Court of Appeal for Ontario

Date: 2019-09-11

Docket: M50451 (C61581)

Judges: Lauwers, van Rensburg and Roberts JJ.A.

Between

Peter Childs Moving Party

and

Michael Childs, Andrew Childs, Caroline Childs, Eileen Vera Childs and Wendy Griesdorf, and BMO Trust Company and the Ontario Public Guardian and Trustee Responding Parties

Counsel

Peter Childs, self-represented

Michael Childs, Andrew Childs and Caroline Childs, self-represented

Debra Stephens, for Wendy Griesdorf

Heard: In writing

Reasons for Decision

[1] This is a matter involving four children of Eileen Vera Childs. We refer to them by their first names for clarity and without any sense of disrespect. Peter brings a motion to this court pursuant to r. 59.06(2) to vary or quash this court's order of June 20, 2017, disposing of the appeals in C61581 and C62716 (the "Appeals").

[2] In accordance with this court's advice in Hoang v. Mann Engineering Ltd., 2015 ONCA 838, at para. 15, the r. 59.06 notice of motion was screened by the court. Peter and those he named as respondents to the motion were given notice of the proposed making of an order staying or dismissing the motion under rule 2.1.02 of the Rules of Civil Procedure and were invited to make written submissions. Rule 2.1.02 provides that the court may, on its own initiative, stay or dismiss a motion if it appears on its fact to be frivolous or vexatious or otherwise an abuse of the process of the court.

[3] Peter and Caroline, who were the appellants in the Appeals, made written submissions asking that the r. 59.06 motion not be dismissed. Michael, a respondent to the Appeals, and Wendy Griesdorf, who had acted as counsel for Mrs. Childs under s. 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the "Section 3 Counsel") in the litigation and was an intervenor in the Appeals, asked the court to dismiss the motion under r. 2.1.02.

[4] It is unnecessary to recite here the full history of the litigation that led to the Appeals, and the issues that were in dispute between the parties, which are set out in detail in the court's reasons in the Appeals. It is sufficient to note that the litigation involved the competing guardianship applications of two pairs of siblings in respect of the personal care and property of Mrs. Childs, arising out of her incapacity.

[5] By the time the applications were heard in the Superior Court, there was an agreement, facilitated by the Section 3 Counsel, to the appointment of BMO Trust Company ("BMO") as guardian of property. The only outstanding matter in dispute, apart from costs, was how much Caroline would be paid for the care of Mrs. Childs. The applications judge made an order appointing Caroline guardian for personal care and providing for her compensation. A letter from Caroline's counsel shortly after the application decision was released precipitated a motion under r. 59.06 by Section 3 Counsel. Ultimately the applications judge ordered that Michael and Caroline were to be joint guardians of Mrs. Childs' personal care in accordance with a guardianship plan filed by Michael and he increased Caroline's compensation going forward. There was also an unsuccessful motion by Peter, supported by Caroline, to compel the passing of accounts by BMO and the Section 3 Counsel. Costs orders were made by the applications judge and the motion judge, requiring, among other things, that Peter and Caroline pay part of the costs of the other parties from their expected inheritance from Mrs. Childs' estate.

[6] Before the Appeals were heard, Simmons J.A. considered a number of motions, including motions by Peter and Caroline for leave to appeal the costs orders. Among other things, Simmons J.A. deemed struck all submissions and evidence in Peter and Caroline's appeals documentation relating to the quantum of costs awarded to Section 3 Counsel and BMO and relating to any submissions and evidence not made or filed in the court below. And, in granting leave to appeal costs, Simmons J.A. precluded their challenge to the quantum of the costs awarded.

[7] Peter and Caroline moved to set aside or vary the Simmons Decision, including to permit them to argue the quantum of the costs awarded to Section 3 Counsel and BMO. Their review motion was heard in conjunction with and considered at the outset of the hearing of the Appeals.

[8] The Appeals and the review motion were dismissed with reasons reported at 2017 ONCA 516. Among other things, in disposing of the review motion, the court upheld Simmons J.A.'s refusal to permit Peter and Caroline to pursue any appeal respecting the quantum of costs awarded in favour of Section 3 Counsel and BMO, and her decision to strike Peter and Caroline's documentation relating to the quantum of costs below. In disposing of the Appeals, this court stated in its reasons, at para. 50:

In our view, there is no merit to these appeals. They are the culmination of unnecessarily protracted litigation that has depleted Mrs. Childs' estate, wreaked havoc on the emotional and financial health of all concerned, wrongfully maligned Section 3 Counsel, and wrongfully impugned the applications judge. It is past time for the litigation over Mrs. Childs to end.

