Court File and Parties

COURT FILE NO.: CV-23-00094180 DATE: 2024/03/08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mr. Yves Chevalier and George Basmadji, Scientist, Plaintiffs AND The Office of the Public Guardian and Trustee, Defendant

BEFORE: Justice R. Ryan Bell

COUNSEL: Plaintiffs, self-represented Matthew Chung, for the Defendant

HEARD: In writing

Rule 2.1 ENDORSEMENT

Overview

[1] The defendant requisitioned an order to dismiss the action under r. 2.1.01(1) and r. 2.1.03(1) of the Rules of Civil Procedure. Rule 2.1.01(1) allows the court to stay or dismiss a proceeding if it appears, on its face, to be frivolous or vexatious or otherwise an abuse of the process of the court. Rule 2.1.03(1) requires the court to make an order staying or dismissing a proceeding 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to an order under s. 140(1) of the Courts of Justice Act has instituted the proceeding without the order having been rescinded or leave granted for the proceeding to be instituted. On February 1, 2024, the Court issued a notice under r. 2.1.01(1) and r. 2.1.03(1) advising the plaintiffs that the Court was considering making an order staying or dismissing the proceeding.

[2] Each plaintiff was provided 15 days after receiving the notice to file responding written submissions by email. I directed that Mr. Basmadji’s submissions address whether Platana J.’s order of March 15, 1996 under s. 140(1) of the Courts of Justice Act has been rescinded and whether Mr. Basmadji was granted leave to institute this action. I also directed that Mr. Chevalier’s submissions should address issues relating to his status and representation.

[3] Neither plaintiff filed written submissions in response to the r. 2.1 notice.

The action

[4] In this action, the plaintiffs summarize their cause of action as follows: “[t]he unconstitutional and criminal behaviours of the offender-defendant have led both Victims-Plaintiffs to lose cash and residential property, causing them to be homeless since 2015. This is a serious violation of the Canadian Charter and the Criminal Code.” The plaintiffs allege the defendant was illegally appointed as Mr. Chevalier’s guardian for property, the defendant’s conduct was unconstitutional and criminal, the defendant has been unjustly enriched, the defendant breached its duty of care, and the defendant’s conduct amounted to an abuse of public trust. The plaintiffs seek restitution, damages including aggravated damages in the amount of $100 million and punitive damages in the amount of $10 million.

Principles applicable to r. 2.1

[5] Rule 2.1.01(1) of the Rules of Civil Procedure provides for a summary procedure that allows the court to dismiss a proceeding that appears on its face to be frivolous, vexatious, or an abuse of the process of the court.

[6] The Court of Appeal for Ontario has repeatedly confirmed that r. 2.1 must be “interpreted and applied robustly so that a motion judge can effectively exercise their gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process.” Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8, leave to appeal dismissed [2015] S.C.C.A. No. 488. Rule 2.1 is not for close calls; it may only be used in “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.” Mohammad v. McMaster University, 2023 ONCA 598, at para. 6, citing Scaduto, at para. 8; Khan v. Law Society of Ontario, 2020 ONCA 320, at para. 6, leave to appeal dismissed.

[7] Rule 2.1.03(1) provides:

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 to the proceeding to be instituted or continued, the court shall make an order staying or dismissing the proceeding.

Analysis

[8] Mr. Basmadji is subject to an order under s. 140(1) of the Courts of Justice Act. Paragraph 1 of the March 15, 1996 order of Platana J. prohibits Mr. Basmadji from instituting further legal proceedings without leave of the court.

[9] In another proceeding involving the same parties, Williams J. provided Mr. Basmadji an opportunity to show that Platana J.’s order had been rescinded or that he had been granted leave to commence that action. Mr. Basmadji did not do so: Chevalier v. The Office of the Public Guardian and Trustee, 2022 ONSC 2618, at para. 14.

[10] As this is a different action, I provided Mr. Basmadji with another opportunity to do so. He provided no written submissions in response to the r. 2.1 notice. Mr. Basmadji has not shown that Platana J.’s order has been rescinded, nor has he shown that he was granted leave to commence this action. Under the mandatory language of r. 2.1.03(1), I am obliged to stay or dismiss the action insofar as Mr. Basmadji is concerned.

[11] The statement of claim specifically refers to the power of attorney in which Mr. Chevalier named Mr. Basmadji as his attorney for property. The statement of claim alleges that “having an attorney for property means that you will not need to have a guardian appointed for you.” The claim also alleges that the defendant was illegally appointed as Mr. Chevalier’s guardian for property. This raises questions about whether Mr. Basmadji instituted the action on his own behalf and on behalf of Mr. Chevalier, and whether Mr. Chevalier is a “party under disability” under Rule 7 of the Rules of Civil Procedure. If he is, Mr. Chevalier requires a litigation guardian who must retain a lawyer. If Mr. Chevalier is not a party under disability, he may act in person or be represented by a lawyer: r. 15.01(3). Unless Mr. Basmadji is a lawyer, he cannot represent another person in the conduct of litigation, even if he is the grantee under a person’s power of attorney: Gagnon v. Pritchard.

[12] For these reasons, I directed that Mr. Chevalier’s written submissions should address issues relating to his status and representation. Mr. Chevalier has not provided any written submissions in response to the r. 2.1 notice.

[13] The statement of claim includes hallmarks of frivolous and vexatious claims. The requested relief includes damages in the amount of $100 million and punitive damages of $10 million. Much of the claim is written in boldface and underlined. In the title of proceedings and throughout the claim, the plaintiffs are referred to as “Victims-Plaintiffs” and the defendant as “Offender-Defendant.”

[14] The claim alleges that “Scientists are experts in their field of study and provide correct solutions for complex problems! Hence, their instructions must be followed and obeyed” and “Scientists must control and punish public servants who breach their legal duties.” The claim also alleges that “[i]n the Canadian parliamentary governing system, it is impractical to seek help from public servants!”

[15] The claim against the defendant is predicated on labelling the defendant’s conduct as criminal. The defendant enjoys statutory immunity for anything done or omitted in good faith in connection with their powers and duties under an Act: Public Guardian and Trustee Act, s. 5.1(1). The plaintiffs allege that the defendant stole their home and belongings and acted contrary to s. 122 of the Criminal Code (breach of trust); however, there is no basis to sue someone for committing a crime. I conclude that Mr. Chevalier’s claim is frivolous because, on its face, it is without merit and cannot possibly succeed.

[16] I also note that in Chevalier, Williams J. stayed the action under r. 2.1.03(1) without prejudice to Mr. Chevalier’s right to commence a further proceeding to advance his own claim in respect of his own alleged loss, subject to the requirement that if he is a party under disability, he requires a litigation guardian to advance a claim and if he is not a party under disability, he may not be represented by Mr. Basmadji. The plaintiffs here have elected to proceed as if the orders of Williams J. were never made. In my view, proceeding in this fashion amounts to an abuse of the court’s process.

Disposition

[17] For these reasons, Mr. Basmadji’s claim is dismissed under r. 2.1.03(1) and Mr. Chevalier’s claim is dismissed under r. 2.1.01.

[18] There shall be no order as to costs.

Justice R. Ryan Bell Date: March 8, 2024