2017 ONSC 1278, 2017 ONSC 1278

CITATION : Chalupnicek v. The Children’s Aid Society of Ottawa, 2017 ONSC 1278 COURT FILE NO.: 16-67775 DATE: 2017-02-23 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Amanda Chalupnicek, Sandra Isaacs, Ronald Maracle, Plaintiffs/Appellants/Respondents -and- The Children’s Aid Society Of Ottawa, The Children’s Aid Society of Ontario, Gail Bowen, Alberta Justice O’Gorman, Michelle S. Lee, Esq., Ontario Justices Marie Linhares De Sousa, Paul Kane, Mark Shelston, Tracey Engelking, Esq., Cheryl Hess Esq., Bell Baker Llp, Pasquale Santini Esq., Steven Appotive Esq., Kelly Santini Llp, Christine Perruzza Esq.

The Attorney General Of Ontario, (Her Majesty) Queen Elizabeth, Elizabeth Alexandra Mary, Defendants/Respondents/Applicants BEFORE: Honourable Justice Timothy Ray COUNSEL: Glenn Bogue, Counsel for Amanda Chalupnicek, Sandra Isaacs, Ronald Maracle. Kirsten Crain, Counsel, for, Steven Appotive, Cheryl Hess, Pasquale Santini, Bell Baker LLP, and Kelly Santini LLP. Giovanna Asaro, Counsel for, The Children’s Aid Society of Ottawa, Gail Brown and Tracy Engelking, incorrectly Named as Tracey Engelking, Esq.

Domenic Polla, Counsel for the Honourable Justice Linhares de Sousa, the Honourable Justice Kane, the Honourable Justice Shelston, Christine Perruzza and the Attorney General of Canada HEARD: February 23, 2017 ENDORSEMENT [ 1 ] The Defendants move to quash the Appeal of the Plaintiffs from the decision of Master MacLeod (as he then was) dated April 26, 2016, dismissing the action without costs as against all Defendants pursuant to Rule 2.1 of the Rules of Civil Procedure , on the ground that an appeal from the final order of a Master must be heard by the Divisional Court. [ 2 ] The Plaintiffs have not filed a factum or motion record in response to this motion, although Plaintiffs’ counsel, at the conclusion of argument, thought he had served a factum but was unsure.

Counsel for one of the Defendants later confirmed that she had checked with her office and indeed, contrary to her submission, they had a record of having received an emailed factum. The other counsel had not seen a factum from the Plaintiffs. [ 3 ] The Plaintiff argued that the Court had no jurisdiction; and the Courts of Justice Act , R.S.O. 1990, c. C. 43 was inapplicable to his clients because of their indigenous status. He sought an adjournement on the ground that the Court of Appeal and the Supreme Court of Canada had before them important matters, the decisions on which would affect this matter before me.

An adjournment is refused. Nothing was placed before me to support the request for an adjournement. [ 4 ] This Motion to Quash is not based on the absence of merit in the Plaintiffs’ claim, but whether the Superior Court of Justice as opposed to the Divisional Court has jurisdiction to hear this Appeal. [ 5 ] The Plaintiffs issued a Statement of Claim March 7, 2016 against the Defendants seeking declaratory relief and damages in the amount of $60 million. The Defendants had resort to rule 2.1 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 which provides for the

summary treatment of actions that are on their face, devoid of merit. Master MacLeod, (as he then was) provided the Plaintiffs with an opportunity to make written submissions, and stayed the action pending completion of this process ( 2016 ONSC 2353 ). Following receipt of the Plaintiffs’ submissions, Master MacLeod, in his detailed written reasons, dismissed the action “as it appears to be frivolous, vexatious and an abuse of process.” ( 2016 ONSC 2787 ). [ 6 ] The Plaintiffs delivered an undated Notice of Appeal framed in the Superior Court of Justice.

The Defendants advised the Plaintiffs that an appeal from a final order like this must be taken to the Divisional Court pursuant to Rule 19(1) of the Rules of Civil Procedure . However, the Plaintiffs, in correspondence, refused to acknowledge that the appeal must be heard by the Divisional Court and insisted the appeal was properly taken. When the Defendants had resort to Rule 2.1 to have the Registrar summarily dismiss the appeal, the Plaintiffs wrote to the Registrar insisting the appeal had been properly constituted.

