COURT FILE NO.: CV-21-86328
DATE: 2022/05/27
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Kamala Tiwari, Plaintiff
AND
Jennifer Chevalier, Canadian Broadcasting Corporation, Stephen Heckbert, Kyrstin Dumon, Jessica Dumon and Brooke Shaw, Defendants
BEFORE: Madam Justice Heather Williams
COUNSEL: Oussama Hamza, for the Plaintiff
Sean Moreman, for Defendants, CBC and Jennifer Chevalier
Daniel Kastner, and Shakir Rahim, for the Defendants; Kyrstin Dumon, Jessica Dumon and Brooke Shaw
Chris Rutherford and Jonathan Collings for the Defendant Stephen Heckbert
HEARD: March 17, 2022, by Zoom at Ottawa
ENDORSEMENT
[1] The plaintiff Kamala Tiwari has brought an action for libel. She seeks $20 million in damages.
[2] Jennifer Chevalier and Canadian Broadcasting Corporation have brought a motion on behalf of all defendants to dismiss the action on the basis that the name of the person who started the action is not really Kamala Tiwari. Ms. Chevalier and CBC say the action was started by Althea Reyes, who has been declared a vexatious litigant under s. 140 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as am, and who was not, therefore, entitled to start an action without obtaining leave of the court.
[3] Ms. Chevalier and CBC also say the action should be dismissed because it is clearly frivolous and vexatious.
[4] Ms. Chevalier and CBC have brought their motion under Rule 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which permits a defendant to move to have an action dismissed or stayed on the basis that it is frivolous or vexatious or is otherwise an abuse of the process of the court.
Background Facts
[5] Ms. Chevalier is an investigative reporter and senior producer employed by the CBC.
[6] Ms. Chevalier wrote a story titled “Mental health charity reeling amid resignations over suspicions about leader’s alleged secret identity” that was published on CBC’s website on March 9, 2021. CBC television and CBC radio broadcast versions of the story.
[7] Ms. Chevalier’s story was about an organization known as the National Collaboration for Youth Mental Health. The story said the head of the organization was a woman named Maxine Adwella but that a court had concluded that Maxine Adwella was actually an alias used by Althea Reyes.
[8] The story described Althea Reyes as a former law student and beauty pageant contestant who had been acquitted of forgery and fraud in the 1990s, convicted of dangerous driving and failing to remain at the scene of an accident in 2011 and who had convictions for fabricating evidence and theft under $5000. The story said Althea Reyes had been declared to be a vexatious litigant by Perell J. of the Ontario Superior Court in 2017, and that Perell J. had found she had started about 20 civil proceedings “designed to discomfort and harass her foes.”
[9] The story said that following the vexatious litigant finding, which prevents a person from starting a legal action in their own name without the court’s permission, Althea Reyes had used the name Maxine Adwella to start a legal proceeding. It was in the context of that proceeding that a judge had concluded that Maxine Adwella was an alias.
[10] The name of the plaintiff in this action, Kamala Tiwari, appeared in Ms. Chevalier’s story only once, in the following context:
CBC News reached out to Maxine Adwella by email and received several messages back from the charity.
A volunteer named Barbara, who didn’t provide a last name, said “Awedalla” (as the name was spelled in the email) was “not the right person to speak for” the organization. She said the charity “has never interviewed or hired Althea Reyes.”
When CBC News asked if Barbara was Althea Reyes, the organization’s chair, Kamala Tiwari, replied instead, saying this was “the last straw” and that Barbara was a 70-year-old retired nurse. She said the charity would file a police report if the CBC contacted them with any further questions.
[11] The story went on to describe the experiences of some former employees, volunteers and others who had been affiliated with NCYMH.
The statement of claim
[12] The statement of claim was issued April 21, 2021. In it, the plaintiff seeks $20 million in damages “for the false biased and defaming article” published March 9, 2021.
