Court File and Parties

COURT FILE NO.: CV-21-234 (Kingston) DATE: 20220222 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KUNAL TIPU, Plaintiff AND: J FAIRBAIRN, SIMMON OBRIEN MILLINSON and PRASAD and CONSENT AND CAPACITY BOARD and MICHEAL P MAGIL and PROVIDENCE CARE HOSPITAL, Defendants

BEFORE: Mr. Justice Graeme Mew

COUNSEL: Kunal Tipu, plaintiff (litigant in person) James Shields, for the defendant, Consent and Capacity Board Lisa Filgiano, for the Public Guardian and Trustee Brooke Smith, for the defendants, Dr. Simon O’Brien, Dr. Samir Prasad and Dr. Jonathan Fairbairn

HEARD: In writing, at Kingston

Endorsement

[1] Mr. Tipu is a litigant in person who commenced an action on 12 August 2021 against a number of physicians as well as the Consent and Capacity Board and Providence Care Hospital. Notwithstanding that he claims damages totalling $2,504,000,000, Mr. Tipu brings his action under the simplified procedure (Rule 76 of the Rules of Civil Procedure).

[2] By letter to the Registrar at Kingston dated 24 August 2021, a lawyer representing the Consent and Capacity Board (“CCB”) submitted a request pursuant to Rule 2.1.01(6) of the Rules of Civil Procedure for an order under Rule 2.1.01(1) dismissing the claim as against the CCB on the basis of it being frivolous, vexatious and an abuse of the process of the court.

[3] A similar request was made on behalf of Doctors Fairbairn, O’Brien and Prasad by way of a letter dated 9 September 2021. That letter contained information about a parallel proceeding that had been recently adjudicated by the CCB, including a decision dated 9 September 2021 which had confirmed that the criteria for renewing the plaintiff’s Community Treatment Order had been met, and a decision, also dated 9 September 2021, confirming both a finding by Dr. Fairbairn that the Plaintiff is incapable with respect to treatment with anti-psychotic medication, and a community treatment plan dated 20 July 2021.

[4] On 15 September 2021, the CCB filed a pro forma statement of defence.

[5] On 13 December 2021, the Registrar issued a notice in Form 2.1A that the proceeding may be stayed or dismissed.

[6] The plaintiff responded to the Registrar’s notice with an undated document challenging the court’s jurisdiction to dismiss the claim or alternatively, submitting that his claim is not frivolous, vexatious or otherwise an abuse of the court’s process.

[7] By letter dated 24 December 2021, counsel from the Office of the Public Guardian and Trustee (“PGT”) wrote to the court advising that the plaintiff had been declared incapable in 2015 and that the PGT has been acting as his guardian of property since then. The PGT had only recently learned about the action commenced by Mr. Tipu and the request by certain defendants for their claim to be dismissed pursuant to Rule 2.1 and requested the court not to make any decision with respect to that request until 31 January 2022, at which time counsel expected to be in a position to inform the court and the parties of the PGT’s position with respect to this matter.

[8] By letter dated 31 January 2022 to the Registrar, counsel from the Office of the Public Guardian and Trustee advised the court that, pursuant to Rule 7.02(1.1)(a), the PGT, as Mr. Tipu’s guardian of property, is automatically appointed as his litigation guardian with respect to this proceeding. The letter further advised that the PGT does not oppose the motion to dismiss the claim pursuant to Rule 2.1.01 on the condition that no costs are ordered against Mr. Tipu personally.

[9] The court has been advised that counsel for the other defendants have confirmed that they do not seek costs against Mr. Tipu personally.

[10] I agree with the submission made by the defendant doctors that on its face, the statement of claim contains hallmarks of vexatious proceedings as articulated in Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497. Furthermore, the substance of the plaintiff’s claim falls within the jurisdiction of the CCB and cannot be re-litigated in this court in the manner that the plaintiff’s claim attempts to do.

[11] In the circumstances, and pursuant to the jurisdiction conferred on the court by Rule 2.1.01, this action is dismissed without costs.

Mew J Date: 22 February 2022