SUPERIOR COURT OF JUSTICE - ONTARIO
RE: I.K.
Plaintiff
-and-
Dr. Usha Harikumar, MD FRCSC, Elana Nikolsky, Manager Birthing unit, Rouge Valley Health System, Centenary Health Centre
Defendants
BEFORE: F.L. Myers J.
READ: August 3, 2015
endorsement
1By endorsement dated June 10, 2015, reported at 2015 ONSC 3777, I directed the registrar to provide the plaintiff with notice in Form 2.1A that the court was considering dismissing this lawsuit under Rule 2.1 for being frivolous and vexatious.
2The statement of claim contains no prayer for relief. It starts with an assertion that the defendants stole the plaintiff’s newborn baby. The plaintiff then makes a racist allegation against Dr. Harikumar accusing her of participating in human organ trafficking due to her nationality. Upon reading the claim in full, it appears that the plaintiff’s child has been taken into some form of guardianship.
3In my first endorsement I noted that if the plaintiff’s child was kidnapped, the plaintiff should be urgently speaking to the police. If the child has been apprehended at birth under the Child and Family Services Act, R.S.O. 1990, c.C.11, then child protection hearings are no doubt available. In either case, the claim in this proceeding appears to be frivolous and vexatious on its face. I directed the plaintiff to seek legal advice and suggested that Law Help Ontario may be available to assist him.
4The plaintiff delivered written submissions pursuant to the Form 2.1A notice. He advised that he had spoken to the police and to Law Help Ontario. He made allegations of wrongdoing against the latter. He submitted that he is entitled to an order that the defendants return his child or, if, as he alleges, the child has already been sold, then he is entitled to $15 million in damages.
5By endorsement dated June 30, 2015, reported as 2015 ONSC 4253, I sought submissions of the defendants under Rule 2.1.01(3)(5) concerning, in particular, whether there was indeed a missing child or if she had been taken into custody in accordance with the law. I recognize that I was seeking facts rather than strictly submissions. Moreover, if there are child welfare proceedings afoot, then there may well be confidentiality issues at play as well.
6I have now received unsworn submissions from the defendants’ counsel. They advise simply that the child was taken into custody pursuant to a justice’s order and that other legal proceedings existed or exist.
7There is no process for evidence to be sought or adduced under Rule 2.1. These unsworn factual submissions do not bare on the issue of the frivolousness of the claim. That is apparent on the face of the statement of claim. I was simply seeking some reassurance from counsel that there was not something more complex and possibly nefarious at issue. While these legal proceedings would not have been the way to deal with any such issues in any event, it seemed to me to be prudent to inquire so as to avoid the risk of a later discovery that something horrible was indeed happening and it had been missed due to the inappropriate form of complaint made by the plaintiff.
8I appreciate the reassurance that I received from counsel and accept their submissions as officers of the court.
9It is apparent on the face of the statement of claim that this proceeding is frivolous and vexatious as described in Gao v. Ontario, WSIB, 2014 ONSC 6297. Moreover, the plaintiff’s pleading and submissions raise concerns of the type identified in the Gao decision that make resort to the attenuated process of Rule 2.1 appropriate.
10Therefore, this action is dismissed. The plaintiff will pay costs to the defendants forthwith on a substantial indemnity basis due to the nature of the allegations made by the plaintiff. If costs are demanded the assessment of the quantum is referred to an assessment officer.
11The court dispenses with any requirement for the plaintiff to approve the form or content of the formal order dismissing the action with costs.
12In addition to the service by mail required by 2.1.01(4) rule, the registrar is to send a copy of this endorsement to the plaintiff and counsel for the defendants by email if it has their email addresses.
F.L. Myers J.
Date: August 4, 2015