COURT FILE NO.: CV-24-00096081-0000
DATE: 20241022
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Rachida Youmouri and Enrique M. (Tito) Jurado, Plaintiffs
AND
Hon. Doug Downey, Attorney General of Ontario, Doug Downey, Joy Overtveld, Todd Overtveld, Gary Katz, Ginsberg Gingras & Associates Inc., Chantal Gingras, Mazerolle & Lemieux, Denis Cadieux, and Sheriff of Ottawa, Defendants
BEFORE: Justice R. Ryan Bell
COUNSEL: G.F. Windsor, for the Plaintiffs
Gavin J. Tighe, for the Defendants Denis Cadieux and Mazerolle & Lemay
Anne Tardif, for the Defendants Ginsberg Gingras & Associates Inc. and Chantal Gingras
HEARD: In writing
Rule 2.1 ENDORSEMENT
Overview
[1] The defendants Denis Cadieux, Mazerolle & Lemay (incorrectly named in the title of proceedings as Mazerolle & Lemieux), Ginsberg Gingras & Associates, and Chantal Gingras have requisitioned an order to dismiss this action under r. 2.1.01(6) of the Rules of Civil Procedure. This rule allows the court to dismiss a proceeding if it appears, on its face, to be frivolous or vexatious or otherwise an abuse of the process of the court.
[2] On August 15, 2024, I directed the registrar to provide notice to the plaintiffs that the court was considering making an order to dismiss the proceeding under r. 2.1. A copy of my endorsement and a 2.1A notice were emailed to the plaintiffs’ lawyer.
[3] The plaintiffs delivered written submissions in response to the notice.
Background and the statement of claim
[4] In 2011, Gilles Overtveld appointed his children, the defendants Joy Overtveld and Todd Overtveld, and his accountant, the defendant Gary Katz, his attorneys for property. Gilles also signed a power of attorney for personal care naming his children as attorneys for personal care. A few years later, following Gilles’ marriage to the plaintiff Rachida Youmouri, Joy Overtveld and Todd Overtveld raised concerns about their father’s mental state and capacity. The plaintiff Enrique M. (Tito) Jurado was Gilles’ friend.
[5] Gilles asserted that his children were improperly interfering with his affairs. He initiated a claim against them in the Ottawa Superior Court of Justice. As described by Tulloch J.A., as he then was, “[t]hese claims have devolved into scandalous innuendos and spurious claims against several people, including opposing lawyers and judges tangentially involved in the case”: Overtveld v. Overtveld, 2021 ONCA 930, at para. 4.
[6] In an attempt to circumvent the Superior Court of Justice in Ottawa, Gilles initiated another action in the Brampton Superior Court of Justice. That action was related to a series of at least seven prior proceedings, which were being case managed in Ottawa. On September 27, 2021, the case management judge struck out the statement of claim in that action. The motion to extend the time to file a notice of appeal was denied: Overtveld v. Overtveld, 2021 ONCA 930. The motion for review of that order was dismissed: Overtveld v. Overtveld, 2022 ONCA 332.
[7] According to the statement of claim in this action, Gilles died in June 2023.
[8] This action is “to stay the operation of and to have the Court review” Ms. Gingras’ “illegal issue” of two writs of seizure and sale, allegedly done at the request of Joy Overtveld, Todd Overtveld, and Mr. Katz, “operating as a criminal organization to terrorize the Plaintiffs and their lawyer.” Ms. Gingras was the court-appointed trustee for litigation. The plaintiffs allege that Joy Overtveld, Todd Overtveld, and Mr. Katz procured a “false” case conference order and embezzled Gilles’ money and shares. The plaintiffs seek damages for malicious prosecution of application nos. FC-19-1504, CV-19-81051, and CV-19-81713-0ES0 and other relief.
[9] The plaintiffs allege that the purpose of issuing the writs of seizure and sale was twofold. First, it was to stop the plaintiffs and their lawyer from disclosing the alleged embezzlement by Joy Overtveld, Todd Overtveld, and Mr. Katz of Gilles’ assets and their “criminal mistreatment of [Gilles] resulting in his murder on June 11, 2023.” Second, it was to stop the plaintiffs and their lawyer from disclosing the alleged inadequacies of Ms. Gringas’ trustee report dated April 11, 2024. The plaintiffs allege that the trustee’s report does not disclose the assets or creditors of the deceased’s estate.
[10] The statement of claim is 46 pages and 146 paragraphs long. The action is said to be brought under the simplified procedure provided in r. 76 of the Rules of Civil Procedure, but the claim does not specify the amount of damages sought. The plaintiffs request the following relief against the defendants, jointly and severally:
- a declaration that the costs endorsement dated November 21, 2022 in action no. CV-21-91721 is null and void (the costs endorsement was actually released on November 21, 2023 and was made in CV-21-87127, not CV-21-91721);
- a declaration that any order dated November 21, 2023 in application no. CV-19-81051 is null and void (this is a second costs endorsement released on the same date as the first);
- a declaration that the writ of seizure and sale no. 49799602-1115595B dated May 16, 2024 is null and void;
- a declaration that the writ of seizure and sale no. 49325456-7839005B dated May 22, 2024 is null and void;
- a declaration that the Sheriff of Ottawa acted improperly in issuing the writs of seizure and sale and the writ detail reports;
- an order that Mazerolle & Lemay and Mr. Cadieux notify the plaintiffs and their lawyer and their respective mortgagees with an apology for having acted peremptorily, illegally, and wrongfully;
- for compensatory damages in amounts to be proven at trial;
- for punitive damages as appropriate; and
- for their legal costs and expenses.
