ONTARIO SUPERIOR COURT OF JUSTICE
RE: Kamala Tiwari, Plaintiff
(Self-represented)
- and -
Jennifer Chevalier, Stephen Heckbert, Kyrstin Dumont, Jessica Dumont, Brooke Shaw and Canadian Broadcasting Corporation, Defendants
(F. Mutalib for defendants Chevalier and CBC; no lawyer on record for other defendants)
BEFORE: Justice S. Gomery, in writing
ENDORSEMENT ON REQUISITION UNDER RULE 2.1.01
1.
Introduction and Background
The court has received a requisition from the defendants Jennifer Chevalier and Canadian Broadcasting Corporation seeking a stay of this defamation action by Kamala Tiwari (“Tiwari”) pursuant to r. 2.1.01 of the Rules of Civil Procedure. The defendants contend that Tiwari is an alias used by Althea Reyes, an individual who has been declared a vexatious litigant pursuant to s. 140 of the Courts of Justice Act. In the alternative, they ask the court to find that the action is, on its face, clearly frivolous, vexatious and an abuse of the court’s process, and so should be stayed under r. 2.1.01.
The action arises from an article written by Chevalier stating that Reyes is running a charity, the National Collaboration for Youth Mental Health (“NCYMH”), under the alias “Maxine Adwella”. The article refers to Tiwari as the chair of NCYMH and says that she denied, on behalf of NCYMH, that Adwella and Reyes are the same person. The other individual defendants were individuals who had been involved with NCYMH and reported harassment or other misconduct by Reyes/Adwella. In her lawsuit, Tiwari alleges that the defendants’ statements about her and about NCYMH are defamatory and give rise to damages of $20,000,000.
Rule 2.1.03 vs. Rule 2.1.01
It is important to note at the outset that the defendants are seeking the stay of the action pursuant to r. 2.1.01 rather than r. 2.1.03. Rule 2.1.03(1) provides a mechanism for the expeditious stay or dismissal of a proceeding taken by someone who has been declared a vexatious litigant:
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subsection 140 (1) of the Courts of Justice Act has instituted or continued a proceeding without the order having been rescinded or leave granted for the proceeding to be instituted or continued, the court shall make an order staying or dismissing the proceeding.
In Park v Crossgate Legal Services, 2016 ONSC 4864, at para. 5, Myers J. explained that” “Where a plaintiff brings an action without leave while prohibited from doing so by a subsisting order the new action will simply be dismissed.” R. 2.1.03 provides a mechanism to enforce the court’s processes and is mandatory. In Reyes v. Jocelyn, 2016 ONSC 5568, Reyes v. Buhler, 2016 ONSC 5559 and Reyes v. Embry, 2016 ONSC 5558, three proceedings commenced by Althea Reyes were dismissed under r. 2.1.03.
The defendants in the present action do not, however, invoke r. 2.1.03 but 2.1.01. This is presumably because, on its face, the action is not being commenced by Reyes but by Tiwari. Rule 2.1.01(1) provides that: “The 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”.
Is Tiwari an Alias for Reyes?
The defendants’ lawyer acknowledges that there is no definitive proof, on the record, that Tiwari is an alias for Reyes. He nonetheless argues that the court should infer that Tiwari is an alias for Reyes because:
Reyes has used other aliases, including “Maxine Adwella”, to file proceedings in violation of the s. 140 order; see Adwella (aka Reyes) v. Animal Care Review Board, 2020 ONSC 7082.
Tiwari’s address on the statement of claim is the same address listed on the Law Society of Ontario’s website for a lawyer, Kibondo Kilongozi, who appeared in another case in which Reyes was alleged to be using an alias for the purpose of commencing legal proceedings; see Equal Justice Can. v. Big Brothers and Sisters Halton and Hamilton, 2020 ONSC 7573.
Tiwari is apparently the chair of NCYMH and an email in her name responded to Chevalier’s email inquiry as to whether Adwella is actually Reyes.
In the circumstances of this r. 2.1.01 requisition, I cannot find that Tiwari is an alias used by Reyes. There are two reasons.
