Overview

[1] On August 12, 2025, the Children's Lawyer served and filed a Request for Stay or Dismissal Under Rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 914, asking the court to consider dismissing the proceedings against its client, Kingston Pitawanakiwat (spelled by the Office of the Children's Lawyer as Kingsten Pitawanakwat), as it appears on its face to be frivolous, vexatious or otherwise an abuse of the process of the court.

[2] The court directed that notice be provided to the plaintiffs that it was considering making the order requested. On August 19, 2025, the court received the plaintiffs' written response. On October 8, 2025, the defendant filed its responding submissions.

[3] For the following reasons, I find that the action should be dismissed as against Kingston Pitawanakiwat for being frivolous, vexatious and an abuse of the court's processes and resources.

[4] Also, on my own motion, I find the action should be dismissed as against Gavin Spencer, Brooks Spencer, Jaden Harrison, and Deevan Ens for being frivolous, vexatious and an abuse of the court's processes and resources.

Overview of the Action

[5] The plaintiffs live in a cooperative housing unit called Vercheres Habitation Co-Operative Corporation which is located in Sudbury, Ontario. They allege that they have been subjected to "multifaceted, intricate, and interconnected matters" that involve "progressive and intentional, aggressive, violent, threatening, discriminatory, oppressive, intimidating, harassing, and defamatory actions and negligent conduct" by the 37 defendants.

[6] In their statement of claim, the plaintiffs state that they initiated this action with the primary objective of seeking justice, obtaining appropriate relief, seeking reparations, and validation of their rights as Canadian citizens, residents of the City of Greater Sudbury, members, and residents in the housing Co-operative Vercheres.

[7] At para. 51 of their statement of claim, the plaintiffs identify their claims against the defendants as: (1) breach of fiduciary duty; (2) breach of statutory duties; (3) breach of contract; (4) negligence; (5) invasion of privacy; (6) breaches of privacy; (7) defamation and damage to reputation; (8) malfeasance; (9) misleading justice (10) nonfeasance; (11) robbery; and (12) unlawfully and unreasonably interfering with the use and enjoyment of the plaintiff's property, unit, home, and community. They outline these claims in a chart entitled "List of Issues and Claims (non-exhaustive)".

[8] In their written submissions on this request, the plaintiffs indicate they intend to pursue other claims including violations of the co-operative's by-laws, procedures and past practices, harassment, trespass, and "intentional infliction of emotional distress".

[9] The plaintiffs outline in their statement of claim that they seek to have the action joined with an ongoing Human Rights Tribunal proceeding. With respect to remedies, they seek Mareva Injunctions, other injunctions, thirteen million dollars in damages, costs that include the cost of other court proceedings including earlier tribunal hearings, various forms of public interest relief, cooperative management, and redress and declaration relief.

The Alleged Actions of the Children

[10] There are three defendants in this action who are currently children: Kingston Pitawanakiwat, Brooks Spencer, and Gavin Spencer.

[11] Kingston Pitawanakiwat is represented by the Office of the Children's Lawyer. The other two children, Brooks Spencer and Gavin Spencer are not represented and do not currently have litigation guardians. Their parents are also named defendants.

[12] A further listed defendant, Deevan Ens, is referred to by the plaintiffs as one of "the children" who engaged in specific behaviors that the plaintiffs say give rise to actionable relief. Deevan Ens is now an adult. He is not represented.

[13] It is unclear if a further listed defendant Jaden Harrison, is currently a child or an adult. He is also referred to as "one of the children" who engaged in specific behaviors. It is unclear if he is a child because his parents are also being sued for his behavior.

[14] The plaintiffs claim that the children, and their friends and families, engaged in disruptive activities in the outside area of the co-operative complex, including dancing, sitting, jumping, fighting, beating each other, and throwing objects. The plaintiffs claim that these activities were intended to trigger their security cameras, which caused them annoyance and distress. This is set out in para. 124 of the statement of claim.

