



COURT OF APPEAL FOR ONTARIO

CITATION: Carby-Samuels II v. Carby-Samuels, 2018 ONCA 664

DATE: 20180725


DOCKET: C64705 & C64716

Hoy A.C.J.O., van Rensburg and Pardu JJ.A.

BETWEEN

Raymond Carby-Samuels II

Appellant

and

Horace R. Carby-Samuels

Respondent

Raymond Carby-Samuels II, acting in person

John E. Summers, for the respondent

Heard and released orally: July 20, 2018

On appeal from the judgment and the order of Justice Sylvia
    Corthorn of the Superior Court of Justice, dated November 16, 2017, reported at
    2017 ONSC 6814 and 2017 ONSC 6834 respectively.

REASONS FOR DECISION

[1]

The appellant, Raymond Carby-Samuels, appeals (1) the judgment of the
    application judge granting his father, the respondent Horace Carby-Samuels,
    summary judgment dismissing the appellants claim against him, and (2) the
    order of the application judge declaring that the appellant had instituted
    vexatious proceedings and conducted proceedings in a vexatious manner, and
    prohibiting him from instituting a proceeding, directly or indirectly, in any
    court in Ontario without first obtaining leave under s. 140(3) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43.

[2]

The appellant argues that the court cannot declare a Canadian citizen
    vexatious for seeking to ensure the well-being of his Mom as an expression of
    religious conscience as affirmed by the Charter. He also argues that the court
    should find that there was a reasonable apprehension of bias because the application
    judge accepted his fathers assertions, failed to refer to evidence that he
    says supported his position, failed to grant an adjournment, and proceeded in the
    face of his intention to bring a motion for an order that she recuse herself.
    Further, he argues that the application judge erred in relying on an affidavit
    of an administrator in his fathers counsels office. Finally, he also challenges
    the authority of Mr. Summers to act on behalf of his father and asks that he be
    ordered to disclose his fees.

[3]

There is no basis for this court to interfere with the application judges
    order granting summary judgment dismissing the appellants action against his
    father, seeking an order permitting him to see his mother, who was 85 years of
    age at the time of the motion. The application judge correctly held that there
    is no basis for the court to make an order compelling a mentally competent
    adult (the father) to require another mentally competent adult (the mother) to
    interact with a third family member (the appellant).

[4]

Nor is there any basis to interfere with the application judges order
    declaring the appellant a vexatious litigant and prohibiting him from
    instituting any proceeding in Ontario without leave. The application judge
    provided thorough and compelling reasons. Further, there is a strong
    presumption of judicial impartiality and a heavy burden on a party who seeks to
    rebut this presumption. The test is whether a reasonable, informed person,
    viewing the matter realistically and practically  and having thought the
    matter through   would conclude that it is more likely than not that the
    judge, whether consciously or unconsciously would not decide fairly: see
Childrens
    Aid Society of the Regional Municipality of Waterloo v. C.T.
, 2017 ONCA
    931, [2017] O.J. No 6324, at para. 84. The appellant has not discharged the
    heavy burden of rebutting the strong presumption of judicial impartiality.

[5]

The affidavit with which the appellant takes issue does not appear to be
    in the record. Counsel for the respondent advises that the affidavit merely
    served to put various court proceedings and other communications between the
    parties before the court. This is not unusual in vexatious litigant
    proceedings.

[6]

Finally, there is nothing in the record to suggest that Mr. Summers has
    been acting at any time in these proceedings without the fathers authority and
    there is no basis on which the court can compel the disclosure the appellant
    seeks.

[7]

Accordingly, the appeal is dismissed. The father is entitled to costs of
    the appeal, fixed in the amount of $1,500, inclusive of HST and disbursements.

Alexandra Hoy
    A.C.J.O.

K.M. van Rensburg
    J.A.

G. Pardu J.A.


