Court File and Parties

COURT FILE NO.: CV-16-559372 DATE: 20170112 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALLI A. REYES, Plaintiff AND: K.L., Defendant

BEFORE: Mr. Justice M.D. Faieta HEARD: In writing

Endorsement

[1] This application was referred to me by the registrar’s office pursuant to Rule 2.1.01(7) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, following receipt of the defendant’s written request under Rule 2.1.01(6).

[2] The Claim is reproduced in Schedule “A” to this decision. I have omitted the name of the defendant and her employer from the text of this decision given the nature of the allegations.

[3] The plaintiff alleges that the defendant has had a “barrage” of affairs with married men since the age of 13. She alleges that the defendant has received treatment for mental health issues for 20 years. The plaintiff alleges that the defendant had an affair with an unidentified married co-worker (“John”) for 10 years. It is alleged that this relationship ended in 2008 so that John could start a relationship with the plaintiff. This new relationship led to an engagement and pregnancy. The plaintiff alleges that the defendant was depressed, very bitter, suicidal and angry with the plaintiff as a result of the plaintiff’s engagement and pregnancy. The plaintiff’s relationship with John ended in 2013. The plaintiff alleges that, at some undefined point, she told the defendant to “attend counselling to address her jealousy” and her unrealistic expectations that John would resume his relationship with the defendant.

[4] The plaintiff alleges that since 2008 she has been “exposed to and been the recipient” of racist statements made by the defendant as well as “harassment, stalking and inappropriate behaviour”. The plaintiff alleges that the “racism and harassment” by the defendant continues as John has repeatedly sought to reconcile with the plaintiff.

[5] The plaintiff alleges that the defendant made a series of statements allegedly about “black people”. See paragraph 1(p) of the Claim. There are no particulars of when these statements were made, to whom they were made. They do not appear to refer directly to the plaintiff’s reputation. Further, on its face, these statements are not actionable in defamation: Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214; Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 10th ed (Toronto: LexisNexis, 2015), at p. 806.

[6] The plaintiff also maintains that the defendant made a false report to the police in 2012 and 2013, stating that the plaintiff attended at the defendant’s home and made telephone calls to her. These alleged events occurred more than two years ago.

[7] The plaintiff alleges she accepted an invitation from John to vacation in Lake Placid commencing August 26, 2016. As a result she alleges that the defendant committed “defamation, slander and libel through the third party TIFF”. The plaintiff alleges that the defendant sent a letter to TIFF falsely accusing her of a “variety of wild and crazy actions”. It also alleges that she sent pictures of the plaintiff to TIFF. The claim does not state what the acronym TIFF represents. There are no particulars of the alleged defamatory statements made by the defendant to TIFF.

[8] The plaintiff seeks general damages in the amount of $2 million for discrimination based on race, defamation, slander, libel and intentional deprivation of freedom of association; $400,000 in special damages; $400,000 in punitive damages; $200,000 in aggravated damages; and an unspecified amount of damages pursuant to the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c.11.

[9] The defendant states that she seeks the dismissal of this action for the following reasons:

• “The actions which I am alleged to have taken and the statements which I am alleged to have made did not occur and are completely fabricated. I have never met, spoken or otherwise communicated with the plaintiff. I dated a man who she subsequently dated but I have never actually met the plaintiff.”
• “The plaintiff has been declared a vexatious litigant and several actions by the plaintiff have been dismissed on that basis, examples of which are enclosed. A copy of a recent Toronto Star article about the plaintiff and her practice of using the judicial system to harass people is also enclosed”;
• “The plaintiff did not properly serve the Statement of Claim and her attempt to serve me by leaving open and unsealed copies of the Statement of Claim with various co-workers at my place of employment was designed to harass and humiliate me.”

[10] Althea Reyes was declared a vexatious litigant by Order dated June 9, 2009 and June 10, 2009, which states:

THE COURT ORDERS THAT … [t]he Applicant, Althea Reyes, is a vexatious litigant and that she not be permitted to commence or continue any proceedings in any court directly or indirectly relating to the child, [name omitted], without having first obtained leave from the Ontario Superior Court of Ottawa pursuant to section 140(1)(c) and 140(1)(d) of the Courts of Justice Act.

[11] Although the plaintiff refers to herself as “Alli A. Reyes” in the title of proceeding, the plaintiff also refers to herself in paragraph 1(i) of the Statement of Claim as “A. Althea Reyes” who lives in Toronto, while the last page of the Statement of Claim provides an address for “A. Althea Reyes” in Ottawa.

Analysis

[12] Rule 2.1.01 of the Rules of Civil Procedure states:

Order to Stay, Dismiss Proceeding

2.1.01 (1) The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

Summary Procedure

(2) The court may make a determination under subrule (1) in a summary manner, subject to the procedures set out in this rule.

