Court File and Parties

Citation: Kim v. Esplanade 75 Inc. 2017 ONSC 4759 Divisional Court File No’s.: 322/17; 323/17; 324/17; 325/17 Date: 2017-08-04

Superior Court of Justice – Ontario Divisional Court

Re: Ki Ho Kim v. Esplanade 75 Inc and others Ki Ho Kim v. 260 Wellesley Residences Inc. and others Ki Ho Kim v. The Toronto Police Services Board Ki Ho Kim v. 260 Wellesley Residences Inc. and others

Before: Nordheimer J.

Heard at Toronto: written submissions

Endorsement

[1] On July 24, 2017, I directed the Registrar, pursuant to r. 2.1.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to give notice to Mr. Kim that the court was considering making an order dismissing eight proceedings on the grounds that they appear to be frivolous, vexatious or otherwise an abuse of the process of the court. Four of the matters were motions to this court and the other four matters are appeals from judgments of Firestone J. Since that time, the four motions have been dismissed by orders made by other judges. That leaves only the four appeals to be dealt with.

[2] Mr. Kim has filed a response to this Notice consisting of a brief letter in which he contends that the rule cannot be utilized to prevent him from continuing with the appeals that he has launched.

[3] The fundamental difficulty for Mr. Kim is that the Public Guardian and Trustee was appointed, pursuant to r. 7.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to be his litigation guardian with respect to the four actions that underlie these appeals. The Public Guardian and Trustee was appointed by order of the court to be Mr. Kim’s litigation guardian after a finding that Mr. Kim was a party under a disability. Mr. Kim appealed that order but that appeal was dismissed as was his motion for leave to appeal.

[4] Each of the appeals is from a consent judgment entered into by the Public Guardian and Trustee on behalf of Mr. Kim settling claims that Mr. Kim had against the various defendants in these proceedings.

[5] Rule 7.01(1) reads:

Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.

[6] Mr. Kim contends that “shall be” is distinct from “must be” and therefore he has the right to commence these proceedings. Mr. Kim’s contention is incorrect. The words “shall be” have always been recognized as denoting a mandatory requirement. By way of just one example, see the decision in Reference re: Manitoba Language Rights (Man.), 1985 33 (SCC), [1985] 1 S.C.R. 721 where the court said, at para. 27(QL):

As used in its normal grammatical sense, the word “shall” is presumptively imperative.

[7] Simply put, r. 7.01(1) mandates that any proceeding must be commenced by a person’s litigation guardian. There is no jurisdiction to otherwise entertain a proceeding directly commenced by a person under a disability.

[8] Consequently, I make an order under r. 2.1.01(1) dismissing each of Mr. Kim’s four appeals. In the circumstances, there will be no order as to costs.

NORDHEIMER J.

Date: August 4, 2017