2011 BCSC 1308 Vancouver City Saving Credit Union v. Randhawa

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Vancouver City Savings Credit Union v. Randhawa,
	2011 BCSC 1308

Date: 20111004

Docket: S097048

Registry: Vancouver

Between:

Vancouver City Savings Credit Union

Petitioner

And

Kuldip Singh Randhawa aka Kuldip Randhawa

and Harinderpal Kaur Randhawa

Respondents

Before: The Honourable Mr. Justice Harris

Reasons for Judgment

Counsel for the Petitioner:	R. Hoops Harrison
The Respondent Kuldip Singh Randhawa:	Appeared on his own behalf and for the Respondent Harinderpal Kaur Randhawa
Place and Date of Hearing:	Vancouver, B.C. September 28, 2011
Place and Date of Judgment:	Vancouver, B.C. October 4, 2011

[1] In this application the petitioner, Vancouver City Savings Credit Union, applies for an order that the respondents, the Randhawas, be prohibited from initiating any legal proceedings, including but not limited to interlocutory applications, against VanCity, or any of its officers, agents or employees without leave of the court.

[2] The application is brought in the context of a foreclosure petition, the details of which I will describe later.

[3] Exempted from the scope of the order sought is New Westminster Registry Action 134631. In that action, many of the allegations the respondents wish to advance, and have advanced, in these proceedings against VanCity, its officer’s agents or employees have been made. The effect of the order sought today, accordingly, is to limit the litigation of these complaints to that proceeding and to prevent them being advanced in other proceedings, including this one, without leave of the court. The one qualification to this statement is that in these proceedings an accounting that has been ordered by this court is pending. These reasons do not affect the conduct of that accounting or any applications that may be brought within it.

[4] The basis of this application is that the respondents are vexatious litigants within the meaning of section 18 of the Supreme Court Act which provides:

If, on an 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.

[5] The principles governing an application of this kind were recently summarized by Madam Justice B.J. Brown in Holland v. Marshall, 2010 BCSC 1560:

[7] To succeed on an application pursuant to s. 18, the applicant must demonstrate:

1. that the proceedings are vexatious in the sense of having been taken in the absence of objectively reasonable ground; and

2. that proceedings have been brought habitually or persistently, such that the litigant has continued obstinately in the course of conduct, despite protests or criticism. (British Columbia) Public Guardian and Trustee v. Brown, 2002 BCSC 1152.

[8] In Lang Michener v. Fabian (1987), 37 D.L.R. 4^th 685, the Ontario High Court described the characteristics of a typical vexatious proceeding:

(a) bringing one or more actions to decide an issue which has already been determined by a court of competent jurisdiction;

(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;

(c) actions brought for an improper purpose, including the harassment or oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) 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) failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings;

(f) persistently taking unsuccessful appeals from judicial decisions; and

(g) 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.

[6] For the reasons that follow, I have concluded that the respondents are vexatious litigants and that the order should be granted in the terms sought.

[7] The respondents submit that they have been wronged in these foreclosure proceedings. They say they provided consent to an Order Nisi that contained, amongst other errors, errors in the calculation of the amounts owing. This they say has compromised their ability to redeem the properties or to pay off amounts owing. Although initially they treated those alleged errors as honest mistakes, as time has gone by their allegations have become more serious. Now it is said that there was fraud and criminal conduct in procuring the Order Nisi. These allegations are made against, amongst others, Mr. Harrison, a barrister and solicitor. These are, of course, extremely serious allegations.

[8] The respondents also allege that the petitioner has damaged their credit rating by failing to provide information to credit rating agencies. This has compromised their ability to secure new loans. They also say that the petitioner has failed to make full disclosure of material matters.

[9] These allegations have been advanced repeatedly in applications before these courts, although the context in which they have been made has evolved over time. They are also included in the subject matter of the action in the New Westminster Registry. It should be noted that VanCity denies that there were any errors in the Order Nisi that were to the detriment of the respondents. They also say that they have done what they can to correct any misinformation the credit reporting agencies have.