(3) Unless the court orders otherwise, an order under subrule (1) shall be made on the basis of written submissions, if any, in accordance with the following procedures:

1. The court shall direct the registrar to give notice (Form 2.1A) to the plaintiff or applicant, as the case may be, that the court is considering making the order.
2. The plaintiff or applicant may, within 15 days after receiving the notice, file with the court a written submission, no more than 10 pages in length, responding to the notice.
3. If the plaintiff or applicant does not file a written submission that complies with paragraph 2, the court may make the order without any further notice to the plaintiff or applicant or to any other party.
4. If the plaintiff or applicant files a written submission that complies with paragraph 2, the court may direct the registrar to give a copy of the submission to any other party.
5. A party who receives a copy of the plaintiff’s or applicant’s submission may, within 10 days after receiving the copy, file with the court a written submission, no more than 10 pages in length, responding to the plaintiff’s or applicant’s submission, and shall give a copy of the responding submission to the plaintiff or applicant and, on the request of any other party, to that party. [Emphasis added.]

(4) A document required under subrule (3) to be given to a party shall be mailed in the manner described in subclause 16.01 (4) (b) (i), and is deemed to have been received on the fifth day after it is mailed.

Copy of Order

(5) The registrar shall serve a copy of the order by mail on the plaintiff or applicant as soon as possible after the order is made.

Request for Order

(6) Any party to the proceeding may file with the registrar a written request for an order under subrule (1).

Notification of Court by Registrar

(7) If the registrar becomes aware that a proceeding could be the subject of an order under subrule (1), the registrar shall notify the court.

[13] In Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, at paras. 7-12, the Ontario Court of Appeal provided the following guidance:

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, 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 re-sort 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.…

11 The focus under r. 2.1 is on the pleadings and any submissions of the parties made pursuant to the rule. The role of the motion judge is to determine whether on its face, and in light of any submissions, the proceeding is frivolous, vexatious, or an abuse of process. Rule 2.1.01(3) makes this clear when it states that an order “shall be made on the basis of written submissions, if any”, filed in accordance with the procedure outlined therein.

12 Rule 2.1 is designed to permit the court to dismiss frivolous or vexatious proceedings in a summary manner. Resort to evidence defeats the purpose of the rule and leads to the danger that the r. 2.1 process will itself become “a vehicle for a party who might be inclined to inflict the harms of frivolous proceedings on the opposing parties and the civil justice system”: Gao No. 1, at para. 8. [Emphasis added.]

[14] In Currie v. Halton (Region) Police Services Board (2003), 233 D.L.R. (4th) 657, at paras. 14-17, the Ontario Court of Appeal considered the meaning of the phrase “frivolous or vexatious or is otherwise an abuse of the process of the court” in the context of Rule 21.01(3)(d). The Ontario Court of Appeal concluded:

It is apparent that there is a degree of overlap in the meaning of the terms frivolous, vexatious and abuse of process. What I take from the authorities is that any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process.

Discussion

[15] On its face, it appears that the claim may be frivolous, vexatious, or otherwise an abuse of process. The plaintiff pleads no basis upon which she is allowed to sue for racially-based statements. The other allegations of false reports to TIFF and the police may have no basis in law and/or be statute-barred. Further, the plaintiff makes many gratuitous allegations regarding the defendant’s sexual history and mental health.

[16] On reviewing the material forwarded by the registrar, the court makes the following order:

a. Pursuant to subrule 2.1.01(3)(1), the registrar is directed to give notice to the plaintiff in Form 2.1A that the court is considering making an order under Rule 2.1.01 dismissing the action; b. Pending the outcome of the written hearing under rule 2.1 or further order of the court, the action is stayed pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43; c. The registrar shall accept no further filings in this application excepting only the plaintiff’s written submissions if delivered in accordance with rule 2.1.01(3); d. In addition to the service by mail required by rule 2.1.01(4), the registrar is to serve a copy of this endorsement and a Form 2.1A notice on the plaintiff and the defendant by email, if it has their email addresses, or by fax. e. In any written submissions delivered by the plaintiff, the plaintiff shall advise the court whether she is the same person identified as “Althea Reyes” in the Order of Justice Kershman of the Ontario Superior Court of Justice, dated June 9, 2009 and June 10, 2009.

Mr. Justice M. D. Faieta Date: January 12, 2017

Schedule “A”

Claim

1. The Plaintiff claims: a) General damages in the amount of $2,000,000.00 for discrimination based on race, defamation, slander, libel and intentional deprivation for freedom of association. b) Special damages in the amount of $400,000.00 c) Punitive damages and exemplary damages in the amount of $400,000.00 d) Aggravated damages in the amount of $200,000.00 e) Damages pursuant to s.2 of the Canadian Charter of Rights and Freedoms f) Pre and post judgement interest pursuant to ss 128 and 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43 g) The Plaintiff’s costs of this action on a solicitor client basis as well as a loss of earnings basis, together with HST payable pursuant to the Excise Act, and h) Such further and other relief as this Honourable court deems just.

