Court File and Parties

COURT FILE NO.: CV-16-551203 DATE: 20210419

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

M.E. et al. Plaintiffs/Responding Party

– and –

Her Majesty The Queen in Right of Ontario et al. Defendants/Moving Parties

COUNSEL:

M.E., self-represented party, for the Plaintiff/Responding Party

Sheldon Inkol, for the Defendant/Moving Party, Children’s Aid Society of Toronto Scott Hutchinson and David Posler, for the Individual Respondents/ Moving Parties, Giovanna Asaro and Ada Lee

HEARD IN WRITING

REASONS FOR DECISION – RULE 2.1.02

PUBLICATION BAN – YOUTH CRIMINAL JUSTICE ACT

Identity not to be published

• 110 (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
• Limitation (2) Subsection (1) does not apply
  • (a) in a case where the information relates to a young person who has received an adult sentence; or
  • (b) [Repealed, 2019, c. 25, s. 379]
  • (c) in a case where the publication of information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.
• Exception (3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

VELLA, J.

[1] On November 10, 2020, I conducted a case management conference under r. 77.

[2] At the case management conference, I concluded that it would be appropriate to initiate a review under r. 2.1.02(1) in relation to a pending motion brought by M.E. by way of Notice of Motion dated October 9, 2020 (“M.E.’s Motion”). I therefore established a timetable for the hearing, in writing, of a motion under r. 2.1.02(1) using the summary procedure under r. 2.1.01(2).

[3] M.E.’s Motion seeks various forms of relief against the Children’s Aid Society of Toronto (“C.A.S.T.”) and Ms. Asaro and Ms. Lee (the former lawyer for C.A.S.T. in this proceeding, and her legal assistant) (the “individual respondents”).

[4] For the following reasons, I am dismissing M.E.’s Motion as frivolous, vexatious and an abuse of process. It is an attempt to re-litigate the contempt motion brought against C.A.S.T. and the individual respondents in 2019, and is, in part, based on an erroneous interpretation of the Scully Order (as hereinafter defined). The contempt motion was dismissed by Schabas J., for reasons reported at 2019 ONSC 5141 (the “Contempt Decision”), and this decision was upheld by the Court of Appeal.

[5] M.E.’s Motion is also an attempt to re-litigate the decision of Schabas J. granting the defendants’ motion for summary judgment dismissing M.E.’s claims against the C.A.S.T. and Her Majesty the Queen in Right of Ontario (“HMQ - Ontario”), reported at 2019 ONSC 5138 (“Summary Judgment Decision”). This decision was also upheld by the Court of Appeal, with the exception of one remaining cause of action against C.A.S.T. alone. The Court of Appeal’s redacted reasons for decision are dated June 23, 2020 and reported at 2020 ONCA 289 (the “Appeal Decision”).

Materials Filed and Procedure Followed

[6] Pursuant to rule 2.1.02(2), I directed that the summary procedure outlined by rule 2.1.01 be followed by the parties.

[7] Written submissions and attached documents from M.E. were received on or about November 11, 2020. Further written submissions were received from M.E. dated November 19, 2020 together with an attached list of authorities, followed by further documents provided to the court, by M.E., on a USB.

[8] The court received responding written submissions from C.A.S.T. dated November 30, 2020 with attachments. Responding written submissions from the individual respondents dated November 30, 2020 with attachments were received separately.

[9] HMQ - Ontario did not provide any written submissions, having taken the position that, pursuant to the Summary Judgment Decision and the Appeal Decision, it is no longer a defendant to this Action.

[10] In accordance with the summary procedure prescribed by r. 2.1.01(2), no affidavits or other evidence were filed on this motion.

Background

[11] This motion arises out of an action commenced in 2016 by M.E. and others against Her Majesty the Queen in Right of Ontario, Children’s Aid Society of Toronto and Durham Children’s Aid Society in relation to the alleged disclosure of certain records governed by the Young Offenders Act, R.S.C. 1985, c. Y-1, as court file number CV-16-551203 (the “Action”).

[12] The remaining defendants, HMQ - Ontario and C.A.S.T., brought a motion for summary judgment seeking dismissal of the action. M.E. brought her motion for civil contempt against the individual respondents and C.A.S.T. Both matters were heard by Schabas J. on August 7, 2019.

[13] As stated, by orders dated September 23, 2019, with reasons reported at 2019 ONSC 5138 and 2019 ONSC 5141, Schabas J. granted the summary judgment motion dismissing the Action in its entirety, and dismissed M.E.’s motion for contempt against C.A.S.T. and the individual respondents.

[14] M.E. appealed from both the Summary Judgment Decision and the Contempt Decision to the Court of Appeal.

