ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-17-589180

DATE: 20201030

RE: P.Y. and A.Y., Plaintiffs

-and-

The Catholic Children’s Aid Society of Toronto et al., Defendants

READ: October 30, 2020

BEFORE: F.L. Myers J:

ENDORSEMENT

Rule 2.1 Review

[1] By endorsement dated March 3, 2020, reported at 2020 ONSC 1396, I directed the registrar to send notice in form 2.1A to the plaintiffs advising that the court was considering dismissing this action under rule 2.1.

[2] By letter dated March 20, 2020, the plaintiffs advised the registrar that they were considering amending their statement of claim and considering appealing a decision of the Court of Appeal (discussed below) to the Supreme Court of Canada. Accordingly, they asked for more than the prescribed 15 days to file their responding submissions. In addition, they asked for an increase in the prescribed 10 page limit on submissions in view of the number of defendants in the preceding.

[3] The plaintiffs prepared submissions and tried to file them on March 30, 2020. Unfortunately, they were unable to do so in view of the pandemic. However, I now have the submissions and have read them carefully. The submissions are over 30 pages in length and are supported by another approximately 30 pages of exhibits.

The Problem with Multiple Rule 2.1 Reviews

[4] This is the second time that the plaintiffs’ statement of claim has been reviewed under Rule 2.1. Two other defendants made a request for review in 2018. That request was granted and the claim was dismissed as against those two defendants. The decision was upheld by the Court of Appeal on February 11, 2020 in a decision reported at 2020 ONCA 98.

[5] This review was requested by different defendants after the Court of Appeal’s decision was released. This reflects an issue that has arisen under Rule 2.1 cases that has not been discussed expressly in any decision as far as I am aware. That is, that multiple reviews of the same pleading under Rule 2.1 are not an efficient use of judicial resources or parties’ time especially for cases that are held to be frivolous, vexatious, or an abuse of the court’s process.

[6] A judge of this court and three judges of the Court of Appeal have already reviewed the statement of claim and found it to be an impermissible attempt to relitigate issues in a prior child protection proceeding. Absent factual distinctions among various defendants, I am bound by that result. The plaintiffs are also bound under the doctrine of res judicata.

[7] In my view, multiple reviews are unnecessary. They are duplication that can and should be avoided. Here is one way to do so.

[8] Typically, a review under Rule 2.1 is commenced by a party asking the registrar to put a pleading before a judge under Rule 2.1.01 (6) or 2.1.02. A judge reviews the pleading to determine if there is a prima facie case that a proceeding or a motion in a proceeding may be frivolous, vexatious, or an abuse of process and that there may be reason to resort to the summary, written process under Rule 2.1 rather than a regular motion process. See Scaduto v The Law Society of Upper Canada, 2015 ONCA 733. If the judge is satisfied that Rule 2.1 may apply, then she or he directs the registrar to send notice to the plaintiffs inviting submissions as to why the claim or motion should not be dismissed.

[9] Under Rules 2.1.01 (1) and 2.1.02 (1) the court may commence a review of a claim or a motion in a claim on its own initiative. To avoid multiple reviews of the same pleading, the court should not limit its initial review just to the claims against the party or parties who initiated the process. That is, although a request for a review may be initiated by a single party under Rules 2.1.01 (6) or 2.1.02 (2), if, on the initial review, the court determines that the claim may be frivolous, vexatious, or an abuse of process in whole or in relation to more parties than just those who made the request, the court ought to broaden the inquiry at its own initiative. If it does so, the court should make careful note of the full breadth of review being undertaken in its call for submissions from the plaintiffs.

[10] In my view, while the invitation to commence the Rule 2.1 review process may be made by or on behalf of a limited number of parties, the court ought to consider expanding the scope of the review under Rules 2.1.01 and 2.1.02 to avoid multiplicity and serial requests as has occurred in this case.

[11] There can be cases in which a pleading is plainly frivolous against one party but not necessarily against another. See: Brown v. Lloyd's of London Insurance Market, 2015 ONCA 235 at para. 11. That can be determined on the initial review and the request for submissions can be tailored accordingly.

[12] In my preliminary review of the statement of claim in this case, I determined that the claim may be an effort to relitigate issues already determined in child protection proceedings. Therefore, in my endorsement dated March 3, 2020, I invited the plaintiffs to make submissions concerning the entire action and not just relating to the defendants who requested this review. At para. 4 of that endorsement, I wrote:

The plaintiffs should therefore be called upon to make submissions to explain why the case should not be dismissed against all of the remaining defendants under Rule 2.1.01(1) for being frivolous, vexatious, or an abuse of process.

The Prior Rule 2.1 Review

[13] The Court of Appeal set out the procedural history as follows:

[1] By order dated October 7, 2013, Curtis J. found the appellants’ four children were in need of protection and made them Crown wards, without access to the parents: 2013 ONCJ 585.

[2] The appellants’ appeal to the Superior Court of Justice was dismissed: 2014 ONSC 6526. Their further appeal to this court was dismissed by order dated July 3, 2015: 2015 ONCA 493. The Supreme Court of Canada dismissed the appellants’ application for leave to appeal on December 24, 2015: [2015] S.C.C.A. No. 415.

[3] The appellants then commenced this action on December 27, 2017. The defendants are individuals or organizations that played some role in the child protection proceedings, either as parties, counsel, witnesses, experts, or entities which provided information that was used to initiate or support the proceedings.

