COURT FILE NO.: CV-20-82790
DATE: 2020/04/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDRÉ BLUTEAU
Plaintiff
– and –
JOSEPH GRIFFITHS, MATTHEW GLASS and DENISE ALLEN-MACARTNEY
Defendants
Self-represented
Matthew Glass for himself and Mr. Griffiths
Crystal Gillis for Ms. Allen-Macartney
HEARD: In writing
DECISION FOLLOWING REQUISTION UNDER RULE 2.1.01
JUSTICE SALLY GOMERY
Further to r. 2.1.01 of the Rules of Civil Procedure, a court 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. In February 2020, after receiving a requisition under this rule, I directed the registrar to notify the parties that I was considering dismissing it. The plaintiff did not provide any submissions in response to the notice, either by the original deadline given or before an extended deadline later provided. The defendants filed submissions after the extended deadline had passed. They ask not only that this action be dismissed but seek other declaratory relief and costs.
I must therefore consider three issues:
(i) Should this action be dismissed under r. 2.1.01?
(ii) Are the defendants entitled to other declaratory relief?
(iii) Should costs be awarded to the defendants?
- Before addressing these issues, I will briefly describe the context of this action and requisition.
Context
Mr. Bluteau is a lawyer and the spouse of Joan Chartrand. Their interactions with the defendants in this proceeding arose initially as a result of a lawsuit by Ms. Chartrand against Ben Ebokem and Denise Allen-Macartney in Superior Court file no. CV-19-81121.
In this lawsuit, Ms. Chartrand alleged that, following the death of her niece, Mirandi Tabi, Mr. Ebokem falsely represented that he and Ms. Tabi were married in order to secure certain benefits. Joseph Griffiths and Matthew Glass were the lawyers who acted for Mr. Ebokem in that proceeding. Ms. Allen-Macartney is the pastor of the church where Ms. Tabi and Ms. Chartrand were parishioners.
In the Fall of 2019, the defendants in that action successfully moved for Mr. Bluteau’s removal as counsel of record for Ms. Chartrand. In oral reasons, Justice Hackland held that Mr. Bluteau appeared to have a conflict of interest.
Mr. Bluteau and Ms. Chartrand have attempted to challenge Justice Hackland’s decision in a variety of ways. They sought leave to appeal the order in Divisional Court (Divisional Court File No.: DC 613-19), which was dismissed. They also scheduled a motion to set aside the order pursuant to r. 59.06.
In addition to taking these steps, Mr. Bluteau commenced an action for damages against Mr. Griffiths, Mr. Glass and Ms. Allen-Macartney in Superior Court file no. CV-19-82003. He alleged that Mr. Griffiths and Mr. Glass knowingly prepared false affidavits for Mr. Ebokem and Ms. Allen-Macartney that were used in support of the motion to remove him and that this was actionable conduct. He also alleged that Mr. Griffiths and Mr. Glass made a false report to the Ontario Law Society about him, and that Ms. Allen-Macartney slandered him.
In December 2019, after receiving a requisition under r. 2.1.01, I instructed the registrar to notify Mr. Bluteau that the court was considering the dismissal of his action. Mr. Bluteau initially indicated that he was appealing my endorsement. He took the position that I had no jurisdiction to issue it, because r. 2.1.01 refers to dismissal by a court rather than a judge. A short time later, he acknowledged that he had misread the rule and filed submissions arguing that the action should not be struck.
After filing these submissions, Mr. Bluteau reversed course again and served a notice of discontinuance on the defendants. I only learned of this through responding submissions filed by Mr. Griffiths and Mr. Glass, because Mr. Bluteau did not file a copy of the discontinuance notice with the court, as required under r. 23.01(1)(a).
In an endorsement on February 12, 2020, I waived Mr. Bluteau’s lack of technical compliance with r. 23 and held that he had discontinued the first action. Because the action was discontinued, I did not make a final ruling under r. 2.1.01.
A few weeks later, Mr. Bluteau started this new action against Mr. Griffiths, Mr. Glass and Ms. Allen-Macartney. It largely reproduces the same allegations he made in his first action and seeks the same relief.
The proceedings I have already described are not the only proceedings that Mr. Bluteau is involved in, either as a litigant or as Ms. Chartrand’s official or unofficial counsel.[^1] There are at least three more:
• An application for judicial review by Ms. Chartrand to the Divisional Court, challenging a decision by Healthcare of Ontario Pension Plan (“HOOPP”) to pay benefits to Mr. Ebokem, on the basis that he was Ms. Tabi’s spouse at the time of her death.
