COURT FILE NO.: CV-20-648831
DATE: 2020/10/28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kyle Florian Rivette, Plaintiff
AND
Her Majesty the Queen in Right of Canada et al., Defendants
BEFORE: Justice Sylvia Corthorn
COUNSEL: Kyle Florian Rivette, as a self-represented Plaintiff
Robin Bates, for the Defendants, The Ontario Ombudsman, Sameer Udippi and Jacqueline Esler
Justin Martin, for the Defendants, Justin Martin and Stuart Zacharias
HEARD: By requisition and in writing
amended
DECISION FOLLOWING REQUISITION UNDER RULE 2.1.01
The text of the original Decision was amended on October 28, 2020 and the description of the amendments is appended
Introduction
[1] In this action, the plaintiff, Kyle Florian Rivette, seeks in excess of $150,000,000 in damages from various individuals, agencies, and institutions. His claims relate, in part, to his unsuccessful efforts to adopt a child.
[2] In the statement of claim, Mr. Rivette addresses the adoption process and the steps he took to seek redress with respect to its outcome. Those steps include a complaint to or communication with The Internal Review Complaints Panel (of a Children’s Aid Society), the Child and Family Services Review Board, the Windsor Police Service, the Office of the Ontario Ombudsman, and several law firms in an effort to retain counsel. In addition, Mr. Rivette took proceedings in the Divisional Court and the Court of Appeal.
[3] The date which appears on page 3 of the statement of claim is October 12, 2020. The header of the document identifies the pleading as having been electronically issued on October 5, 2020. The statement of claim is 79 pages. In approximately 40 pages and 244 paragraphs, Mr. Rivette sets out his claims against the defendants. The remaining pages include a list of over 100 documents upon which Mr. Rivette intends to rely in support of his claims, a list of 26 laws (in addition to those referred to in the body of the pleading) that are said by Mr. Rivette to apply to his claims, and a list of the ways in which Mr. Rivette is alleged to have been impacted by the conduct of the defendants.
[4] The defendants named in the action include numerous institutions and agencies, individuals associated with those institutions and agencies, and several law firms.
[5] This court received requisitions on behalf of five defendants for the action as against them to be dismissed under r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The requisitions are made on behalf of the Office of the Ombudsman and two of its employees (Jacqueline Esler and Sameer Udippi: collectively, with the Ombudsman, “the Ombudsman Defendants”) and on behalf of two lawyers with Lerners LLP (Justin Martin and Stuart Zacharias: collectively, “the Lawyers”).
[6] The decision in response to those two requisitions was released on October 26, 2020 so as to provide the requisitioning defendants with a timely response. Since that decision was released, I have had an opportunity to review the statement of claim again, specifically to consider whether the court should exercise its discretion pursuant to r. 2.1.01(1) and, on its own initiative, dismiss the proceeding in its entirety.
[7] Before dealing with each of the requisitions and the court’s discretion under r. 2.1.01(1), it is helpful to briefly review the procedure and the substantive test under the relevant rule.
The Procedure Under r. 2.1.01
a) Are Written Submissions Required from the Parties?
[8] Under r. 2.1.01(6), the judge considering a request for dismissal of an action under r. 2.1.01(1) may seek written submissions from the parties. When doing so, the procedure set out at r. 2.1.01(3) is followed. Where further submissions would serve no purpose, the judge may waive the requirement for them.
[9] Waiving the requirement for further submissions is the exception, rather than the general rule.
b) The Clearest of Cases
[10] In at least two decisions, the Ontario Court of Appeal highlighted that dismissal of an action under r. 2.1.01 is a blunt instrument, reserved for the clearest of cases (Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 and Khan v. Krylov & Company LLP, 2017 ONCA 625).
[11] The principles to be applied by a judge considering a requisition under r. 2.1.01 include the following:
• The statement of claim must be read generously. Drafting deficiencies may be overlooked and the plaintiff given the benefit of the doubt if it appears that the action might be viable;
• “[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”: Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at para. 8;
• An action should be dismissed under r. 2.1 only if there was “a basis in the pleadings to support the resort to the attenuated process” in the rule: Raji, at para. 8;
• The procedure under r. 2.1.01 should not be used as a substitute for a pleadings motion; and
• The procedure is intended to 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.
[12] To determine whether an action may be characterized as “vexatious, frivolous or an abuse of the court” under r. 2.1.01, the court may consider the criteria developed for applications pursuant to s. 140 of the Courts of Justice Act. Alternatively, the court may consider the typical characteristics of the form and content of an action brought by a “querulous litigant” as reviewed by Myers J. in Gao v. Ontario WSIB, 2014 ONSC 6497, at para. 15.