First, evidence is not admissible in support of a requisition under r. 2.1.01; Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 9, endorsing Raji v. Border Ladner Gervais LLP, 2015 ONSC 801, at para. 8. Although I may take into account other court decisions and proceedings, making a finding that Tiwari is an alias for Reyes would require me to make inferences based on evidence, notably the contents of Chevalier’s article. This is not something I can properly do in the context of a r. 2.1.01 process.
Second, even if it were appropriate for me to consider evidence in response to a requisition under r. 2.1.01, I cannot conclude that Tiwari is Reyes on the record before me. Clearly Reyes has used aliases in the past to circumvent the s. 140 prohibition preventing her from commencing proceedings without prior authorization. There also appears to be a link between Tiwari and Reyes: a court has found that Adwella and Reyes are one and the same person, and Tiwari was identified in the Chevalier article as someone who works with Adwella at NCYMH. Even if I could assume that everything in Chevalier’s article is truthful and accurate, however, Tiwari’s statement on behalf of NCYMH does not prove that Tiwari and Reyes/Adwella are the same person.
The lawyer for CBC and Chevalier suggested, in the requisition, that if I had doubt that Tiwari was Reyes, “it would be appropriate to ask Ms. Tiwari to appear before the court (either virtually or in person) and prove her identity”. Since no evidence is admissible in a proceeding under r. 2.1.01, this would in fact be singularly inappropriate.
Is the Action Frivolous, Vexatious, or an Abuse of Process?
I must therefore consider whether the action should be stayed under r. 2.1.01 on the basis that it is, on its face, frivolous, vexatious or an abuse of the court’s process. The defendants’ lawyer contends that action is clearly unmeritorious because (i) Tiwari is only mentioned once, in passing, in Chevalier’s article and there is no air of reality to the assertion that the statement about her is defamatory; and (ii) the quantum of damages claimed ($20,000,000) is clearly excessive.
- A requisition under r. 2.1 is not a substitute for a motion to strike a statement of claim because it fails to disclose a cause of action or because it is an abuse of process: Khan v. Law Society of Ontario, 2020 ONCA 320, at para. 7; Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806 at para. 43. As the Court of Appeal stated in Khan v. Krylov & Company LLP, 2017 ONCA 625, at para. 12:
Rule 2.1 is an extremely blunt instrument. It is reserved for the clearest of cases, where the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading. Rule 2.1 is not meant to be an easily accessible alternative to a pleadings motion, a motion for summary judgment, or a trial.
- In Khan v. Krylov, the Court of Appeal endorsed the approach by Justice Myers in his decisions on r. 2.1. In Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, leave to appeal refused, [2015] S.C.C.A. No. 488, at para. 8, Myers J. held that “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”. In Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7, at para. 18, he cautioned against assuming that every claim by a vexatious litigant axiomatically lacks any merit:
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.… Care should be taken to allow generously for drafting deficiencies and recognizing that there may be a core complaint which is quite properly recognized as legitimate even if the proceeding itself is frivolously brought or carried out and ought to be dismissed.
The statement of claim in this action alleges that the defendants’ statements in Chevalier’s article defamed Tiwari, and that Chevalier and CBC are liable for the defamation because they published it. I cannot assume that there is no air of reality to these allegations, or that Tiwari does not have a legitimate legal complaint against the defendants. As a result, I cannot stay the action under r. 2.1.01.
Conclusion
Given the defendants’ belief that Tiwari is an alias for Reyes, a vexatious litigant who has repeatedly violated the court’s orders, I understand why they object to having to defend against the action. If their theory is correct, they have every right to seek the earliest possible dismissal of this proceeding, with costs. My decision today does not, however, preclude them from seeking the dismissal of the action by other procedural means.
Justice Sally Gomery
Date: May 10, 2021
COURT FILE NO.: CV-21-86328
DATE: May 10, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kamala Tiwari
Plaintiff
- and -
Jennifer Chevalier, Stephen Heckbert, Kyrstin Dumont, Jessica Dumont, Brooke Shaw and Canadian Broadcasting Corporation
Defendants
ENDORSEMENT ON REQUISITION UNDER RULE 2.1.01
Justice Sally Gomery
Released: May 10, 2021