[11] The plaintiffs allege that the Sheriff of Ottawa colluded with other defendants as members of a criminal organization to improperly enforce a costs endorsement against the plaintiffs. As against Ms. Gingras and Ginsberg Gingras & Associates, the plaintiffs allege among other things that they published a “forged, false, and spurious Trustee’s Report, and obtained the writs of seizure and sale and writ detail reports with the intention that they would be misused.”
[12] The plaintiffs plead that the Attorney General of Ontario has been negligent in not establishing “proper legal process” for sheriffs in Ontario to guard against the fraudulent obtaining and issuing of writs of seizure and sale.
[13] More generally, the statement of claim alleges that the “Judges in the East Region” are “biased, corrupt, and dishonest” and that certain of the defendants and “a gang of unscrupulous, corrupt, and dishonest lawyers” are “colluding under the supervision of Judges of the Superior Court of Justice.” The claim alleges at para. 146:
Because a fair hearing cannot be held in the East Region, in the interest of justice they [the plaintiffs] each require that the trial of their Claims be tried and heard in any jurisdiction other than the East Region.
The plaintiffs’ written submissions
[14] In response to my endorsement and the 2.1A notice, the plaintiffs provided a “Conditional Special Response …made without acceding to the jurisdiction of Judges of the East Region of the Superior Court of Justice of Ontario.” In their written submissions, the plaintiffs contend that my endorsement is ultra vires and contrary to the rules of natural justice. The plaintiffs submit that the East Region is forum non conveniens and that the action “must be heard” by a judge of another jurisdiction.
[15] In their written submissions, the plaintiffs claim that the case management judge made a substantive case conference order that is an “ultra vires criminal forgery.” They claim that it was the case management judge, “acting through his nominee”, Ms. Gingras, who requisitioned an order under r. 2.1.01(6) because the case management judge “would undoubtedly prefer that this Action not proceed to trial.” The case management judge is said to be a “sophisticated white-collar criminal” and “relevant judges” of the East Region are alleged to have misconducted themselves by “acting extrajudicially” to deny all justice to Gilles.
[16] In short, the plaintiffs have used their written submissions to repeat and step up their spurious attacks on the defendants and the judiciary in the East Region.
Principles applicable to r. 2.1
[17] 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.
[18] 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.”[^1] 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.” [^2]
Analysis
[19] I have no hesitation in finding that this action is, on its face, frivolous, vexatious, and an abuse of process. It is manifestly devoid of merit, consisting of scandalous attacks on the named defendants, in relation to matters that have already been determined.
[20] The claim is purportedly brought under the simplified procedure, but it is for an unspecified amount of damages. The plaintiffs “require” that their claims be tried by a jury, notwithstanding the resort to the simplified procedure.
[21] The claim displays a number of the hallmarks of vexatious proceedings identified by Myers J. in Gao v. Ontario WSIB, 2014 ONSC 6497, at paras. 14-15, including:
- an evident attempt to re-litigate issues that have already been determined by a court of competent jurisdiction;
- the rolling forward of grounds and issues from prior proceedings, and naming of Mr. Cadieux and Mazerolle & Lemay as defendants, counsel for the estate trustee for litigation, Ms. Gingras;
- an evident failure to pay costs awards from prior proceedings, coupled with requests for declarations that the costs orders are null and void;
- a 46-page, 146-paragraph statement of claim marked by rambling discourse and repetition;
- personal attacks on the character and professional integrity of judicial officers of the East Region of the Superior Court of Justice;
- scandalous allegations and personal attacks on the character of Joy Overtveld, Todd Overtveld, and Mr. Katz; and
- scandalous allegations that the defendants are using “illegal paper terrorism” to intimidate and scare the plaintiffs to dissuade them from exposing crimes committed against Gilles.
[22] The plaintiffs’ action is abusive because it is a clear attempt to relitigate matters that have already been determined. Costs have been determined. The issues raised in CV-19-81051 have been determined as reflected in Reasons for Judgment: Overtveld v. Overtveld, 2023 ONSC 460. The statement of claim, initially commenced in Brampton, was struck out. The motion to extend the time to file a notice of appeal was denied and the motion for review of that order was dismissed.
[23] As the Court of Appeal observed in Simpson v. Chartered Professional Accountants of Ontario, 2016 ONCA 806, at para. 41, “[e]veryone is entitled to their day in court but once they have had that day, they cannot be permitted to subject other parties to the cost of further proceedings attempting to re-litigate issues that have already been decided.” To permit the plaintiffs to persist with their claim and to continue their personal attacks on the character and professional integrity of those involved in these proceedings would be unfair to the opposing parties. It would also be an affront to the administration of justice. The plaintiffs’ action and their written submissions provide a clear basis for the use of the attenuated process of r. 2.1.
Conclusion
[24] The action is dismissed because it is, on its face, frivolous, vexatious, and an abuse of the process of the court. There shall be no order as to costs.
Justice R. Ryan Bell
Date: October 22, 2024
COURT FILE NO.: CV-24-00096081-0000
DATE: 20241022
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Rachida Youmouri and Enrique M. (Tito) Jurado (Plaintiffs)
AND
Hon. Doug Downey, Attorney General of Ontario, Doug Downey, Joy Overtveld, Todd Overtveld, Gary Katz, Ginsberg Gingras & Associates Inc., Chantal Gingras, Mazerolle & Lemieux, Denis Cadieux, and Sheriff of Ottawa (Defendants)
COUNSEL: G.F. Windsor, for the Plaintiffs
Gavin J. Tighe, for the Defendants Denis Cadieux and Mazerolle & Lemay
Anne Tardif, for the Defendants Ginsberg Gingras & Associates Inc. and Chantal Gingras
RULE 2.1 ENDORSEMENT
Justice R. Ryan Bell
Released: October 22, 2024
[^1]: 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.
[^2]: 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.