CITATION: Chalupnicek v. CAS Ottawa, 2016 ONSC 2353
COURT FILE NO.: 16-67775
DATE: April 7, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Amanda Chalupnicek et. al., Plaintiffs
AND:
The Children’s Aid Society of Ottawa, et. al., Defendants
BEFORE: MASTER MACLEOD
HEARD: April 7th, 2016
ENDORSEMENT
[1] This proceeding was brought to the attention of the court by the Registrar pursuant to Rule 2.1.01 at the request of counsel for certain of the lawyer defendants. The matter was assigned to me for review by the Office of the Regional Senior Justice.
[2] Rule 2.1 provides a minimalist and summary process for dealing with court proceedings that appear to be frivolous, vexatious or an abuse of process. The rule does not require a motion nor is it intended to replace rules such as Rules 20, 21 or 25 which also provide mechanisms to weed out actions that have no chance of success. Rather rule 2.1 is reserved solely for those situations in which the frivolous vexatious or abusive nature of the proceeding is apparent by simply reading the statement of claim.
[3] In such situations it would be unjust to call upon the defendants to respond to the pleading and it is a waste of public resources to require a formal motion. It is for this reason that the rule was enacted in 2014. Although it is designed to be applied robustly, it is a rule that should be limited to the clearest of cases.[^1]
[4] The rule permits the court to permanently stay the proceeding but notwithstanding the summary nature of the rule, before exercising that power the court is required to notify the plaintiff and to allow brief written submissions.
[5] This is a case in which it may be appropriate to exercise the discretion conferred by rule 2.1. The defendants include two children’s aid societies, several lawyers and law firms, three judges of this court, an Alberta judge, the Attorney General of Ontario and her Majesty the Queen. A brief reading of the pleading shows that it is a collateral attack on a decision made by this court in a child protection matter following a trial.[^2] This is a hallmark of abuse of process.
[6] In addition, judges of a Superior Court have inherent immunity from civil suits in relation to the discharge of their duties and other judicial officers enjoy the same immunity pursuant to statute.[^3] The basis of the claim against the judges is orders that they made in one or more court proceedings. Judges may be held accountable for failure to properly discharging their office through the mechanism of an appeal and they may be held accountable for improper conduct through complaints laid before the Judicial Council but they may not be sued. Suing a party where there is no right to do so and where the action cannot succeed is apparently frivolous and vexatious.
[7] The statement of claim as drafted appears to contain no recognized cause of action. Alleging damages for “crimes against humanity” or “kidnapping ….of metis children of a domestic sovereign” are examples. This court administers the law of Ontario (which includes federal law in force in Ontario) and does not administer “natural law” or “aboriginal law” nor can it exercise a supervisory role over officials in other provinces.
[8] It is of some concern that the plaintiffs are apparently represented by a lawyer licenced to practice law in Ontario.
[9] The court therefore orders as follows:
Pursuant to Rule 2.1.01 (3) (1) the Registrar is directed to give notice to the plaintiffs that the court is contemplating an order to permanently stay this proceeding.
Upon delivery of the notice, the plaintiffs have 15 days to make written submissions of no more than 10 pages.
Pursuant to s. 106 of the Courts of Justice Act this action is temporarily stayed pending the response by the plaintiffs, if any.
Nothing further may be filed in this proceeding except for the response contemplated by Form 2.1A until the court has disposed of this matter.
In addition to serving Form 2.1A in accordance with Rule 2.1.01 (4), the Registrar is to serve a copy of this endorsement and the form on the plaintiffs’ lawyer and on each of the counsel for the defendants who have filed notices of intent to defend.
The lawyer for the plaintiffs shall also complete the declaration contemplated by Rule 15.02 (1) by delivering it to the Registrar within 15 days.
Master C. MacLeod
[^1]: Scaduto v. Law Society of Upper Canada 2015 ONCA 733
[^2]: 2015 ONSC 5692
[^3]: S. 82, Courts of Justice Act, R.S.O. 1990, c. C.43 as amended