COURT FILE NO.: CV-19-00633611-000
DATE: 20201118
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MAXINE ADWELLA (also known as ALTHEA MAXINE REYES)
Appellant
and
ANIMAL CARE REVIEW BOARD
Respondent
and
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Moving Party
BEFORE: Justice Vella
COUNSEL: Althea Reyes, Self Represented
Claudia Brabazon and Jason Kirsh, for the Moving Party
HEARD: November 3, 2020
REASONS FOR DECISION
[1] The moving party, Her Majesty the Queen in Right of Ontario, as represented by the Attorney General and the Ministry of the Solicitor General (the “Crown”), moves for an Order dismissing this proceeding (the “Appeal”) pursuant to Rule 2.1.03 or, in the alternative, dismissing the Appeal pursuant to Rule 21. The Animal Care Review Board did not appear but consents to the relief sought by the Crown.
[2] This motion arises out of an appeal by the Appellant seeking to reverse the decision of the Animal Care Review Board issued November 8, 2019 styled as Althea Reyes v. Animal Welfare Services, 2019 ONACRB 12339. At issue before the Animal Care Review Board was the removal by Animal Welfare Services of two animals (a dog and a ferret) from a residential unit as a result of neglect and abandonment by their owner.
[3] It is the contention of the Crown that the named Appellant, Maxine Adwella, is an alias being used by Althea Reyes. Althea Reyes has been declared a vexatious litigant by Order of Justice Perell dated May 31, 2017. Accordingly, the Crown submits that, as Ms. Reyes did not seek leave of this court to commence the Appeal, it must be dismissed pursuant to Rule 2.1.03(1). Alternatively, the Crown submits that the Appeal should be dismissed under Rule 21 since it was not started within the time period prescribed by section 18 of the Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. 36 and the wrong Respondent has been named.
Issue
[4] The main issue before me is whether the Appellant is, in fact, Althea Reyes using the name “Maxine Adwella” as an alias or privy. If this is true, I must dismiss this proceeding.
Background and Juridical History
[5] On September 6, 2019, Animal Welfare Services received a call from a landlord concerning an animal in distress at 167 Bogert Avenue in North York (the “Residence”). After completing an investigation, Animal Welfare Services concluded that the two animals had been neglected and abandoned. Accordingly, on September 14, 2019, an inspector for Animal Welfare Services (the “Animal Inspector”) executed a telewarrant and entered the Residence. She discovered a dog and a ferret in distress and apparently abandoned. The animals were removed from the Residence and provided with veterinarian services.
[6] After investigation, the Animal Inspector determined the owner of the animals was Althea Reyes. After further investigation to determine the location of Ms. Reyes, the Animal Inspector attended at the Vanier Centre for Women (“Vanier”) and served Althea Maxine Reyes, then incarcerated, with a Notice of Removal, a Statement of Account (for the veterinary services provided to the removed animals) and a Summons. Ms. Reyes had a specified number of days to pay the account and make satisfactory arrangements for the care of the animals but, in the end, did not do so.
[7] Instead, on September 26, 2019, the Appellant (identified in the underlying Animal Care Review Board proceedings as Althea Reyes) filed a Notice of Appeal from the Removal Order with the Animal Care Review Board. The Animal Care Review Board is an independent quasi-judicial adjudicative body. It falls under the jurisdiction of the Safety, Licensing Appeals and Standards Division of Tribunals Ontario, under the Ministry of the Attorney General.
[8] After Ms. Reyes repeatedly failed to appear before the Animal Care Review Board, it issued a Notice of Intent to Dismiss Ms. Reyes’ appeal on October 24, 2019.
[9] On November 8, 2019, the Animal Care Review Board (“ACRB”) dismissed Althea Reyes’ appeal without a hearing on the grounds that the appeal had been abandoned (“ACRB Decision”).
