MacLeod v. Toronto Catholic District School Board, 2021 ONSC 2378

COURT FILE NOS.: CV-19-00629625; CV-18-00601954

DATE: 20210326

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tammy MacLeod (nee Laronde), by her Litigation Guardian William Dale MacLeod and William Dale MacLeod

AND:

Native Child and Family Services of Toronto, McMaster University Medical Centre (McMaster Children’s Hospital)

AND RE: William Dale MacLeod

AND:

Toronto Catholic District School Board, et al.

BEFORE: Mr. Justice Chalmers

COUNSEL: C. Jenkins for the Defendant, Native Child and Family Service of Toronto

HEARD: By Writing

ENDORSEMENT

Overview

[1] On March 17, 2021, counsel for Native Child and Family Services (“NCFS”) wrote to me asking that I review the Statement of Claim in Action No.: CV-19-00629625, pursuant to R. 2.1.01 of the Rules of Civil Procedure. It is her position that the action ought to be summarily dismissed as against the NCFS on the basis that the claim is frivolous, vexatious or otherwise an abuse of process.

[2] NCFS is a Defendant in two separate actions brought by William MacLeod (Mr. MacLeod); MacLeod v. McMaster; CV-19-00629625 (the “McMaster Action”) and MacLeod v. TCDSB; CV-18-00601954 (the “TCDSB Action”).

[3] In the McMaster Action, the Defendants brought two separate motions pursuant to R. 2.1 to dismiss the action on the basis that the action on its face is frivolous, vexatious or otherwise an abuse of process. The motion brought by McMaster came before Justice Leiper. By endorsement dated November 9, 2020, she found there was a cause of action pleaded against McMaster and she dismissed the R. 2.1 motion brought by McMaster.

[4] NCFS brought a separate R. 2.1 motion in the McMaster Action. In addition, NCFS brought a R. 2.1 motion in the TCDSB Action. The motions came before Justice Sossin. By endorsement dated May 20, 2020, Justice Sossin dismissed the TCDSB Action on the basis that no valid cause of action was pleaded. The decision was appealed by Mr. MacLeod. The Court of Appeal dismissed the appeal pursuant to R. 2.1. Justice Sossin’s decision with respect to the R. 2.1 motion brought by NCFS in the McMaster Action, has not been released.

[5] By order of Justice Myers dated December 21, 2020, I was appointed the case management judge for the McMaster Action.

[6] Counsel for NCFS takes the position that the McMaster Action is stayed as against her client on the basis of Justice Sossin’s order that he was considering the R. 2.1 motion. He did not release his decision with respect to the motion brought by NCFS. He has since been appointed to the Court of Appeal and it is counsel’s position that the request cannot be returned to him for consideration. It is also her position that Justice Leiper is not seized of the matter with respect to the motion brought by NCFS because she considered only the R. 2.1 motion brought by McMaster. Counsel for NCFS asks that as the case management judge I consider the R. 2.1 request.

Analysis

[7] Justice Leiper, in her endorsement dated November 9, 2020, stated that based on the allegations set out in the Claim and the Plaintiffs’ response to the R. 2.1 motion there was a cause of action pleaded as against McMaster and she allowed the action to continue. The allegations made as against McMaster and NCFS in that McMaster Action are similar. It is alleged that the Defendants jointly or solely apprehended William MacLeod and failed to return him to the care of his mother. With respect to the claim against the NFCS, the Plaintiffs allege the following:

In conclusion, the defendant, Native Child and Family Services of Toronto, has perjured, sworn false statements, fabricated evidence, violated acts of parliament, abducted a person under sixteen years and under fourteen years, kidnapping and defamatory libel.

[8] Rule 2.1 provides a mechanism to dismiss cases which are on their face clearly frivolous, vexatious or otherwise an abuse of process. The Court of Appeal provided the following direction with respect to the use of Rule 2.1.

Under this line of authority, the court has recognized that the rule should be interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process. However, the use of the rule should be limited to the clearest of cases 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: Scaduto v. LSUC, 2015 ONCA 733 at para. 8.

[9] I am unable to conclude that the claim on its face is clearly frivolous, vexatious or otherwise an abuse of process. I find that this is not one of the “clearest of cases” and as a result I do not dismiss the proceeding as against NCFS.

[10] The decision to not dismiss the action pursuant to R. 2.1 is without prejudice to the Defendants moving on a more complete record to dismiss the proceeding based on R. 20, 21 or 25.11.

[11] Before any steps can be taken in this action, it will be necessary to resolve the issue of Mr. MacLeod’s capacity and the representation of Tammy MacLeod. The issue of Mr. MacLeod’s capacity was raised by Justice Glustein in the TCDSB Action and by Justice Sossin and the Court of Appeal with respect to the R. 2.1 motion brought by NCFS in the TCDSB Action. This issue was to be discussed at the case conference scheduled for March 10, 2021. The issue was not discussed at the case conference as a result of Mr. MacLeod’s letter dated March 9, 2021 in which he stated that he intends to withdraw both actions. On March 10, 2021, he rescinded his previous letter and stated that he intends to continue with the actions.

[12] In the TCDSB proceeding, Justice Glustein ordered a stay because Mr. MacLeod does not have litigation capacity and was not represented by the PGT. Mr. MacLeod advises that he intends to bring a motion for an order setting aside the stay on the basis that he no longer requires a litigation guardian. At the case conference on March 10, 2021, counsel for McMaster advised that McMaster intends to bring a motion for an order appointing the PGT as litigation guardian for Mr. MacLeod and Tammy MacLeod in the McMaster Action. Counsel for the Defendants in the TCDSB Action also stated that they intend to bring a motion appointing the PGT as litigation guardian for Mr. MacLeod. The motions for an order appointing the PGT as litigation guardian are to be made on notice to the Plaintiffs as well as the PGT.

[13] I convene a further case conference in both the McMaster and TCDSB Actions. The PGT is required to attend the case conference. It is expected that at the case conference a date for the motions will be scheduled and timetables established.

[14] I remain seized in both the McMaster and TCDSB Actions and I will preside over the case conference.

DATE: MARCH 26, 2021