WARNING Prohibitions under the Child, Youth and Family Services Act , 2017, S.O. 2017, c.14, Sched. 1 apply to this decision:

Prohibition re identifying child 87(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

Prohibition re identifying person charged 87(9) The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

Transcript 87(10) No person except a party or a party’s lawyer shall be given a copy of a transcript of the hearing, unless the court orders otherwise.

Offences re publication 142(3) A person who contravenes subsection 87 (8) or 134 (11) (publication of identifying information) or an order prohibiting publication made under clause 87 (7) (c) or subsection 87 (9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court of Appeal for Ontario

Date: 20210316 Docket: C68909

Before: Fairburn A.C.J.O., Tulloch and Miller JJ.A.

BETWEEN

P.Y. and A.Y. Plaintiffs (Appellants)

and

The Catholic Children’s Aid Society of Toronto et al. Defendants (Respondents)

Counsel: P.Y., acting in person A.Y., acting in person 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 Her Majesty the Queen in Right of Ontario, The Office of the Children’s Lawyer of Toronto and Katherine Kavassalis Sean Dewart and Ruben Lindy, for the respondent Frances Ann Gregory Susan M. Sack, for the respondent Fatma A. Khalid Charles Sinclair, for the respondent Haeley Gaber-Katz Logan Crowell, for the respondent The Hospital for Sick Children Daniel Bassili, for the respondent Conseil Scolaire Catholique Mon Avenir

Heard: in writing

On appeal from the judgment of Justice Frederick L. Myers of the Superior Court of Justice, dated October 30, 2020, with reasons reported at 2020 ONSC 6660.

Reasons for Decision

Facts and Procedural History

[1] On October 7, 2013, the appellants’ four children were found in need of protection and became Crown wards, without access to their parents: Catholic Children’s Aid Society of Toronto v. A.M.Y., 2013 ONCJ 585, at paras. 218-19. Appeals to the Superior Court of Justice and this court were dismissed, and leave to appeal to the Supreme Court of Canada was refused: see CCAS Toronto v. AMY and PY, 2014 ONSC 6526; Catholic Children’s Aid Society of Toronto v. A.Y., 2015 ONCA 493, leave to appeal refused, [2015] S.C.C.A. No. 415.

[2] Once the litigation surrounding the child protection order was complete, the appellants commenced an action against multiple defendants, all of whom had played some role in the child protection proceedings.

[3] On November 27, 2018, the appellants’ action was dismissed as frivolous and vexatious against two of the defendants, Lana Dépatie and Michelle Sala. This was done pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. This decision was amended on December 12, 2018 to reflect the dismissal of the action against all defendants: Y. v. The Catholic Children’s Aid Society of Toronto, 2018 ONSC 7097, at para. 5.

[4] The appellants then appealed the dismissal of their action to this court.

[5] In a decision dated February 11, 2020, this court upheld the dismissal of the action as against two of the defendants, Lana Dépatie and Michelle Sala, on the basis that it was an attempt to relitigate the issues previously decided in the child protection proceedings: P.Y. v. Catholic Children’s Aid Society of Toronto, 2020 ONCA 98 (“P.Y. (ONCA)”). This court’s reasoning is, in part, reflected at para. 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.

[6] In relation to the balance of the defendants, the appeal was allowed because the appellants had not been given notice of the order the court was contemplating making in respect of those defendants: P.Y. (ONCA), at paras. 19-22. In other words, the procedures set out in rr. 2.1.01(2) and (3) of the Rules of Civil Procedure had not been followed before the order was made.

[7] Accordingly, the appeal from the dismissal of the action against Lana Dépatie and Michelle Sala was dismissed. However, the appeal against the other defendants was allowed. This court directed that any future requests made by any remaining defendant pursuant to r. 2.1.01 of the Rules of Civil Procedure be placed before another judge of the Superior Court of Justice: P.Y. (ONCA), at para. 23.

[8] The remaining defendants pursued the same relief before a different judge of the Superior Court of Justice. The requisite notice pursuant to r. 2.1.01(3) 1 of the Rules of Civil Procedure was provided to the appellants in March 2020: P.Y. v. The Catholic Children’s Aid Society of Toronto, 2020 ONSC 1396. By judgment dated October 30, 2020, the appellants’ action was dismissed pursuant to r. 2.1.01 of the Rules of Civil Procedure against all remaining defendants. Again, the court found that the action was an impermissible attempt to relitigate the issues that had been decided in the child protection proceedings: P.Y. v. The Catholic Children’s Aid Society of Toronto, 2020 ONSC 6660, at paras. 17-20.

[9] The appellants now appeal from that decision.

Rule 2.1

[10] This is a request by the respondents to have the appeal dismissed pursuant to r. 2.1.01 of the Rules of Civil Procedure as being frivolous and vexatious: see Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, 5 C.P.C. (8th) 280, at paras. 43-46. We are satisfied that all proper procedural steps have been taken, including notice by the Registrar to the appellants pursuant to r. 2.1.01(3) 1 of the Rules of Civil Procedure.

[11] Having reviewed all materials provided by the respondents and appellants, we conclude that it is appropriate to grant the remedy requested by the respondents. We see no error in the decision below. As Myers J. indicated at para. 21, while the original child protection decision stands, “its lawfulness and justness cannot be undermined in other proceedings like this one.”

[12] For the reasons of Myers J., as well as this court’s reasons in P.Y. (ONCA), this appeal from the dismissal of the action against the remaining defendants is a clear attempt to relitigate the child protection proceedings. Therefore, this appeal is dismissed pursuant to r. 2.1.01 of the Rules of Civil Procedure as being frivolous and vexatious.

[13] If the parties cannot agree upon costs, they may provide written submissions as follows:

(a) The respondents may provide written costs submissions of no more than three double-spaced pages by March 25, 2021.

(b) The appellants may provide written costs submissions of no more than three double-spaced pages by April 7, 2021.

“Fairburn A.C.J.O.”

“M. Tulloch J.A.”

“B.W. Miller J.A.”