Introduction

i) The Plaintiff A. Althea Reyes is an Ontario certified teacher who is the mother of three children living in Toronto, Ontario. j) The Defendant [KL] was in a relationship with a co worker at [a financial institution] for a period of 10 years while he was still married. k) The Plaintiff was told by this co-worker and verily believes that the Defendant [KL] suffers from mental health and acute self esteem issues and has had a barrage of extra martial affairs with married men, which began when she was 13 years old with her married swimming coach in his car which was parked outside of her parents home in Oshawa. This began a series of extra marital affairs between the Defendant [KL] and married men. l) The Plaintiff was told and verily believes that the Defendant [KL] has been in mental health therapy with a variety of psychiatrists for the past twenty (20) years. m) The Defendant [KL] and her ex boyfriend (and co-worker) had an extra marital affair for a period of ten (10) years. n) The male co-worker ended the relationship with the Defendant [KL] in 2008 in order to start a relationship with the Plaintiff, the Plaintiff would not date him if he remained married so he made the unilateral decision to promptly divorce his wife so he could pursue and eventually propose to the Plaintiff. The Plaintiff was told that the Defendant [KL] was depressed, very bitter, angry at the Plaintiff and suicidal over the engagement and subsequent pregnancy. o) Since the Plaintiff began a relationship with the Defendant’s ex boyfriend, the Plaintiff has been exposed to and been the recipient of racism, harassment, stalking and inappropriate behaviour by the Defendant [KL]. p) The Defendant [KL] is extremely racist and has made the following statements: She has no black friends or friends with brown skin and does not want any. All black people and dark skinned people look the same and they cannot be trusted. All black people are dark skinned people are criminals The only reason her ex boyfriend is dating me is because black women are sluts and the sex must be really good. She feels uncomfortable when she is in the same room with black people. She would never date a brown skinned or black man She would prefer not to have any black or dark skinned people in any association she belongs to. q) The Plaintiff was in a relationship with the Defendant’s ex boyfriend from 2008 to 2013; however the racism and harassment of the Plaintiff by the Defendant [KL] erupts unexpectedly on occasion because the Defendant’s ex boyfriend continues to make consistent attempts to reconcile with the Plaintiff and has inexplicably implanted himself into the lives of her family. The Plaintiff has protested and requested repeatedly that he not do so, but he is determined to reconcile with the Plaintiff. r) Most recently, the Defendant’s ex boyfriend invited the Plaintiff and her family to travel and vacation in Lake Placid with him from Friday August 26, 2016. s) The Plaintiff accepted the invitation and believes this is the reason for the Defendant, [KL]’s most recent attack on her and the Defendant’s most recent bout of defamation, slander and libel through the third party TIFF. t) The Defendant [KL] has been warned that she would be sued for defamation, slander and libel by the Plaintiff lawyers in the past because of similar inappropriate actions. u) In 2012 and 2013 when the Plaintiff was engaged to and pregnant with the Defendant’s ex boyfriend’s child the Defendant made a false report to the police alleging that the Plaintiff attended her home and made phone calls to her. v) Fortunately, two witnesses gave evidence to the police that the Plaintiff was with them on the days and times the Defendant alleged the Plaintiff called her and came to her home; so the police reports were discarded and no further steps were taken by the police as the Defendant’s claims were dishonest, false and lacked any credibility. w) The Plaintiff has been informed by Abigail Brockhouse at TIFF that the Defendant wrote a letter to TIFF falsely accusing the Plaintiff of a variety of wild and crazy actions and requesting that the Plaintiff be banned from TIFF. x) The Plaintiff was also informed that the Defendant sent private pictures of the Plaintiff to TIFF and these pictures were circulated. y) TIFF has since decided not to ban the Plaintiff from TIFF; however, the Defendant’s actions caused the Plaintiff to hire a lawyer, enter discussions with TIFF and caused her inappropriate and unnecessary loss of privacy, isolation, ridicule embarrassment, distress, pain and suffering. z) The Plaintiff asks that the Defendant be ordered to destroy any pictures of her she has in her possession and be lawfully prohibited from circulating her pictures to any third party. aa) The Plaintiff requests that the Defendant be prohibited from discussing the Plaintiff with any third party and be prohibited from contacting or coming within 100 metres of the Plaintiff, her family and associates. bb) At that time the Plaintiff warned the Defendant that her jealousy and bitterness towards the plaintiff was out of control inappropriate and the result of low self esteem. The Defendant was advised to attend counselling to address her jealousy against the Plaintiff and her unrealistic expectations that her ex boyfriend would reinstate their previous romantic relationship.

The Plaintiff pleads and rely upon the Canadian Charter of Rights and Freedoms, in particular section 2 and state that the Plaintiffs are additionally entitled to a remedy that this Honourable Court considers appropriate and just in the circumstances.

By reason of the facts set out herein and in particular the highhanded, shocking, deranged, contemptuous conduct of the defendant [KL], the Plaintiff claims exemplary, aggravated and punitive damages. ...