• An action for damages by Ms. Chartrand against Mr. Ebokem and HOOPP (Superior Court file no. CV-19-81121)
• Another action, principally for defamation, by Mr. Bluteau against Ms. Allen-Macartney and other parishioners at her church (Superior Court file no. CV-19-81689).
- In February 2020, I declined to act on a requisition by the defendants under r. 2.1.01 in CV-19-81689, as I concluded that the action was not on its face frivolous, vexatious or otherwise an abuse of the court. For reasons released today, I am ordering the dismissal of Ms. Chartrand’s action in CV-19-81121 pursuant to r. 2.1.01.
(i) Should the action be dismissed?
The defendants deny that the statement of claim in this action has been properly served on them. They nonetheless requisitioned under r. 2.1.01 rather than waiting to see whether the plaintiff moves forward with the new proceeding. This is understandable, in the circumstances.
Rule 2.1.01 is reserved for the clearest of cases; Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733. Its purpose is “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. Rule 2.1.01 should however only be used “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”: Khan v. Krylov & Company LLP, 2017 ONCA 625, at para. 8.
Having reviewed the statement of claim, I conclude that it is, on its face, frivolous, vexatious or abusive.
Much of the statement of claim focusses on the defendants’ alleged misconduct in the context of other litigation before this court, the HOOPP or the Law Society. Mr. Bluteau could only succeed by showing that decisions made in these other proceedings were incorrect. As such, his action constitutes an impermissible collateral attack on determinations by courts and statutory decision-makers.
Mr. Bluteau and Ms. Chartrand have attempted to overturn Justice Hackland’s decision through various procedures. Having failed in these attempts, Mr. Bluteau is attempting, through this action, to re-litigate issues that have already been adjudicated. This is a classic hallmark of an abusive proceeding, as is the existence of a multitude of other proceedings involving the same litigants; Markowa, at para. 3.
The statement of claim otherwise does not contain allegations of material fact necessary to underpin any cause of action. Although Mr. Bluteau claims general and special damages of $375,000 for slander in paragraph 1 of the statement of claim, no slanderous statements are identified in the pleading. The statement of claim does not identify any legal or contractual duty that the defendants had or could have had towards Mr. Bluteau. Even read generously, the pleading is largely unintelligible.
I accordingly conclude that the action should be dismissed pursuant to r. 2.1.01.
(ii) Are the defendants entitled to other declaratory relief?
- In addition to seeking the dismissal of the action, Mr. Griffiths and Mr. Glass seek:
(1) “a declaration in the form of an Order that Bluteau Law and André Bluteau be and by the same are hereby barred from representing, directly or indirectly, Joan Chartrand or any other party in any other existing or subsequent proceeding involving the parties pertaining to the matters which are the subject of this litigation, which includes without limitation all litigation involving Healthcare of Ontario Pension Plan(“HOOPP”), Ben Ebokem, Pastor Denise Allen-Macartney, Joseph Griffiths, and Matthew Glass”; and
(2) “a declaration in the form of an Order that Bluteau Law and André Bluteau be and by the same are hereby barred from initiating or continuing, directly or indirectly, any existing or subsequent proceeding involving the parties pertaining to the matters which are the subject of this litigation, which includes without limitation all litigation involving Healthcare of Ontario Pension Plan (“HOOPP”), Ben Ebokem, Pastor Denise Allen-Macartney, Joseph Griffiths, and Matthew Glass”.
Although these orders are framed as declaratory relief, the defendants are effectively seeking injunctions prohibiting Mr. Bluteau from taking part in any legal proceedings based on the facts that gave rise to this action, and from acting on behalf of Ms. Chartrand or any other party, in any capacity, in any related proceedings.
I will deal first with the request to debar Mr. Bluteau from initiating or continuing legal proceedings against these defendants, or other defendants involved in the facts giving rise to the action.
Rule 2.1.02 gives the court the same power provided in r. 2.1.01, but in the context of a motion rather than a proceeding. A court may strike or dismiss a motion, on requisition, if on its face it is frivolous, vexatious, or otherwise an abuse of the process of the court. Subrule 21.1.02(3) gives the court an additional power in this situation: it may prohibit the moving party from making other motions in a proceeding, unless the party first obtains leave:
(3) On making an order under subrule (1), the court may also make an order under rule 37.16 prohibiting the moving party from making further motions in a proceeding without leave.
Rule 37.16 provides that, where a judge is satisfied, on hearing a motion, that a party is “attempting to delay or add to the costs of the proceeding or otherwise abuse the process of the court by a multiplicity of frivolous or vexatious motions”, it may require that party to obtain leave before bringing any further motions. It effectively allows a court to prevent a party from serially abusing the court’s process within a particular proceeding. The party affected by such an order is declared a vexatious litigant, but only within the confines of and for the purpose of that proceeding.
