COURT FILE NO.: 07-DV-1293

DATE: 20080715

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT - OTTAWA

CUNNINGHAM A.C.J., CUSINATO and VALIN JJ.

B E T W E E N:

RAYMOND PAQUETTE

Self-represented

Plaintiff/Respondent

• and -

THE CHILDREN’S AID SOCIETY FOR THE COUNTY OF LANARK AND SMITH FALLS

Paul Muirhead, counsel for the Defendants/Appellants

Defendants/Appellants

HEARD: June 13, 2008

REASONS FOR JUDGMENT

By the Court:

1This is an appeal from the decision of Aston J. dated June 27, 2006 dismissing the defendant’s cross-motion. In its cross-motion, the defendants sought to have the plaintiff’s action dismissed as disclosing no reasonable cause of action.

2The facts, which are adequately set out in the appellant’s factum, do not bear repeating here. Aston J. found that the claim herein was identical to allegations put forward by Lorena Kerr, Jack Hepworth and Marc Paquette in earlier civil proceedings. He found that each and every allegation raised by the plaintiff in the presently styled proceeding had been fully canvassed at the child protection trial on appeal before Chilcott J. and before the Court of Appeal. Chilcott J. and the Court of Appeal dismissed appeals brought by the earlier plaintiffs.

3Aston J. also concluded the allegations now being raised constituted a collateral attack on the findings and judicial decisions in the earlier proceedings. Nevertheless, Aston J. found that the claims relating to “grooming”, “identity theft” and “brainwashing” constituted a novel cause of action against the defendants’ duty of care.

4In our view, and the record is clear, all of these allegations have been repeatedly raised by Kerr, Hepworth and Marc Paquette in earlier proceedings. It is equally clear they have been repeatedly rejected. The notion that Raymond Paquette had been “brainwashed” or “coached” into complaining about Jack Hepworth has been repeatedly rejected by various courts. To allow the present claim to proceed would be to challenge the earlier findings. Clearly a collateral attack, which Aston J. himself acknowledges.

5Aston J. seems to have been persuaded that the conclusions reached by Justices Sheffield, Blishen and Cousineau in earlier proceedings were reached by means that themselves give rise to a claim for damages. He acknowledges the plaintiff cannot seek a declaration that these earlier conclusions were wrong. In our view, this creates an impossible situation.

6By challenging how conclusions were reached, is one not challenging the conclusions? Permitting the plaintiff to proceed in this fashion would be tantamount to allowing the plaintiff to appeal earlier decisions, something he is not entitled to do.

7We conclude that this is simply another way for Kerr and Hepworth, who without question are promoting this litigation, to attack earlier decisions against them. Indeed, they have already exhausted all of their appeals and have been declared vexatious litigants.

8As to the notion that this is a “novel” tort, we have concluded that Aston J. erred in failing to apply the test established by Anns v. Merton Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492, a test which, with some modification, has been adopted by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537 and Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562. Had Aston J. directed his mind to the test, we conclude the circumstances here could not possibly have met the requirements. In this regard, we are guided by the decision of the Supreme Court of Canada in Syl Apps Secure Treatment Centre v. B.D., docket 31404 2007, 38.

9As to the important policy considerations, what the plaintiff is attempting to do is to challenge facts and evidence already found and put forward in earlier litigation, facts and evidence upon which earlier conclusions were reached. This exercise, if permitted to proceed, has the potential of leading to inconsistent findings of the court. In other words, if the plaintiff were successful in this proceeding, a court would have to review the evidence put forward in the earlier child protection hearings and make a finding that Raymond Paquette was not a child in need of protection, a finding contrary to existing decisions. There is no other way he could be entitled to damages.

10Aston J. justifies allowing this claim to proceed on the basis that Raymond Paquette is not seeking damages for the claims of Kerr, Hepworth and Marc Paquette, but rather for what happened to him. We agree with the appellants that the claims are identical and that the “separate actionable wrongs” for which Raymond Paquette seeks damages have already been found not to be wrongs.

11We conclude that this proceeding is an abuse of process disclosing no reasonable cause of action. Indeed, the proceeding is frivolous and vexatious in nature and the appeal is allowed. The plaintiff’s action is dismissed.

12In the event the appellants seek costs, we will entertain brief written submissions of no more than one page within 30 days of the release of this decision.

Cunningham A.C.J.

Cusinato J.

Valin J.