ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, GROUND AND PITT JJ.
B E T W E E N:
GERALD MICHAEL VAUGHAN
Plaintiff/Appellant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF HEALTH, MARY BETH VALENTINE, BRENDA KNIGHT, DAVID GIUFFRIDA, DAN DOWNEY, J. HOWARD DANSON, GEORGE KYTAYKO, MURRAY KRONIS, KATHLEEN FINNEY, RUSSELL FLEMING, BRIAN JONES, RICHARD GWOZDOWSKI, PATRICIA MOODY, ANNE STAPLES, MICHAEL ROBILLARD, THE ATTORNEY GENERAL FOR ONTARIO, JOAN SCOTT and JOAN MCAULEY
Defendant/Respondents
Gerald Michael Vaughan, In Person
Eugene G. Mazzuca, for the Defendants
Donald Bur, for the Office of the Public Guardian and Trustee
HEARD: October 7, 2004
ferrier J.: (Orally)
1The respondents do not oppose the setting aside of the order in question. The Public Guardian and Trustee takes no position.
2On November 21, 2002, at a Call-Over Court, the presiding judge granted an order removing the solicitor of record for the plaintiff. The plaintiff was not present. Immediately thereafter the judge, on his own motion, made an order appointing the Public Guardian and Trustee as litigation guardian for the plaintiff.
3The plaintiff had no actual notice of the intention of the judge to consider such an appointment. However, because he had a solicitor of record in the period leading up to that appearance and the judge had requested the Public Guardian and Trustee to be in attendance on November 21, 2002, it is apparent that the plaintiff had Notice under the Rules. Nevertheless, following the removal of his solicitor of record, the plaintiff was unrepresented and to repeat, he was not present when the litigation guardian order was made. It is that order which is under appeal.
4On the basis of the foregoing circumstances alone, we would set aside the order below. Furthermore, there was no basis in law for having made the order.
5The background to the making of the order is the following. Mr. Vaughan has been detained in the Oak Ridge Division of the Penetanguishene Mental Health Centre for the past 23 years as a result of being found not guilty of various criminal offences by reason of insanity.
6The plaintiff is a prodigious litigator, witnessed in part by the five law suits which are affected by the order under appeal. However, he has never been found to be a party under disability in accordance with the Rules. Indeed, in 1994, Justice Lane of this Court dismissed a motion by the respondents for the appointment of a litigation guardian.
7There was no evidence before the presiding judge concerning any of the factors required to be considered under the Rules. Accordingly, the order appointing the Public Guardian and Trustee as litigation guardian must be set aside and the appeal is allowed.
8The order was made in all five actions and the result in this Court applies to them all, referenced as follows: 92-CQ-29272, 94-CQ-49798, 94-CQ-49800, 95-CU-87185 and 01-CV211262.
9The order appointing Lederman J., as the Rule 37.15 judge was not affected by the order below.
10No order as to costs.
FERRIER J.
GROUND J.
PITT J.
Date of Reasons for Judgment: October 7, 2004 Date of Release: October 12, 2004
COURT FILE NO.: 286/03
DATE: 20041007
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, GROUND AND PITT JJ.
B E T W E E N:
GERALD MICHAEL VAUGHAN
Plaintiff/Appellant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF HEALTH, MARY BETH VALENTINE, BRENDA KNIGHT, DAVID GIUFFRIDA, DAN DOWNEY, J. HOWARD DANSON, GEORGE KYTAYKO, MURRAY KRONIS, KATHLEEN FINNEY, RUSSELL FLEMING, BRIAN JONES, RICHARD GWOZDOWSKI, PATRICIA MOODY, ANNE STAPLES, MICHAEL ROBILLARD, THE ATTORNEY GENERAL FOR ONTARIO, JOAN SCOTT and JOAN MCAULEY
Defendant/Respondents
ORAL REASONS FOR JUDGMENT
FERRIER J.
Date of Reasons for Judgment: October 7, 2004 Date of Release: October 12, 2004