[13] The statement of claim says the plaintiff and the “BIPOC Charity” she headed were both damaged by the defendants’ actions. It says the CBC, Ms. Chevalier and the defendant Stephen Heckbert were responsible for the majority of the defamation, slander, libel, harm and damage caused. The statement of claim says these defendants refused the plaintiff’s request to have a BIPOC journalist or a journalist with anti-racism and unconscious bias training interview the BIPOC charity and its members, and that “the CBC insisted on having a Caucasian female reporter without anti-racism (sic) and without unconscious bias training and a vendetta against the BIPOC organization conduct a biased investigation, suppress evidence and publish a racist article intended to destroy the plaintiff, the BIPOC charity and its diverse team members.” The statement of claim alleges breach of journalistic integrity and systemic discrimination and racism. It says that Ms. Chevalier defamed the plaintiff “in a reply to a question on the charity’s google review” by calling the plaintiff “sketchy” and by stating falsely that the CBC had conducted “due diligence” when the article she wrote suppressed evidence. The statement of claim also alleges that Ms. Chevalier falsely reported that Maxine Adwella was the head of NCYMH when she and all the defendants knew that the plaintiff was and is the head of the charity. The statement of claim says the charity must be made whole from loss of revenue, loss of reputation and damage, ridicule and harm caused by the libel and defamation.
Previous court appearances
[14] The motion was initially scheduled to be heard by Labrosse J. on August 26, 2021. Kamala Tiwari appeared with lawyer Oussama Hamza. Mr. Hamza requested an adjournment. No documents had been delivered on behalf of Kamala Tiwari in response to the motion.
[15] Labrosse J. ordered Mr. Hamza to file written confirmation of his retainer. Labrosse J. also ordered the plaintiff to produce an affidavit or a statutory declaration confirming her identity, which was to include certified copies of a number of documents, including her passport, her driver’s licence, her health card and her social insurance card. Labrosse J. ordered the defendants’ counsel not to share the information produced by the plaintiff with their clients or to make any use of the documents without leave of the court.
[16] Labrosse J. then adjourned the matter to October 21, 2021, to set a timetable for the motion.
[17] In an endorsement dated October 21, 2021, Labrosse J. noted that Mr. Hamza was now on the record and that the plaintiff had not complied with the order of August 26, 2021. The plaintiff evidently raised concerns about disclosing her social insurance number, because Labrosse J. gave the plaintiff permission to redact the number from her social insurance card, pending further submissions on the issue at the eventual hearing of the motion.
[18] Labrosse J. ordered the plaintiff to comply with his August 26, 2021 order or to provide evidence that she did not have the documents he had ordered her to produce.
[19] Labrosse J. also set a timetable for the plaintiff to file responding motion materials and for cross-examinations on affidavits. He ordered the motion to be rescheduled for a date after November 30, 2021.
[20] The plaintiff attempted to appeal Labrosse J.’s October 21, 2021 order to the Court of Appeal for Ontario. On March 3, 2022, Pepall J.A. refused to grant the plaintiff an extension of time to perfect the appeal, which brought the appeal to an end.
[21] When the parties appeared before me on March 17, 2022, which was their third court appearance, the plaintiff had not complied with either of Labrosse J.’s orders and had not filed any documents in response to the motion.
The Issues
[22] The issue before me is whether the action should be dismissed or stayed: (1) because Kamala Tiwari is really Althea Reyes, who has been declared a vexatious litigant and is not entitled to start an action without leave of the court; or (2) because the action is frivolous or vexatious or is otherwise an abuse of the process of the court.
The Plaintiff’s Position
[23] Mr. Hamza said he has identification for his client. He said his client had legitimate concerns about releasing her social insurance number. He said she was also concerned that if she released her identification to the CBC, the CBC would use it against her.
[24] Mr. Hamza requested an order staying or dismissing the motion or an order adjourning the motion to permit him to cross-examine the affiant of an affidavit from another court proceeding that was attached as an exhibit to Ms. Chevalier’s affidavit.
[25] Mr. Hamza also said the plaintiff was not really seeking $20 million from the defendants. He said she would accept an apology, a retraction of the March 9, 2021 story and the proceeds attributable to the article.
Analysis
[26] The moving parties have asked me to draw an adverse inference that the plaintiff is not who she says she is, based on her failure to produce proof of her identity.
