Court File and Parties

Court File No.: CV-25-63558 Date: 2026-01-15 Superior Court of Justice - Ontario

Re: Anthony Tober, Plaintiff And: His Majesty the King in Right of Ontario, as represented by the Office of the Children's Lawyer, Defendant

Before: The Honourable Justice R. B. Reid

Counsel: Self-represented Plaintiff M. Salama, Counsel, for the Defendant

Decision on Rule 2.1.01 Request

Introduction:

[1] The defendant, His Majesty the King in Right of Ontario, as represented by the Office of the Children's Lawyer (the "OCL") requests a dismissal of the claim by the plaintiff, Anthony Tober ("Mr. Tober") under rule 2.1.01 of the Rules of Civil Procedure [^1] ("the Rules").

Background:

[2] Mr. Tober and his common law spouse are parents of one child, who is currently about 18 years of age. The parents separated in November 2020 and since then, the child has resided with his mother.

[3] The mother commenced a Children's Law Reform Act [^2] ("CLRA") proceeding in December 2020.

[4] In response to the request of the court, the OCL became involved in May 2021. A lawyer and clinician were appointed to provide the court with the views and preferences of the child. The OCL chose not to undertake an investigation.

[5] Mr. Tober brought a motion for summary judgment seeking an order for joint decision-making responsibility and equal parenting time. The mother brought a cross-motion seeking sole decision-making responsibility, principal residence of the child with her, and an order that parenting time with Mr. Tober be subject to the child's wishes.

[6] Mr. Tober's motion was dismissed, and the mother's motion was granted by Gambacorta J. on December 6, 2022.

[7] Mr. Tober appealed the motion decisions to the Division Court. The appeal was dismissed by decision dated December 21, 2023 (Walsh v. Tober, 2023 ONSC 7111).

[8] Mr. Tober filed a statement of claim in this court dated September 9, 2024 claiming damages arising from the improper actions of the OCL. That claim was dismissed under r. 2.1.01 of the Rules following the request of the OCL by the endorsement of Henderson J. dated December 13, 2024.

[9] The current claim was commenced by Mr. Tober by statement of claim dated September 12, 2025, and the OCL again has requested a stay or dismissal under r. 2.1.01 of the Rules.

[10] Mr. Tober was invited to make written submissions in response to the OCL's request for dismissal, and he has done so. Likewise, the OCL has made submissions in response.

Position of the parties:

[11] The OCL requests a stay or dismissal of the action because it appears on its face to be frivolous, vexatious, or otherwise an abuse of the process of the court, in that it is duplicative of previous claims that have been finally decided.

[12] Mr. Tober responds that the claim should go forward since he is not seeking to collaterally attack the summary judgment and appeal decision. He alleges that the OCL acted negligently, entitling him to damages, in that it misrepresented his evidence at both the summary judgment motion and appeal, and that it improperly took the side of the child's mother on the appeal without first having sought leave to intervene.

Applicable legislative provisions and principles:

[13] The Ontario Court of Appeal considered the application of r. 2.1.01 in Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, at paras. 8 and 9:

[8] [T]he court has recognized that the rule should 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. However, the use of the rule should be limited to 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.

[9] We fully endorse that case law and the guidance that has been provided by the motion judge in the interpretation and operation of r. 2.1. This approach is summarized in Raji, [Raji v. Borden Ladner Gervais LLP,] at paras. 8-9, as follows:

[R]ule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves. No evidence is submitted on the motion.... [T]here are two conditions generally required for rule 2.1 to be applied. First, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading as required by the rule. Second, there should generally be a basis in the pleadings to support the resort to the attenuated process of rule 2.1.... This second requirement is not in the rule and is not a fixed requirement. It strikes me as a guideline that reminds the court that there are other rules available for the same subject matter and that resort to the attenuated process in rule 2.1 should be justified in each case.

Analysis:

[14] There is no doubt that Mr. Tober feels very strongly that the conduct of the OCL in his CLRA matter, including its involvement in the Divisional Court appeal of the summary judgment decisions, was inappropriate and was prejudicial to him. Putting it bluntly, he thinks that the OCL's misconduct contributed to his losing the motion, the appeal, and implicitly to the further fracture of his relationship with his son. He seeks redress in his claim for damages, since he understands that the family law litigation cannot now be undone.

[15] A matter that has been litigated previously should not be the subject of re-litigation on the same evidence. To do so would be unfair to the opposing party or parties and a waste of judicial resources.

