CITATION: Carby-Samuels II v. Carby-Samuels, 2017 ONSC 6814
COURT FILE NO.: 15-66772
DATE: 2017/11/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Raymond Carby-Samuels II
Plaintiff
– and –
Horace R. Carby-Samuels
Defendant
Self-represented
John E. Summers, for the Defendant
HEARD: August 14, 2017
RULING ON MOTION FOR SUMMARY JUDGMENT
CORTHORN, J.
Overview
[1] The parties to this action are father (Horace Carby-Samuels) and son (Raymond Carby-Samuels II). This action is one of a number of proceedings pursued by Raymond in 2015, 2016, and 2017 arising from the difficult relationship between him and his parents. On the same date this motion for summary judgment was heard, I heard an application by Horace with respect to vexatious proceedings.
[2] At the heart of the numerous proceedings are:
a) Raymond’s concern for the well-being of his mother (Dezrin Carby-Samuels), now in her mid-eighties; and
b) The disagreement between father and son as to the nature and quality of care Dezrin requires.
[3] The relationship between Raymond and his parents is difficult and troublesome for all concerned. The question raised by the motion for summary judgment is whether litigation in this court provides a vehicle for resolution of the strife within the Carby-Samuels family.
Issues
[4] The two issues to be determined are:
Is the defendant entitled to summary judgment in the form of an order dismissing the action?
Alternatively, is the plaintiff entitled to leave of the court to amend his pleading as per the draft “Financial Claim” included as an exhibit to the plaintiff’s responding affidavit?
Disposition
[5] The defendant is granted summary judgment; the action is dismissed.
[6] The plaintiff did not bring either a formal motion or cross-motion for leave to amend his statement of claim. Regardless, I have considered his request for leave to amend his pleading. I find that the plaintiff is not entitled to leave to amend his pleading. The motion for leave to amend the pleading is dismissed.
Issue No. 1 – Summary Judgment
[7] The existing statement of claim:
• Includes only Horace Carby-Samuels as a defendant;
• Does not include any allegation that Dezrin Carby-Samuels is mentally incompetent; and
• Includes as the relief sought, an order permitting Raymond to see his mother Dezrin.
[8] The specific relief sought is limited to the following single paragraph:
[A]n Order directing Horace Carby-Samuels to cease and desist interfering in the ability of Raymond Carby-Samuels II and the Plaintiff’s disabled and sick Mom, Dezrin Carby-Samuels to see each other; and to immediately enable access to each other, without further delay, at a mutually convenient location for both the Plaintiff and the Plaintiff’s mother that takes into consideration the disabilities of the Plaintiff’s mother.
[9] The pleading identifies that the action is brought pursuant to Rule 76 of the Rules of Civil Procedure. There are four substantive paragraphs in the pleading. In summary the allegations are:
• Horace treats Dezrin as his “property”, forcibly confines her, and prevents her from exercising her right of freedom of association (i.e. to see Raymond);
• Horace’s conduct is illegal and in contravention of the Charter of Rights and Freedoms and the Criminal Code. (No sections of either the Charter or the Code are specifically cited in the pleading.); and
• Dezrin provided Raymond with documentary evidence of the abuse and neglect she has suffered by reason of Horace’s conduct. Dezrin also documented her desire to see her son.
[10] There is no evidence on the motion to support a finding that Dezrin is mentally incompetent with respect to personal care. Horace’s evidence is that he and Dezrin have chosen not to see their son because of the difficulties encountered when he spends time with one or both of them. Horace was not cross-examined on his affidavit. I accept his evidence in that regard.
[11] The court does not have jurisdiction to make an order requiring a mentally competent adult (Dezrin) to interact with another individual. Therefore, even if Dezrin were named as a defendant in the action, the court would not be in a position to compel her to see her son.
[12] The court does not have jurisdiction to make an order compelling a mentally competent adult (Horace) to require another mentally competent adult (Dezrin) to interact with a third family member (Raymond).
[13] Based on the statement of claim as currently drafted, there is no genuine issue for trial. I am satisfied, having considered the affidavit evidence and the substance of the pleading, that granting summary judgment is a proportionate, expeditious, and cost-effective means by which to achieve a just result in this matter.
[14] In response to the motion for summary judgment, the plaintiff seeks leave to amend his pleading. Only if the plaintiff is entitled to leave to amend his pleading will the dismissal of the action be avoided.
Issue No. 2 – Proposed Amended Pleading
[15] The draft amended pleading included in the plaintiff’s responding motion record identifies numerous claims not included in the original pleading. The amended portions of the pleading are not underlined; as such, the draft pleading does not comply with the Rules of Civil Procedure. Regardless of the technical deficiencies in the proposed amended pleading, I have considered the substance of the proposed allegations.