[27] Drawing an adverse inference from failure to produce evidence is discretionary. The inference should not be drawn unless it is warranted in all the circumstances. What is required is a case-specific inquiry into the circumstances including, but not only, whether there was a legitimate explanation for failing to call the witness, whether the witness was within the exclusive control of the party against whom the adverse inference is sought to be drawn, or equally available to both parties, and whether the witness has key evidence to provide or is the best person to provide the evidence in issue. (Parris v. Laidley, 2012 ONCA 755, at para. 2.)
[28] Adverse inferences may be drawn from a party’s failure to produce relevant documents they were required to produce or should have produced. (Sarzynick v. Skwarchuk, 2021 BCSC 443, at para. 190.)
[29] To adapt the Parris case to the situation before me, I will begin my “case-specific inquiry into the circumstances” by considering whether there was support in the evidence for the moving parties’ contention that the real name of the person who started the action against them is not Kamala Tiwari. I will then consider whether there was a legitimate explanation for the failure to produce proof of the plaintiff’s identity, whether proof of the plaintiff’s identity was within the exclusive control of the plaintiff or equally available to both parties and finally, whether the proof of the plaintiff’s identity is key evidence.
Was there support in the evidence for the moving parties’ contention that the real name of the person who started the action against them is not Kamala Tiwari?
[30] For the reasons below, I find that there was ample support in the evidence for the moving parties’ contention that the real name of the person who started the action against them is not Kamala Tiwari.
The focus of Ms. Chevalier’s story was Althea Reyes, not Kamala Tiwari
[31] The moving parties argue that a $20 million lawsuit would have been a rather extreme reaction by Kamala Tiwari to Ms. Chevalier’s March 9, 2021 story, when the story included only one reference to Kamala Tiwari. The story identified Kamala Tiwari as the chair of the NCYMH and said that she had told Ms. Chevalier that the charity would file a police report if the CBC contacted the organization with any further questions.
[32] The focus of Ms. Chevalier’s March 9, 2021 story was Althea Reyes. The headline was: “Mental health charity reeling amid resignations over suspicions about leader’s alleged secret identity.” The sub-headline was “Ex-staffers say they believe identity of woman behind youth charity is an alias for known vexatious litigant.” The story said that Althea Reyes was the person behind the NCYMH and that she used the name Maxine Adwella as an alias. The story included details about Althea Reyes’ history with the justice system and made references to her criminal convictions. The story said that Althea Reyes had been declared to be a vexatious litigant in 2017, that she subsequently used the name Maxine Adwella to start a legal proceeding and that, in another proceeding, a judge had found there was substantial evidence that Althea Reyes had been responsible for the litigation. Ms. Chevalier’s story also included several photographs of Althea Reyes.
[33] While Ms. Chevalier’s story mentioned Kamala Tiwari, and not in a particularly favourable light, I agree with the moving parties that the story does not appear to defame Kamala Tiwari. I also agree with the moving parties that the story would have been much more likely to raise the ire of Althea Reyes. Althea Reyes was, of course, unable to start a legal action in her own name without leave of the court because of Perell J.’s 2017 vexatious litigant order.
Kamala Tiwari’s address on the statement of claim
[34] The name and address of the plaintiff that appears following the last paragraph of the statement of claim is Kamala Tiwari, 331 Cooper Street, Suite 300, Ottawa, Ontario.
[35] Although the standard form for a statement of claim also requires a telephone number, no telephone number was provided.
[36] The defendants’ evidence on the motion included a page from the Law Society of Ontario’s website which showed that 300-331 Cooper St., Ottawa, Ontario is the business address of lawyer Kibondo Ya Muzinga Kilongozi.
[37] In an email, Mr. Kilongozi had informed CBC lawyer Farid Muttalib that he did not know Kamala Tiwari and that he was “not representing him or her.” Mr. Kilongozi said he could not confirm that the name was associated with Althea Reyes.
