Court File and Parties
COURT FILE NO.: CV-15-539787 DATE: 20160906 SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E E N:
Althea Reyes, Plaintiff
– and –
Dean Embry, Defendant
BEFORE: F.L. Myers J. READ: September 6, 2016
Endorsement
Background
1By order dated June 9, 2009, Kershman J. declared the plaintiff to be a vexatious litigant pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c.C.43. He ordered that she not be permitted to commence or continue any proceeding directly or indirectly relating to her child without leave of the court being obtained in advance. The court has mistakenly allowed several claims to be commenced by the plaintiff without leave despite the order made by Justice Kershman.
2By statement of claim dated November 4, 2015, the plaintiff sued her former criminal lawyer. She alleges that he acted in conflict of interest and bullied her into a guilty plea in conjunction with and at the behest of the plaintiff’s estranged mother and abusive ex-boyfriend to assist them in custody proceedings concerning her child among other things. The plaintiff did not obtain leave of a judge before commencing this claim and is thereby in breach of the order made by Justice Kershman.
3Rule 2.1.03 of the Rules of Civil Procedure provides:
2.1.03 (1) If the court determines that a person who is subject to an order under subsection 140 (1) of the Courts of Justice Act has instituted or continued a proceeding without the order having been rescinded or leave granted for the proceeding to be instituted or continued, the court shall make an order staying or dismissing the proceeding.
Request for Order
(2) Any party to the proceeding may file with the registrar a written request for an order under subrule (1).
Copy of Order
(3) An order under subrule (1) may be made without notice, but the registrar shall serve a copy of the order by mail on every party to the proceeding for whom an address is provided in the originating process as soon as possible after the order is made.
4The Rule is mandatory. It does not require a motion as it does not involve a judicial decision. It is simply an administrative enforcement of the court’s processes. Park v Crossgate Legal Services, 2016 ONSC 4864.
Disposition
5Therefore, the action is dismissed. The plaintiff shall pay the defendant his costs on a full indemnity basis forthwith after the assessment thereof. The court waives any requirement that the plaintiff approve the form and content of the formal order. The registrar is directed to send a copy of this endorsement to the parties in addition to serving the formal order once it is taken out as required under R. 2.1.03(3).
F.L. Myers J.
Date: September 6, 2016