



COURT OF APPEAL FOR ONTARIO

CITATION: P.Y.
    v. Catholic Childrens Aid Society of Toronto, 2020 ONCA 98

DATE: 20200211

DOCKET: C66442

Brown, Harvison Young and Zarnett JJ.A.

BETWEEN

P.Y. and A.Y.

Plaintiffs/Responding
    Parties

(Appellants)

and

The Catholic Childrens Aid Society of Toronto,
    Mary McConville and Janice Robinson, Rena Knox, The Office of the Childrens
    Lawyer of Toronto, Katherine Kavassalis, Frances Ann Gregory, Fatma A. Khalid,
    Haeley Gaber-Katz, The Hospital for Sick Children,
Lana Dépatie,
    Michelle Sala
and Conseil Scolaire Catholique Mon Avenir

Defendants/
Moving
    Parties


(Respondents)

P.Y., acting in person

A.Y., acting in person

Charles Sinclair, for the respondent Haeley Gaber-Katz

Carole Jenkins, for the respondents The Catholic
    Childrens Aid Society of Toronto, Mary McConville, Janice Robinson and Rena
    Knox

Domenico Polla, for the respondents The Office of the
    Childrens Lawyer of Ontario and Katherine Kavassalis

Monika Korona, for the respondent Michelle Sala

Erika Tower, for the respondent Fatma A. Khalid

Samaneh Frounchi, for the respondent Lana Dépatie

Daniel Bassili, for the respondent Conseil Scolaire
    Catholique Mon Avenir

Ruben Lindy, for the respondent Frances Ann Gregory

Chloe Richardson, for the respondent The Hospital for
    Sick Children

Heard: January 22, 2020

On appeal from the
    order of Justice Darla A. Wilson of the Superior Court of Justice, dated December
    12, 2018, with reasons reported at 2018 ONSC 5381 and 2018 ONSC 7097.

REASONS FOR DECISION

[1]

By order dated October 7, 2013, Curtis J. found the appellants four children
    were in need of protection and made them Crown wards, without access to the
    parents: 2013 ONCJ 585.

[2]

The appellants appeal to the Superior Court of Justice was dismissed:
    2014 ONSC 6526. Their further appeal to this court was dismissed by order dated
    July 3, 2015: 2015 ONCA 493. The Supreme Court of Canada dismissed the
    appellants application for leave to appeal on December 24, 2015: [2015]
    S.C.C.A. No. 415.

[3]

The appellants then commenced this action on December 27, 2017. The
    defendants are individuals or organizations that played some role in the child
    protection proceedings, either as parties, counsel, witnesses, experts, or
    entities which provided information that was used to initiate or support the
    proceedings.

[4]

In the summer of 2018, two of the defendants, psychologists Michelle
    Sala and Lana Dépatie, wrote to the Registrar of the Superior Court of Justice
    pursuant to r. 2.1.01(6) requesting the dismissal of the proceeding on the
    basis that it was frivolous, vexatious or otherwise an abuse of the process of
    the court.

[5]

By reasons dated September 13, 2018, the motion judge directed that the registrar
    give the appellants notice that the court was considering making an order
    under Rule 2.1.01 dismissing this action against the Defendants Sala and
    Depatie: 2018 ONSC 5381, at para. 9.

[6]

Rule 2.1.01(3)2 permits a plaintiff to make written submissions to the
    court after receiving such a notice. The appellants wrote to the registrar on
    September 16, 2018 requesting more time to work on their submissions. They
    repeated that request in an October 4, 2018 letter to the registrar. They
    contended that they had a very well-founded claim against the defendants Sala
    and Depatie. The appellants took the position that it was very premature to
    deal with submissions at this stage.

[7]

On November 27, 2018, the motion judge released reasons dismissing the
    action against Sala and Dépatie pursuant to Rule 2.1.01 as frivolous and
    vexatious. On December 12, 2018 the motion judge released amended reasons in
    which she dismissed the action against all defendants: 2018 ONSC 7097.

[8]

The appellants appeal the dismissal of their action.

[9]

Shortly before the hearing of the appeal, the appellants filed a
    three-volume motion for leave to adduce fresh evidence. The defendants opposed
    its admission.

[10]

The materials for which the appellants seek leave to introduce do not
    constitute fresh evidence that was unavailable at the time the motion judge
    directed submissions under r. 2.1.01. Instead, the materials cover a period of
    time from prior to the apprehension of the children through to the end of the
    child protection proceedings. The appellants want to introduce the materials to
    demonstrate that there is a basis for their action and that it is not
    frivolous, vexatious or an abuse of the process of the court.

[11]

As this court stated in
Khan v. Krylov & Company LLP
, 2017
    ONCA 625, 138 O.R. (3d) 581, at para. 12, the issue on a r. 2.1.01 review is
    whether the hallmarks of frivolous, vexatious or abusive litigation are plainly
    evident on the face of the pleading. Rule 2.1.01 is not designed to be an
    alternative to an evidence-based motion for summary judgment or a trial: see
    also
Scaduto v. The Law Society of Upper Canada
, 2015 ONCA 733, 343
    O.A.C. 87, at paras. 11-13. As the statement of claim is the focus of a r. 2.1.01
    review, we have considered the materials filed by the appellants for the
    limited purpose of understanding the scope of the allegations they are
    asserting.

[12]

The appellants submit that the motion judge erred in concluding that
    their statement of claim disclosed on its face the hallmarks of frivolous,
    vexatious or abusive litigation. We are not persuaded by that submission.