[15] The acts complained of by the plaintiffs with respect to "the children" are set out in paras. 124 to 126 of the statement of claim. They are:

a. Engaging in bullying with a "toy gun" to cause fear and menace by pointing the toy guns directly towards the security cameras showing a "desire to kill" the plaintiffs;

b. Moving a basketball net beside the plaintiff's vehicle, increasing the risk of damage to their vehicle and causing them anxiety;

c. Collaborating with the other defendants and community children to spread hate, targeting and threatening the plaintiff's safety and enjoyment;

d. Intentionally striking the plaintiff's vehicles with various balls and objects;

e. Using the plaintiff's surveillance system to cause disturbances;

f. Disregarding the plaintiff's need for a peaceful living and working environment; and

g. Fabricating stories to persuade their parents to take action against the plaintiffs, including making false reports to the police and the co-operative in an attempt to criminalize or evict them.

[16] In addition to these general claims, the plaintiffs set out a specific claim against Kingston Pitawanakwat that he engaged in "deliberate targeting and conspiring actions" against the plaintiffs. They further claimed he was playing volleyball with his mother and his mother deliberately aimed their actions towards the plaintiff's vehicle which they claim a breach of the Negligence Act, R.S.O. 1990, c. N.1.

Legal Principles to be Applied

[17] Rule 2.1.01 provides that a court may make an order staying or dismissing a proceeding that appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

[18] This rule is to be "interpreted and applied robustly so that a motion judge can effectively exercise his or her 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 refused (2016), [2015] S.C.C.A. NO. 488 (S.C.C.).

[19] In considering a request under this rule, the court is to consider the following non-exhaustive principles:

a. The application of this rule is limited to the clearest of cases where the abusive nature of the proceedings is apparent or "plain and obvious" on the face of the pleadings and there is a basis in the pleading to support resort to this attenuated process. It does not replace other rules in the Rules of Civil Procedure to strike out actions or deal with other procedural irregularities summarily: Scaduto v. The Law Society of Upper Canada, at para. 8; Mohammad v. McMaster University, 2023 ONCA 598 at para. 6; Khan v. Krylov & Company, LLP, 2017 ONCA 625 at para. 12; Khan v. Law Society of Ontario, 2020 ONCA 320, at para. 15, leave to appeal to S.C.C. refused [2020] S.C.C.A. No. 288.

b. This rule is not meant to apply to close calls. The frivolous, vexatious, or abusive nature of the proceedings should be apparent on the face of the proceeding, and there should be a reason for the court to dismiss the action in the absence of a motion: Scaduto v. The Law Society of Upper Canada, at para. 9; Tewari v. Sekhorn, 2024 ONCA 123, at para. 5.

c. Where a proceeding appears on its face to meet the standards of frivolous, vexatious or an abuse of process, the court should be prepared to vigorously enforce the rule to put an end to the proceeding. Rigorous enforcement of this rule protects respondents from incurring unrecoverable costs, and contributes to access by freeing up judicial and administrative resources: Scaduto v. The Law Society of Upper Canada, at para. 8; Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720 at para. 21; Kokic v. Johnson, 2025 ONCA 4 at para. 6.

d. A frivolous or vexatious action lacks a legal basis or legal merit or has been brought without reasonable grounds, brought where it is obvious that the action cannot succeed or brought for an improper purpose, including duplicative proceedings. They are often identified by, among other features, their use of rambling language which makes discerning a legitimate cause of action very difficult: Lochner v. Ontario Civilian Police Commission, at paras. 19-20.

e. Not all self-represented parties are vexatious litigants. Even a vexatious litigant may raise a legitimate issue that justifies consideration by the court. It is in part for this reason that r.2.1.01 is intended only for the clearest of cases: Lochner v. Ontario Civilian Police Commission, at para. 22; Ahmed v. Ministry of the Attorney General, 2020 ONSC 7892 at par. 3, affirmed in Ahmed v. Ontario (Attorney General), 2021 ONCA 427.

f. A proceeding is an abuse of process when it is inconsistent with the objectives of public policy including prevention of the misuse of Court procedures in a way that would be manifestly unfair to a party or would in some way bring the administration of justice into disrepute: Ahmed v. Ministry of the Attorney General, at paras. 3(g) and (h).