[38] Significantly, Althea Reyes was not a stranger to Mr. Kilongozi. A November 26, 2020 endorsement of D. E. Harris J. in Equal Justice Canada v. Big Brothers and Big Sisters Halton and Hamilton, 2020 ONSC 7573, indicates that Mr. Kilongozi appeared at the hearing, describing himself as a friend of the court, and requested an adjournment of a motion brought by Equal Justice Canada. According to the endorsement, the respondent, BBBSHH, argued that the motion had actually been brought by Althea Reyes, a vexatious litigant, and not by Equal Justice Canada. The endorsement reflects that Mr. Kilongozi told the court he had been contacted by Ms. Reyes the previous day and that they had discussed the motion.
[39] In my view, it is striking that the address of the plaintiff “Kamala Tiwari” on the statement of claim in the motion before me is the business address of a lawyer who does not know Kamala Tiwari, but who does know Althea Reyes.
Kamala Tiwari’s response to questions about Althea Reyes and Maxine Adwella
[40] On February 25, 2021, about two weeks before her story was published, Ms. Chevalier received an email from kam@ymhconference.ca. The writer of the email identified herself as Kamala Tiwari and said she was the chair of “the organization” which she identified later in the email as the NCYMH. The writer stated that she was a “real person” with government ID. (Although the latter statement may seem like the assertion of a person who protests too much, some context is appropriate; the statement was in direct response to an email Ms. Chevalier had sent to the NCYMH, in which she had requested evidence that a number of people, including Maxine Adwella, Maxine Adewalla and Kamala Tiwari were “all real people with government-issued photo ID.”)
[41] The writer of the email said she would sue Ms. Chevalier and CBC if Ms. Chevalier put either the writer’s or NCYMH’s name in an article or any further communication.
[42] The writer also said that “Althea Reyes did not apply for, interview or work or volunteer” at NCYMH and that “R. Maxine Awedalla is a separate person, with three pieces of government issued ID.”
[43] The writer also said that Ms. Chevalier’s harassment of a BIPOC youth mental health organization for a “ridiculous stupid story is just racist.”
[44] On November 18, 2020, three months before the February 25, 2021 email was sent to Ms. Chevalier, Vella J. of this court had released a decision in Adwella (aka Reyes) v. Animal Care Review Board, 2020 ONSC 7082. In it, Vella J. identified the main issue on the motion before her as being whether the appellant Maxine Adwella was in fact, Althea Reyes, using an alias or privy. Vella J. found this to be the case, and also that Ms. Reyes had used the alias to circumvent the 2017 order under s. 140 of the Courts of Justice Act declaring her to be a vexatious litigant.
[45] Vella J.’s reasons for decision reveal that lawyers representing NCYMH appeared before her at two pre-motion case conferences. On one occasion, in July 2020, a lawyer named Josh Halpern appeared on behalf of both the appellant[^1] and NCYMH and said he would be moving to substitute NCYMH for the appellant. At a later case conference, in October 2020, about two weeks before Vella J. heard the motion, two lawyers from Gowlings appeared and advised they were in the process of being retained by NCYMH.
[46] That NCYMH (1) became involved in a motion in which the main issue was whether the named appellant was actually Ms. Reyes using an alias; (2) was for a time represented by the same lawyer as Ms. Reyes; and (3) planned to move to substitute itself for the named appellant, who was ultimately found to be Ms. Reyes using an alias, leaves no doubt in my mind about the existence of an affiliation between NCYMH and Ms. Reyes.
[47] I agree with the moving parties that if the person who wrote the February 25, 2021 email to Ms. Chevalier was “the head and chair” of NCYMH, as Kamala Tiwari had described herself, the writer very likely would have known about the motion before Vella J. and its November 18, 2020 outcome. After all, NCYMH had instructed a lawyer to substitute itself for the named appellant in the proceeding. The writer of the email would, then, have known about the affiliation between the organization and Ms. Reyes. Yet the writer of the February 25, 2021 email told Ms. Chevalier that Althea Reyes had not worked or volunteered for the organization. At best, that statement was misleading and may have been intended to lead Ms. Chevalier believe that Ms. Reyes had no affiliation at all with NCYMH.
