CITATION: Virgo v. Deputy Judges Council, 2018 ONSC 5400

DIVISIONAL COURT FILE NO.: 18-2387

DATE: 2018/09/13

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: JENNIFER VIRGO v. DEPUTY JUDGES COUNCIL

BEFORE: LABROSSE, J.

HEARD: In writing (Ottawa)

E N D O R S E M E N T

Background

[1] On June 25, 2018, counsel for the Ministry of the Attorney General wrote to the Registrar of the Divisional Court in Ottawa requesting that the Notice of Application to Divisional Court for Judicial Review filed by the Applicant Jennifer Virgo and dated April 27, 2018 be dismissed pursuant to subrule 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) because it is frivolous, vexatious and an abuse of process.

[2] On July 31, 2018, I directed the Registrar of the Divisional Court to give notice pursuant to subrule 2.1.01(3)(1) that the Court was considering making an order under Rule 2.1.01 dismissing the application.

[3] The Applicant has since filed a 5-page reply to the July 31, 2018 Endorsement. The August 1, 2018 reply indicates at the end that it is submitted by “Jennifer Virgo c/o Applicant Representative, Ade Olumide”.

[4] The reply makes no substantive argument as to why the Application for Judicial Review is not frivolous, vexatious or an abuse of process. The reply seems to focus on the actions of the Registrar for the Divisional Court in Ottawa in that she failed to send Form 2.1 with my July 31, 2018 Endorsement but then agrees that this was later cured. The reply also seeks for the Registrar to provide “written evidence that Rule 2.1.01(6)(7) is a mandatory non-discretionary duty to take an s22 Criminal Code offence letter of Deputy Judges Council and Canadian Tire to a judge”. The reply goes on to state that if the Registrar fails to provide a copy of a letter written to various individuals and requesting if Rule 2.1.01(6)(7) is a mandatory duty, then the Applicant states that she has no choice but to “go after” the Registrar.

[5] The Applicant’s objection to the Registrar’s action of bringing the Attorney General’s July 25, 2018 letter to my attention as local administrative judge for Divisional Court has no merit. This is precisely the process contemplated by Rule 2.1.01 and in my view the Applicant has not been prejudiced in any way.

[6] Otherwise, the Applicant’s reply to the Form 2.1 Notice references various Rules and copies various paragraphs of the Supreme Court of Canada’s decision in Nova Scotia (Workers’ Compensation Board) v. Martin 2003 SCC 54, [2003] 2 SCR 504 without any substantive argument. Clearly, the Applicant’s reply to the Form 2.1 Notice is of no assistance as it does not address the Form 2.1 Notice or the merits of the Application for Judicial Review.

Material Filed by the Applicant

[7] In the absence of any relevant written submissions by the Applicant, I am left to consider the Notice of Application to Divisional Court for Judicial Review, the Application Record and the Applicant’s Factum to determine if the Application for Judicial Review is frivolous, vexatious or an abuse of process.

[8] In the Notice of Application to Divisional Court for Judicial Review, the Applicant seems to complain about the failure of the Deputy Judges Council to respond to a complaint made by the Applicant against Deputy Judges Gilbert and Stauffer who sit in Ottawa. The Applicant references ss. 33(6)(c) and 33.1(8) of the Courts of Justice Act, R.S.O. 1990, C. C.43 (“CJA”). In addition, the Applicant appears to challenge the constitutionality of ss. 33.1(2) and 33.1(8) of the CJA as being overly broad and inconsistent with the Constitution. Otherwise, the grounds in support of the Application contain a series of case law references which are unintelligible.

[9] In the Application Record, the Applicant has included a copy of the Notice of Application and what is purported to be an “Affidavit of Jennifer Virgo”. I pause at this time to highlight the very clear deficiencies in this document which is meant to be an affidavit by the Applicant. It is part of what seems to be one continuous 49-page electronic document that includes:

(a) an unissued and modified version of the Notice of Application to Divisional Court for Judicial Review;

(b) various internet links to documents which cannot reasonably be accessed in such a paper form;

(c) various e-mail communications inserted by “cut and paste” that are not properly included in their original format as part of a sworn exhibit to the affidavit;

(d) purported excerpts of complaints made to the Deputy Judge’s Council dated February 26, 2018, February 28, 2018, March 20, 2018 and a complaint made against the Chief Justice of the Superior Court of Justice dated April 25, 2018;

(e) purported excerpts of a “Notice of Constitutional Question” with improperly numbered paragraphs and is overall unintelligible;

(f) excerpts from what are purported to be two documents titled “Request to Admit Facts” that are unintelligible; and

(g) bald and unsupported accusations of fraud and conflict of interest by the Chief Justice of the Ontario Superior Court of Justice and the Regional Senior Judge of the Eastern Region of the Superior Court of Justice.

[10] This document cannot be considered as an affidavit having any evidentiary value as it combines what may be statements of the Applicant with internet links and an unending number of references to various rules, legislation and case law that are unintelligible.

[11] These statements and references seem to refer to events which took place in a Small Claims Court Trial involving the Applicant and the Canadian Tire Corporation that originate from rulings made by Deputy Judges Stauffer and Gilbert but there is no reference to any transcript or the dates when various rulings were made.

[12] The affidavit concludes with a number of purported e-mail confirmations originating from “bellfax.ca” that certain fax communications were received. It is impossible to ascertain the authenticity of these excerpted documents as they are not properly presented in their original form as exhibits to the affidavit.

