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: December 9, 2015

endorsement

[1] By endorsement dated November 9, 2015, reported at 2015 ONSC 6877, I invited the Attorney General to make submissions concerning the plaintiff’s allegations of solicitor’s negligence against the PGT and the claimed vicarious liability of the province for the PGT’s solicitor’s negligence.

[2] The plaintiff sues the PGT for solicitor’s negligence for its presentation of an appeal to the Divisional Court in which the PGT successfully argued for the approval of a settlement on behalf of the plaintiff who was then under disability. The settlement allowed the plaintiff’s case to be dismissed without costs. The plaintiff wanted the claim to continue and opposed the settlement.

[3] I have previously ruled that the plaintiff cannot sue the PGT, as substitute decision-maker, for adopting a position that the Divisional Court approved. However, the plaintiff’s notion that it could sue the PGT for solicitor’s negligence struck me as raising a slightly different issue. I invited the Attorney General to make submissions on this issue under rule 2.1.01(3)4.

[4] I have received a submission from the Attorney General clarifying that the PGT did not function as the plaintiff’s lawyer. Rather, it was the plaintiff’s substitute decision-maker. Like any other litigant, it retained counsel who appeared on behalf of the PGT before the Court. The Attorney General points to the decision of the Divisional Court in which the role of the PGT was found as follows, “[T]he litigation guardian is not in the role of being the lawyer to the party under disability. Rather, the litigation guardian is the substitute decision-maker for the party…” I am not therefore merely receiving unsworn evidence from the Attorney General. Rather, she is pointing me to holdings of a court that are binding both on the plaintiff (by res judicata or issue estoppel) and on this court (by stare decisis).

[5] The plaintiff is suing the PGT for solicitor’s negligence when its counsel was counsel from the Attorney General’s office. Even had he sued the right person, the PGT’s counsel owed its duties to the PGT and not to the plaintiff. Accordingly, the plaintiff has no cause of action against either the PGT or its counsel for solicitor’s negligence.

[6] I previously expressed concern that the plaintiff in this action may bear hallmarks of a vexatious or querulent litigant. The attenuated process of rule 2.1 is appropriate in this case. Suing counsel to try to keep an unsuccessful cause of action alive is frivolous and vexatious. Biron v. Aviva Insurance Company, 2014 ONCA 558 at para 6. Therefore, this action is dismissed under Rule 2.1. Obermuller v Boto et al., 2015 ONSC 6065.

[7] The plaintiff will pay costs to the defendants, if demanded, forthwith after the assessment thereof by an assessment officer.

[8] The court dispenses with any requirement for the plaintiff to approve the form or content of the formal order dismissing the action with costs.

[9] In addition to the service by mail required by Rule 2.1.01(4), 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: December 9, 2015