[15] The Court of Appeal upheld Schabas J.’s Summary Judgment Decision with the exception of one of the causes of action which the court permitted to proceed against C.A.S.T. alone: the alleged wrongful disclosure of the subject youth criminal proceedings [set out in the statement of claim at paras. 33, 35 and 42].

[16] In so doing, the Court of Appeal affirmed, at paras. 21, 22 and 33 of the Appeal Decision, the balance of the Summary Judgment Decision. Specifically, the following causes of action (as set out in para. 19) were affirmed to be dismissed:

(a) Negligence and breach of fiduciary duty, arising from wrongful diagnosis of, and reliance on, mental health pathologies, and the failure to act on sexual abuse complaints [statement of claim, paras. 15 to 29];

(b) defamation arising from the inclusion and distribution of the wrongful diagnoses and other allegedly false statements contained in the claim [statement of claim, paras. 33 to 35, 40 and 41]; and

(c) breach of privacy, harassment and breach of fiduciary duty arising from wrongful disclosure of M.E.’s youth criminal proceedings [statement of claim, paras. 36 to 41].

[17] M.E. did not seek leave to appeal the Appeal Decision to the Supreme Court of Canada, and the appeal period has expired.

M.E.’s Motion

[18] M.E.’s Motion seeks to add additional causes of action to the Action against the former and current parties, and their former and current lawyers. M.E. has served a notice of motion but no affidavit in support of the motion.

[19] The notice of motion reads as follows (spelling and grammar as per original):

THE MOTION IS FOR Charter violations of a child, failure to act in the best interest of a child as required by the societies own governing legislation, misfeasance, interference with judicial independence, orders obtained by fraud, fraudulent representation, misstatement of facts and illegal acts by counsel and their clients, misstatements in regards to legislation and suppression of evidence by both defendants to confuse the court. Paramountcy of the Youth Court order under International and Federal law, statutory right to privacy violations, failure in positive duty in law owed to a child.

[20] Within approximately 3 weeks from the case management conference of November 10, 2020, M.E. took the following steps:

(a) served a notice of motion for criminal contempt to be heard by the Youth Court (relating to an alleged breach of the Scully Order, as hereinafter defined, and allegations of “intrinsic and extrinsic fraud on the court” amongst other allegations);

(b) served a Form 1 Application for a sealing order to be heard with the motion for criminal contempt;

(c) issued a Notice of Action against the Attorney General of Ontario and Crown lawyer, Dominico Polla (former lawyer of record in this proceeding), for, respectively, the failure to destroy her youth records and misleading the Court; and

(d) filed an Access and Correction Form seeking an extensive record correction under Part X of the Child, Youth and Family Services Act with the Information and Privacy Commissioner of Ontario.

[21] As well, after the Court of Appeal released its decision in this proceeding, M.E. served a Notice of Constitutional Question on the Attorney General in the Action.

[22] I am also advised that M.E. has filed a complaint of lawyer misconduct with the Law Society of Ontario.

[23] These actions show that M.E. has engaged in a multiplicity of proceedings in various fora dealing with the same subject matter, including the dismissed causes of action, as the within Action.

[24] In her submissions dated November 19, 2020, M.E. also alleges that the lawyers for the Individual Respondents (from the contempt motion) had to be added as a party to these proceedings by order of the “Youth Court”. M.E. wrote, “It does not matter if the society wants the Easter Bunny to represent them. They still require an order from the court of absolute Jurisdiction with respect to youth justice.” This allegation is not in the Notice of Motion however it is relevant for context.

[25] M.E. concludes:

I am being unlawfully and illegally deprived of my liberty. Article 37 [of The United Nations Convention on the Rights of Children] is in the preamble of youth Justice and section 37 is enforceable against state actors with respect to this child. If you were to grant the Defendants motion I would be completely denied access to Justice and a travesty of Justice would occur with respect to a child. I am stateless through administration, I have legal rights and no remedy for this child. The Societies version of my youth records, do not match court and government records. Youth Justice clearly articulates that the charter applies to children.

It is completely unfair and It is impossible to comply with conflicting orders requiring me to be in three levels of court all at once, Youth Court for enforcement of their order as required by statute, superior court and Superior Court and the Supreme Court of Canada caused by intrinsic and extrinsic fraud on the court. I respectfully submit paramountcy is engaged. I have provided a through book of authorities. I can also provide the courts with all receipts for the courier for my charter challenge properly served months ago. The hard copy to Superior Court was just returned to me a few days ago.

[26] In written submission provided to me, M.E. makes the following submission and asks that I provide relief as follows:

I understand the civil contempt have already been decided, however what remains to be addressed in the Criminal Conduct and Criminal Contempt of The Honourable Youth Court with respect to the Defendants and counsel.

