T.B. v. OCL, 2016 ONSC 3816
CITATION: T.B. v. OCL, 2016 ONSC 3816
COURT FILE NO.: 4656/15
DATE: 2016 06 07
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: T.B.
AND:
The Office of the Children’s Lawyer et al.
BEFORE: Trimble J. (In Chambers)
COUNSEL: T.B., Self-Represented
Eric Wagner, Counsel for the Office of the Children’s Lawyer
ENDORSEMENT
Background:
[1] In this case, the Plaintiffs sue the Office of the Children Lawyer for damages, arising from an alleged bad investigation and report concerning alleged sexual inappropriateness, sexual touching and sexual assault of two Plaintiffs, J.B.S. and M.B.S..
[2] On March 22, 2016, the OCL requested that the Court declare this claim vexatious or an abuse of process under Rule 2.1(6). The first named Plaintiff, T.B, commenced an action in 2014 against the OCL, Milton Action No. 5579/14. On March 6, 2015, Gray, J. declared that Statement of Claim frivolous and vexatious. I also note that Gray, J. ordered in this new action against the OCL that the style of cause be amended to refer to the parties by their initials to protect the identity of the children.
[3] This motion presents an issue not seen in cases under Rule 2.1, to date; namely how does the court approach a Statement of Claim under Rule 2.1 where most of the acts complained of are not actionable?
Positions of the Parties:
[4] The OCL says that this new Statement of Claim is frivolous, vexatious and an abuse of process. It is merely a recasting of the action that Gray, J. dismissed as frivolous and vexatious.
[5] Further, the OCL says that when it conducts an investigation and renders a report under section 112 Courts Of Justice Act R.S.O. 1990 c. 43 it and its workers are immune from prosecution as set out in section 142 of the CJA (see J Chapman v. Ontario, 2011 ONSC 2579 at paragraph 24-25).
[6] The OCL admits, however, that if a claim is properly pleaded in abuse of process then the claim is not covered by the immunity under the statute. To the extent that the new Statement of Claim against the OCL contains allegation of abuse of process, the OCL says that T.B.’s claims are bald assertions. The OCL says that a court is not required to take bald or speculative allegations as true for the purpose of assessing whether or not claim advances the cause of action. The OCL submits that no proper actionable causes of action are pleaded in this claim.
[7] Pursuant to my endorsement of April 6, 2011, the registrar sent to the Plaintiffs notice of the OCL’s request, by issuing a Form 2.1A.
[8] In response to the Form 2.1A, on April 25, 2016, T. B. filed a three page letter with attachments. She did not provide a copy of this letter to the office of the OCL. I directed on June 2, 2011 that the registrar send a copy of this letter to the OCL’s lawyer, copying the cover letter to T.B..
[9] I have ignored T.B.’s letter for several reasons:
As set out below, evidence is not allowed on a request to dismiss under Rule 2.1, as that would allow Rule 2.1 to substitute for a motion to challenge pleadings under Rule 25.06 to 25.11. Much of TB’s letter is ‘evidence’ or makes the promise that evidence exists.
TB’s letter was not served on the Defendants.
The letter’s contents are not under oath.
Most of the letter is either not responsive to the OCL’s letter, or a further attack on the OCL and its investigators.
The Law:
[10] As indicated, this motion presents an issue not seen in cases under Rule 2.1, to date; namely how does the court approach a Statement of Claim under Rule 2.1 where most of the acts complained of are not actionable?
[11] Rule 2.1 sets out a summary process for a hearing, done only in writing, to determine if an individual proceeding or a motion in a proceeding “appears on its face to be frivolous or vexatious, or otherwise an or abuse of process of the court.” The hearing process is quick and limited. There is no evidence on the motion.
[12] Rule 2.1 allows the court, through this truncated process, to dismiss proceedings or motions that are clearly vexatious, frivolous, or abuse of process. By limiting the material that the parties may submit under rule 2.1, the rule prevents the truncated procedure from being used by the plaintiff to engage in further frivolous, vexatious conduct or conduct that is and abuse of process. In other words, rule 2.1 is not to be used to inflict further damage.