[10] The respondents argue that their allegations are meritorious and demonstrated in the evidence. They contend that all they are doing is seeking relief in the courts, as they are entitled to do, but that the courts have let them down by failing to deal with their complaints. Accordingly, they submit that the allegations are not frivolous and that they cannot be regarded as being vexatious litigants just because they seek to vindicate their rights.

[11] The respondents have misunderstood the test to be applied to determine whether a litigant is vexatious. They do not appear to appreciate that I must test their conduct against the criteria I have set out above. When set against those criteria, proceedings have been taken habitually or persistently in the absence of objectively reasonable grounds. They have been pursued obstinately, despite judicial criticism and clear statements by other judges of the relevant principles applicable to the matters before the court. The respondents have repeatedly brought matters that have previously been decided back to the court in circumstances where it is obvious that the application could not succeed. Those applications, in the words of Ryan J.A., have been doomed to fail. The grounds and issues raised have tended to be rolled forward into subsequent proceedings where they have been repeated and supplemented. The proceedings have improperly attempted to ensnare counsel. The respondents have failed responsibly to pursue the procedural avenues open to them to deal with any legitimate concerns that they have. All of this is sufficient to justify concluding that the respondents are vexatious litigants and the order should be granted. It is not necessary for me to conclude, and I do not conclude, that the proceedings have been brought for an improper purpose in order to harass or oppress others rather than to assert what the respondents believe to be their legitimate rights.

[12] Suffice to say at this point that the respondents were told by the court on the first occasion they raised their substantive complaints about the Order Nisi that their remedy lay either in an appeal of that order or in bringing an action based on their complaints. They did not follow that advice and have essentially repeated the same arguments on multiple occasions since. It is important to stress that if the respondents have a legitimate complaint about the original Order Nisi, there were ways they could properly have advanced those concerns to have them determined on their merits. The respondents did not pursue those avenues, despite being told about them, although now they have started an action. Their frustration with the legal system is misplaced. It is self-induced.

[13] I turn to consider the facts.

[14] This petition arose out of the respondents’ default on a number of loans made by VanCity and secured by mortgages. Apparently, in order to minimize legal fees to the respondents, these matters (four in all relating to seven loans) were packaged together in a single foreclosure petition. The response filed by the respondents opposed certain claims in the petition.

[15] The petition was amended to address certain errors it contained. The amended petition was heard November 26, 2009 and an Order Nisi was granted that day. The respondents consented to the relief underlying the Order Nisi and did not appear at the hearing of the amended petition. They did not appeal the order and have never directly contested it before the master who made it, before it was entered, or subsequently, if there was a basis to do so.

[16] On June 1, 2010, the petitioner was granted conduct of sale of two properties in Surrey. This application was opposed by the respondents. Conduct was granted effective September 7, 2010. The redemption period was extended to the same day.

[17] Although the Order Nisi was made June 1, 2010, the respondents filed their first application attacking it was made on June 28, 2010. They made an application to the master who had granted conduct of sale. The application included requests for full disclosure of documentation relating to the respondents, dismissal of the foreclosure proceedings in the event disclosure was not made, adjustments to the order of conduct of sale, a demand that VanCity make a report of a $10,000 payment to credit bureaus, and leave to appeal to the Court of Appeal with a stay on all "Order of Sales". The master dismissed the application on July 7, 2010.

[18] As will become clear, issues relating to disclosure of documentation, attempts to have the foreclosure proceedings dismissed and demands that VanCity make reports to credit bureaus were repeated on multiple occasions before a series of judges of this court. These requests were supported by allegations of deception and fraud by counsel in procuring the original Order Nisi. As will also become clear, the respondents were repeatedly told by judges of this court that the issues being raised had already been decided by other judges or judicial officers and that their remedies lay in an appeal from the original order, appeals of the immediately contested orders, an accounting consequent on the sale of the properties, or bringing an action alleging wrongdoing.

