonzalez has gone one step further and brought a vexatious and frivolous claim against a third party that has no interest in the family dispute. With the bringing of this lawsuit on the basis on which it has been pleaded, I conclude that Mr. Gonzalez has crossed the line. His conduct should be called what it is: legal bullying. In legal terms, he is a vexatious litigant. VI. Conclusion [47] The claim is struck because it does not disclose a cause of action and it is frivolous, vexatious and an abuse of process. [48] Mr. Gonzalez is declared to be a vexatious litigant. He must therefore not commence any further legal proceedings without leave of the Court. "E.M. MYERS, J."