[10] On or about December 30, 2019, a Notice of Appeal (Court File No. CV-19-00633611-000) was filed with this court from the ACRB Decision. However, the style of cause shows “Maxine Adwella” as the Appellant and “Animal Care Review Board” as the Respondent.
[11] This matter came before me initially by way of a case conference held on July 15, 2020. At the time the Appellant was represented by a lawyer, Joshua Halpern. At that case conference Mr. Halpern advised that he was also retained by a non-party, the National Collaboration for Youth Mental Health (NCYMH). Counsel for the ACRB attended, as did counsel for the Ministry of the Solicitor General (representing the Chief Animal Inspector of Ontario) on behalf of the Crown. It was acknowledged by Mr. Halpern that the wrong Respondent had been named, and that the proper Respondent was Her Majesty the Queen in Right of Ontario, as represented by the Solicitor General. Mr. Halpern advised that he intended to bring a motion to substitute the correct Respondent and that he would seek to substitute the Appellant with the NCYMH. I established a timetable for Mr. Halpern’s motions.
[12] Of note, Mr. Halpern represented to the court during the initial case conference that he was confident his client was a person identified as “Maxine Adwella” and not Althea Reyes.
[13] On October 9, 2020 I convened a further case conference at the request of Crown counsel. She advised that the Crown had good reason to believe that the Appellant, Maxine Adwella, was an alias being used by Althea Reyes. Counsel further advised that the Crown intended to bring a motion to have the proceeding stayed on the basis that Ms. Reyes had been declared a vexatious litigant by Justice Perell and had not sought leave of the court to commence or continue with the Appeal. At this case conference, Mr. Halpern withdrew his prior representation that Maxine Adwella and Althea Reyes were separate individuals. Mr. Halpern also advised that he intended to bring a motion to be removed as lawyer of record. I directed Mr. Halpern to deliver a copy of the Crown’s motion record to his client and to provide his client with the motion return date (once fixed) and the associated videoconference link. I also directed Mr. Halpern to advise his client that she was both welcome and encouraged to attend at the motion. In the meantime, I expected Mr. Halpern to serve and file his motion record seeking removal as lawyer of record.
[14] On October 23, 2020 I convened a further case conference. Mr. Halpern attended as lawyer of record for the Appellant, as did the lawyers for the ACRB and the Crown. At the outset of this telephone chambers appointment an individual identifying herself as attending on behalf of the NCYMH, together with lawyers from Gowlings who advised that they were in the process of being retained by the NCYMH, entered the telephone call. As the NCYMH was not a proper party to this proceeding, I asked the representative and Gowlings to leave after inviting them to file the requisite motion seeking leave to intervene if that was what they intended to do. No motion seeking to intervene was brought by the NCYMH.
[15] At this case conference I fixed the return of the Crown’s Rule 2.1.03 motion date for November 3, 2020 at 10:00 a.m. via Zoom videoconference and directed service of the motion record on either Mr. Halpern, if he was still lawyer of record, or directly on the Appellant, if he was not.
[16] I am satisfied that the Appellant was served with the Crown’s motion record via Mr. Halpern who remained lawyer of record as of November 3, 2020.
[17] In addition, I am satisfied that Althea Reyes was served with the Amended Motion Record of the Crown using the same email link as had been used by her in communicating with the court. Ms. Reyes was similarly provided with notice of the motion date and the contact information in order to receive the Zoom videoconference link by the Crown.
[18] The motion proceeded via Zoom videoconference on November 3, 2020. In attendance at the videoconference were: Mr. Halpern (still lawyer of record), a person self-identifying as Althea Reyes, and Crown Counsel. As well, a person self-identifying as “Riham Maxine Awedalla” joined via telephone. Mr. Halpern was released from the motion at the request of Ms. Reyes and Ms. Awedalla. Mr. Halpern was content to withdraw from the motion, and advised he believed he received a Notice of Intent to Represent in Person from his client. Before leaving the videoconference, Mr. Halpern advised that he had had several conversations with the person identified as Althea Reyes (whose voice he recognized), and only one recent conversation with the person who identified herself as “Riham Maxine Awedalla”.