[13] As Myers, J., Points out in Gao Ontario WSIB, 2014 ONSC 6100 (Gao No. 1), Rule 2.1 is not Rule 21 or 25. Rule 2.1 is aimed at dismissing a Statement of Claim that is a clear case of abuse. In other words, the claim, in substance and on its face, must be so clearly frivolous as to make a motion under another Rule, on evidence and proper formal notice, a waste of time, money, and resources for the parties and the public.
[14] Further, Rule 2.1 is not to be used as a back door procedure to a declaration under section 140 of the Courts of Justice Act that a litigant is vexatious. Rule 2.1 addresses the nature of the pleading, not the nature of the litigant. However, the law under section 140 of The Courts of Justice Act dealing with declaring a litigant vexatious may be helpful under Rule 2.1 in determining if a pleading is vexatious.
[15] Rule 2.1 has restricted application, but must be applied to its fullest extent, if applicable. As Myers, J. said in Gao No. 1:
Rule 2.1 is not meant to apply to close calls. It is not a short form of summary judgment. But that does not mean that it is not to be robustly interpreted and applied. Where a proceeding appears on its face to meet the standards of frivolous, vexatious or an abuse of process, the court should be prepared to rigorously enforce the rule to nip the proceeding in the bud. Rigorous enforcement of this rule will not only protect respondents from incurring unrecoverable costs, but should positively contribute to access to justice by freeing up judicial and administrative resources that are so acutely needed to implement the “culture shift” mandated by the Supreme Court of Canada. The new rule tailors appropriate procedural fairness for the category of cases involved and is an example of early resolution of civil cases that is very much in line with the goals set out in Hryniak.
[16] In Gao v. Ontario WSIB, 2014 ONSC 6497 (Gao No. 2), Myers, J. said:
It should be borne in mind however, that even a vexatious litigant can have a legitimate complaint. It is not uncommon for there to be a real issue at the heart of a vexatious litigant’s case. The problem is often that the litigant either cannot properly communicate the concern or, more typically, cannot accept that the law may not provide the remedy sought despite the unfairness felt by the litigant. While rule 2.1 should be applied robustly to bring to an early end to vexatious proceedings, the matters should not be considered lightly or dismissively. Care should be taken to allow generously for drafting deficiencies and recognizing that there may be a core complaint which is quite properly recognized as legitimate even if the proceeding itself is frivolously brought or carried out and ought to be dismissed.
[17] The above approach has been approved by the Court of Appeal in Scaduto v. The Law Society of Upper Canada, 2015 ONCA 73 when it said:
[7] Rule 2.1 is a relatively new rule that came into force on July 1, 2014. The motion judge has decided a number of cases which have helped to delineate both the procedure and the test to be applied under the rule: see Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6100, 37 C.L.R. (4th) 1 (“Gao No. 1”); Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7 (“Gao No. 2”); Raji v. Border Ladner Gervais LLP, 2015 ONSC 801; and, Covenoho v. Ceridian Canada, 2016 ONSC 1826, 2015 ONSC 2468.
[8] Under this line of authority, the court has recognized that the rule should be interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process. However, the use of the rule should be limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process.
[9] We fully endorse that case law and the guidance that has been provided by the motion judge in the interpretation and operation of r. 2.1. This approach is summarized in Raji, at paras. 8-9, as follows:
[R]ule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves. No evidence is submitted on the motion…. [T]here are two conditions generally required for rule 2.1 to be applied. First, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading as required by the rule. Second, there should generally be a basis in the pleadings to support the resort to the attenuated process of rule 2.1…. This second requirement is not in the rule and is not a fixed requirement. It strikes me as a guideline that reminds the court that there are other rules available for the same subject matter and that resort to the attenuated process in rule 2.1 should be justified in each case.
See also Gao (No. 2), at paras. 11-18; and Covenoho, at paras. 6-7. We also recognize that the case law will develop as the rule becomes more widely utilized.
[18] How should the court interpret a pleading under Rule 2.1, such that Rule 2.1 is served without converting it into a motion to attack a pleading under Rule 25.11?