[19] In the afternoon of July 7, 2010, even though the master had dismissed the application earlier that day, the respondents appeared before Mr. Justice Goepel seeking the relief they had been denied by the master. Mr. Justice Goepel dismissed the application. He explained that the respondents remedy lay in an appeal of the master’s order. He pointed out that if the credit union had acted improperly the respondents may have a claim, but that the foreclosure orders had been made, were final, and the respondents may have had a right to appeal them. Goepel J. made it clear that the respondents did not have a right to begin to request documentation at this stage in the proceeding. One issue canvassed extensively in the submissions was the respondents’ apparent belief that there had been some kind of conspiracy in respect of the provision, or lack of provision, of information by the financial institution to credit agencies. Again the court explained that if there had been any wrongdoing, the respondents may have a claim against the financial institution. He said:

If they have wrongfully done something and given bad information or incorrect information about you to the credit unions, it may be that you have a claim against them, but it's an independent claim from the foreclosure proceedings.

[20] Goepel J. took considerable pains during the hearing before him to explain some fundamentals of civil procedure. He made it clear to the respondents that if they were dissatisfied with an order, their remedy was to appeal it. He explained that the foreclosure orders were final. He explained that the respondents were raising concerns about alleged disclosure or nondisclosure by VanCity to credit agencies that did not belong in the foreclosure proceeding. In light of the comments made by Goepel J., the subsequent conduct of the respondents has been habitual and persistent and lacked any objectively reasonable ground.

[21] On August 23, 2010, the respondents filed a second application. The relief sought re-ploughed some of the same ground covered before Goepel J. It sought the dismissal of the remaining foreclosure action and disclosure of data disclosed to the credit unions. On August 31, 2010 Madam Justice Russell dismissed the application as res judicata. I am unable to accept the respondents’ contention that Russell J. did not deal with matters in this petition, but only in another commercial foreclosure petition. A properly entered order is in the court file and I can see no basis to go behind it.

[22] On October 4, 2010, a third application was filed. It sought to set aside all orders of the court on the basis that VanCity and its counsel had misled the court, to stay the orders of sale until an appeal was heard and concluded, the right to inspect counsel's files, and an order to return alleged overpayment of monies.

[23] The application was heard on October 20, 2010 by Sewell J. and dismissed with costs on Scale B to VanCity.

[24] On November 3, 2010, an order approving sale of one further property was granted by a master.

[25] On November 12, 2010, the respondents applied to the Court of Appeal for leave to appeal the October 20, 2010 order of Sewell J., a stay of the November 3, 2010 order approving the sale of one property, and for a declaration of indigent status.

[26] On November 17, 2010, the applications for indigent status and for the stay of the order approving sale were dismissed. The other relief was adjourned generally. It does not appear that any further steps have been taken to advance those proceedings.

[27] On November 18, 2010, the respondents filed a notice of appeal in this court of a decision of a master, but did not identify the specific order appealed from. No further steps have been taken in relation to that appeal.

[28] On December 13, 2010, Mr. Justice Burnyeat amended the November 3, 2010 order.

[29] On December 15, 2010, the respondents filed their fourth application. Once again it sought the dismissal or cancellation of the Order Nisi on "all remaining properties". The application also requested instructions that the petitioner "fully cooperate in correcting the respondents credit ratings forthwith to refinance the prime residence and the return of all funds from previous sales to permit a fair opportunity to defend this action.

[30] On December 21, 2010, Madam Justice Ker heard the application. The respondents say that in the light of her comments about lacking jurisdiction to entertain the relief they sought, they abandoned their application. In reasons dealing with the question of special costs Ker J. said:

The basis for Vancity’s argument is that Mr. Randhawa has repeatedly made applications that have previously been dismissed as without jurisdiction or on the basis of res judicata in trying to set aside the order nisi or cancel the order of conduct of sale and the order approving the sale of the properties in issue in the foreclosure proceedings.

Those matters have previously been determined by Mr. Justice Goepel, Madam Justice Russell and Mr. Justice Sewell of this court in July, August and October of this year. Repeatedly, through the materials, Mr. Randhawa has expressed the opinion Vancity Savings Credit Union has engaged in fraudulent conduct and that Mr. Harrison has not conducted himself in the fashion expected of a member of the bar and an officer of the court and the court has been misled.