[48] The writer of the February 25, 2021 email told Ms. Chevalier that R. Maxine Awedalla is a separate person with government issued ID “as are ALL our team members, volunteers and speakers.” Curiously, a copy of the email was sent both to rmaxineawedalla@gmail.com and to amaxineadwella@gmail.com. Three months earlier, Vella J. had found that Maxine Adwella was not a real person, but rather an alias used by Ms. Reyes.
Kamal Tiwari’s response to requests for identification
[49] That the CBC and Ms. Chevalier suspected that Kamala Tiwari was not the person who had started the action against them, and the other defendants was known to the plaintiff by May 10, 2021 at the latest.
[50] On May 10, 2021, the Case Management Office of the Superior Court of Justice in Ottawa sent an email to CBC lawyer Mr. Muttalib and to the email address ncymhexecutive@gmail.com, attaching an endorsement of Gomery J. which dismissed a request to dispose of the action under Rule 2.1 of the Rules of Civil Procedure. In the first paragraph of her endorsement, Gomery J. wrote: “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.”
[51] Following the release of Gomery J.’s endorsement, Mr. Muttalib and a person identifying herself as Kamala Tiwari exchanged emails.
[52] Kamala Tiwari told Mr. Muttalib she was prepared to meet with him in person to establish her identity and to resolve her lawsuit. She asked for Ms. Chevalier’s article to be removed from the CBC website and elsewhere and said she was prepared to discuss the quantum of damages.
[53] Mr. Muttalib proposed a video call so that Kamala Tiwari could prove she was a real person. He also requested government-issued photo ID. Kamala Tiwari replied that she would meet with Mr. Muttalib via video provided they signed a contract that CBC would take down Ms. Chevalier’s article within six hours of the meeting. Kamala Tiwari also said she would provide identification to a lawyer of her choice, who would verify receipt of the identification. She said she did not feel comfortable giving Mr. Muttalib her identification because they were in litigation.
[54] Mr. Muttalib said he was not prepared to discuss a resolution of the claim and that until he was shown government-issued photo identification, he would assume the writer was Althea Reyes, operating under an alias.
[55] Kamala Tiwari replied that no meeting would take place until the article was taken down. She said there was no proof that she was Althea Reyes and that she was “very much a real person and the Head and Chair of NCYMH.”
[56] Mr. Muttalib did not receive any identification from Kamala Tiwari.
[57] Ms. Chevalier and CBC then initiated their motion to dismiss the plaintiff’s action. The notice of motion dated June 7, 2021 clearly set out that the moving parties believed that the plaintiff was Althea Reyes and not Kamala Tiwari. The grounds for relief included the following: “The plaintiff’s actual identity is Althea Reyes, an individual who was declared a vexatious litigant by Perell J. in 2017 in Court File CV-17-569807, Ontario (Attorney General) v. Reyes, 2017 ONSC 3451.”
[58] The parties’ appearances before Labrosse J. on August 26, 2021 and October 21, 2021, and Labrosse J.’s orders requiring the plaintiff to produce identification, are described, above.
[59] The motion before me was heard by Zoom teleconference on March 17, 2022. At the outset, as I was confirming who was present, I asked Mr. Hamza if his client was on the screen. Mr. Hamza did not answer the question. Instead, he said that I should direct my question to the other parties, because the motion concerned the identity of his client and the other parties claimed to know who his client was. I did not take Mr. Hamza up on his suggestion. I asked a woman who appeared on the screen, and who I assumed to be the plaintiff, if she was a party to the action. Mr. Hamza interjected and began to repeat his suggestion that I ask the other parties if the plaintiff was present when the woman to whom I had directed my question said her name was Kamala Tiwari. I continued to discuss some preliminary matters with counsel. Within a few minutes, the woman who had identified herself as Kamala Tiwari said she had to go to a funeral. I excused her and she left the teleconference.
[60] I have already noted that when the motion was heard, the plaintiff had not complied with Labrosse J.’s orders to produce identification and had filed no documents in response to the motion. Although he acknowledged that court orders should not be ignored, Mr. Hamza also defended the plaintiff by saying that he did not think that Labrosse J.’s orders were fair.