[19] In determining whether a Statement of Claim or motion should be dismissed under Rule 2.1, the Statement of Claim, especially when drawn by a self-represented litigant as in this case, should be read generously. The words that the Plaintiff uses should be given their broadest ordinary meaning. The court should search for the cause of action which may be expressed inelegantly by the litigant, buried among statements that may be vexatious or superfluous, to find what Myers J called “a core complaint”. This does not mean, however, that the claim should be read over-broadly, that the words used should be given a tortured meaning, or the rules of pleading should be abandoned merely because the litigant the self-represented. The rules of pleading still apply. A cause of action and the facts supporting each of the elements of the cause of action must be pleaded.
[20] In this case, there is a complicating factor. The new Statement of Claim against the OCL contains many allegations which fall within the immunity set out in section 142 of the CJA, and are not actionable. Other allegations and pleas in the new Statement of Claim are not so protected, and may be actionable if properly pleaded. In such a case, how does the court interpret the Statement of Claim to determine if it, on its face, is frivolous, vexatious or an abuse of process under Rule 2.1?
[21] In a case such as this one, in addition on to the broad reading of pleadings as set out above, a useful approach to interpreting a Statement of Claim or motion under Rule 2.1 is that adopted in Non-Marine Underwriters, Lloyd's of London v. Scalera, [2000] 1 SCR 551, 2000 SCC 24.
[22] In Scalera, an insured was seeking a defence from his insurer for a claim that alleged intentional as well as negligent battery and sexual assault. The insurance policy excluded intentional acts. The Supreme Court of Canada set down rules for interpreting a claim against an insured for the purposes of determining whether the claim triggers the duty to defend under an insurance contract. Iaccobucci, J. set out a three step approach to interpreting a Statement of Claim to determine if the duty to defend under an insurance policy was triggered. With respect to the first two steps, Iaccobucci, J. said:
50 Determining whether or not a given claim could trigger indemnity is a three-step process. First, a court should determine which of the plaintiff’s legal allegations are properly pleaded. In doing so, courts are not bound by the legal labels chosen by the plaintiff. A plaintiff cannot change an intentional tort into a negligent one simply by choice of words, or vice versa. Therefore, when ascertaining the scope of the duty to defend, a court must look beyond the choice of labels, and examine the substance of the allegations contained in the pleadings. This does not involve deciding whether the claims have any merit; all a court must do is decide, based on the pleadings, the true nature of the claims.
51 At the second stage, having determined what claims are properly pleaded, the court should determine if any claims are entirely derivative in nature. The duty to defend will not be triggered simply because a claim can be cast in terms of both negligence and intentional tort. If the alleged negligence is based on the same harm as the intentional tort, it will not allow the insured to avoid the exclusion clause for intentionally caused injuries.
[23] While a motion under Rule 2.1 is not a substitute for, or a short cut around a motion attacking pleadings under Rule 25.11, there is some overlap between Rules 2.1 and 25.11. In this case, because of the immunity under section 142 of the CJA, it is necessary in this motion under Rule 2.1 to assess the pleadings to determine whether the proceeding, on its face, is frivolous, vexatious or an abuse of process. The Court must determine whether any of the allegations that are not protected by the immunity in section 142 are valid pleas, on their face.
Analysis of the new Statement of Claim against the OCL:
[24] The first question is whether the new Statement of Claim, on its face, is frivolous, vexatious, or an abuse of process of the court.
[25] In Gao No. 2, Myers, J. lists the common attributes of the vexatious litigant under s. 140 of the CJA, which include:
(a) Bringing multiple proceedings to try to re-determine an issue that has already been determined by a court of competent jurisdiction;
(b) Rolling forward grounds and issues from prior proceedings to repeat and supplement them in later proceedings including bringing proceedings against counsel who have acted for or against them in earlier proceedings;
(c) Persistent pursuit of unsuccessful appeals;
(d) Failure to pay costs awards of prior proceedings;
(e) Bringing proceedings for a purpose other than the asserting legitimate rights, including harassing or oppressing others;
(f) Bringing proceedings where no reasonable person would expect to obtain the relief sought.