[13] Care is to be taken, however, not to dismiss an action out of hand simply because the plaintiff has either difficulty communicating their claim or has previously engaged in unsuccessful litigation. See Gao, at para. 18:
It should be borne in mind … that even a vexatious litigant can have a legitimate complaint. It is not uncommon for there to be a real issue at the heart of a vexatious litigant’s case. The problem is often that the litigant either cannot properly communicate the concern or, more typically, cannot accept that the law may not provide the remedy sought despite the unfairness felt by the litigant. While rule 2.1 should be applied robustly to bring to an early end to vexatious proceedings, the matters should not considered lightly or dismissively.
[14] In Scaduto and again more recently in Khan, the Ontario Court of Appeal endorsed the approach taken with respect to r. 2.1.01 in Raji and Gao.
[15] I turn first to the requisition on behalf of the Ombudsman Defendants and then to the requisition on behalf of the Lawyers.
The Ombudsman Defendants
[16] In a letter dated October 20, 2020, counsel for the Ombudsman Defendants requests that the action as against those defendants be dismissed. In the letter, Ms. Esler and Mr. Udippi are identified as employees in the office of the Ombudsman.
[17] Specifically, the requisition is for the court to consider exercising its discretion pursuant to rr. 2.1.01(1) and (6) of the Rules to dismiss the action as against the Ombudsman Defendants as “it appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.”
[18] In the statement of claim, Mr. Rivette takes what appears to be a chronological approach to the events that transpired with respect to the adoption process and his efforts to seek redress for the manner in which it was handled and its outcome. The claims against the Ombudsman Defendants are mentioned in paragraphs 50 and 51 of the statement of claim. The most specific allegations made against the Ombudsman Defendants are set out in paragraph 50, as follows:
Ombudsman Sameer Udipi [sic] did not look into the plaintiffs original CAS Process breaking complaint over that phone call and refused to help advocate for the plaintiff due to the severity in his disabilities as PROVEN in this claim; this was not his job to advocate though. The plaintiff did however; get help from his boss Jackie Esler.
[19] At paragraph 51, Mr. Rivette alleges that the Ombudsman had “no probable cause to deny looking into [the plaintiff’s] original complaint over things said to the plaintiff over the phone”. In the same paragraph, Mr. Rivette alleges that, through its employees, the conduct of the Ombudsman was in violation of various statutes including the Ombudsman Act of Ontario and the Canadian Bill of Rights.
[20] The allegations made with respect to the Ombudsman Defendants (a) consist of broad and sweeping allegations of fundamental rights, (b) are entirely lacking in substantive content in support of a known cause of action, and (c) cannot be saved by any benefit of doubt to which Mr. Rivette is entitled as a self-represented litigant or any generous reading of the pleading that overlooks drafting deficiencies.
[21] I find that the claims against the Ombudsman Defendants fall within the exceptional circumstances such that no purpose would be served by requesting submissions from the relevant parties.
[22] I also find that the Ombudsman Defendants are entitled to the attenuated process under r. 2.1.01(1). The action as against the Ombudsman Defendants is dismissed.
[23] I turn next to the claims against the Lawyers.
The Lawyers
[24] The names of one or both of the Lawyers are mentioned in at least 20 paragraphs of the statement of claim. I use the verb “mentioned” specifically because it is difficult to decipher from the relevant paragraphs the specific claims, based on a known cause of action, made against the Lawyers.
[25] For example, in paras. 101 and 102 of the statement of claim, Mr. Rivette identifies that he filed two complaints against the Lawyer with the Law Society of Upper Canada and two “informations” under the Criminal Code. The majority of the balance of the allegations against the Lawyers identify only Mr. Martin and appear to relate to his conduct of proceedings in which he represented a Children’s Aid Society in matters involving Mr. Rivette.
[26] The extent to which Mr. Rivette feels aggrieved by Mr. Martin’s conduct is demonstrated by the allegations that appear in para. 180 of the statement of claim. Mr. Rivette therein alleges the following:
On August 22nd/2020; The plaintiff verified that Mr. Martin was full of shit (freedom of expression and opinion activated) and lied to a court about not being able to sue for human rights violations as seen in The CAS Defence (No Evidence) Document; and again in his Motion Record Document. Why did the courts allow this? Is lieing [sic] to a court not illegal? Yes it is.... It’s Making false Statements.
[27] This paragraph is but one example of the nature of Mr. Rivette’s allegations with respect to the conduct of Mr. Martin. There are minimal, if any, specific allegations with respect to the conduct of Mr. Zacharias.
