Court File and Parties

COURT FILE NO.: CV-19-629623 DATE: 2020-05-20 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: W.D.M., Plaintiff AND: Native Child and Family Services of Toronto, Hatts Off Specialized Services, Hanrahan Youth Services, Her Majesty the Queen in Right of Ontario and Toronto Police Services, Defendants

BEFORE: Sossin J.

COUNSEL: W.D.M., for himself Carole Jenkins, for the Defendant, Native Child and Family Services Daniel Mayer, for the Defendant, Her Majesty the Queen in Right of Ontario Graham Thomson, for the Defendant, the Toronto Police Services Board

DATE: May 20, 2020

Endorsement

OVERVIEW

[1] This motion was referred to me by the registrar’s office pursuant to Rule 2.1.01(7) following receipt of a written request from the lawyer for the defendant, the Toronto Police Services Board (identified as “Toronto Police Services” in the statement of claim) (“TPSB”), dated January 23, 2020.

[2] TPSB requests an order dismissing this action, which it states on its face is frivolous, vexatious and/or an abuse of process.

[3] The statement of claim, issued October 22, 2019, seeks $5,000,000 in damages from all the defendants in relation to care of the plaintiff, W.D.M. (“Mr. W.D.M.”). Mr. W.D.M. also seeks lost wages and “negligence-based compensation” for a period of five years from the TPSB.

[4] On February 13, 2020, counsel for the defendant Native Child and Family Services (“NCFS”) in this action wrote to the registrar’s office requesting a similar order under Rule. 2.1.01(7).

[5] On reviewing the material forwarded by the registrar, I made the following order:

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:

a. Pending the outcome of the written hearing under rule 2.1 or further order of the court, the plaintiff’s action is stayed pursuant to s.106 of the Courts of Justice Act, R.S.O. 1990, c.C.43; b. The registrar shall accept no further filings in this action excepting only the plaintiff’s written submissions if delivered in accordance with rule 2.1.01(3); and c. In addition to the service by mail required by 2.1.01(4) rule, the registrar is to serve a copy of this endorsement and a Form 2.1A notice on the plaintiff and counsel for the defendants by email if it has their email addresses.

[6] By an endorsement, dated February 22, 2020, I found that it appeared on the face of the statement of claim that it may be frivolous and vexatious. Mr. W.D.M. was therefore be called upon to make submissions as to why the claim should not be dismissed at this time.

[7] On March 3, 2020, I received a letter from Her Majesty the Queen in right of Ontario (“Ontario”), who is also named as a defendant in this action, requesting a similar order as the other defendants under Rule 2.1 in relation to Mr. W.D.M.’s claim.

[8] On March 4, 2020, I received a response from Mr. W.D.M..

[9] Mr. W.D.M. submits “[t]hat at no time that this proceeding or any other proceeding is frivolous and vexatious or otherwise an abuse of process.” He also states “[t]hat at no time are any of the material facts or allegations false or disproven otherwise.

[10] Below, I examine the threshold for the application of Rule 2.1 and whether the motions brought by the defendants in this case should be granted.

ANALYSIS

[11] An analysis of the application of Rule 2.1 focuses on whether, on the face of the pleadings, the action is frivolous and vexatious; Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 13.

[12] In Collins v. Ontario, 2017 ONCA 317, the Court of Appeal examined the application of Rule 2.1 and stated:

[17] Rule 2.1 has typically been invoked to dismiss proceedings where the opposite party has engaged in abusive litigation conduct. The rule “is not for close calls” and its availability “is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, at paras. 7–9, endorsing Raji v. Myers, 2015 ONSC 4066, [2015] O.J. No. 3436, at paras. 8–9.

[18] For example, in Raji the pleadings made unfounded allegations of misconduct against a judicial officer and counsel. Likewise, in Simpson, the appeal came from an order declaring the appellant a vexatious litigant who was “clearly using the court system as a way to inflict damage on people with whom he is upset”: para. 22.

[19] Ontario and Canada clearly take the view that Ms. Collins’ appeals lack merit. Absence of merit on its own, even assuming such absence, is not sufficient to justify dismissal under r. 2.1. Simpson, at para. 43, makes it clear that a r. 2.1 request is not a substitute for a motion to quash and filing the appropriate materials. The rule does not replace the bringing of a motion to quash an appeal for want of jurisdiction or for lack of merit. However, it does allow for a speedy process for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process.

