Court File and Parties

COURT FILE NO.: CV-22-88677 DATE: 202204028 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN: Yves Chevalier and George Basmadji, Scientist, Plaintiffs -and- The Office of the Public Guardian and Trustee and Ottawa Police Service, Defendants

BEFORE: Madam Justice Heather J. Williams

COUNSEL: Plaintiffs, Self-Represented Matthew Chung, for the Defendant, OPGT Mary Simms, for the Defendant OPS

HEARD: In Writing

RULE 2.1 ENDORSEMENT #2

[1] This endorsement is further to my endorsement of April 11, 2022 in which I made a number of orders, including the following:

• Dr. Basmadji [1] may, within 15 days of receiving the endorsement, file with the court a written submission, of no more than 10 pages in length, responding to the defendants’ request that the action be dismissed under Rule 2.1.01 on the basis that it is frivolous, vexatious or otherwise an abuse of the process of the court.
• Mr. Chevalier may, within 15 days of receiving the endorsement, file with the court a written submission, of no more than 10 pages in length, responding to the defendants’ request that the action be dismissed under Rule 2.1.01 on the basis that it is frivolous, vexatious or otherwise an abuse of the process of the court.
• Dr. Basmadji’s submission shall specifically address: (a) whether Platana J.’s order of March 15, 1996 has been rescinded; and (b) whether Dr. Basmadji was granted leave to institute the action. If so, a copy of any associated court order shall be filed with Dr. Basmadji’s submission.
• The submissions shall address the issues I raised in this endorsement relating to Mr. Chevalier’s status and representation.
• If Dr. Basmadji does not file a submission within 15 days, a further order may be made without notice to him.
• If Mr. Chevalier does not file a submission within 15 days, a further order may be made without notice to him.

[2] On April 20, 2022, the court received a written submission by email in accordance with my endorsement. Although it was not entirely clear to me, it appears that the submission was filed on behalf of both plaintiffs. Although the submission is titled “Plaintiff’s Written Submissions” (plaintiff in the singular), neither plaintiff is identified as being the plaintiff on whose behalf the submission was filed, the submission refers to the rights of “the plaintiffs” (plural) and says that the defendants’ conduct stripped both plaintiffs of their home. The typed initials of both plaintiffs appear at the conclusion of the document.

[3] In my April 11, 2022 endorsement, I ordered that Dr. Basmadji’s submission specifically address: (a) whether Platana J.’s order of March 15, 1996 under s. 140 of the Courts of Justice Act had been rescinded; and (b) whether Dr. Basmadji was granted leave to institute this action. A copy of any associated court order was to be filed with Dr. Basmadji’s submission.

[4] The plaintiffs’ April 20, 2022 submission states that Platana J.’s “total lack of ‘personal jurisdiction’ over Dr. Basmadji cannot be waived” and that without personal jurisdiction over a party, a court cannot enforce its decision upon that party. The plaintiffs stated that the reference to Dr. Basmadji as a vexatious litigant is false and unfounded and that Platana J.’s order is void because a litigant will not be viewed as “vexatious” after filing only one lawsuit; filing multiple frivolous lawsuits is typically required.

[5] An endorsement of Smith J. dated December 7, 2015 was attached to the plaintiffs’ submission. The plaintiffs said that Smith J.’s endorsement was in response to a motion for a charter violation and that Smith J. was sitting in court for a bail review. Smith J.’s endorsement reads as follows:

(1) This appears to be a motion for an appeal of his criminal conviction based on the failure to provide adequate disclosure and an abuse of process. (2) The criminal proceedings in the OCJ have now been completed however. (3) Bail review court is not the appropriate venue for the applicant’s motion. (4) The A may file a motion for an extension of time for an appeal or a summary conviction appeal or proceed with a civil claims (sic) for costs damages if he wishes.

[6] Although there is no reason to believe that Smith J. was aware of Platana J.’s order, it is clear from the endorsement that Smith J. ordered that Dr. Basmadji could proceed with a civil claim. Smith J. did not, however set aside Platana J.’s order nor did he give Dr. Basmadji leave to commence this action, that is to say, the action to which this Rule 2.1.01 request relates.

[7] In my April 11, 2022 endorsement, I said that although Mr. Chevalier is named as a plaintiff, I had inferred from the November 28, 2020 power of attorney attached to the statement of claim, in which Mr. Chevalier named Dr. Basmadji as his attorney for property, that Dr. Basmadji had instituted the action on behalf of both himself and Mr. Chevalier. In my endorsement, I said that this raised the question of whether Mr. Chevalier is a “party under disability” under Rule 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in which case he requires a litigation guardian, who must retain a lawyer. I said that if Mr. Chevalier is not a party under disability, he may act in person, or be represented by a lawyer. (Rule 15.01(3).) I said that unless Dr. Basmadji is a lawyer, he cannot represent another person in the conduct of litigation, even if he is the grantee under the person’s power of attorney (Gagnon v. Pritchard). I said that I inferred that Dr. Basmadji is not a lawyer as he identifies himself as “scientist” in the statement of claim and as “PhD. Chemist” in the power of attorney. I said that the written submission I requested should address the issues I had raised relating to Mr. Chevalier’s status and representation.

[8] The plaintiffs’ April 20, 2022 submission did not refer to any of the issues I raised relating to Mr. Chevalier’s status and representation. It did not address either my inference that Dr. Basmadji had instituted the action on behalf of both plaintiffs or my inferences that Dr. Basmadji is not a lawyer.

