COURT OF APPEAL FOR ONTARIO

CITATION: W.D.M. v. Native Child and Family Services of Toronto, 2020 ONCA 641

DATE: 20201014

DOCKET: C68533

Juriansz, Hourigan and Thorburn JJ.A.

BETWEEN

W.D.M.

Plaintiff (Appellant)

and

Native Child and Family Services of Toronto, Hatts Off Specialized Services, Hanrahan Youth Services, Her Majesty the Queen in Right of Ontario and Toronto Police Services

Defendants (Respondents)

W.D.M., acting in person

Daniel Mayer, for the respondents Her Majesty the Queen in Right of Ontario and the Public Guardian and Trustee

Heard: In writing

On appeal from the order of Justice Lorne Sossin of the Superior Court of Justice, dated May 20, 2020.

REASONS FOR DECISION

[1] This is a request by Her Majesty the Queen in Right of Ontario and the Public Guardian and Trustee for an order under rr. 2.1.01(6) and 2.1.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 dismissing this appeal because it appears, on its face, frivolous or vexatious or otherwise an abuse of the process of the court. The appellant was afforded an opportunity to respond and has done so.

[2] The Notice of Appeal, the request under r. 2.1.01(6), the request record, and the appellant’s written response were placed before this panel. Upon consideration of these materials, we are satisfied this appeal is frivolous and should be dismissed under r. 2.1.01(1).

[3] In his one-page response the appellant does not make any substantive argument why the appeal is not frivolous, vexatious, or abusive. Instead, he states the request is “based on issues already rectified before filing and does not contain anything relevant to strike an appeal under a rule where a decision is being appealed because of a decision under that rule.” He further states that the court should apply “Wouters 2018-ONCA-26 wherever it may be applicable.”

[4] The background of this appeal is as follows. The appellant was the plaintiff in two personal injury actions commenced by litigation guardian when he was a minor. Upon attaining majority, the appellant dismissed his counsel and commenced more than 20 additional lawsuits against various defendants including several telecommunications companies, Ryerson University, Native Child and Family Services of Toronto, the Toronto Police Services Board, Toronto Pearson International Airport, Toronto Catholic District School Board, the United Kingdom Home Office, and the United States government.

[5] In January 2016, Mew J., as the case management judge for the appellant’s lawsuits, ordered the appellant to undergo a capacity assessment. Pursuant to the assessment, he declared the appellant a party under disability under r. 7.04 of the Rules of Civil Procedure, appointed the Public Guardian and Trustee as the appellant’s litigation guardian for some of the appellant’s lawsuits, and stayed the remaining lawsuits on the grounds they appeared frivolous.

[6] Despite Mew J.’s finding the appellant was a person under disability, he continued to initiate legal proceedings by himself without leave of the court. Almost all of these proceedings have now been dismissed or stayed as frivolous, vexatious, or abusive under r. 2.1.01 of the Rules of Civil Procedure, or on consent.

[7] Subsequently, a capacity assessor under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 found the appellant to be incapable of managing his property. As a result, the Public Guardian and Trustee became the statutory guardian of the appellant’s property as well as his litigation guardian.

[8] In June 2017, the Consent and Capacity Board overruled the capacity assessor’s determination and found the appellant capable of managing his property. Following this, the appellant sought the removal of the Public Guardian and Trustee as his litigation guardian. Myers J., then case management judge, refused his request and continued the litigation guardianship of the Public Guardian and Trustee. He pointed out that the assessment of disability for litigation purposes involves somewhat wider considerations than those before the Consent and Capacity Board. He provided a detailed and sensitive explanation for his finding that the appellant remained a party under disability within the meaning of r. 7.04 of the Rules of Civil Procedure.

[9] Myers J. also noted the appellant’s consent for the dismissal of all but four of the proceedings brought by him.

[10] On May 20, 2020, Sossin J., as the new case management judge, stayed another action the appellant had brought against the Toronto Police Services Board, Native Child and Family Services of Toronto, and others as frivolous, vexatious, or abusive. In its reasons for the stay the court relied in part on the decision of Myers J. dated March 29, 2017, which was issued before the Consent and Capacity Board’s decision finding the appellant capable of managing his property. Sossin J. issued a further endorsement confirming his May 20, 2020 decision. In this second endorsement Sossin J. referred to and quoted at length from Myers J.’s subsequent decision confirming that the appellant continued to suffer a disability for the purpose of r. 7.04 of the Rules of Civil Procedure despite his ability to manage his own property.

[11] The appellant’s prolix Notice of Appeal states it is appealing the May 20, 2020 order of Sossin J. but includes in its style of cause the names of 16 defendants to the various actions the appellant has filed. In its 19 pages it appears to challenge various orders issued from 2015 onwards in the 25 or so proceedings commenced by the appellant.

[12] The Notice of Appeal, for the most part, is not intelligible and seems to claim relief that this court cannot grant. While it states the appeal is from the May 20, 2020 decision of Sossin J., it seeks relief in the appellant’s previously stayed and dismissed actions. The one discernible matter is that the appellant does not want the Public Guardian and Trustee to be his litigation guardian and he wants his previously dismissed actions reinstated so that he can represent himself in them.

[13] Leaving aside all of the technical deficiencies in the Notice of Appeal, there is no prospect whatsoever that the appellant could succeed in having any of the Superior Court of Justice’s decisions appointing or maintaining the Public Guardian and Trustee as his litigation guardian set aside in this appeal. This is readily apparent on the face of the Notice of Appeal itself. The appellant’s drafting of the Notice of Appeal demonstrates that he is incapable of representing himself. The appeal proceeding initiated by the Notice of Appeal cannot possibly succeed or even place a justiciable appeal before the court. An appeal that cannot succeed is frivolous.

[14] The appeal is dismissed pursuant to r. 2.1.01(1) of the Rules of Civil Procedure. There will be no order as to costs.

[15] We have issued this decision using the names of the defendants in the style of cause of the May 20, 2020 order from which the Notice of Appeal states it is appealing.

“R.G. Juriansz J.A.”

“C.W. Hourigan J.A.”

“J.A. Thorburn J.A.”