[16] The plaintiff calls the draft pleading “Financial Claim”, presumably in an effort to highlight that he seeks compensation in addition to non-monetary relief. For example, the monetary relief sought includes:
• Damages in the amount of $5,000 for “illegal eviction” from his parents’ home in April 2015;
• Damages in the amount of $4,500 from the defendant arising from an assault alleged to have occurred in 2013;
• Damages totalling $1,000 from the plaintiff’s sister, Marcella, for an assault and battery alleged to have occurred in early 2015. Marcella is not named as a defendant in the original pleading and her name does not appear in the title of proceeding in the proposed amended pleading;
• Damages in the amount of $2,000 from Marcella because she hired a member of the Ottawa Police Service to harass the plaintiff; and
• Damages in the amount of $3,000 from Horace and Marcella on the basis of intentional infliction of mental distress and/or conspiracy. In that regard, the plaintiff alleges that both Marcella and Horace fall within the definition of “psychopath”, based on an episode of CBC Television’s “The Doc Zone”.
[17] The proposed amended pleading includes a claim in “Detinue / Trover / Rei Vindicatio”. The plaintiff alleges that the defendant is denying the plaintiff access to his personal belongings. An allegation is also made that Horace and Marcella conspired with the Ottawa Police Service so as to cause the police to make a “false arrest” of the plaintiff. The plaintiff alleges that the Ottawa Police Service, acting as agents of Horace and Marcella, have defamed and slandered him.
[18] In support of the proposed amendments to the pleading, the plaintiff filed a 42-paragraph affidavit (sworn on May 9, 2017). The affidavit is deficient in a number of ways:
• It makes reference to statements made or information provided by others, without including any confirmation that the affiant believes the statements or information to be true. To the extent that hearsay evidence is permissible on a motion, the relevant portions of the affidavit do not comply with the requirements of hearsay evidence;
• The plaintiff includes his opinion with respect to Dezrin’s medical condition (including Type II Diabetes). The plaintiff is not a medical expert; and
• The affidavit includes entirely unsubstantiated allegations of conspiracy on the part of a number of individuals (Marcella, counsel for Horace, and police officers).
[19] The plaintiff’s affidavit includes very limited evidence that is admissible on the motion. Of the proposed claims, the only such claim supported by admissible evidence is that with respect to an assault alleged to have occurred in early 2013. In summary, the plaintiff alleges that as a result of an altercation between him and his father in the kitchen of the family home, the plaintiff suffered an injury to the small finger on his left hand.
[20] Included as an exhibit to the plaintiff’s affidavit is a copy of a Civilian Witness Statement from an Ottawa Police Service General Occurrence Report dated January 2013. The statement is handwritten and difficult to read. In the statement, the plaintiff describes the alleged assault by the defendant.
[21] Also included as an exhibit to the plaintiff’s affidavit is a copy of a March 2013 letter from a physician. In the letter, the physician refers to surgery conducted in March and identifies that the plaintiff was to remain off work for four weeks (until mid-April). In the proposed pleading it is alleged that the plaintiff missed six months of work because of the injury to the small finger on the plaintiff’s left hand. There is no evidence as to the nature of the plaintiff’s employment at the time.
[22] I am satisfied that the plaintiff knew by no later than the summer of 2013 (the end of the six-month absence from work) of the matters giving rise to a claim based on the alleged assault in January 2013. More than two years have passed since “the day on which a reasonable person with the abilities and in the circumstances of [the plaintiff] first ought to have known of the matters” giving rise to a claim based on the alleged assault (Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, ss.4 and 5(1)(b)). Even allowing for discoverability, the plaintiff’s proposed claim with respect to the January 2013 incident is out of time.
[23] The proposed amended pleading is, when considered in its entirety, in keeping with the nature of a vexatious pleading. A general characteristic of vexatious proceedings is that the matters raised from one proceeding “tend to be rolled forward into subsequent actions and repeated and supplemented” (Lang Michener Lash Johnston v. Fabian (1987), 1987 CanLII 172 (ON SC), 59 O.R. (2d) 353, 37 D.L.R. (4th) 685 (H.C.), at para. 20).
[24] When the proposed amended pleading is read together with the pleadings in other actions commenced by the plaintiff in this court, the Small Claims Court, and the Federal Court of Canada, the rolling forward, repetition, and supplementing are obvious. Leaving aside the lack of admissible evidence to support the claims advanced in the proposed amended pleading, and the expiration of the limitation period with respect to the claims arising from the alleged assault, the proposed amended pleading constitutes a vexatious proceeding.