[61] I have great difficulty imagining why, in litigation in which the identity of a party is at issue, if the party is who she claims to be, the party would not produce identification immediately and put the issue to rest. In this case, Labrosse J. ordered the plaintiff to produce identification and, if she was unable to produce identification, to produce an affidavit explaining why she was unable to produce the identification. The plaintiff did neither. When the plaintiff claimed unwillingness to disclose her social insurance number, Labrosse J. ordered that she could redact the number from her SIN card. Despite the accommodation, the plaintiff did not produce the card or any other identification.
Was there a legitimate explanation for the failure to produce the identification?
[62] Mr. Hamza, while acknowledging that the plaintiff had failed to comply with two court orders, said that he thought her reluctance to release her social insurance number and to give her identification to the CBC, was quite reasonable.
[63] Both of these concerns, however, had been raised before Labrosse J. Labrosse J. dealt with both of them. On August 26, 2021, Labrosse J. ordered the defendants’ counsel not to share with their clients any documentation produced by the plaintiff. On October 21, 2021, Labrosse J. ordered that the plaintiff was free to redact the number from her social insurance card, pending further argument.
[64] I find there was no legitimate explanation offered for the plaintiff’s failure to produce the identification.
Was the identification within the exclusive control of the plaintiff?
[65] The identification was within the exclusive control of the plaintiff; it was not equally available to any of the other parties.
Was the identification key evidence?
[66] The identification is key evidence; the central issue on the motion is whether the plaintiff is who she says she is.
Conclusion with respect to adverse inference
[67] This is not a situation that arises in our court on a regular basis. Even so, I am confident in the view I have already expressed that a person who is accused of not being who they say they are would be eager to prove their accuser wrong by producing identification immediately. Such a person would not typically wait for a court order before producing identification and would not then defy a court order requiring them to produce identification. This all assumes, of course, that the person’s accuser is wrong.
[68] In all the circumstances of this unusual case, I am satisfied that it is appropriate for me to draw an inference from the plaintiff’s conduct. I infer from the plaintiff’s failure to produce identification, even after having been ordered to do so twice by this court, that the moving parties in this case are not wrong, and that the plaintiff has no identification which would confirm that her name is Kamala Tiwari. Having drawn this inference, I find that the name of the person who started the action against the defendants is not Kamala Tiwari.
[69] The Rules of Civil Procedure require the names of parties to be set out in the title of proceeding of a statement of claim or notice of application. If a person is a party in a capacity other than their personal capacity, this must be specified. There are procedures which must be followed if a party wishes to be identified by their initials for privacy or other purposes. Other parties and the public are entitled to know the identity of parties to litigation. Orders cannot be enforced against a party who is not accurately identified.
[70] Having concluded that the plaintiff’s real name is not Kamala Tiwari, I have no hesitation in concluding that the action commenced in the name of Kamala Tiwari is an abuse of the process of the court and that it should be dismissed under Rule 21.01(3)(d) of the Rules of Civil Procedure.
Is Kamala Tiwari an alias for Althea Reyes?
[71] Although I have found that the action should be dismissed on the basis that it is an abuse of process, I will nonetheless consider whether Kamala Tiwari is an alias used by Althea Reyes. Considering the issue is appropriate; if the identity of the plaintiff remains unknown, the successful parties on the motion will be unable to enforce a costs order against the plaintiff.
[72] The moving parties admit there is no direct evidence before me that would prove that the plaintiff is really Althea Reyes. However, they argue that:
• Ms. Reyes would have an interest in starting an action against Ms. Chevalier and the CBC because Ms. Chevalier’s March 9, 2021 story was largely focused on Ms. Reyes’ conduct, including her criminal convictions and her status as a vexatious litigant.
• Ms. Reyes has a history of commencing lawsuits, many of them, as Perell J. put it in his 2017 decision, “designed to discomfort and harass her foes.”
• The plaintiff’s address on the statement of claim is that of a lawyer who knew and had taken instructions from Ms. Reyes.