Analysis and Conclusion

[9] Rule 2.1.01 permits a court to stay or dismiss an action if it appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. The order may be made on the court’s initiative under Rule 2.1.01(1) or at the request of any party under Rule 2.1.01(6).

[10] There were two requests to dismiss this action under Rule 2.1.01, one on behalf of each defendant, “The Office of Public Guardian & Trustee OPGT” and “Ottawa police services.”

[11] During my consideration of the requests to dismiss the action under Rule 2.1.01, I learned that Dr. Basmadji is a person who is subject to an order under s. 140(1) of the Courts of Justice Act.

[12] Rule 2.1.03(1) provides that if the court determines that a person who is subject to an order under s. 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 (emphasis added) make an order staying or dismissing the proceeding.

[13] As I stated in my April 11, 2022 endorsement, unless Platana J.’s order has been rescinded or Dr. Basmadji obtained leave to institute the action, I am obliged to stay or dismiss the action under Rule 2.1.03(1).

[14] Although I gave him an opportunity to do so, Dr. Basmadji has not shown that Platana J.’s order has been rescinded. Section 140(3) of the Courts of Justice Act provides that if a person against whom an order under s. 140(1) of the Courts of Justice Act has been made seeks leave to institute a proceeding, the person must do so by application. Dr. Basmadji has not shown that he has brought such an application in respect of the action to which this Rule 2.1.01 request relates. As I have already noted, in his December 2015 endorsement, Smith J. did not set aside Platana J.’s order. There is no indication that Smith J. was aware of Platana J.’s order. Smith J. did not give, nor could he have given Dr. Basmadji leave to bring the action to which this Rule 2.1.01 request relates.

[15] Although I had ordered that the plaintiffs’ written submission address the issues I had raised about Mr. Chevalier’s status and representation, the plaintiffs’ April 20, 2022 submission did not rebut or even mention my inference that Dr. Basmadji had instituted the action on behalf of both himself and Mr. Chevalier. In my April 11, 2022 endorsement, I had said the inference was based on the power of attorney attached to the statement of claim. I note also that the statement of claim states that two medical reports had concluded that Mr. Chevalier was mentally incapacitated and that the OPGT had been appointed as his guardian for property. The pleading raises further reason to question whether Mr. Chevalier may be a party under disability. For these reasons, I infer and find that Dr. Basmadji instituted the action on behalf of both plaintiffs.

[16] As I am not satisfied that Platana J.’s order has been rescinded or that Dr. Basmadji obtained leave to start the action and as I am satisfied that, although there are two plaintiffs, the action was instituted by Dr. Basmadji, the action shall be stayed under Rule 2.1.03(1).

[17] Although Dr. Basmadji is precluded from instituting an action without leave because of Platana J.’s order, I am not aware that Mr. Chevalier is similarly restricted. If Mr. Chevalier has a legitimate claim against the defendants, or either of them, he should not be precluded from advancing his claim because Dr. Basmadji improperly started an action on his behalf.

[18] The plaintiffs’ statement of claim includes several of the hallmarks of frivolous and vexatious claims: the requested relief includes $10 million in damages and a declaration of the invalidity of the parliamentary system; much of the claim is written in boldface and underlined; and the claim is sprinkled with explanation marks.

[19] The last section of the statement of claim is titled “The Science supremacy has now passed into the Sovereignty” and states that “scientists possess power and privileges,” “scientists are decision’s (sic) makers and hold the key for the truth,” “scientists’ safety comes first (i.e., the need to protect Scientists against crimes & abuses),” “this court case shows how easily the Constitution can be violated. So, the scientists’ Rights are also at risk of being easily violated,” “the truth is that, the parliamentary system is a wrong, bad, amateurish, and stupid form of government!” and “the system of checks is to prevent a tyrannical government from developing.”

[20] However, read generously, the statement of claim also includes the elements of a cause of action: It alleges that the OPGT was appointed to manage Mr. Chevalier’s finances, that it seized and sold a residential property jointly owned by Mr. Chevalier and Dr. Basmadji without their consent and that it searched the bedrooms of the home and removed their contents. It alleges that the plaintiffs were deprived of the use of their property. The statement of claim also alleges that the OPGT’s actions violated the plaintiffs’ rights and failed to protect Mr. Chevalier’s best interests.

[21] If Mr. Chevalier wishes to advance his own claim, in respect of his own alleged loss, he should not be precluded from doing so because of Dr. Basmadji’s status as a vexatious litigant. However, as I stated in my previous endorsement, if Mr. Chevalier is a party under disability, he will require a litigation guardian to advance a claim. If Mr. Chevalier is not a party under disability, he may represent himself or be represented by a lawyer; he may not be represented by Dr. Basmadji.

[22] Should Mr. Chevalier commence a further claim against either or both of the defendants, nothing in this endorsement is intended to prevent the defendant or defendants from making a further request under Rule 2.1.01 or from bringing any procedural motion in respect of the claim.

Disposition

[23] I make the following orders:

1. The action is stayed under Rule 2.1.03(1);
2. The stay of this action is without prejudice to Mr. Chevalier’s right to commence a further proceeding, subject to my comments in paras. 21 and 22, above.

Costs

[24] There shall be no costs to any party.

Justice Heather Williams Date: April 28, 2022

Footnote

[1] In my April 11, 2022, I referred to Dr. Basmadji as “Mr.” Basmadji. I believe that I should have referred to him as “Dr.” Basmadji and will do so in this endorsement.