[25] In the companion application by Horace for relief from vexatious proceedings, I found that the plaintiff pursued vexatious proceedings or conducted proceedings in a vexatious manner (Carby-Samuels v. Carby-Samuels II, 2017 ONSC 6834). Had I not heard this motion for summary judgment at the same time, the relief granted on the application would have addressed this action. The relief would have included that the plaintiff is not permitted to proceed with this action without obtaining leave of a judge of the Superior Court of Justice in accordance with section 140(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43. This action would have been brought to a conclusion in the context of the application to address vexatious proceedings.
[26] The plaintiff’s motion for leave to amend his pleading is dismissed.
Summary
[27] I order as follows:
The action is dismissed.
The plaintiff’s motion for leave to amend his pleading is dismissed.
Costs
[28] The history of this proceeding is set out in my decision on the related application. The history includes that a default judgment obtained by the plaintiff was set aside. In his reasons on the motion to set aside the default judgment, Regional Senior Justice McNamara ordered that costs of the motion be in the cause.
[29] The history of this proceeding also includes the plaintiff’s motion, heard by me several weeks ago, for leave to bring an urgent motion. The plaintiff’s request for leave was denied. There were no costs ordered on the motion.
[30] I find no reason to deprive the defendant of his reasonable costs of the motion for summary judgment. Given his success on this, the defendant is entitled to his costs of the motion.
[31] In addressing costs of the action, I therefore consider the costs incurred by the defendant on (a) his motion to set aside the default judgment, and (b) the motion for summary judgment.
a) Scale of Costs
[32] I have considered the factors in rule 57.01 of the Rules of Civil Procedure. I find that the defendant is entitled to costs of both motions on a partial indemnity basis.
b) Amount of Costs
[33] At the conclusion of the motion for summary judgment, counsel filed a costs envelope. I rely on the contents of that envelope in determining the amount of costs payable.
[34] Counsel for the defendant has 18 years of experience at the bar; his full indemnity hourly rate is $325. That hourly rate is reasonable for counsel of that level of experience. Therefore, the partial indemnity hourly rate to be used in the context of fixing costs is $195 (0.6 x $325).
▪ Motion to Set Aside Default Judgment
[35] A copy of the defendant’s motion record on the motion to set aside the default judgment is included as an exhibit to the plaintiff’s affidavit in response to the motion for summary judgment. As a result, I have documents to assist in assessing the reasonableness of the fees and disbursements claimed with respect to that motion.
[36] On the motion for default judgment, counsel’s total docketed time is 9.7 hours, including attending on the return of the motion. I find that amount of time to be reasonable for the work done. The partial indemnity costs claimed are:
Fees (9.7 x $195) $ 1,891.50
H.S.T. on fees $ 245.90
Disbursements (filing fee) $ 121.00
Total $ 2,258.40
▪ Motion for Summary Judgment
[37] On the motion for summary judgment, the total time is 13.5 hours—including attendance on two adjournments and on the return of the motion. My only concern with respect to the amount of time is the inclusion of time for attendance on the adjournments.
[38] The only adjournment of the motion (from June to August, 2017) was the result of judicial time constraints and my inability to hear the motion in the time allotted on the given day. It would not be reasonable to require the plaintiff to pay the costs associated with that adjournment.
[39] On the return of the motion in August, the plaintiff again sought an adjournment. That adjournment was contested and refused. I find that the amount of time required to address the contested adjournment did not result in a significant increase in the amount of time otherwise required on the return of the motion.
[40] I reduce the time on the motion for summary judgment to 11 hours (estimating 2.5 hours in total for the two adjournments).
[41] The partial indemnity costs claimed on the motion for summary judgment are:
Fees (11 x $195) $ 2,145.00
H.S.T. on fees $ 278.85
Disbursements
Filing fee $ 160.00
Statement of defence $ 154.00
Total $ 2,737.85
▪ Total Partial Indemnity Costs
[42] The total partial indemnity costs claimed are $4,996.25 ($2,258.40 + $2,737.85). I round that figure to $4,995.
[43] The plaintiff shall pay to the defendant his costs of this action, on a partial indemnity basis, in the amount of $4,995.
Other Matters
[44] As I did in my decision on the related application, I dispense with the requirement for the approval of the plaintiff to the form and content of the order to be taken out arising from this ruling. The draft order shall be prepared by counsel for the defendant and submitted to the civil counter with the specific direction that the order is for my signature.
Madam Justice Sylvia Corthorn
Released: November 16, 2017
CITATION: Carby-Samuels II v. Carby-Samuels, 2017 ONSC 6814
COURT FILE NO.: 15-66772
DATE: 2017/11/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Raymond Carby-Samuels II
Plaintiff
– and –
Horace R. Carby-Samuels
Defendant
RULING ON MOTION
FOR SUMMARY JUDGMENT
Madam Justice Sylvia Corthorn
Released: November 16, 2017