Analysis
[19] Rule 2.1.03 provides:
2.1.03 (1) If the court determines that a person who is subject to an order under subsection 140 (1) of the Courts of Justice Act has instituted or continued a proceeding without the order having been rescinded or leave granted for the proceeding to be instituted or continued, the court shall make an order staying or dismissing the proceeding.
(3) An order under subrule (1) may be made without notice, but the registrar shall serve a copy of the order by mail on every party to the proceeding for whom an address is provided in the originating process as soon as possible after the order is made. O. Reg. 43/14, s. 1.
[20] Justice Perell has declared Althea Reyes to be a vexatious litigant. The germane provisions of His Honour’s Order, made May 31, 2017, are:
THIS COURT ORDERS the Respondent, Althea Reyes, to be a vexatious litigant pursuant to section 140 of the Courts of Justice Act, R.S.O. 1990, c.C.43;
THIS COURT· ORDERS that the Respondent, Althea Reyes, in her own name or by
way of any alias or privy used by her, and any corporations or other entities owned or controlled by her either past, present or in the future, are hereby prohibited from directly or indirectly commencing or continuing any proceedings in Ontario, including, without limiting the generality of the foregoing, actions, applications, appeals, motions, motions for leave to appeal, or any other proceedings whatsoever, without first obtaining leave from a Judge of the Superior Court of Justice pursuant to section 140(3) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, and in accordance with the applicable Rules of Court, provided that this order does not affect the Respondent's legal rights in criminal proceedings commenced against her; [Emphasis added]
See also Justice Perell’s related Reasons for Decision in Ontario (Attorney General) v. Reyes, 2017 ONSC 3451 (“Perell J.’s Reasons”)
[21] Ms. Reyes cannot start or continue any proceedings before the Ontario Superior Court of Justice without first seeking leave of the court. Justice Perell’s ruling is broad and consistent with s. 140 of the Courts of Justice Act and prevents Ms. Reyes from commencing or continuing any proceeding under any guise, without seeking leave from a judge of this court. It is noteworthy that this provision, and Justice Perell’s Order, do not operate as an absolute bar to any further proceedings before the Superior Court of Justice – if Ms. Reyes could demonstrate that her intended proceeding had merit, it is within the discretion of the court to grant her leave.
It is notable that in the course of Perell J.’s Reasons, His Honour observed that Ms. Reyes has a history of using an alias (Alli A. Reyes v. K.L., 2017 ONSC 308, and (Allison) Reyes v. Esbin, 2016 ONSC 7755 and 2017 ONSC 601), and had previously been declared a vexatious litigant by Justice Kershman whose order prohibits Ms. Reyes from commencing any proceeding before the court concerning “the child” (name omitted), without leave (Reyes v. Brunhuber, 2009 CanLII 93302 ON SC). Justice Perell also identified 3 matters in which Ms. Reyes had been found to have contravened the vexatious litigant order made by Justice Kershman: Reyes v. Jocelyn, 2016 ONSC 5568, Reyes v. Buhler, 2016 ONSC 5559, and Reyes v. Embry, 2016 ONSC 5558.
[22] In all, Ms. Reyes has been the subject of several vexatious litigant related orders.
[23] Ms. Reyes admitted to being aware of this court’s order declaring her a vexatious litigant, and the need for her to seek and obtain leave as a pre-requisite to commencing any proceedings before this court.
[24] Therefore, if I find that the Appellant is Althea Reyes, and given the uncontested fact that she failed to seek leave of this court to commence the Appeal, I must dismiss the Appeal.
[25] While generally speaking, no evidence is required on this type of motion, given that this motion requires a determination of the identity of the Appellant, I have admitted evidence. As well I requested a factum from the Crown.