Fundamentally, it appears Mr. Randhawa has concerns with respect to the accounting that has occurred and whether he has or has not received the appropriate amount of funds, or surplus funds, from the foreclosure proceedings and sale of properties. He has not made any application for an accounting....

The allegations that are being repeatedly made against Vancity and Mr. Harrison are extremely troubling. In the circumstances, with Mr. Randhawa bringing this application on short notice after appearing before Mr. Justice Burnyeat last week on December 15 or 17 2010, and bringing a further application that, in many respects, is similar to the applications were heard by Madam Justice Russell and Mr. Justice Sewell, I am satisfied in these unusual circumstances Vancity Savings Credit Union has been put to unnecessary legal expense. This was brought about by the unfounded allegations and procedural misconduct of Mr. Randhawa bringing successive applications only to be told that there is no jurisdiction to proceed in fashion he is proceeding. In these circumstances, I will order special costs against Mr.Randhawa for this application in these proceedings.

[31] On February 17, 2011, the petitioner applied to approve the sale of another property in the foreclosure proceeding. This property was the residence of the respondents. The order approving sale was granted by Mr. Justice Silverman.

[32] The respondents sought leave to appeal the order of Mr. Justice Silverman. That application was dismissed by Madam Justice Ryan on March 25, 2011. In dismissing the application Ryan J.A. commented on the position of the respondents and the difficulties that position faced in terms in terms that are directly applicable to the matter before me. Much of what Mr. Randhawa has said to me in this application was clearly also submitted to Ryan J.A. Her description of that position and her comments bear repeating. The respondents’ grounds of appeal were the following:

1. The foreclosure hearings where fraud has occurred be terminated forthwith with all orders approving sale being considered null and void upon submissions from the plaintiff's counsel that he has erred.

2. Alternatively, the sale of the appellant's home is stayed until the appellant's appeal is heard by the Court of Appeal.

3. In any event the accuracy of the statement of relief filed by counsel be confirmed.

4. In any event the proceeds of the sale of the property...(resulting from foreclosure proceedings that are considered as res judicata) to be released to the appellants.

5. That all properties under this foreclosure action are reported to the credit bureau forthwith and the plaintiffs evaluate the reduction in the credit score of not reporting on time and report to the credit bureau at no cost to the appellants.

[33] Those grounds mirror the complaints made by the respondents in their submissions to me. These are the complaints that have driven their conduct throughout these proceedings. In dealing with them, Ryan J.A. said:

Having read the grounds of appeal and listened to Mr. Randhawa this morning, it is clear to me that although the applicant said he would have liked to have had more time to prepare better appraisals, he has no serious issue with respect to the way in which the sale or its approval was conducted by Mr. Justice Silverman. What Mr. Randhawa finds objectionable is the foundational order, that is, the order nisi that was made in this case by Master Tokarek on November 26, 2009.

A significant impediment to any challenge of Master Tokarek’s order of November 26 is that the applicant consented to the making of the order nisi. He says that he did so in writing, on certain conditions, and those were the certain typographical errors and accounting errors in the petition, recognized by the respondent, Vancouver City Savings Credit Union, be cleaned up. Mr. Randhawa claims that the petition was amended. Since that time he has found further problems with the accounting amounting at this point to over $23,000 which should have been reflected as part of his remaining equity in the property which is the subject matter of the order nisi.

From this point Mr. Randhawa quickly moves to an allegation that the order nisi was therefore obtained on the basis of fraud. Rather than applying to Master Tokarek to address the mistakes in the order, or even to appeal the order, the appellant has taken a raft of doomed applications before other masters and justices in the Supreme Court to have the order nisi set aside. Having failed in those applications, the order nisi remains extant. It follows that the order made approving the sale of the property in question cannot be questioned.

[34] It is as apparent to me, as it was to Ryan J.A., that the respondents have persisted in bringing "a raft of doomed applications". They have done so in the face of clear judicial pronouncements, directions or advice explaining the lack of jurisdiction of this court to set aside final orders or to revisit issues that have already been decided.