I ask that the Defendant and their counsel be declared frivolous and vexatious litigants, for failing to Act in The best interest of the child, abuse of process and participating in fraud, crime dishonesty and illegal acts. I ask that my charter challenge go ahead for an assessment of damages under section 24 and that the contempt of the Youth Court and Court of Appeal order with respect to destruction of all my youth records regardless of form either be referred to the Court of Competent Jurisdiction as is required for adults under that act, or be addressed summarily, or any order that the court deems just.

By the way, The Court of Appeal declined the charter challenge as it is discretionary with that court. The Superior Court Civil has an inherent jurisdiction to hear charter challenges for compensation and is the court of correct jurisdiction for my request for a writ of mandamus.

[27] It is apparent that M.E.’s references in her written submissions to “a child” and “this child” refer to her. M.E. is relying on her interpretation of the Scully Order, defined below, as the basis for the relief sought in her Motion.

[28] It is clear that M.E.’s main complaints continue to be about the alleged illegal disclosure of the pre-disposition report by the C.A.S.T. (and its lawyers and former lawyers) to the Criminal Injuries Compensation Board. However, it is also clear that, through M.E.’s Motion, she is raising the alleged failure of the CAST (and now the Attorney General of Ontario and its lawyer) to have destroyed all of the records that are the subject of the Scully Order through the various proposed new causes of action. It is clear that this allegation is based on a misinterpretation of the Scully Order and is devoid of merit. The balance of the causes of action proposed in M.E.’s Motion is an attempt to reinvigorate her claims against the individual respondents, their lawyers, and the C.A.S.T. and possibly bring H.M.Q. - Ontario back into the Action through reframing the causes of action that have already been disposed of by the Court of Appeal.

Legal Analysis

[29] Rule 2.1.02 provides,

(1) The court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

[30] In order for r. 2.1.02 to apply, I must be able to make a clear determination of whether M.E.’s Motion is either frivolous and vexatious or an abuse of process on the face of the pleadings and motion itself. As others have observed, r. 2.1 is not for close calls.

[31] While the court cannot review evidence (affidavits) in making a determination under r. 2.1, it can review relevant pleadings, and related reasons and decisions rendered by the court: Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8.

[32] Where the court finds, on the face of the pleadings as supplemented by prior court decisions rendered in the proceeding, that the challenged motion is an attempt to re-argue matters that have already been determined, it is appropriate to dismiss the challenged motion under r. 2.1.02 as frivolous, vexatious or an abuse of process: Guettler v. Royal Bank of Canada, 2015 ONSC 2905.

[33] In Hoang v. Mann Engineering Ltd., 2015 ONCA 838, the Court of Appeal relied on r. 2.1.02(1) to declare the appellant’s motion an abuse of process. In Hoang, the appellant brought a motion, in writing, to vary the original decision of the Court of Appeal on the basis of fresh evidence. The Court of Appeal found at para. 13 that, on the face of the motion, the appellant was “merely attempting to re-argue what are in essence the same arguments advanced on the original appeal and in the post-hearing submissions” and summarily dismissed the motion. The Court also ordered, under r. 2.1.02(3), that the appellant was prohibited from bringing any further motions in the proceeding without leave of the court. See also Gallos v. Toronto (City), 2014 ONCA 818.

[34] The allegations reflected in M.E.’s Motion were dealt with by Schabas J. and affirmed by the Court of Appeal. M.E.’s Motion is clearly an attempt to re-litigate the matters that, in essence, have already been summarily dismissed, and to add the former defendant, individual respondents, and now their lawyers back into the litigation.

[35] I will now deal with the specific allegations raised in M.E.’s Motion.

[36] Many of the allegations relate to the Order of Scully J. dated June 4, 2018 in Children’s Aid Society of Toronto and M.E. (unreported, OCJ) (the “Scully Order”). M.E. alleges that the C.A.S.T., the individual respondents and HMQ - Ontario are in breach of the Scully Order because they have failed to destroy the youth records in question.

[37] These allegations are based on an erroneous interpretation of the Scully Order, as explained below.

[38] The Scully Order was issued in response to a request for directions made by the C.A.S.T. concerning the use of the youth records within the context of the Action.

[39] Scully J. ordered that the records in question were to be destroyed upon completion of this litigation, as reflected in section 3 of the Order:

3. At the conclusion of the court litigation and any appeal, records of proceedings under the Young Offenders Act, including charges and dispositions pertaining to M.C. shall be eradicated. (emphasis added)

[40] Contrary to the submissions of M.E., Scully J. explicitly ordered that the records would not be destroyed until the conclusion of this Action. This will permit a full and fair adjudication of M.E.’s (now) remaining cause of action.