• Ms. Reyes has a history of using aliases in legal proceedings (Adwella (aka Reyes) v. Animal Care Review Board, 2020 ONSC 7082; Alli A. Reyes v. K.L., 2017 ONSC 308; Reyes v. Esbin, 2016 ONSC 7755 and 2017 ONSC 601).
[73] As the moving parties have offered no direct evidence in support of their theory, I must consider whether there are other plausible theories or reasonable possibilities other than that Ms. Reyes used the name Kamala Tiwari to start the action and whether the evidence that is before me, viewed logically and in light of human experience, is reasonably capable of supporting another inference. (R. v. Villaroman, 2016 SCC 33, at paras. 37 and 38.)
[74] Having found that the name of the person who started the action against the defendants is not Kamala Tiwari, the pool of possible alternatives is not deep. I have carefully reviewed Ms. Chevalier’s March 9, 2021 story to consider who, other than Ms. Reyes, may have been aggrieved by it. I have come up dry. While other people are named in the story, Ms. Reyes is clearly its centrepiece, and most of the others who are named provide accounts of their experiences with Ms. Reyes and NCYMH.
[75] Further, while it is difficult to imagine why anyone would start a legal action in a name other than their own, Ms. Reyes has a reason: She cannot start an action in her own name without leave of the court because of Perell J.’s 2017 vexatious litigant declaration. Ms. Reyes also has a history of starting legal proceedings against people she feels have crossed her, and of using aliases in legal proceedings. Ms. Reyes and Mr. Kilongozi have worked together in the past. On the evidence before me, it defies belief that the person who issued a statement of claim using the alias Kamala Tiwari, and who used Mr. Kilongozi’s office address as the plaintiff’s address for service, could be anyone other than Ms. Reyes.
[76] I am satisfied, on a balance of probabilities, that the evidence before me on this motion is not reasonably capable of supporting an inference other than that it was Althea Reyes who started the action against the defendants, using the name Kamala Tiwari.
[77] Finally, I must add that Mr. Hamza’s participation in this matter was of concern to me, given his status as an officer of the court.
Disposition
[78] I make the following orders:
The motion is granted.
The action is dismissed under Rule 21.01(3)(d) of the Rules of Civil Procedure on the basis that it is an abuse of process, having been commenced by a person other than the person whose name appears as plaintiff in the title of proceeding.
The action is dismissed under s. 140 of the Courts of Justice Act and Rule 2.1.03(1) of the Rules of Civil Procedure on the basis that it was commenced by Althea Reyes, a person who has been declared a vexatious litigant under an order which has not be rescinded and who did not obtain leave to commence the action.
The title of proceeding shall be amended so that the plaintiff is referred to as “Kamala Tiwari also known as Althea Reyes.”
Costs
[79] As I noted at the outset, Ms. Chevalier and the CBC brought their motion on behalf of all defendants.
[80] The defendants shall file brief written costs submissions within 14 days. As I have dismissed the action, these submissions shall address the costs both of the motion and of the action.
[81] The plaintiff, Kamala Tiwari also known as Althea Reyes, shall file brief responding submissions within 14 days of receipt of the last of the defendants’ submissions.
[82] The defendants may file brief reply submissions within seven days of receipt of the plaintiff’s submissions.
[83] All submissions are to be emailed to scj.asssitants@ontario.ca to my attention.
Justice Heather Williams
Date: May 27, 2022
COURT FILE NO.: CV-21-86328
DATE: 2022/05/27
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Kamala Tiwari, plaintiff
AND
Jennifer Chevalier, Canadian Broadcasting Corporation, Stephen Heckbert, Kyrstin Dumon, Jessica Dumon and Brooke Shaw, defendants
COUNSEL: Oussama Hamza, for the Plaintiff
Sean Moreman, for Defendants, CBC and Jennifer Chevalier
Daniel Kastner, and Shakir Rahim, for the Defendants, Kyrstin Dumon, Jessica Dumon and Brooke Shaw
Chris Rutherford and Jonathan Collings for the Defendant, Stephen Heckbert
ENDORSEMENT
Williams J.
Released: May 27, 2022
[^1]: The appellant was ultimately found by Vella J. to be Althea Reyes, using the name Maxine Adwella as an alias.