Justice Beaudoin, in his decision of July 6, 2016, ( 2016 ONSC 4452 ), concluded that the Rule 2.1

summary procedure was not available on an appeal, but noted that the proper jurisdiction for the appeal was to the Divisional Court. After being pressed by the Defendants to change his appeal route, Mr. Bogue on behalf of the Plaintiffs, wrote to the Defendants with gratuitous comments about Beaudoin J., and threatened a complaint to the Law Society concerning one of the Defendants’ counsel because of the legal position taken by her. [ 7 ] This motion was heard today. Mr.

Bogue, on behalf of the Plaintiffs, repeated most of the arguments raised in his clients’ dismissed Statement of Claim, and raised the jurisdictional issue, but was of no assistance in dealing with the mandated procedure in the

Courts of Justice Act and Rule 19 (1) (

c) for appeals of final orders from a Master. [ 8 ] The Defendants’ Motion to Quash is granted. The Plaintiffs’ appeal is quashed on the ground that a single judge of the Superior Court of Justice has no jurisdiction to hear this appeal from the final order of Master MacLeod (as he then was) dated April 26, 2016. [ 9 ] The Defendants filed costs outlines. The Plaintiffs did not. Ms. Crain’s costs outline seeks costs of $8,684.88 on a full indemnity scale, $7,859.53 at 90%, and $5,383.53 on a 60% basis. Ms. Asaro did not make oral submissions. She says she filed a factum but it was not before me. Ms.

Asaro filed a costs outline seeking $10,548.00 on a full indemnity scale, $9,000.00 at 85%, and $6,856.20 at 65%; plus disbursements of $1458. Mr. Polla neither filed a factum, appeared nor claimed costs. Ms. Crain advised at the outset of her submissions that her submissions were on behalf of Mr. Polla as well as her clients. The Defendants as successful moving parties are entitled to their costs. [ 10 ] This motion was entirely unnecessary. Had the Plaintiffs wanted to seriously pursue this appeal, they had merely to acknowledge the Divisional Court was the proper forum.

It is not the law concerning the appeal route that is questioned by the Plaintiffs, but that they are not bound by it. I am mindful that several judges have concluded that the merits of the Plaintiffs’ claim are devoid of merit. That question, however, is not before me, except to remind me that the appeal route they chose in their Notice of Appeal was equally devoid of merit.

I see no reason why these Defendants, in these circumstances, should have to subsidize the Plaintiffs’ decision to pursue an unmeritorious claim against them through an appeal route that is contrary to the express provisions of the Courts of Justice Act to the point of opposing this Motion to Quash. This is one of those rare cases where the successful parties should be entitled to their costs on a full indemnity basis. [ 11 ] I find the reasonable full indemnity costs inclusive of disbursements and HST of Ms. Crain’s clients to be $8,684.88; and the reasonable full indemnity costs of Ms.

Asaro inclusive of disbursements and HST to be $9,000. The Plaintiffs are ordered to pay those costs within 30 days in accordance with Rule 57.03 of the Rules of Civil Procedure . Honourable Mr. Justice Timothy Ray Date: February 23, 2017 CITATION : Chalupnicek v. The Children’s Aid Society of Ottawa , 2017 ONSC 1278 COURT FILE NO.: 16-67775 DATE: 2017-02-23

SUPERIOR COURT OF JUSTICE - ONTARIO RE: AMANDA CHALUPNICEK, SANDRA ISAACS, RONALD MARACLE, Plaintiffs/Appellants/Respondents AND: THE CHILDREN’S AID SOCIETY OF OTTAWA, THE CHILDREN’S AID SOCIETY OF ONTARIO, GAIL BOWEN, ALBERTA JUSTICE O’GORMAN, MICHELLE S. LEE, ESQ., ONTARIO JUSTICES MARIE LINHARES DE SOUSA, PAUL KANE, MARK SHELSTON, TRACEY ENGELKING, ESQ., CHERYL HESS ESQ., BELL BAKER LLP, PASQUALE SANTINI ESQ., STEVEN APPOTIVE ESQ., KELLY SANTINI LLP, CHRISTINE PERRUZZA ESQ. THE ATTORNEY GENERAL OF ONTARIO, (HER MAJESTY) QUEEN ELIZABETH, ELIZABETH ALEXANDRA MARY,Defendants/Respondents/Applicants BEFORE: Honourable Justice Timothy Ray ENDORSEMENT Ray J. DATE: February 23, 2017