See: Re Lang Michener et al. and Fabian et al., 1987 172 (ON SC) at pp. 5 and 6; Landmark Vehicle Leasing Corporation v. Marino, 2011 ONSC 1671, at para. 38.
[26] He goes on to discuss the “unmistakable hallmarks of querulous litigant behavior” including:
Hallmarks in Form:
• Curious formatting.
• Many, many pages.
• Odd or irrelevant attachments—e.g., copies of letters from others and legal decisions, UN Charter on Human Rights etc., all usually, extensively annotated.
• Multiple methods of emphasis including: highlighting (various colours), underlining, capitalization.
• Repeated use of ‘‘ ’’, ???, !!!.
• Numerous foot and marginal notes.
Hallmarks in Content
• Rambling discourse characterized by repetition and a pedantic failure to clarify.
• Rhetorical questions.
• Repeated misuse of legal, medical and other technical terms.
• Referring to self in the third person.
• Inappropriately ingratiating statements.
• Ultimatums.
• Threats of violence to self or others.
• Threats of violence directed at individuals or organizations.
[27] The presence of any of these factors does not mean that the Statement of Claim or Motion in question is vexatious. Rather, they are indicia that the claim may be vexatious.
[28] In this case, the new Statement of Claim contains many of these features. For instance, it is the second claim against the OCL (the first of which Gray, J. dismissed under Rule 2.1).
[29] As indicated above, evidence is not permitted on this motion. However, I may consider pleadings that are in the public record. T.B. has brought a motion returnable on June 4, 2016 to consolidate the new claim against the OCL with other claims. From the Statements of Claim referred to in that Motion Record it is clear that the new Statement of Claim against the OCL is a sister claim to two other claims in which the plaintiffs seek the same or similar relief against Halton Children’s Aid Society and the Halton Police, arising from the same set of facts, and the same alleged causes of action. T.B. identifies these actions as:
T.B. et al. v. Halton Children’s Aid Society et al., Court File Number 1846/15;
T.B. v Halton Regional Police Services Board et al., Court File Number 1730/15
[30] In my view, the new Statement of Claim, overall, appears on its face to be frivolous, vexatious or an abuse of process. It repeats allegations made in the first OCL claim and in the sister claims. Pleadings are rolled forward from earlier proceedings or the sister claims and supplemented.
[31] The second question I must address under the Scalera analysis is whether there is anything within the pleading which is properly pleaded, notwithstanding that it is buried within a pleading that on its face seems frivolous, vexatious or an abuse of process?
[32] There is no valid pleading. I say this for several reasons.
[33] First, to a great extent, the new Statement of claim against the OCL is merely a recasting and particularized version of the statement of claim that Gray, J. struck.
[34] Second, to a great extent, the new Statement of Claim advances claims of negligence against the OCL, none of which can be advanced because of the immunity granted under section 142 of the Courts of Justice Act.
[35] Third, for the reasons that follow, on the face of the pleading, the remaining allegations, on their face, do not advance a valid cause of action.
[36] The immunity from prosecution granted by section 142 of the CJA is not absolute. The immunity extends only to acts done in good faith. Acts done in bad faith or maliciously are not immune. The OCL says that the only exception to the immunity from prosecution under section 142 of the CJA is in the case of abuse of process, citing Javan v. Ontario, 2011 ONSC 2579, per Price, J. at para.s 30 and 31. Price, J. does not say that abuse of process is the only situation in which immunity under section 142 does not apply.
[37] The paragraphs in the new Statement of Claim against the OCL which address claims other than negligence are paragraphs 6, 12, and 33. I address each one separately.
[38] In the new Statement of Claim against the OCL, the plaintiff pleads in paragraph 1 that the claim arises out of “the negligent investigation” that resulted in the infant plaintiffs being exposed to and or the victims of sexual interference. These allegations are not actionable because of the immunity provided under s. 142 of the Courts of Justice Act.