There is no equivalent provision under r. 21.1.01 whereby a court could, in dismissing a proceeding, prohibit the plaintiff from taking further proceedings based on the same facts. As a result, I could only make the order sought if I had some other authority, outside of this rule, that would permit me to do so.
The statutory basis for having a party identified as a vexatious litigant is s. 140 of the Courts of Justice Act. It indicates that judge must be satisfied “on application” that a person “has persistently and without reasonable grounds … instituted vexatious proceedings in any court or “conducted a proceeding in any court in a vexatious manner”. Given this wording, s. 140 does not empower a court to make an order unless a party applies for it.
In Reyes v Esbin, 2017 ONSC 601, Faieta J. considered the scope of a judge’s authority under s. 140 and observed at para. 7 that the Superior Court has no inherent jurisdiction to declare a party a vexatious litigant:
At common law, a court has no authority to declare that a person is a vexatious litigant and thus barred from bringing or continuing any proceedings in any court without leave: see Kallaba v. Bylykbashi, 2006 CanLII 3953 (ON CA), [2006] O.J. No. 545, para. 116 (C.A.). While a court has the inherent jurisdiction to control its procedure and the actions of those persons who appear before the court in order to effectively carry out the judicial administration of justice, it is has no inherent jurisdiction to prevent a person from commencing a proceeding that may turn out to be vexatious: see Vexatious Litigants, Final Report, Law Reform Commission of Nova Scotia, April 2006, pages 7-8.
In Kallaba v. Bylykbashi, at para. 31, the Court of Appeal described an order made under s. 140 as “an extraordinary remedy that alters a person’s right to access the courts” and held that the court must avoid any reading of that provision that would negatively impact the rights of an affected person “absent clear legislative intent to the contrary”.
The defendants have not applied under s. 140 in this case. They have not served a notice of motion setting out the grounds for the relief sought, nor have they filed any evidence. Mr. Bluteau has not had the opportunity to make his own submissions and file his own evidence on this issue. In short, the court does not have a record on which it could make a s. 140 order.
The basis on which I could make an order prohibiting Mr. Bluteau from acting for other parties in any related proceeding is even less clear. While judges have the inherent discretion to control their own processes, I am not aware of any statutory, common law or equitable ground on which I could make such a sweeping and open-ended order.
I conclude that I cannot make the orders sought by the defendants.
(iii) Are the defendants entitled to costs?
Mr. Griffiths and Mr. Glass seek their costs of the proceeding on a full indemnity basis.
The defendants have not filed a bill of costs or indicated what costs they are seeking. They requisitioned for the dismissal before filing a statement of defence, and so have not incurred the costs of drafting a pleading or any form of discovery. The only costs that they may have incurred are in connection with the submissions they filed in response to the registrar’s notice.
Since Mr. Bluteau failed to respond to the notice, the defendants did not need to file any materials. As noted by Justice Myers in Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at para. 10: “The process set out in sub-rules 2.1.01(3)(4) and (5) does not anticipate submissions from the defendant unless or until the court has received submissions from the plaintiff and calls for responses”. Ms. Gillis, on behalf of Ms. Allen-Macartney, simply drew my attention to the submissions she made in January 2020, in response to Mr. Bluteau’s first action against her client, Mr. Glass and Mr. Griffiths. This was appropriate.
Had Mr. Glass and Mr. Griffiths obtained the declaratory orders they sought, I might have been inclined to award them costs in connection with their submissions on this issue. I have however rejected their claim for declaratory relief.
I do not doubt that dealing with the volley of proceedings brought by Mr. Bluteau has been a stressful experience for the defendants. This is not however a basis for a cost award.
Conclusion
- This action is dismissed on a without costs basis. The defendants may obtain a copy of the issued and entered order, if required, without approval as to form and content from Mr. Bluteau.
Justice Sally Gomery
Released: April 24, 2020
COURT FILE NO.: CV-20-82790
DATE: 2020/04/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDRÉ BLUTEAU
Plaintiff
– and –
JOSEPH GRIFFITHS, MATTHEW GLASS and DENISE ALLEN-MACARTNEY
Defendants
DECISION FOLLOWING REQUISTION UNDER RULE 2.1.01
Justice S. Gomery
Released: April 24, 2020
[^1]: The Notice of Intention to Act in Person filed when Mr. Bluteau was removed as Ms. Chartrand’s counsel of record directs that all material be sent c/o Andre Bluteau and lists the office address of Bluteau Law.