COURT OF APPEAL FOR ONTARIO

CITATION: P.Y. v. Catholic Children’s Aid Society of Toronto, 2020 ONCA 98

DATE: 20200211

DOCKET: C66442

Brown, Harvison Young and Zarnett JJ.A.

BETWEEN

P.Y. and A.Y.

Plaintiffs/Responding Parties (Appellants)

and

The Catholic Children’s Aid Society of Toronto, Mary McConville and Janice Robinson, Rena Knox, The Office of the Children’s Lawyer of Toronto, Katherine Kavassalis, Frances Ann Gregory, Fatma A. Khalid, Haeley Gaber-Katz, The Hospital for Sick Children, Lana Dépatie, Michelle Sala and Conseil Scolaire Catholique Mon Avenir

Defendants/Moving Parties (Respondents)

P.Y., acting in person

A.Y., acting in person

Charles Sinclair, for the respondent Haeley Gaber-Katz

Carole Jenkins, for the respondents The Catholic Children’s Aid Society of Toronto, Mary McConville, Janice Robinson and Rena Knox

Domenico Polla, for the respondents The Office of the Children’s Lawyer of Ontario and Katherine Kavassalis

Monika Korona, for the respondent Michelle Sala

Erika Tower, for the respondent Fatma A. Khalid

Samaneh Frounchi, for the respondent Lana Dépatie

Daniel Bassili, for the respondent Conseil Scolaire Catholique Mon Avenir

Ruben Lindy, for the respondent Frances Ann Gregory

Chloe Richardson, for the respondent The Hospital for Sick Children

Heard: January 22, 2020

On appeal from the order of Justice Darla A. Wilson of the Superior Court of Justice, dated December 12, 2018, with reasons reported at 2018 ONSC 5381 and 2018 ONSC 7097.

REASONS FOR DECISION

[1] By order dated October 7, 2013, Curtis J. found the appellants’ four children were in need of protection and made them Crown wards, without access to the parents: 2013 ONCJ 585.

[2] The appellants’ appeal to the Superior Court of Justice was dismissed: 2014 ONSC 6526. Their further appeal to this court was dismissed by order dated July 3, 2015: 2015 ONCA 493. The Supreme Court of Canada dismissed the appellants’ application for leave to appeal on December 24, 2015: [2015] S.C.C.A. No. 415.

[3] The appellants then commenced this action on December 27, 2017. The defendants are individuals or organizations that played some role in the child protection proceedings, either as parties, counsel, witnesses, experts, or entities which provided information that was used to initiate or support the proceedings.

[4] In the summer of 2018, two of the defendants, psychologists Michelle Sala and Lana Dépatie, wrote to the Registrar of the Superior Court of Justice pursuant to r. 2.1.01(6) requesting the dismissal of the proceeding on the basis that it was frivolous, vexatious or otherwise an abuse of the process of the court.

[5] By reasons dated September 13, 2018, the motion judge directed that the registrar give the appellants notice that the court was considering making “an order under Rule 2.1.01 dismissing this action against the Defendants Sala and Depatie”: 2018 ONSC 5381, at para. 9.

[6] Rule 2.1.01(3)2 permits a plaintiff to make written submissions to the court after receiving such a notice. The appellants wrote to the registrar on September 16, 2018 requesting more time to work on their submissions. They repeated that request in an October 4, 2018 letter to the registrar. They contended that they had “a very well-founded claim against the defendants Sala and Depatie.” The appellants took the position that it was “very premature to deal with submissions at this stage.”

[7] On November 27, 2018, the motion judge released reasons dismissing the action against Sala and Dépatie pursuant to Rule 2.1.01 as frivolous and vexatious. On December 12, 2018 the motion judge released amended reasons in which she dismissed the action against all defendants: 2018 ONSC 7097.

[8] The appellants appeal the dismissal of their action.

[9] Shortly before the hearing of the appeal, the appellants filed a three-volume motion for leave to adduce fresh evidence. The defendants opposed its admission.

[10] The materials for which the appellants seek leave to introduce do not constitute fresh evidence that was unavailable at the time the motion judge directed submissions under r. 2.1.01. Instead, the materials cover a period of time from prior to the apprehension of the children through to the end of the child protection proceedings. The appellants want to introduce the materials to demonstrate that there is a basis for their action and that it is not frivolous, vexatious or an abuse of the process of the court.

[11] As this court stated in Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 12, the issue on a r. 2.1.01 review is whether the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading. Rule 2.1.01 is not designed to be an alternative to an evidence-based motion for summary judgment or a trial: see also Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, at paras. 11-13. As the statement of claim is the focus of a r. 2.1.01 review, we have considered the materials filed by the appellants for the limited purpose of understanding the scope of the allegations they are asserting.

[12] The appellants submit that the motion judge erred in concluding that their statement of claim disclosed on its face the hallmarks of frivolous, vexatious or abusive litigation. We are not persuaded by that submission.

[13] As the motion judge noted, the appellants’ statement of claim is 70 pages in length. The motion judge described the claim against Sala and Dépatie as one for damages caused by their negligence “in the provision of psychological services and in preparation of reports which were relied on by the [Catholic Children’s Aid Society]”: 2018 ONSC 5381, at para. 7. The motion judge also observed that the claim “includes all sorts of attacks on a multitude of defendants” and “[n]owhere is it set out how the alleged negligence led to damages.”