[13]

As the motion judge noted, the appellants statement of claim is 70
    pages in length. The motion judge described the claim against Sala and Dépatie
    as one for damages caused by their negligence in the provision of
    psychological services and in preparation of reports which were relied on by
    the [Catholic Childrens Aid Society]: 2018 ONSC 5381, at para. 7. The motion
    judge also observed that the claim includes all sorts of attacks on a
    multitude of defendants and [n]owhere is it set out how the alleged
    negligence led to damages.

[14]

The motion judge did not misread or misunderstand the claims asserted by
    the appellants in their action against Sala and Dépatie. Their statement of
    claim discloses that the core elements of their allegations concern the events
    leading up to their childrens apprehension in 2011, together with numerous
    allegations that the resulting child protection proceeding was marked by the
    withholding of evidence, improper reports, the alteration of evidence, and
    false evidence. The appellants allege that they were greatly wronged by those
    involved in the child protection proceeding, the various steps taken during
    that proceeding, and its result. They seek damages of well over $10 million.

[15]

When the statement of claim is read in light of the reasons issued by
    three levels of court in the child protection proceeding and the fresh
    evidence tendered by the appellants, it is clear that in their action the
    appellants seek to relitigate the issues previously decided in the child
    protection proceeding. Such an effort to relitigate issues already decided
    constitutes an abuse of the process of the court. Consequently, we see no error
    in the motion judges conclusion that the proceeding against Sala and Dépatie
    appears on the face of the statement of claim to be frivolous, vexatious or
    otherwise an abuse of the process of the court.

[16]

As a result, we dismiss the appeal from the order dismissing the action
    as against the defendants Sala and Dépatie who made the request for a review under
    r. 2.1.01(6).

[17]

However, we allow the appeal in respect of the dismissal of the action
    against the other defendants. The motion judges initial September 13, 2018
    endorsement stated that she was only considering making an order under r.
    2.1.01 dismissing the action against Sala and Dépatie and she invited
    submissions from the appellants in respect of that proposed order. Her reasons
    of November 28, 2018 were limited to dismissing the action against those two
    defendants.

[18]

At some point the motion judge decided on her own initiative to expand
    her order, and her amended December 12, 2018 reasons dismissed the action
    against all defendants.

[19]

Rule 2.1.01(1) gives the court the power, on its own initiative, to
    dismiss a proceeding. But rr. 2.1.01(2) and (3) stipulate certain procedures that
    a court must follow before making such an order, unless the court directs
    otherwise. One of the required procedures is giving notice to the plaintiff of
    the order the court is proposing to make and an opportunity for the plaintiff
    to make submissions in relation to that proposed order. If the plaintiff does
    not make submissions, then the court may make the order for which it gave notice
    without further notice to the plaintiff: r.2.1.01(3)1-3.

[20]

The motions judge did not give the appellants notice of her intention to
    amend her limited November 27, 2018 order to one dismissing the action against
    all the defendants. Nor did the motion judge expressly make an order that a
    procedure other than that set out in r. 2.1.01 was to be followed. Those
    omissions, the respondents contend, do not amount to procedural error by the
    judge. They point to a series of cases from this court in support of their
    submission that where not all defendants requisition a r. 2.1.01 review and no
    opportunity for submissions has been given in respect of a dismissal against
    other defendants, it is open to the reviewing judge to dismiss the action
    against all defendants where the outcome would have been the same given the
    nature of the claims asserted by the appellants against the other defendants:
Obermuller
    v. Kenfinch Co-Operative Housing Inc.
, 2016 ONCA 330, at paras. 3-5;
Van
    Sluytman v. Muskoka (District Municipality)
, 2018 ONCA 32, 26 C.P.C. (8th)
    130, at para. 19;
Kimaev v. Sobeys Inc.
, 2019 ONCA 681, at para. 1.

[21]

In our view, those cases are distinguishable from the present one. The
    distinctive feature of the present case is that in her September 13, 2018
    endorsement the motion judge directed the registrar to give the appellants
    notice that she was considering making an order dismissing the action against
    only two of the defendants, Sala and Dépatie. Although the blunt instrument of
    r. 2.1.01 should be applied robustly to weed out litigation that is clearly
    frivolous, vexatious or an abuse of process, the bluntness of the rule and the
    significant consequences of its application mandate its fair application:
Scaduto
,
    at para. 8;
Khan
, at para. 12. Fairness is especially important where
    the plaintiff is self-represented.

[22]

Where the court gives notice under r. 2.1.01 that it is considering the
    dismissal of a proceeding against only some of the defendants, procedural
    fairness precludes it from dismissing the proceeding against the other
    defendants without first giving the plaintiff notice of its intention to do so
    and an opportunity to make submissions pursuant to r. 2.1.01(3)2. The motion
    judge did not provide the appellants with such notice or provide any explanation
    in her December 12, 2018 reasons about why she decided to follow a different
    procedure. In the circumstances of this case, those omissions amounted to
    reversible procedural error.

[23]

For those reasons, the appeal from the dismissal of the action against
    the defendants, Michelle Sala and Lana Dépatie is dismissed. However, we allow
    the appeal in respect of the dismissal of the action against the other
    defendants. We direct that any future requests made by any remaining defendant
    pursuant to r. 2.1.01 be placed before another judge of the Superior Court of
    Justice for consideration.

[24]

The appellants shall pay the respondents Michelle Sala and Lana Dépatie their
    costs of the appeal fixed in the amount of $5,000 each, inclusive of
    disbursements and applicable taxes, for a total of $10,000. The other
    respondents collectively shall pay to each appellant the sum of $2,500 (for a
    total of $5,000) in respect of the appellants costs of the appeal, inclusive
    of disbursements and applicable taxes.

David Brown J.A.

Harvison Young J.A.

B. Zarnett J.A.