[39] Applying Scalera’s first two steps to Rule 2.1 and the balance of the new Statement of Claim, the court should ask two questions. First, does the Statement of Claim plead acts which fall outside the scope of s. 142 and is the plea proper? In other words, in the context of the new Statement of Claim against the OCL, is the claim that the OCL acted maliciously, with bias or bad faith, or in any other way that takes it conduct out of the immunity in s. 142, properly pleaded such that aspects of the OCL’s conduct are actionable? The Court is not bound by the words and labels used by the Plaintiff. The Plaintiff cannot change an immune act to a non-immune act merely by saying it is malicious, biased, or done in bad faith. The court must examine the substance of the allegations contained in the pleadings.
[40] Second, if the court determines that the claim is properly pleaded, the court must ask itself whether the non-immune act is entirely derivative. If it is, then it is not proper. In other words, with respect to the alleged non immune acts, are there sufficient facts pleaded that support the cause of action concerning the non-immune act?
[41] Applying Scalara’s first two questions to the new Statement of Claim, there are allegations in the new Statement of Claim which plead that the OCL and its workers acted with malice or bias. In my view, however, none of the allegations are properly pleaded.
[42] Paragraphs 6, 12 and 33 plead malice, bias or intentional acts, and therefore fall outside the immunity granted by s. 142 of the CJA.
[43] Paragraph 6 says “this legal matter arose after the defendants listed in paragraph 5 failed to protect the plaintiffs by collapsing an investigation based on deliberate malicious actions, with no reasonable reasoning being given, which caused harm to each of the plaintiffs listed...” The paragraphs that follow indicate information that the OCL had and upon which it did not act. None of these are clearly malicious or intentional, or even reckless. Statement of malice in paragraph 6 is a bald statement not supported by facts which, if proved, would support the plea of malice. Therefore it does not advance a properly pleaded cause of action.
[44] Paragraph 12 reads “Because of [the OCL investigator’s] biased involvement and decision to collapse the investigation the sexual abuse inflicted on [M.B.S.] continued.” There are no facts pleaded to support the allegation that the OCL investigator was biased. This plea, too, is a bald statement not supported by facts which if proved, would support a plea of bias. Therefore it does not advance a properly pleaded cause of action.
[45] In paragraph 33 of the new Statement of Claim, the plaintiffs say “careful review of the manner in which Ms. [PC] carried out her investigation, it is demonstrated that her conduct fell well below the standard of care expected by a person assigned by the OCL for the following reasons”. Thus far, the paragraph appears to be framed, in negligence alone. In subparagraphs 33 (a) and 33 (b), however, the Plaintiffs allege that OCL worker misrepresented, and deliberately represented in the OCL’s Report information from other sources. Further, in paragraph 33 (c) the OCL investigator is said to have been biased against TB. In paragraph 33 (j) the worker is alleged to have been unable to keep an open mind and conduct a fair and balanced investigation. These latter two may be the result of bias or malice, or mere negligence. These allegations, too, are bald statements unsupported by alleged facts which, if proved, would support a pleas of bias or deliberate misrepresentation. Therefore it does not advance a properly pleaded cause of action.
[46] The pleading, when read as a whole, suggests that the Plaintiffs’ bald claims of malice and/or bias are inserted for flavor or colour.
[47] The new Statement of Claim issued against the OCL is struck. On its face it is frivolous and vexatious. Except for paragraphs 6, 12 and 33, on the face of the new Statement of Claim against the OCL, all claims relate to acts that were done in good faith by the OCL and its workers, and are immune from prosecution. The allegations in paragraphs 6, 12 and 33, are bare or bald statements unsupported by facts necessary to sustain them. Therefore, on their face, they too are frivolous, vexatious, and an abuse of process.
Trimble J.
Date: June 7, 2016
CITATION: T.B. v. OCL, 2016 ONSC 3816
COURT FILE NO.: 4656/15
DATE: 2016 06 07
ONTARIO
SUPERIOR COURT OF JUSTICE
T.B.
AND:
Office of the Children’s Lawyer et al.
ENDORSEMENT
Trimble J.
Released: June 7, 2016