Court File and Parties

Court File No.: CV-19-81121 Date: 2020/04/24 Ontario Superior Court of Justice

Between: Joan Chartrand, Plaintiff – and – Healthcare of Ontario Pension Plan (HOOPP) and Ben Ebokem, Defendants

Counsel: Self-represented (for Joan Chartrand) Emily Lawrence, for HOOPP Joseph Griffiths, for Ben Ebokem

Heard: In writing

Corrected Decision Following Requisition Under Rule 2.1.01 [*]

Justice Sally Gomery

[1] After receiving a requisition under r. 2.1.01 of the Rules of Civil Procedure, I directed the registrar to notify the parties that I was considering dismissing the action. The plaintiff did not provide any submissions in response to the notice, either by the original deadline given or an extended deadline later provided.

[2] The plaintiff Joan Chartrand is the aunt of the late Miranda Tabi, who died on March 14, 2019. In her Third Fresh as Amended Statement of Claim, Ms. Chartrand alleges that the defendant Ben Ebokem, the father of Ms. Tabi’s three children, falsely represented to the defendant Healthcare of Ontario Pension Plan (the “Pension Plan”) that he and Ms. Tabi were married at the time of her death. Ms. Chartrand alleges that, based on Mr. Ebokem’s misrepresentation, the Pension Plan has paid benefits to Mr. Ebokem to which he is not legally entitled.

[3] In her action, Ms. Chartrand seeks $350,000 in damages from Mr. Ebokem and an order requiring him to remit his children’s birth certificates and social insurance numbers to her. She appears to have abandoned any relief against the Pension Plan, as she has, in separate proceedings, applied for judicial review of its determination that Mr. Ebokem was Mr. Tabi’s spouse at the time of her death.

[4] Further to r. 2.1.01, a 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”. Rule 2.1.01 is a blunt instrument, reserved for the clearest of cases; Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733; Khan v. Krylov & Company LLP, 2017 ONCA 625.

[5] Having reviewed the allegations, I conclude that this is such a case. The action is, on its face, an abusive recourse that should not be permitted to proceed.

[6] The claim against Mr. Ebokem is abusive because it constitutes a collateral attack on the Pension Plan’s determination that Mr. Ebokem was Ms. Tabi’s spouse. In order to succeed in her action, Ms. Chartrand would have to prove that the Pension Plan erred in its finding. The proper venue for her to mount this type of challenge is on judicial review, which she has in fact initiated.

[7] This lawsuit is moreover pointless. If Ms. Chartrand succeeds in the judicial review and the Pension Plan ultimately determines that she, rather than Mr. Ebokem, is the beneficiary of benefits payable on Ms. Tabi’s death, then she will not have suffered any damages.

[8] Rule 2.1.01 should not be used as a substitute for a pleadings motion. It does however serve the purpose of “nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources”; Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664, at para. 3. In that same decision, at para. 11, and in other decisions on r. 2.1.01, Justice Myers has noted that a common modus operandi of litigants subject to r. 2.1.01 orders is the commencement of multiple proceedings to try to re-determine an issue that has already been determined by a court of competent jurisdiction. I find that this is what Ms. Chartrand is trying to do in this action.

[9] Ms. Chartrand’s claim for an order requiring Mr. Ebokem to provide her with the children’s birth certificates and social insurance numbers is not grounded in allegations of material facts that could give rise to the order she seeks. Ms. Chartrand asserts that she is the trustee with respect to life insurance benefits payable to Ms. Tabi’s minor children. The statement of claim does not however allege any legal or contractual basis on which she could claim this status.

[10] The action is dismissed. As the defendants were not required to file a statement of defence, no costs are ordered.

Correction Note: [*] The correction consists of the indication that the defendant Ben Ebokem is represented by Joseph Griffiths.

Released: April 24, 2020 Justice Sally Gomery