[28] The allegations with respect to the Lawyers suffer from the same deficiencies as do the allegations made with respect to the Ombudsman Defendants. The allegations against the Lawyers: (a) consist of broad and sweeping allegations of fundamental rights, (b) are entirely lacking in substantive content in support of a known cause of action, and (c) cannot be saved by any benefit of doubt to which Mr. Rivette is entitled as a self-represented litigant or any generous reading of the pleading that overlooks drafting deficiencies.
[29] I find that the claims against the Lawyers fall within the exceptional circumstances such that no purpose would be served by requesting submissions from the relevant parties. I also find that the Lawyers are entitled to the attenuated process under r. 2.1.01(1). The action as against the Lawyers is dismissed.
Review on the Court’s Initiative
[30] Under r. 2.1.01(1), 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”. As indicated above, having addressed the requisitions made on behalf of the Ombudsman Defendants and the Lawyers, I have reviewed the statement of claim on the court’s initiative.
[31] For the reasons that follow, I conclude that the problems with the statement of claim in the action are so fundamental and pervasive that it is appropriate to dismiss the balance of the proceeding, in its entirety, under r. 2.1.01(1):
• Mr. Rivette lists tens of statutes and statutory provisions upon which he relies in support of his claims and includes therein references to non-statutory matters such as “Multiple Acts of Crime Towards the Plaintiff”, “Discriminatory Practices Policies; and Procedures”, “Tampering with the Plaintiffs Court Documents”, and “Incitement of Hatred”;
• Mr. Rivette relies on multiple methods of formatting for emphasis including the use of capital letters, bold font, and underlining;
• The format of the document is not in keeping with Rule 4 or with common practice. As already noted, Mr. Rivette appended several lists and other documents to the substantive text of the statement of claim in an effort to further support the allegations set out therein;
• The substantive text includes numerous links to websites including a website for a YouTube documentary titled “Powerful as God”, a website for one of the law firms named in the substantive text, and several online legal dictionaries; and
• The statement of claim includes a detailed chronology of events, replete with information, and lacking entirely in substantive allegations related to any cause of action. The material facts, if any, alleged in the substantive portion of the text are buried because of the volume of information. While the chronology is detailed, the substantive aspects of the claims made are unintelligible.
[32] The action as against the defendants other than the Ombudsman Defendants and the Lawyers is therefore dismissed.
Disposition
[33] I find that it is appropriate to apply the blunt instrument available under r. 2.1.01. The problems with and deficiencies in the statement of claim as they relate to all of the defendants are fundamental and pervasive; it is appropriate to rely on r. 2.1.01 to dismiss the action in its entirety.
[34] It would be neither reasonable nor fair to require the defendants to spend money and time to respond to the statement of claim when it contains no tenable cause of action against them. To require the defendants to present a motion to strike under either r. 21 or r. 26 would consume scarce judicial time and resources and serve no purpose.
[35] In summary, I order that this action is dismissed as against all of the defendants.
Madam Justice Sylvia Corthorn
Date: October 28, 2020
APPENDIX
Page 2, at para. 6: An entire new para. 6 has been added.
Page 2, at para. 7: In the first line following the word “requisitions” the words “and the court’s discretion under r. 2.1.01(1)” have been added.
Page 6, at para. 30: An entire section has been added under the heading “Review on the Court’s Initiative” consisting of three new paragraphs, starting with paragraph 30.
Page 7, at para. 31: This is the second of the three new paragraphs added under the heading “Review on the Court’s Initiative”.
Page 7, at para. 32: This is the third of the three new paragraphs added under the heading “Review on the Court’s Initiative”.
Page 7, at para. 33: The words “the Ombudsman Defendants and the Lawyers” have been removed and replaced with the words “all of the defendants” and the words “the claims against those defendants” at the end of the sentence have been removed and replaced with “the action in its entirety”.
Page 7, at para. 34: In the first line, the words “the Ombudsman Defendants and/or the Lawyers” have been removed and replaced with “defendants” and following the word “require” in the third line, the word “those” has been changed to “the”.
Page 7, at para. 35: The words “each of the Ombudsman, Jacqueline Esler, Sameer Udippi, Justin Martin and Stuart Zacharias” have been removed and replaced with the words “all of the defendants”.
COURT FILE NO.: CV-20-648831
DATE: 2020/10/28
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Kyle Florian Rivette, Plaintiff
AND
Her Majesty the Queen in Right of Canada et al., Defendants
BEFORE: Justice Sylvia Corthorn
COUNSEL: Kyle Florian Rivette, as a self-represented Plaintiff
Robin Bates, for the Defendants, The Ontario Ombudsman, Sameer Udippi and Jacqueline Esler
Justin Martin, for the Defendants, Justin Martin and Stuart Zacharias
HEARD: By requisition and in writing
AMENDED DECISION FOLLOWING
REQUISITION UNDER R. 2.1.01
Corthorn J.
Released: October 28, 2020