[16] In the previous r. 2.1.01 request, the endorsement of Henderson J. was based on two separate findings. First, he held that Mr. Tober's claim against the OCL had already been raised by him and dealt with by the Divisional Court. Second, he held that the brief pleadings were deficient in that they did not allege a cause of action or make specific allegations as to the bias of the OCL or the alleged misleading information presented by it.

[17] Mr. Tober responded in the current claim with a specific allegation of negligence, and with details of the OCL's misconduct and as such, he has attempted to correct the deficiencies in his previous pleading.

[18] A successful claim for negligence, in part, requires a duty of care that is owed by the negligent party to the party making the claim, and further that the negligent party breached the required standard of care. There is no suggestion in the pleadings that the OCL owes a duty of care to Mr. Tober. Without that, no negligence claim can be supported. To the extent that a duty is owed by the OCL, I suspect it is to the child, so the question is not just a matter of insufficient pleading.

[19] Further, the Divisional Court made specific findings about the actions of the OCL. Those were in response to the submissions by Mr. Tober, like those in this claim, that the OCL had acted with bias and misstated or misrepresented evidence. The court said at paras. 47-51:

[47] Mr. Tober submits that the OCL failed to perform its duties and exhibited bias against him. He also argues that the motion judge should have required a further investigation by an expert.

[48] Mr. Tober alleges that OCL failed to properly perform its duties by conducting an insufficient investigation of the child's views and preferences and exhibiting bias against Mr. Tober. Among other things, he argues that (i) the OCL's investigation was based on Ms. Walsh's demonstrably false allegations against him, and (ii) the investigation failed to address his allegations of parental alienation by Ms. Walsh. In the absence of a proper OCL investigation, Mr. Tober says that the motion judge should have required an investigation by an expert, especially in light of the parental alienation allegations.

[49] As the child's counsel notes in her submissions, Mr. Tober's submissions reflect in part a misunderstanding of the OCL's role in these proceedings. As previously noted, the OCL became involved at the court's request as set out in Gregson J.'s endorsement dated March 8, 2021. Once such a request is made, it is open to the OCL to determine whether or to what extent it becomes involved in the proceedings, in the allocation of its scarce resources to carry out its statutory obligations. It is open to the OCL to become involved as legal representative of a non-party child: CJA, s. 89(3.1). It is also open to the OCL under s. 112 of the CJA to cause an investigation to be made with respect to any matter concerning decision-making, parenting time or contact with the child and, if so, to provide a written report that would form part of the evidence before the court.

[50] As the child's counsel notes in her submissions, the OCL became involved in this matter under s. 89(3.1) as legal representative of the child. In order to take a position on behalf of the child, the OCL lawyer together with the clinician met with the child and communicated his views and preferences to the parties and the court. However, as is its prerogative, the OCL did not cause an investigation to be made nor to provide a report under s. 112 of the CJA.

[51] On the record before the motion judge and this court, the OCL has diligently and properly carried out its role as the child's legal representative in these proceedings. The OCL lawyer and clinician met with the child on several occasions and communicated the child's views and preferences to the parties and the court. The motion judge considered those views and preferences in reaching her conclusions, as previously outlined. In these circumstances, I see no credible evidence that the OCL has failed to perform its duties or demonstrated bias against him, as Mr. Tober alleges. As well, there is nothing in the evidence to suggest that the motion judge required expert evidence relating to parental alienation in order to reach her decision.

[20] Based on the carefully reasoned decision by the Divisional Court, I must find that, even if there was a duty of care owed by the OCL to Mr. Tober, the OCL did not breach the required standard of care.

[21] As a result, there is no tenable claim for negligence. Therefore, the claim is frivolous and vexatious, or otherwise an abuse of the process of the court.

[22] On the question of duplicity, perhaps better described as a matter previously decided, I agree with Henderson J. that Mr. Tober's claim must be dismissed on that basis as well based on the Divisional Court reasons for decision.

[23] In his written response to the r. 2.1.0 request, Mr. Tober states at para. 4 that:

Further, I am disputing the involvement of the OCL in the appeal, they misrepresented their involvement and their influence was a contributing factor in the appeal decision.

[24] That complaint is based on a misunderstanding of civil procedure and the role of parties to an appeal. In the Divisional Court, it was quite appropriate for the OCL to participate with the equivalent of party status and to take a position aligned with that of the mother responding to the appeal in support of the motion judge's decision, since its understanding of the child's views and preferences was consistent with that decision.

Conclusion:

[25] This case fits the criteria as a clear case 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. It is not a close call. Therefore, the claim is dismissed.

R. B. Reid, J.

Date: January 15, 2026

[^1]: R.R.O 1990, Reg. 194 [^2]: R.S.O. 1990, c. C.12