Analysis

[20] The statement of claim in this case has indicators that are often associated with vexatious proceedings. The statement of claim is 154 pages long, the claims as drafted are overly broad and vague, some of the claims are not actionable, the statement of claim casts a wide and undefinable net stating that the claims are "non-exhaustive", and the language used is often overstated.

[21] In this request under r. 2.1.01, I am required to read the statement of claim in the broadest and least-critical manner, and with generous allowances for drafting imprecisions. It must be clear on the face of the statement of claim that it is frivolous, vexatious, or abusive. This is not a motion for summary judgement or a motion to have the pleadings struck. Rather, I must consider whether this is one of those clearest of cases: where the abusive nature of the proceeding is "plain and obvious" on the face of the pleadings such that it should be dismissed through this procedure.

[22] I have read the lengthy statement of claim carefully and generously in an effort to discern the causes of action being advanced against Kingston Pitawanakiwat. The plaintiffs set out 12 general claims which are listed in a chart found at para. 51 of the statement of claim, which they qualify with the words "non-exhaustive". In their submissions on this request, they have referred to other causes of action not specifically set out the statement of claim, which they again qualify with the words "include, but are not limited to".

[23] The claims pleaded are not specifically linked to each child defendant. At times the plaintiffs appear to assert that the defendant "children" are liable for all of the claims by way of conspiracy or coordinated action by all defendants.

[24] Having reviewed both the statement of claim and the plaintiffs' submissions in a generous fashion, the causes of action which appear to be pleaded against all of the defendants, using the plaintiffs' language are:

a. Breach of fiduciary duty;

b. Breach of statutory duty;

c. Breach of contract;

d. Negligence and breach of the Occupier's Liability Act, R.S.O. 1990, c. O.2;

e. Breach of the Co-operative Corporations Act, R.S.O. 1990, c. C.35;

f. Defamation under the Libel and Slander Act, R.S.O. 1990, c. L.12;

g. Violations of the Human Rights Code, R.S.O. c. H.19;

h. Violations of the Co-operative's bylaws, procedures and past practices;

i. Harassment;

j. Trespass;

k. Malfeasance;

l. Non-feasance;

m. Misleading justice;

n. Invasion of privacy;

o. Robbery;

p. Nuisance (unlawfully interfering with the use and enjoyment of the plaintiffs' property); and

q. Intentional infliction of emotional distress (mental suffering).

[25] I will address each claim individually and explain why I am satisfied that the claim is frivolous, vexatious and abusive as against Kingston Pitawanakiwat, and by extension as against Gavin Spencer, Brooks Spencer, Jaden Harrison, and Deevan Ens who are also referred to as "the children" who engaged in the behaviour set out in paras. 124 to 126 of the statement of claim.

[26] Breach of fiduciary duty: the plaintiffs do not provide any basis upon which the "children" would have any fiduciary duty towards them.

[27] Breach of statutory duty: the plaintiffs do not provide any basis upon which the "children" would have any statutory duty owed to them.

[28] Breach of contract: the plaintiffs do not provide any indication of any contract that exists between themselves and the children.

[29] Negligence and breach of the Occupier's Liability Act: there is no duty of care owed to the plaintiffs by the children. They do not fall under the definition of an "occupier" under the legislation.

[30] Breach of the Co-operative Corporations Act: the plaintiffs do not plead any specific provision under this act that would apply to the children. Having reviewed the legislation, I cannot find any.

[31] Defamation under the Libel and Slander Act: The plaintiffs plead that the children complained about them to their parents, who then contacted the police. Defamation actions must plead the following elements: (i) particulars of the alleged defamatory words; (ii) publication of the defamatory words by the defendant; (iii) to whom the words were published; and (iv) that the words were defamatory of the plaintiff in their plain and ordinary meaning or by innuendo: The Capital Catalyst Group Inc. v Veritas Investment Research Corporation, 2017 ONCA 85 at paras. 23-24. A complaint by a child to their parents about the actions of another person does not amount to defamation.

