Court File and Parties
Court File No.: 15-66772 Date: 2016-08-05 Superior Court of Justice - Ontario
Re: Raymond Carby-Samuels II, Plaintiff And Horace R. Carby-Samuels, Defendant
Before: Mr. Justice Robert N. Beaudoin
Heard: By Requisition
Endorsement
[1] This requisition was referred to me by the Registrar’s Office pursuant to rule 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, following receipt of a written request by counsel for of the Defendant. It does not appear that the Plaintiff was copied with this request.
[2] The Statement of Claim was issued on December 4, 2015 and the Plaintiff obtained default judgement on February 11, 2016. This appears to be a claim by a son against his father and the care of the mother.
[3] Earlier on December 18, 2015, and again on December 31, 2015, Justice Roger dismissed two similar motions that the Plaintiff had brought for access to his mother, who is not a party to the action. Justice Roger noted that the Plaintiff’s materials were defective procedurally and substantively. He gave some direction to the Plaintiff and urged him to obtain legal advice.
[4] On June 8, 2016, McNamara, J. granted the Defendant’s motion to set aside the default judgment. In doing so, he concluded, at paras. 8 and 10, that there was an “arguable case.” See: Carby-Samuels II v. Carby Samuels, 2016 ONSC 3791. He dismissed the Plaintiff’s motion to find the Defendant in contempt as well as his motion to be appointed the guardian for the personal care of his mother. Justice McNamara finally expressed his hope that the parties would move this matter forward as expeditiously as possible and echoed Justice Roger’s recommendation that the Plaintiff seek some legal advice.
[5] The court file already contains voluminous materials. In my view, the attenuated procedures set out in Rule 2.1 are not available when there has already been a judicial determination that there is an “arguable case.” The Defendant is directed to seek other relief that may obtainable under the appropriate provisions of the Rules of Civil Procedure.
Mr. Justice Robert N. Beaudoin Released: August 5, 2016