[14] A review was sought under Rule 2.1 by defendants Sala and Dépatie. The Court of Appeal described the review as follows:

[13] As the motion judge noted, the appellants’ statement of claim is 70 pages in length. The motion judge described the claim against Sala and Dépatie as one for damages caused by their negligence “in the provision of psychological services and in preparation of reports which were relied on by the [Catholic Children’s Aid Society]”: 2018 ONSC 5381, at para. 7. The motion judge also observed that the claim “includes all sorts of attacks on a multitude of defendants” and “[n]owhere is it set out how the alleged negligence led to damages.”

[14] The motion judge did not misread or misunderstand the claims asserted by the appellants in their action against Sala and Dépatie. Their statement of claim discloses that the core elements of their allegations concern the events leading up to their children’s apprehension in 2011, together with numerous allegations that the resulting child protection proceeding was marked by the withholding of evidence, improper reports, the alteration of evidence, and false evidence. The appellants allege that they were greatly wronged by those involved in the child protection proceeding, the various steps taken during that proceeding, and its result. They seek damages of well over $10 million.

[15] When the statement of claim is read in light of the reasons issued by three levels of court in the child protection proceeding and the “fresh evidence” tendered by the appellants, it is clear that in their action the appellants seek to relitigate the issues previously decided in the child protection proceeding. Such an effort to relitigate issues already decided constitutes an abuse of the process of the court. Consequently, we see no error in the motion judge’s conclusion that the proceeding against Sala and Dépatie appears on the face of the statement of claim to be frivolous, vexatious or otherwise an abuse of the process of the court.

The Rule 2.1 Review in this Case

[15] Remaining defendants include the Catholic Children’s’ Aid Society of Toronto, CAS employees or former employees, the Office of the Children’s Lawyer of Toronto, the Hospital for Sick Children, Mon Avenir Conseil Scolaire Catholique, and others involved in the events that led to the child protection proceedings.

[16] The first paragraph of the plaintiffs’ submissions in response to the notice under Rule 2.1 is instructive:

The Plaintiffs’ claim as set out in their statement of claim, and in their amended statement of claim (still to be issued as unable to do so since September 24, 2018), contains and demonstrates all the reasonable cause of action of their claim. The reasons of judgment of Justice Curtis making the Plaintiffs’ four children crownwards on October 7, 2013, are an assembly and a combination of various false statements made by the Respondents in this case through the false submissions, alteration of material evidences and complicity of alteration of material evidences, production of misleading and false affidavits, production of fallacious, erroneous and misleading medical expert reports, complicity of production of fallacious, erroneous and misleading medical expert reports, participation in fabrication of psychological assessment reports. And most prejudicial and detrimental to the Plaintiffs’ case was the Respondents CCAST and its allies intentional withhold an alteration of materiel evidences that would have made a significant difference in a case.

[17] What follows is a detailed description of the plaintiffs’ allegations of wrongdoing against the defendants and others that they say led to the findings in the child protection case. The plaintiffs submit that they are not relitigating that case because they were not able to raise the wrongdoing in the initial case. However, they plainly acknowledge that their claim seeks to prove that the decision of Curtis J. was wrong and was unjustly made. The plaintiffs close their submissions with a plea that Children’s’ Aid workers be held accountable and liable for the plaintiffs’ losses to avoid a failure of justice.

[18] The plaintiffs’ submissions fall squarely within the description in para. 14 of the Court of Appeal’s decision above that I reproduce again:

…numerous allegations that the resulting child protection proceeding was marked by the withholding of evidence, improper reports, the alteration of evidence, and false evidence.

[19] For that reason, they and I remain bound by the Court of Appeal’s determination that, “it is clear that in their action the appellants seek to relitigate the issues previously decided in the child protection proceeding.”

[20] While the plaintiffs submit that they are raising new or different issues that they could not raise in the child protection proceeding, the point they are not understanding is that the decision of Curtis J. is a final decision that is no longer open to challenge. The time for the plaintiffs to raise their issues was in their various appeals. As long as the decision of Curtis J. remains in existence, it cannot be challenged in other proceedings. Similarly, no claim can be made against others that is premised on the decision of Curtis J. being wrong or unjust. That is what is referred to as relitigating the issues that were dealt with in the child protection proceedings.

[21] No defendant can be liable or “held accountable” for wrongdoing and there can be no failure of justice where the decision of the court went against the plaintiffs’ position and that decision has been appealed and remains outstanding. The decision is the product of the operation of the justice system. It exists and it is a final determination of the plaintiffs’ rights and legal obligations. I do not know if there is a way for the plaintiffs to revisit the decision of Curtis J. under child protection laws at this late date. However, while that decision stands its lawfulness and justness cannot be undermined in other proceedings like this one.

Order

[22] This action is dismissed.

[23] If any defendant seeks costs, they may send no more than two pages of submissions and a costs outline as OCR searchable PDF attachments to an email to my Judicial Assistant by November 6, 2020. No legal authorities may be filed. Any references to law or case law shall be made by hyperlinks embedded in the submissions.

[24] If any defendant seeks costs against the plaintiffs, they may respond with no more than two pages of costs submissions in response to the submissions of each defendant who seeks costs. The submissions shall be sent as OCR searchable PDF attachments to an email to my Judicial Assistant by November 13, 2020.

F.L. Myers J.

Date: October 30, 2020