Court of Appeal for Ontario

Date: July 25, 2018

Docket: C64705 & C64716

Panel: Hoy A.C.J.O., van Rensburg and Pardu JJ.A.

Between

Raymond Carby-Samuels II Appellant

and

Horace R. Carby-Samuels Respondent

Counsel

Raymond Carby-Samuels II, acting in person

John E. Summers, for the respondent

Heard and released orally: July 20, 2018

On Appeal

On appeal from the judgment and the order of Justice Sylvia Corthorn of the Superior Court of Justice, dated November 16, 2017, reported at 2017 ONSC 6814 and 2017 ONSC 6834 respectively.

Reasons for Decision

[1] The appellant, Raymond Carby-Samuels, appeals (1) the judgment of the application judge granting his father, the respondent Horace Carby-Samuels, summary judgment dismissing the appellant's claim against him, and (2) the order of the application judge declaring that the appellant had instituted vexatious proceedings and conducted proceedings in a vexatious manner, and prohibiting him from instituting a proceeding, directly or indirectly, in any court in Ontario without first obtaining leave under s. 140(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[2] The appellant argues that the court cannot declare a Canadian citizen vexatious "for seeking to ensure the well-being of his Mom as an expression of religious conscience as affirmed by the Charter". He also argues that the court should find that there was a reasonable apprehension of bias because the application judge accepted his father's assertions, failed to refer to evidence that he says supported his position, failed to grant an adjournment, and proceeded in the face of his intention to bring a motion for an order that she recuse herself. Further, he argues that the application judge erred in relying on an affidavit of an administrator in his father's counsel's office. Finally, he also challenges the authority of Mr. Summers to act on behalf of his father and asks that he be ordered to disclose his fees.

[3] There is no basis for this court to interfere with the application judge's order granting summary judgment dismissing the appellant's action against his father, seeking an order permitting him to see his mother, who was 85 years of age at the time of the motion. The application judge correctly held that there is no basis for the court to make an order compelling a mentally competent adult (the father) to require another mentally competent adult (the mother) to interact with a third family member (the appellant).

[4] Nor is there any basis to interfere with the application judge's order declaring the appellant a vexatious litigant and prohibiting him from instituting any proceeding in Ontario without leave. The application judge provided thorough and compelling reasons. Further, there is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption. The test is whether a reasonable, informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the judge, whether consciously or unconsciously would not decide fairly: see Children's Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, at para. 84. The appellant has not discharged the heavy burden of rebutting the strong presumption of judicial impartiality.

[5] The affidavit with which the appellant takes issue does not appear to be in the record. Counsel for the respondent advises that the affidavit merely served to put various court proceedings and other communications between the parties before the court. This is not unusual in vexatious litigant proceedings.

[6] Finally, there is nothing in the record to suggest that Mr. Summers has been acting at any time in these proceedings without the father's authority and there is no basis on which the court can compel the disclosure the appellant seeks.

[7] Accordingly, the appeal is dismissed. The father is entitled to costs of the appeal, fixed in the amount of $1,500, inclusive of HST and disbursements.

"Alexandra Hoy A.C.J.O."

"K.M. van Rensburg J.A."

"G. Pardu J.A."