SUPERIOR COURT OF JUSTICE - ONTARIO

B E T W E E N:

KODANDA KAVURU

Plaintiff

-AND-

ONTARIO PUBLIC GUARDIAN AND TRUSTEE AND

ATTORNEY GENERAL (ONTARIO)

Defendants

BEFORE: F.L. Myers J.

READ: October 13, 2015

endorsement

[1] This motion was referred to me by the registrar’s office pursuant to rule 2.1.01(7) following receipt of a written request of the defendant Her Majesty the Queen in Right of Ontario, improperly named as “Ontario Public Guardian and Trustee and Attorney General (Ontario)” under subrule 2.1.01(6).

[2] The plaintiff sues the Public Guardian and Trustee in relation to two cases in which it was acting as his litigation guardian. He sues the Attorney General for vicarious liability for the Divisional Court whom the plaintiff says wrongfully approved the settlement of the two cases by the litigation guardian on his behalf.

[3] Without going too deeply into the facts, the key underlying issue is that the plaintiff suffered personal injuries in a slip and fall accident on TTC property. He brought a claim for damages and settled the claim for payment to him of $125,000. He then sued his lawyer for negligence on the basis that the settlement was too low. He then launched a second claim against the TTC for the same slip and fall despite the settlement of the prior claim. In both claims a Master appointed the Public Guardian and Trustee to act as the plaintiff’s litigation guardian. The Public Guardian and Trustee determined to settle both claims on the basis that they would be dismissed without costs.

[4] The settlements required court approval to ensure that walking away from the litigation was in the best interests of the plaintiff. The motion’s judge declined to approve the settlement as he ruled that the plaintiff had an absolute right to a hearing on the merits no matter how weak the Public Guardian and Trustee might have thought the cases to be. The Public Guardian and Trustee appealed. The Divisional Court overruled the decision of the motion’s judge and approved the proposed settlements. The Divisional Court found that a litigation guardian is the substitute decision-maker for the plaintiff in respect of the litigation. It is the party for the purposes of entering into a settlement. The person under disability for whom a litigation guardians acts as a fiduciary has no separate right to demand a hearing on the merits (let alone an absolute right to a hearing on the merits) where the litigation guardian settles the case.

[5] The Divisional Court held that the sole issue before the motion’s judge was simply whether the two settlements proposed were in the best interests of the plaintiff. It held that the two settlements proposed were “entirely in the best interests of the plaintiff.” It therefore approved the settlements and dismissed the actions without costs as agreed by the litigation guardian and the defendants in those actions.

[6] The plaintiff is especially upset that he has never had a hearing on the merits of his claims against the TTC on his initial slip and fall claim. Neither has he had a hearing on the merits of his claims against his former lawyer for negligence in recommending that he settle with TTC for $125,000. But he cannot obtain those hearings in this litigation.

[7] The claim against the Public Guardian and Trustee runs smack into the finding of the Divisional Court that walking away from the claim against the lawyer and the second kick at the TTC were in the best interests of the plaintiff. The Divisional Court recited that they received and reviewed materials from the plaintiff in opposition to the settlement despite the fact that he had no independent entitlement to submit materials. There is no basis to claim against a litigation guardian when the Court has found that it acted appropriately in recommending a complete withdrawal of the claims and that doing so was in the best interest of the plaintiff.

[8] The plaintiff strongly asserts in his statement of claim that his claims had much merit. It is implicit in the Divisional Court’s ruling that it disagreed. Absent an appeal to the Court of Appeal, the decision of the Divisional Court stands and binds the parties. It appears to be vexatious for a plaintiff to sue a litigation guardian for taking steps that the Court has approved and held were in his best interest. It also appears to be an abuse of process for a plaintiff to try to re-litigate an issue that has been determined in another case that binds him.

[9] Moreover, there is no basis in law to sue the Attorney General in respect of complaints made against the decision of the Divisional Court. Once again, the plaintiff’s remedy against that decision was to try to appeal to the Court of Appeal.

[10] It appears to me that the plaintiff ought to be provided with notice that his claim appears to be frivolous and vexatious on its face. Under Rule 2.1, the plaintiff will have 15 days in which to make written submissions as to why the action should not be dismissed at this stage.

[11] On reviewing the material forwarded by the registrar, the court makes the following order:

a. Pursuant to subrule 2.1.01(3)(1), the registrar is directed to give notice to the plaintiff in Form 2.1A that the court is considering making an order under Rule 2.1.01 dismissing the action;

b. Pending the outcome of the written hearing under rule 2.1 or further order of the court, the plaintiff’s action is stayed pursuant to s.106 of the Courts of Justice Act, R.S.O. 1990, c.C.43[^1];

c. The registrar shall accept no further filings in this action excepting only the plaintiff’s written submissions if delivered in accordance with rule 2.1.01(3);

d. In addition to the service by mail required by 2.1.01(4) rule, the registrar is to serve a copy of this endorsement and a Form 2.1A notice on the plaintiff and counsel for the defendants by email if it has their email addresses.

________________________________ F.L. Myers, J.

Date: October 14, 2015

[^1]: See Gao v. Ontario WSIB et al., 2014 ONSC 6100 at para.