[41] The remaining allegations as reflected by the Notice of Motion, and elucidated by M.E.’s submissions, relate to M.E.’s broad allegations of a failure by C.A.S.T. to act in the best interests of a child, misfeasance, the violation of statutory rights to privacy and some “failure in positive duty in law owed to a child”. These allegations were finally disposed of by the Court of Appeal, which did not disturb Schabas J.’s analysis or conclusion regarding these issues (see, Summary Judgment Decision, at paras. 25, 31, 41, 42 and 47).

[42] The Court of Appeal issued its Order dated May 8, 2020 (the “Order”) which, in material part, ordered that,

i. the appeal of the order dismissing M.E.’s motion for a contempt order was dismissed,

ii. the appeal of the order granting summary judgment and dismissing the action against HMQ – Ontario was dismissed, and

iii. the appeal in respect of the summary judgment against C.A.S.T. was allowed only in respect of the claim of “whether the Children’s Aid Society of Toronto is liable in damages for the alleged wrongful disclosure of the Appellant’s pre-disposition report to third parties in 2013”.

[43] Accordingly, it is clear on the face of M.E.’s Notice of Motion, the pleadings, the respective reasons of Schabas J. and the Court of Appeal, and M.E.’s submissions, that M.E.’s Motion attempts to re-litigate matters which have been finally determined by the Court of Appeal. As such, the Motion is an abuse of process.

[44] It is also apparent that M.E. is engaged in a relentless pursuit of the individual respondents, their lawyers, the HMQ - Ontario and its lawyer, and C.A.S.T. in multiple proceedings, regarding the same issues that, effectively, were dismissed by the Court of Appeal. There is therefore good reason to resort to the attenuated process of r. 2.1 in this matter as discussed by the Court of Appeal in Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, at para. 9.

[45] It is vital at this stage of this six-year old action that this court be very clear that M.E. is permitted to continue this action against C.A.S.T., and C.A.S.T. alone, and then only with respect to the remaining issue validated as surviving the motion for summary judgment by the Court of Appeal from her statement of claim; namely, whether the disclosure by C.A.S.T. of the pre-disclosure report to the Criminal Injuries Compensation Board in 2013 was wrongful and, if so, what relief (if any) she may be entitled to as a result of the disclosure.

[46] The sooner it is appreciated that the scope of the current claim cannot be expanded beyond that one remaining cause of action, the sooner this court will be able to work with the parties, through the court management function, to ensure that M.E.’s remaining claim is fairly and expeditiously proceeded with through the balance of the pre trial steps.

[47] Therefore, I am dismissing M.E.’s Motion under r. 2.1.02(1) as frivolous and vexatious and an abuse of process. In these circumstances, the procedure set out under r. 2.1 is the most expeditious, fair and proportionate way to deal with M.E.’s Motion.

[48] I am also issuing an Order under r. 2.1.02(3) and r. 37.16 requiring M.E. to seek leave from me, as case management judge, before bringing any further motions within this proceeding. Should M.E. determine to seek leave to bring any further motions in this proceeding, she will provide me with a notice of motion seeking leave, and an affidavit setting out why she believes the motion to be meritorious.

[49] Furthermore, in the event that M.E. determines to bring any further motion in this proceeding against Ms. Asaro and/or Ms. Lee, in addition to providing the requisite notice of motion and affidavit, M.E. must first pay the outstanding costs ordered in their favour by Schabas J. (2019 ONSC 7323) in the sum of $7,500.00. The costs of the contempt motion were not disturbed by the Court of Appeal. Proof of payment will accordingly have to be provided at the time the motion seeking leave is filed by M.E. I am adding this condition to any motion seeking leave to bring a motion in which Ms. Asaro and/or Ms. Lee are responding parties because it should be abundantly clear that those (former) individual respondents are not parties to this proceeding, and the issue against them as raised by M.E. has been fully resolved by the Court of Appeal in its Reasons.

[50] M.E. must also provide copies of her Notice of Motion seeking leave and the accompanying affidavit to the lawyers of the intended responding parties.

Costs and Next Steps

[51] In the event that costs are being sought against M.E. arising from this motion in writing, costs outlines are to be provided by those seeking costs to M.E. and the court by April 23, 2021. M.E. will then provide her responding written submissions (not to exceed 3 pages double spaced in length) to those seeking costs and the court by April 30, 2021. The costs outlines and responding submissions are to be delivered via email to my judicial assistant.

[52] As indicated in my endorsement of November 19, 2020, a further case management conference will be convened by me to advance this Action and address the next steps.

Justice Vella

Released: April 19, 2021