Court File and Parties

COURT FILE NO.: CV-17-71624 DATE: 2024/11/22 SHORT TITLE OF PROCEEDINGS: Carby-Samuels v. Carby-Samuels

BEFORE: Justice Marc Labrosse

COUNSEL: Raymond Carby-Samuels, Self-Represented

HEARD ON: November 4, 2024

Endorsement

[1] A Notice of Motion was filed in this 2017 proceeding which appears to seek to set aside a declaration of vexatious litigant resulting from the Reasons for Decision of Corthorn J. dated November 16, 2017. The Notice of Motion also seeks a number of declarations by the court which relate in part to the 2017 decision of Corthorn J.

[2] Prior to the hearing of this matter, the moving party, Mr. Raymond Carby-Samuels, filed a 251-page affidavit where he now seeks a motion to set aside the vexatious litigant ruling in order to apply for relief from the Ottawa Small Claims Court to pursue three claims for defamation and other relief. Some of the other relief claimed seeks “leave from the Ottawa Small Claims Court to pursue punitive and aggravated damages against the Defendant in the Ontario Civil Court Division”. This statement is incomprehensible. The affidavit also includes what appears to be three draft Statements of Claim.

[3] I am not aware of any jurisdiction for me to set aside the Corthorn J. decision based on the materials filed for the following reasons:

a. There is no authority cited to me by which the Superior Court has jurisdiction to set aside the decision of Corthorn J. The authority to set aside a decision comes from Rule 59.06 of the Rules of Civil Procedure and the evidentiary record before the court does not warrant such a finding. Also, I disagree that I have inherent authority to do so as suggested by the moving party. b. This matter already proceeded to the Court of Appeal, and I am advised that the appeal was dismissed.

[4] Accordingly, the request to set aside the decision of Corthorn J. is denied.

[5] It should be noted that s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, (“CJA"), sets out the following which is relevant to the relief requested:

a. Section 140(3) states that when an application for leave is made, the person shall do so by way of an application in the Superior Court. b. Section 140(4)(a) allows for leave to be granted to institute a proceeding where the proceeding is not an abuse of process and that there are reasonable grounds for the proceeding. c. Section 140(4)(b) allows for an application to be made to seek the rescission of the vexatious litigant order. d. Section 140(4)(d) requires notice to the Attorney General.

[6] While there is not an abundance of case law dealing with s. 140(4), the jurisprudence set out in Falardeau v. Owen Sound Police Services Board, 2021 ONSC 6180, is instructive at many levels:

a. The authority to rescind a vexatious litigant order does not extend to rescinding the order because the motion judge thinks the judge who granted the order was incorrect. The principle of finality precludes that approach. b. Evidence is required to allow a court to assess if a proceeding is not an abuse of process and there are reasonable grounds for the proceedings. A party cannot rely on mere allegations. c. On an application under s. 140(3), the legislature intended for the court to be able to either rescind the declaration of vexatious litigant completely or to partially rescind it to allow for a specific proceeding to move ahead.

[7] Furthermore, in Peoples Trust Company v. Atas, 2020 ONSC 3471, the court commented on the application to rescind a finding of vexatious litigant and confirmed that it was not their purpose to review the correctness of the original order. A motion to rescind must establish that the individual should once again be granted unfettered access to the courts. The type of evidence that may be of assistance to the application judge could be:

a. Evidence that the vexatious litigant has changed and can be expected to conduct future litigation in a manner that is not vexatious. b. Evidence that the vexatious litigant has taken responsibility for their past misconduct, including payment of outstanding costs awards, or payments of such amounts towards those costs as they might reasonably be able to pay. c. Evidence that there are potentially meritorious claims that the vexatious litigant wishes to pursue to achieve justice for themselves. d. Evidence that the vexatious litigant has moved on from the disputes and controversies that led them to engage in vexatious litigation.

[8] In this case, Mr. Carby-Samuels has not filed any evidence to support his draft claims against Tia Kausalya Sudhakar, the Public Service Alliance of Canada and Nora Loreto. The evidence to support those claims must be included in an affidavit. For example, he alleges that the Public Service Alliance of Canada is indirectly operating a website where he was defamed. The evidence supporting such allegation must be provided.

[9] His material demonstrates that he seeking to re-litigate the declaration of vexatious litigant despite the Court of Appeal’s dismissal of his appeal.

[10] He has not filed evidence to satisfy the court on the relevant criteria. Mr. Carby-Samuel’s behaviour during the virtual motion was unhinged as set out below. This raises concerns about his ability to have unfettered access to the courts. Also, there is no evidence that notice was given to the Attorney General.

[11] In addition, the rules of pleadings require that a Statement of Claim be a concise statement of facts that are relied upon to prove the claim. Parties are not to plead evidence and they are not to plead the caselaw that they rely upon. In the present case, the three draft statements of claim must be revised in order to remove the case law except general reference to the state of law and focus on simply setting out a concise statement of the facts relied upon to allow a reasonable opportunity to the defendants to properly respond. Here, the three statements of claim cannot properly be responded to as they include a significant amount of evidence and case law which must be revised in order for the court to make a proper assessment on the reasonable grounds for the proceedings.

[12] Accordingly, the request for leave is refused. If Mr. Carby-Samuels wants to proceed under ss. 140(3) and 140(4), he is directed to file a proper Notice of Application setting out the relief he seeks and he needs to file an affidavit which contains the evidence which supports his requests along with the evidence relating to the three statements of claim he seeks to issue.

[13] During the course of this hearing, it was apparent to Mr. Carby-Samuels that I was not in agreement with the form and content of his motion. He made allegations that Justice Doyle was in agreement with the documents that he filed. I am not aware of an endorsement by Justice Doyle and I have no transcript of what she is purported to have said. Mr. Carby-Samuels sought an adjournment for the matter to proceed before another judge who would see the case differently than I do. That is not a proper ground for an adjournment, and I refused his request for an adjournment.

[14] Mr. Carby-Samuels then accused me of racial discrimination and stated that he wanted to bring a motion to require that I recuse myself. Mr. Carby-Samuels is a black man. He requested an adjournment to bring a motion for my recusal. I denied that request. There are no issues in this case related to Mr. Carby-Samuels’ race. This motion is decided solely on the basis of a lack of jurisdiction to set aside and the failure by Mr. Carby-Samuels to follow the requirements of s. 140 of the CJA and the applicable jurisprudence. Mr. Carby-Samuels is not prejudiced by this decision as he will be able to bring his application once he complies with the applicable law.

[15] The motion is dismissed, without prejudice to Mr. Carby-Samuels being able to bring the matter back as an application in accordance with s. 140 of the CJA and the rules relating to pleadings.

Date: November 22, 2024 Justice Marc Labrosse

COURT FILE NO.: CV-17-71624 DATE: 2024/11/22 ONTARIO SUPERIOR COURT OF JUSTICE Horace R. Carby-Samuels Applicant – and – Raymond Carby-Samuels Respondent (Moving Party) ENDORSEMENT Justice Marc Labrosse

Released: November 22, 2024