[26] I also have jurisdiction to dismiss the Appeal as an abuse of process if I find that the Appellant is Althea Reyes, who has been declared a vexatious litigant by this court. This jurisdiction is an inherent jurisdiction designed to prevent an abuse of this court’s process and has been codified in s. 140 of the Courts of Justice Act; see Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, and Reyes v. Esbin, 2017 ONSC 601.
Is the Appellant Althea Reyes?
[27] The evidentiary record satisfies me that the Appellant, “Maxine Adwella”, is in fact an alias being used by Althea (Maxine) Reyes, a vexatious litigant.
[28] The evidence filed in the Crown’s Amended Motion Record reveals an investigation that leads me to the conclusion, on a balance of probabilities, that the Appellant’s true identity is Althea Reyes, and that “Maxine Adwella” is an alias used by Ms. Reyes. By way of example:
• The Animal Inspector’s social media search for Maxine Adwella returned no results.
• When the Animal Inspector first contacted a friend of the Appellant about caring for the dog in Ms. Adwella’s absence (as requested by the Appellant), the friend replied “Althea?” when the Animal Inspector asked about Maxine Adwella.
• When the Animal Inspector again contacted this friend this time in an effort to locate Ms. “Adwella”, he responded that Ms. Adwella was likely incarcerated under the name of Althea Reyes or similar name. The Animal Inspector then discovered that Ms. Reyes was incarcerated at Vanier, but that no one by the name of “Maxine Adwella” was incarcerated at Vanier.
• The abandonment of the dog and ferret by the person known to the landlord of the residence as “Maxine Adwella”, whom the landlord did not see after September 9, 2019, coincided with the arrest of Althea Reyes by Toronto Police on September 10, 2019 and the incarceration of Althea Reyes at Vanier. It is worth repeating that Vanier confirmed it had no inmate named “Maxine Adwella” during this time period.
• Duty Counsel and a Social Worker at Vanier acted as an intermediary between Althea Reyes and the Animal Inspector in the latter’s multiple efforts to communicate with Ms. Reyes regarding the care and future of Ms. Reyes’ dog and ferret.
• Using the name “Maxine Adwella”, Ms. Reyes spoke to the Animal Inspector from Vanier using the telephone of Duty Counsel and claimed to have been unable to keep a September 11, 2019 appointment with the Animal Inspector due to a family emergency, despite being held in custody at this time.
[29] Furthermore, the ACRB Decision itself is replete with references to the Appellant being Althea Reyes (not Maxine Adwella) and to representations made by or on behalf of Ms. Reyes that the removed animals were her pets:
• Althea Reyes submitted the Notice of Appeal to the ACRB in her own name. One of the grounds for her appeal of the removal order was that she could not make arrangements to have her pets cared for while she was incarcerated: Althea Reyes v. Animal Welfare Services, 2019 ONACRB 12339, at paras. 1, 3, 11. (“Reyes v. Animal Welfare Services”).
• Althea Reyes appeared before the ACRB by telephone conference call, while incarcerated, and represented that the seized animals were her pets: Reyes v. Animal Welfare Services, at paras. 4, 5.
• Ms. Reyes appealed the removal of her dog and ferret as is clear from the face of the decision. In the course of appeal before the ACRB, various individuals made appearances on behalf of Althea Reyes: her criminal defence lawyer, her friend and her hairdresser: Reyes v. Animal Welfare Services, at paras. 2, 3, 6, 7,11, 13.
• The ACRB dismissed the appeal as abandoned. As is evident on the face of the ACRB decision, at no point in the appeal did Ms. Reyes suggest that these pets belonged to someone else, including “Maxine Adwella” or the NCYMH, or that they were therapy animals for her son.