[32] Violations of the Human Rights Code: The plaintiffs have not identified any conduct by the children that would offend this legislation.

[33] Violations of the cooperative's bylaws, procedures and best practices: This is not actionable by way of a statement of claim. Further, the plaintiffs have not identified any by-law offended by the children.

[34] Harassment: The plaintiffs concede in their written submissions that there is no recognized tort of harassment in Ontario.

[35] Trespass: The plaintiffs do not allege that the children entered their unit. The conduct they complain of took place in the common/public areas of the cooperative housing complex.

[36] Malfeasance: The children hold no office or other responsibility that would give rise to this claim.

[37] Nonfeasance: The children hold no office or other responsibility that would give rise to this claim.

[38] Misleading justice: The plaintiffs do not plead that the children spoke to the police or misled the police. They spoke to their parents.

[39] Invasion of privacy: The plaintiffs do not claim that the children invaded their privacy.

[40] Robbery: The plaintiffs do not claim that the children robbed them (specifically that the children used violence to steal from them).

[41] Nuisance: I understand the plaintiffs' claim in nuisance to be that the children have interfered with their lawful use and enjoyment of their cooperative housing unit by engaging in the behavior described in the statement of claim. The tort of private nuisance provides a remedy for individual landowners whose property rights have been detrimentally affected by the conduct of their neighbors. The elements of a claim of private nuisance require evidence of an interference with the owner of property's use or enjoyment of land that is both substantial and unreasonable. A substantial interference with property is one that is non-trivial. Where this threshold is met, the court must go on to consider whether the non-trivial interference was also unreasonable in all of the circumstances. Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2013 SCC 13, at para. 19.

[42] I am satisfied that the claim of nuisance in this case is, on its face, frivolous, vexatious and abusive. The plaintiffs' claim does not identify which child out of the group of child defendants committed the conduct complained of. The conduct itself is trivial. The conduct complained of is common conduct engaged in by children, including playing basketball, playing volleyball, throwing balls, sitting, fighting, pointing a toy gun, and dancing. The conduct complained of is alleged to have occurred in a common outside area of the cooperative complex. It is behavior that the plaintiffs have observed by watching outside their unit or by observing it through their surveillance system.

[43] With respect to the allegation that the "children" struck the plaintiffs' vehicles with balls and objects, no damage to the vehicles is claimed.

[44] Intentional infliction of emotional distress (mental suffering): In their written submissions, the plaintiffs submit that they intend to allege the tort of intentional infliction of mental distress under the tort of negligent and intentional acts.

[45] The tort of intentional infliction of mental suffering contains three elements: (1) there must be flagrant or outrageous conduct; (2) the conduct must have been calculated to cause harm; and (3) there must be a visible or provable illness due to the conduct: Colistro v. Tbaytel, 2019 ONCA 197 at para. 14.

[46] The requisite intention is established if (i) the defendant willfully intends by his or her conduct to inflict nervous shock on the plaintiff; or (ii) the defendant's conduct is so plainly calculated to produce some effect of the kind which was produced that the requisite intention ought to be imputed to the defendant. The defendant must desire to produce the consequences that follow, or the consequences must be known by the defendant to be substantially certain to follow. This is a purely subjective test: Lewis N. Klar, Remedies in Tort (Toronto: Thomson Reuters Canada, 2021) at Ch. 10:6.

[47] Emotional stress, mental anguish and despair, are not generally accepted to be "visible and provable" illnesses for the purposes of establishing intentional infliction of emotional harm: Young v. Borzoni, 2007 BCCA 16 at para. 37.

[48] The claim by the plaintiffs, at its highest, is that they have been bothered by the actions of the children. It may be that the actions of the children have interfered with the plaintiffs' ability to work from home or relax in their unit. However, the allegations as pleaded do not rise to the level required to establish the tort of intentional infliction of emotional distress (or mental anguish). Further, the plaintiffs do not plead a visible and provable illness due to the conduct. I am satisfied that the claim of intentional infliction of mental suffering in this case is, on its face, frivolous and vexatious.