[14] The motion judge did not misread or misunderstand the claims asserted by the appellants in their action against Sala and Dépatie. Their statement of claim discloses that the core elements of their allegations concern the events leading up to their children’s apprehension in 2011, together with numerous allegations that the resulting child protection proceeding was marked by the withholding of evidence, improper reports, the alteration of evidence, and false evidence. The appellants allege that they were greatly wronged by those involved in the child protection proceeding, the various steps taken during that proceeding, and its result. They seek damages of well over $10 million.

[15] When the statement of claim is read in light of the reasons issued by three levels of court in the child protection proceeding and the “fresh evidence” tendered by the appellants, it is clear that in their action the appellants seek to relitigate the issues previously decided in the child protection proceeding. Such an effort to relitigate issues already decided constitutes an abuse of the process of the court. Consequently, we see no error in the motion judge’s conclusion that the proceeding against Sala and Dépatie appears on the face of the statement of claim to be frivolous, vexatious or otherwise an abuse of the process of the court.

[16] As a result, we dismiss the appeal from the order dismissing the action as against the defendants Sala and Dépatie who made the request for a review under r. 2.1.01(6).

[17] However, we allow the appeal in respect of the dismissal of the action against the other defendants. The motion judge’s initial September 13, 2018 endorsement stated that she was only considering making an order under r. 2.1.01 dismissing the action against Sala and Dépatie and she invited submissions from the appellants in respect of that proposed order. Her reasons of November 28, 2018 were limited to dismissing the action against those two defendants.

[18] At some point the motion judge decided on her own initiative to expand her order, and her amended December 12, 2018 reasons dismissed the action against all defendants.

[19] Rule 2.1.01(1) gives the court the power, on its own initiative, to dismiss a proceeding. But rr. 2.1.01(2) and (3) stipulate certain procedures that a court must follow before making such an order, unless the court directs otherwise. One of the required procedures is giving notice to the plaintiff of the order the court is proposing to make and an opportunity for the plaintiff to make submissions in relation to that proposed order. If the plaintiff does not make submissions, then the court may make the order for which it gave notice without further notice to the plaintiff: r.2.1.01(3)1-3.

[20] The motions judge did not give the appellants notice of her intention to amend her limited November 27, 2018 order to one dismissing the action against all the defendants. Nor did the motion judge expressly make an order that a procedure other than that set out in r. 2.1.01 was to be followed. Those omissions, the respondents contend, do not amount to procedural error by the judge. They point to a series of cases from this court in support of their submission that where not all defendants requisition a r. 2.1.01 review and no opportunity for submissions has been given in respect of a dismissal against other defendants, it is open to the reviewing judge to dismiss the action against all defendants where the outcome would have been the same given the nature of the claims asserted by the appellants against the other defendants: Obermuller v. Kenfinch Co-Operative Housing Inc., 2016 ONCA 330, at paras. 3-5; Van Sluytman v. Muskoka (District Municipality), 2018 ONCA 32, 26 C.P.C. (8th) 130, at para. 19; Kimaev v. Sobeys Inc., 2019 ONCA 681, at para. 1.

[21] In our view, those cases are distinguishable from the present one. The distinctive feature of the present case is that in her September 13, 2018 endorsement the motion judge directed the registrar to give the appellants notice that she was considering making an order dismissing the action against only two of the defendants, Sala and Dépatie. Although the blunt instrument of r. 2.1.01 should be applied robustly to weed out litigation that is clearly frivolous, vexatious or an abuse of process, the bluntness of the rule and the significant consequences of its application mandate its fair application: Scaduto, at para. 8; Khan, at para. 12. Fairness is especially important where the plaintiff is self-represented.

[22] Where the court gives notice under r. 2.1.01 that it is considering the dismissal of a proceeding against only some of the defendants, procedural fairness precludes it from dismissing the proceeding against the other defendants without first giving the plaintiff notice of its intention to do so and an opportunity to make submissions pursuant to r. 2.1.01(3)2. The motion judge did not provide the appellants with such notice or provide any explanation in her December 12, 2018 reasons about why she decided to follow a different procedure. In the circumstances of this case, those omissions amounted to reversible procedural error.

[23] For those reasons, the appeal from the dismissal of the action against the defendants, Michelle Sala and Lana Dépatie is dismissed. However, we allow the appeal in respect of the dismissal of the action against the other defendants. We direct that any future requests made by any remaining defendant pursuant to r. 2.1.01 be placed before another judge of the Superior Court of Justice for consideration.

[24] The appellants shall pay the respondents Michelle Sala and Lana Dépatie their costs of the appeal fixed in the amount of $5,000 each, inclusive of disbursements and applicable taxes, for a total of $10,000. The other respondents collectively shall pay to each appellant the sum of $2,500 (for a total of $5,000) in respect of the appellants’ costs of the appeal, inclusive of disbursements and applicable taxes.

“David Brown J.A.”

“Harvison Young J.A.”

“B. Zarnett J.A.”