Leave to appeal to the Supreme Court of Canada was refused in May 2018: .

[9] Peter now moves to reopen the Appeals. He asserts that, after the disposition of the Appeals, new information became available that had been deliberately concealed by other parties to the litigation, which, if known, would reasonably have changed the decision of this court in the Appeals. The "new information" consists of quarterly reports of Mrs. Childs' property guardian for the period April 2015 to December 2016 that were released on September 21, 2017, which reveal a $43,000 payment by BMO (as property guardian) to Section 3 Counsel for "appeal work" on February 24, 2016, and a transfer from Nesbitt Burns to BMO of $442,000 on May 19, 2016 (incorrectly referred to in some places in Peter's materials as having occurred on May 19, 2015).

[10] Peter contends, among other things, that the $43,000 payment "speaks to an inappropriate relationship between Section 3 Counsel and BMO", and, with respect to the $442,000 transfer he does not allege that there is any money missing but questions what "legal instrument" was used for the transfer from Nesbitt Burns to BMO. He alleges that the former Section 3 Counsel was implicated in the transfer to BMO (although she was released as Section 3 Counsel before the transfer was made), and that this "again suggests an inappropriate relationship and litigation agreement". Peter makes a number of other allegations about an undisclosed and improper "litigation agreement" between BMO, Section 3 Counsel and other parties to the litigation, including the fact that the parties communicated with one another in respect of the issue of costs.

[11] Submissions were received from Peter and Caroline, opposing a r. 2.1.02 order, and from Michael and the former Section 3 Counsel, supporting such an order.

[12] In his submissions, Peter argues that the new information suggests that BMO, Michael and Section 3 Counsel were "party to an undisclosed litigation agreement, breached their fiduciary duty to Mrs. Childs and misled the courts to achieve favorable decisions". Caroline repeats several of Peter's allegations about an alleged improper relationship between Section 3 Counsel and BMO and misconduct by the Section 3 Counsel.

[13] Michael asks that Peter's motion be dismissed under r. 2.1.02. He contends that it is part of ongoing litigation by Peter to allege a "sinister conspiracy" between Section 3 Counsel, BMO and himself. He contends that the "new information" was known to everyone at the time of the Appeals, except for the fact that Section 3 Counsel, who had submitted dockets for her appeal work of $44,000, (which according to Caroline were in the record before this court) had in fact been paid $43,000 by the time the Appeals were heard. As Mrs. Childs' litigation guardian, Michael is pursuing this issue, which he describes as an "oversight" and other omissions and problems in BMO's passing of accounts. Peter was recently denied standing in those proceedings, his Notice of Objection was struck, and he was found to be a vexatious litigant in the proceedings, with the primary objective to "re-litigate issues which are the subject of previous final court orders": 2019 ONSC 2637. That order is under appeal to this court in Court File C66915.

[14] The former Section 3 Counsel supports the dismissal of Peter's motion under r. 2.1.02. Responding to the specific allegations, she asserts that the alleged new information is neither new nor relevant and that Peter continues to attempt to re-litigate matters related to Mrs. Childs.

[15] Having considered Peter's notice of motion and the submissions filed in response to the Registrar's notice, we have determined that an order under r. 2.1.02 is not only warranted, but essential in the circumstances of this case. Peter is relying on information that is not new (except for the "oversight" of failing to disclose a payment to Section 3 Counsel for which she had already submitted dockets), and that could not conceivably have affected this court's decision in the Appeals.

[16] The motion is a transparent attempt to continue to wage war against the former Section 3 Counsel. Her alleged misconduct is a matter that was soundly rejected by this court on its merits, but also on the basis that Peter and Caroline had never appealed the order of the applications judge striking the parts of their affidavits in which they impugned Section 3 Counsel's conduct (at paras. 90 to 100).

[17] As such the motion under r. 59.06 to vary or quash this court's order dated June 20, 2017, is an abuse of the process of this court, and frivolous and vexatious. Pursuant to s. 2.1.02 of the Rules of Civil Procedure the motion is accordingly dismissed. No further motions shall be filed by the moving party in an attempt to reopen or otherwise in respect of the Appeals.

P. Lauwers J.A.

K. van Rensburg J.A.

L.B. Roberts J.A.