[20] Here, Ms. Collins’ appeal is clearly without merit. However, it is also abusive. She has been provided with guidance on how to proceed but has neglected to pay for the transcript so she can compare it with the compact disc to address any concerns she has. As a result, she has not perfected her appeal in spite of having been given an extension of time to do so.

[21] Our system of justice is designed to provide fair, just and timely decisions. Abuse of the process of the courts detracts from the ability of the system to achieve those objectives. This is unfair to the opposing parties, others in the system who wish to have their cases adjudicated and to the administration.

[13] In light of this approach to the application of Rule 2.1, I must consider both whether Mr. W.D.M.’s action is without merit, and further, whether it is abusive or otherwise frivolous or vexatious.

[14] With respect to the first part of this test, I find that on its fact, this action is without merit.

[15] In his statement of claim, Mr. W.D.M. makes a variety of allegations against the various defendants. He alleges that the child apprehension warrants obtained by NCFS in his case were improper, that Hats Off Specialized Services failed to file the appropriate report after he was involved in a traffic accident, that he was denied healthcare by Hanrahan Youth Services, and that Ontario and the TPSB failed to pursue complaints of abuse, among other allegations.

[16] Mr. W.D.M. also alleges that Ontario and TPSB violated his s.15 Charter rights, but no specifics are provided.

[17] Mr. W.D.M. concludes that, “As a result of all of the described, the plaintiff has incurred costs and has dealt with health issues and economic issues as a result of these facts or allegations.” (at para. 4(z)).

[18] The material facts alleged, even assuming they could be established, do not relate to any causes of action.

[19] Beyond its lack of merit, Mr. W.D.M.’s claim also is frivolous, vexatious or otherwise an abuse of process within the meaning of Rule 2.1.

[20] As the Court of Appeal confirmed in Collins, disregarding the procedural guidance of the Court can result in an action being abusive. In this case, Mr. W.D.M. has been the recipient of guidance from the Court in various contexts.

[21] In W.D.M. v. Canadian Road Management Company et al. (heard January 19, 2016), Mew J. had stayed an action brought by Mr. W.D.M., and ordered a capacity assessment of Mr. W.D.M., who had sought to remove his mother, T.L., as his litigation guardian.

[22] With respect to Mr. W.D.M.’s capacity, Mew J. held, “After consideration of Dr. Lightfoot’s report, the record before the court indicating communications from Mr. W.D.M. to the court and to counsel, the records in 18 other matters, most of which were commenced within the last 12 months, in which Mr. W.D.M. is a plaintiff or applicant, and after hearing submissions from Mr. W.D.M. himself and from counsel for the PGT [Public Guardian and Trustee] (such submissions being made in the absence of other counsel), for reasons given orally on 19th January 2016, I concluded that Mr. W.D.M. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision in the litigation to which he is a party and, accordingly, that until further order of this court he is declared a party under disability. (Emphasis added.) (para. 2).

[23] Mew J. appointed the Public Guardian and Trustee as Mr. W.D.M.’s litigation guardian. He further confirmed that “[a]ll unresolved motions brought by Mr. W.D.M. on or prior to 19 January 2016 in respect of any of the matters listed above are dismissed without costs, but with prejudice to such motions being brought again in the future.” (at para. 14).

[24] In W.D.M. v. Hanrahan Youth Services, 2015 ONSC 1979, F.L. Myers J. was appointed the case management judge in almost 20 proceedings commenced by Mr. W.D.M.. In this role, F.L. Myers J. considered a request by Mr. W.D.M., dated March 17, 2017, seeking to remove the PGT as his statutory guardian of property.

[25] F.L. Myers J. found that Mr. W.D.M. had failed to abide by a timetable for steps to have this motion heard. He held, “I am seized of Mr. W.D.M.’s application to try to remove the PGT as his statutory guardian of property. Unless or until the PGT is removed as Mr. W.D.M.’s statutory guardian of property, Mr. W.D.M. lacks capacity to commence or continue any other civil litigation (whether on the Civil List, Family List or the Commercial List). (at para. 10).