• No person by the name of “Maxine Adwella” appeared at any of the case conferences convened by the ACRB, and such a person did not file the appeal with the ACRB. Furthermore, the Notice of Intent to Dismiss issued by the ACRB was to Althea Reyes, not Maxine Adwella: Reyes v. Animal Welfare Services, at paras. 1, 16.
• Finally, throughout the ACRB Decision, the Althea Reyes is referred to as the “Appellant”: Reyes v. Animal Welfare Services.
[30] The Notice of Appeal filed in this court also supports to the conclusion that Althea Reyes is the Appellant before this court. For example, while the Notice of Appeal names “Maxine Adwella” as the Appellant, paragraph 2 states that the “Co-owner was incarcerated at Vanier Correctional Centre a the time of the [ACRB] decision…” and later at paragraph 4 that the “second owner…was served with the Notice of Removal at Vanier Women’s Correctional Centre and immediately filed an Appeal for her pets”. As indicated earlier, there is no reference in the ACRB Decision that any representation were made by or on behalf of Ms. Reyes that she “co-owned” the removed animals.
[31] It is also noteworthy that Mr. Halpern, as an officer of the court, was unable to advise the court as to whether or not his client was “Maxine Adwella” or Althea Reyes. However, at the outset of the motion, he advised that he had had several conversations with the person who self-identified as Althea Reyes, and only one very recent conversation with the person who self-identified as Riham Maxine Awedalla. It seems apparent that Mr. Halpern believed at one time he was representing a person by the name of Maxine Adwella, but as at the date of the motion, he was not certain as to the identity of his client. Mr. Halpern never represented to this court that he represented a person by the name of Riham Maxine Awedalla.
[32] There was no evidence filed by Ms. Reyes to dispute the evidence before the court.
Conclusion and Order
[33] I find that the Appellant is Althea Reyes and that she used the name “Maxine Adwella” as an alias. I order that the style of cause be amended as follows: “Maxine Adwella, also known as Althea Reyes” as Appellant.
[34] I find that Althea Reyes did not seek leave of this Court to commence the Appeal.
[35] I further find that Althea Reyes abused the court’s process by commencing the Appeal under an alias to avoid the obligation imposed by the Order of Justice Perell requiring her to seek leave of this court prior to commencing the Appeal.
[36] In light of my findings, it is not necessary to rule on the Crown’s Rule 21 motion.
[37] In the event that the Attorney General or Solicitor General determines that further steps may be warranted in light of my findings, I am prepared to consider such further steps on proper notice to Ms. Reyes, and upon filing of the requisite motion with the court.
[38] I am dismissing the Appeal pursuant to Rule 2.1.03(1) and as an abuse of process.
[39] The Crown has requested an order that Ms. Reyes pay the costs of this motion on a full indemnity basis. I am seriously considering this request. This would not the first time Ms. Reyes has been ordered to pay costs of this type of motion on a full indemnity basis: Reyes v. Jocelyn, 2016 ONSC 5568; Reyes v. Buhler, 2016 ONSC 5559. However, the fact that Ms. Reyes has been the subject of prior full indemnity orders is irrelevant to my determination as to the appropriate costs order to make in this matter.
[40] Therefore, I request that the Crown provide me with its costs outline, and brief written submissions (no longer than 3 pages double spaced) by no later than November 24, 2020, and to provide a copy to Ms. Reyes at her email address used by the Crown to serve the Amended Motion Record. If Ms. Reyes opposes the Crown’s request for costs (including the elevated scale of full indemnity costs), she is to provide me with her written submissions (again, no longer than 3 pages double spaced) by no later than November 30, 2020. Both sets of submissions are to be sent to my judicial assistant.
Justice Vella
Date: November 18, 2020
COURT FILE NO.: CV-19-00633611-000
DATE: 20201118
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MAXINE ADWELLA (also known as ALTHEA MAXINE REYES)
- and –
ANIMAL CARE REVIEW BOARD
- and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
REASONS FOR DECISION
Justice Vella
Released: November 18, 2020