COURT FILE NO.: CV-20-11 (Owen Sound)
DATE: 2021-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARCO JASON FALARDEAU
Plaintiff
-and-
OWEN SOUND POLICE SERVICES BOARD, CONSTABLE WILLIAM RINGEL, CONSTABLE SANRDRA GREEN and CONTABLE CHRIS HARTLEY
Defendants
Ruling made under rule 2.1.03 pursuant the court’s own motion.
Justice R. Chown
Endorsement
[1] In the context of the motion in Falardeau v. Owen Sound Police Services Board, 2021 ONSC 6180 (court file CV-19-90; reasons released concurrently with this endorsement), I became aware of this action and the fact that it was instituted without the order of Justice Thomson dated March 4, 2011 in court file CV-04-161 having been rescinded or permission granted for this proceeding to be instituted.
[2] Pursuant to rule 2.1.03(1) of the Rules of Civil Procedure, the court is required to stay or dismiss this action. There is no discretion: Park v Crossgate Legal Services, 2016 ONSC 4864, at para. 7. The court does have discretion as to whether the action should be dismissed or stayed.
[3] The only other discretion the court has is found in rule 2.1.03(3), which allows that the court “may” (not shall) make the order 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.”
[4] This action is stayed.
[5] A copy of this endorsement shall be served by the registrar by mail on each of the parties, with a courtesy copy by email to Mr. Wise, who is counsel for Mr. Falardeau in court file CV-19-90, and to Mr. Reimer, who is counsel for the defendants in CV-19-90.
[6] If Mr. Falardeau does not, within 60 days, commence an application under s. 140(3) of the Courts of Justice Act to address Justice Thompson’s order, this action shall be dismissed without costs.
[7] In CV-19-90, Mr. Falardeau brought a motion and not a separate application. Although no objection was made to the process he followed, that approach should be discouraged. This time, Mr. Falardeau shall not bring a motion but may bring an application. If he brings an application, (a) he shall follow the procedure set out in rule 38.13; and (b) he shall not commence the application in any jurisdiction other than Owen Sound.
[8] The defendants do not need to do anything to respond to this matter. If Mr. Falardeau brings an application, and if the court considers granting leave to Mr. Falardeau to proceed, before granting leave the court would give the defendants an opportunity to respond to the application.
Chown J.
Released: September 17, 2021