[35] On March 15, 2011, the respondents filed an application that again dealt with the issue of reports to the credit bureau, the release of monies from the sale of certain property, raised allegations about errors in financial documents, and sought a stay of an accounting until after the Court of Appeal proceedings and costs.

[36] The matter came on for hearing before Mr. Justice McEwan on March 17, 2011. Once again, it was made categorically clear to the respondents that they could not reopen matters that had already been decided. In explicit terms it was made clear that issues to do with monies or repayment were to be dealt with in the accounting which had been ordered previously. The respondents were warned that they could not keep renewing applications in the hope that they would find a judge willing to do something that other judges had refused. The court said:

The problem is that these matters have all been subject to previous court orders of courts of same level of jurisdiction as mine and that I will not go behind them. As I have said to you several times now, I am not just another judge where you can try it again.

[37] On August 3, 2011, the respondents brought a short notice application returnable August 5, 2011. That application contained multiple prayers for relief, many of which related to issues connected to the accounting. It was dismissed by Madam Justice Gropper.

[38] Without descending to detail, an accounting is pending before the registrar. There have been some difficulties in scheduling that accounting. The respondents applied before me on September 27 to adjourn that accounting pending an intended contempt application to be brought against VanCity and Mr. Harrison. Other matters were raised before me that went over the old ground once again. Many of those matters related to document requests, which may or may not be relevant to the accounting. I dismissed the application without prejudice to the consideration by the registrar of certain matters that pertain to the conduct of the accounting. It was clear to me, however, that little of what other judges have said to Mr. Randhawa has been accepted by him.

[39] It is apparent to me that in the face of the judicial criticism, advice and direction the respondents will simply continue to bring applications in this proceeding which have no objective or reasonable basis. They are acting habitually and persistently in the face of judicial direction and criticism. I repeat the conclusions I have set out above in paragraph 11.

[40] I recognise that as time has gone on the respondents’ applications have evolved to some degree. They have certainly expanded. Some have been responsive to events unfolding in the foreclosure, such as the approval of the sale of certain of the properties, issues connected to information in the hands of credit reporting agencies as properties have been sold and funds received, or events related to the accounting of the proceeds of the sale of the properties. Nevertheless, the positions advanced in those developing contexts have advanced grounds that have been rejected earlier. The respondents have rolled forward grounds from one application to another, expanding them as they go.

[41] Before I leave this matter, I wish to make a few additional comments. I do not doubt that this matter has been difficult and frustrating for the respondents. I understand that they believe that their repeated efforts to have the courts address what they believe to have been wrongs done to them have been fruitless and that the courts have let them down. As I noted earlier, the respondents did receive helpful advice and clear direction from the courts about how they should proceed and why their current path was misguided. They choose to ignore what they were told. Their frustration is, in my view, self-induced.

[42] It must be remembered, also, that an accounting has been ordered in the foreclosure proceeding and monies have been held back in connection with the accounting. Some of their complaints will be addressed in the accounting. Objectively, it is in the interests of the respondents to conclude that accounting and not dissipate resources on doomed applications or to delay matters even more. For the purpose of clarity, nothing in these reasons prevents the accounting proceeding or limits the discretion of the registrar to control the proceedings or make any necessary order for the conduct of the accounting.

[43] Furthermore, the action Mr. Randhawa has started in New Westminster raises the central issues which have been of concern to him throughout this foreclosure proceeding. This application does not affect that action. That action is, therefore, a forum in which the respondents have an opportunity to vindicate their position and have their claims adjudicated according to law. Granting this order does not frustrate the respondents in litigating what is of concern to them, the merits of their position, and their entitlement, if any, to advance their claims. Those claims will be tested in that proceeding.

[44] I must say, finally, that nothing I heard from the respondents or read in the material has laid any foundation for the very serious allegations levelled against Mr. Harrison. On the basis of the record I have reviewed, those allegations appear to me to be without merit. Indeed, Mr. Harrison has shown considerable patience, professionalism and composure in dealing with the allegations.

[45] The order is granted.

[46] I do not order special costs as I cannot conclude that the respondents have acted improperly in connection with this application. The petitioner is entitled to its costs to be assessed on Scale B.

“Harris J.”