The Claim Against Kingston Pitawanakiwat

[49] Having read the statement of claim in the broadest and least-critical manner, and with generous allowances for drafting imprecisions, I find that the claim against Kingston Pitawanakwat amounts to a frivolous, vexatious and abusive claim.

[50] This is not a close call. The statement of claim is clearly frivolous by making overly broad claims about "the children", many claims are not proper causes of action, other claims plainly have no prospect of success. I am also satisfied that the claims as against the children are inconsistent with the objectives of public policy including prevention of the misuse of court procedures in a way that would be manifestly unfair to a party or would in some way bring the administration of justice into disrepute. The claims in this case against "the children" for what is essentially alleged immature behaviour, is a misuse of court of resources.

[51] Based on all of the foregoing, the action against Kingston Pitawanakiwat is dismissed under r. 2.1.01 without costs.

The Claims Against the Other Children

[52] Rule 2.01.1(3) provides that a court may make an order under subrule (1) on its own initiative.

[53] Given my conclusion as it relates to Kingston Pitawanakiwat, the claims against Gavin Spencer, Brooks Spencer, and Deevan Ens must also be dismissed. They are part of the group of "children" referred to by the plaintiffs. The claims against them go no further than those outlined in paragraphs referring to the actions of "the children" in general. There are no additional claims against them beyond those made against Kingston Pitawanakiwat. I have already addressed each of those claims in this decision as they apply to "the children".

[54] With respect to the defendant, Jaden Harrison, there is an additional claim in the statement of claim that he, along with others, improperly removed capital property belonging to Vercheres. Otherwise his conduct falls under the general conduct of "the children".

[55] The plaintiffs do not have standing to bring this claim against Jaden Harrison. Under s. 68 of the Co-operative Corporations Act, R.S.O. 1990, c. C.35, a member may maintain an action in a representative capacity for itself or any other members of the cooperative, suing for and on behalf of the cooperative to enforce any right, duty or obligation owed to the cooperative, however such an action cannot be commenced without an order of the court permitting the member to commence the action. An order must be sought on notice to the cooperative. In this case, the plaintiffs have not obtained an order of the court that allows them to advance a claim of theft or conversion of property belonging to the cooperative. As such, I am satisfied that the action against Jaden Harrison is not permitted and abusive and the action against Jaden Harrison is dismissed under r. 1.2.01 without costs.

[56] The Rules of Civil Procedure are to be liberally construed to secure the just, most expeditious and least expensive determination in every civil proceeding on its merits. I am satisfied that the plaintiffs have been provided the opportunity to respond to the request to dismiss the claims as they apply to a group they refer to as "the children". Their written submissions are fulsome and address their concerns about this group of defendants. I am satisfied that I am able to determine, on my own motion, whether the claims against Gavin Spencer, Brooks Spencer, Deevan Ens and Jaden Harrison should be dismissed under r.2.1.01.

[57] For the reasons set out above, I am satisfied that claims against Gavin Spencer, Brooks Spencer, Deevan Ens and Jaden Harrison are frivolous, vexatious and abusive on their face. The action against them is dismissed under r. 2.1.01 without costs.

Conclusion

[58] The purpose of r. 2.1 is to protect parties from having to incur inappropriate costs and to ensure that court resources are not allocated to claims that are on their face frivolous, vexatious, or abusive. As I have already found, bringing a formal court action against children for participating in immature, disruptive or bothersome behavior is a disproportionate response and an inappropriate use of court process and resources.

[59] For the reasons provided above, the claims against Kingston Pitawanakiwat (also known as Kingsten Pitawanakwat), Gavin Spencer, Brooks Spencer, Deevan Ens, and Jaden Harrison are dismissed pursuant to r. 2.1.01 of the Rules of Civil Procedure.

The Honourable Madam Justice S.K. Stothart

Released: November 3, 2025