SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kodanda Kavuru, Plaintiff

-and-

Ontario Public Guardian and Trustee and Attorney General (Ontario), Defendants

BEFORE: F.L. Myers J.

READ: November 9, 2015

endorsement

[1] By endorsement dated October 14, 2015, reported at 2015 ONSC 6344, I directed the registrar to deliver a notice in Form 2.1A to the plaintiff to advise him that the court was considering dismissing his claim for being frivolous, vexatious, or an abuse of process on its face. The plaintiff has delivered written submissions in support of his action.

[2] The plaintiff objects to the length and detail of the initial requisition delivered by the defendants. While it was open to the defendants to submit copies of decisions of the court, written argument should not have been made. Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at para. 11. The plaintiff complains that the defendants’ submissions contained unsworn factual assertions that were incorrect and that I adopted in my earlier endorsement. Opening written submissions are not appropriate under Rule 2.1. A cover letter akin to a requisition is all that is required.

[3] The plaintiff makes a legal argument supported by case law seemingly supporting his entitlement to sue the PGT for solicitor’s negligence. He also argues that the Attorney General is a proper party to represent the vicarious liability of the province for the PGT’s liability. In my prior endorsement I found that a litigation guardian cannot be sued for conduct in that capacity that is explicitly approved by the court. However, I did not consider the notion that the PGT or its counsel might be liable for solicitor’s negligence to the party under disability whom the PGT represents.

[4] The plaintiff continues to assert that he is entitled to sue the Attorney General as representative of the province in respect of its vicarious liability for the Divisional Court whom he says violated its parens patriae obligations to him. The Divisional Court is not a suable entity. A claim that a province has liability for an allegedly wrong decision by a court is frivolous and vexatious on its face and should be dismissed.

[5] I am not prepared to dismiss the plaintiff’s other claims as yet however. I am concerned that the plaintiff’s pleading and submissions in this action provide some reasons to conclude that the attenuated process of rule 2.1 is necessary and appropriate I this action. Before deciding the final relief that I may grant, I would be assisted to receive submissions from the defendants in response to the plaintiff’s submissions concerning solicitor’s negligence and the Attorney General’s vicarious liability for the PGT. If evidence is required to make those submissions, then a motion under rules 21 or 25 will be needed. No evidence is admissible under rule 2.1. Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 at para. 10.

[6] Under rule 2.1.01(3)4, I direct the registrar to send a copy of the plaintiff’s submissions to counsel for the defendants who may then respond (only to the issues sought) under rule 2.1.01(3)5.

[7] The registrar shall send a copy of this endorsement to the plaintiff who should understand that the court is still considering its disposition in this matter.

F.L. Myers J.

Date: November 9, 2015