[26] In W.D.M. v. Hanrahan Youth Services, 2015 ONSC 5231 and W.D.M. v. Hanrahan Youth Services, 2015 ONSC 5845, F.L. Myers J. granted a motion under Rule 2.1 dismissing an action brought by Mr. W.D.M. and his mother, T.L.. Mr. W.D.M. purported to provide submissions on behalf of Ms. T.L.. F.L. Myers J. doubted that Mr. W.D.M. was permitted to make arguments for Ms. T.L., but in any event, concluded that Ms. T.L.’s claim was without merit and constituted a frivolous and vexatious claim on its face.

[27] In W.D.M. v. Hanrahan Youth Services, 2015 ONSC 8018, F.L. Myers J. also held, in response to a motion by Mr. W.D.M., that a motion by NCFS to strike Mr. W.D.M.’s action was not frivolous or vexations within the meaning of Rule 2.1.

[28] Finally, on June 13, 2017, Justice Pollack released a judgment approving minutes of settlement between the PGT, as litigation guardian for Mr. W.D.M., and the defendants, bringing that litigation to an end.

[29] In W.D.M. v. Bell Canada Enterprises, 2015 ONSC 8019, F.L. Myers J. considered a Rule 2.1 motion in separate litigation between Mr. W.D.M. and a number of defendant telecommunication companies. The defendant Yak Canada brought the motion and argued that the action as against it was frivolous and vexatious. The notice of application at issue sought no relief against Yak Canada and made no allegations against it. F.L. Myers J. noted that Stinson J. had already dismissed the action as against Bell, Telus and Rogers pursuant to a previous order. With respect to Yak Canada’s Rule 2.1 motion, F.L. Myers J. concluded, “This is an application to which Rule 2.1 readily applies.” (at para. 5).

[30] These prior decisions reflect a pattern of Mr. W.D.M. ignoring the guidance of the Court with respect to the conduct of litigation, and a failure to appreciate the requirement that the PGT, as his statutory guardian of property, must be involved in any litigation which he wishes to bring.

[31] In his March 4, 2020 submissions, Mr. W.D.M. explains that his earlier experience with litigation guardianship was a “tactic” for purposes of a higher settlement under the Insurance Act, which was not successful.

[32] Mr. W.D.M. concludes, “I request that the court bar any further attempts at a request to strike under rule 2.1 as it seems to be an attempt to violate the plaintiffs right to justice and failure to accept accountability rather than an actual issue due to the previous use of this rule.”

[33] Mr. W.D.M.’s primary concern appears to be with the prior finding that he lacks legal capacity. He argues that a diagnosis of “Autism Spectrum Disorder and Attention Deficit Disorder with Hyperactivity and Gender Dysphoria does not equate to legal incapacity.” In other words, Mr.D.M.’s position is that he identifies with disabilities that do not make him legally incapable.

[34] Mr. W.D.M. remains subject to an order, however, that precludes his bringing any actions without leave of the Court. Therefore, Mr. W.D.M. lacks standing to bring this claim, and by doing so, has disregarded the decisions and orders of Justice Mew and Justice Myers, set out above. Therefore, I find this claim to be an abuse of process.

[35] To reiterate the direction Justice Myers provided above: until the PGT is removed as Mr. W.D.M.’s statutory guardian of property, Mr. W.D.M. lacks capacity to commence or continue any other civil litigation (W.D.M. v. Hanrahan Youth Services, 2015 ONSC 1979, at para. 10).

[36] This conclusion does not mean that Mr. W.D.M. has no basis to challenge earlier findings with respect to his capacity and the basis for appointing a statutory litigation guardian of property.

[37] Justice Myers remains seized of the motion in which Mr. W.D.M. was given an opportunity to argue the PGT should be removed as litigation guardian. Mr. W.D.M. has yet to pursue this avenue.

[38] In his submissions, Mr. W.D.M. stated a concern that prior findings against him may have been biased. Those allegations as well may be raised in the context of the motion relating to his litigation guardianship.

[39] Therefore, I find the motion by the defendants TPSB, NFCS and Ontario under Rule 2.1 is granted and this claim is stayed.

[40] The registrar shall record in the electronic case history that this proceeding has been stayed.

Sossin J. Date: May 20, 2020