[13] Finally, I question if this document has been properly sworn by a Commissioner of Oaths. The signature on the jurat is not legible and there is no stamp that would have been placed by a Court officer who would have been asked to swear the affidavit. I also question if the purported affidavit was sworn by a Commissioner of Oaths because the form of the affidavit is so deficient that I cannot imagine that any properly qualified Commissioner of Oaths would have sworn the purported affidavit in this form.

[14] I acknowledge that the Applicant does not likely have any legal training and I have considered this purported affidavit in the most generous manner possible. However, I must conclude that I cannot attribute any evidentiary value to it.

[15] The final document I have considered is the Applicant’s Factum. The Factum seems to challenge the constitutionality of sections 33.1(2) and 33.1(8) of the CJA (although these sections are improperly referred to as “33.1(2)(8) Courts Justice Act”) that grant the authority to certain judicial officers to dismiss complaints made against deputy judges of the Small Claims Court. This document also includes an unending number of excerpted case law references intertwined in allegations of bad faith, breach of trust, conflict of interest, fraudulent misrepresentation, fraud, partiality, racism, misogyny and perjury. This 22-page document is also simply unintelligible.

[16] The Applicant’s Factum relies on a number of court decisions in support of an argument that someone committed “criminal constitutional offences” and “criminal misconduct”. These terms are not logically defined by the Applicant as to how they may apply to either the deputy judges in question or to the Deputy Judges’ Council.

[17] When read as a whole, the Applicant appears to challenge the failure of the Deputy Judges’ Council to reply to her complaints and treats the failure to respond as a dismissal of her complaints under either ss. 33.1(2) or 33.1(8) of the CJA although it is unclear how the failure to respond or the “inaction” as purported by the Applicant can be unconstitutional, represent bad faith, criminal misconduct or partiality. The Applicant has not provided the necessary factual background for this Court to even begin to understand the nature of the complaints.

Analysis

[18] Having considered all the documents filed by the Applicant in this Application for Judicial Review, I have cautioned myself on the proper application of Rule 2.1.01 and the direction provided by the Court of Appeal for Ontario in Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806 at para. 43 where the Court stated:

Rule 2.1 is meant to provide a streamlined procedure for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process. However, the rule is not intended or designed to supplant the established procedural mechanism of bringing a motion to quash an appeal for want of jurisdiction or for want of merit. Indeed, a party considering making a r. 2.1 request is well advised to consider if the matter would be more effectively addressed by the court by bringing a motion to quash and by filing the materials required in support of such a motion, rather than by using the procedures outlined in r. 2.1. The court will take into account whether a motion to quash is the more appropriate procedural vehicle in deciding whether to direct that a notice be sent under r. 2.1.01(3)1.

[19] I have considered if the more appropriate procedural vehicle in this case would be a motion to quash for want of jurisdiction or for want of merit. Here, the materials filed by the Applicant are unintelligible and woefully inadequate to provide an evidentiary basis to even understand the nature of the Applicant’s complaints against either the deputy judges in question or the Deputy Judges’ Council. I conclude that the materials as filed are impossible to respond to in a cogent and efficient manner. It would be inappropriate to require the Respondent to attempt to address by way of a motion, the unintelligible arguments put forward by the Applicant or to cure the deficient evidentiary record. The proper way to deal with this matter is clearly pursuant to Rule 2.1.01.

[20] Turning now to the merits, the record does not allow me to conclude that any properly served complaint was ever made in following the procedure set out in s. 33.1 of the CJA. Section 33.1(1) states:

Complaint

33.1 (1) Any person may make a complaint alleging misconduct by a deputy judge, by writing to the judge of the Superior Court of Justice designated by the regional senior judge in the region where the deputy judge sits.

[21] There is no evidence that any properly made complaint was ever sent to the judge designated by the Regional Senior Judge. In the Eastern Region, that judge is Justice Charles Hackland, local administrative judge of the Small Claims Court. There is nothing in the Application Record that this statutory requirement for filing a complaint was ever complied with.

[22] However, I note that there is reference that something may have been sent to the Regional Senior Justice in the Eastern Region. However, it is unclear as to what, if anything, was sent and if it was capable of being responded to. The purported affidavit does not include a properly sworn exhibit of what complaint was sent and the exact content of the complaint. For example, at page 12 of the Application Record, the Applicant seems to have reproduced an electronic copy of the complaint dated February 28, 2018 with the content of the complaint set out as follows:

S122 Criminal Code Breach of Trust, Conflict of Interest, Fraudulent Misrepresentation Bad Faith Plan to Defraud concurrent Motion Trial Relief Jurisdiction, Partiality, Racism, Misogyny, Party to Perjury, Party to Secret Case Conference, Complaint Re Administrative Judge Stauffer

[23] This is not in my view a complaint which is capable of being responded to or that complies in any way with the requirements of s. 33.1(1) of the CJA. The other purported complaints are equally unintelligible as they do not set out the proper background of the complaint, facts in support, enclose relevant transcripts or at least proper references to the events leading to the complaints. There is no copy of any ruling against which the Applicant seems to object to.

[24] In the end, I conclude that the Application for Judicial Review must be dismissed as being frivolous, vexatious, and an abuse of process for the following reasons:

(a) the Applicant has failed to demonstrate that any proper complaint was ever made pursuant to s. 33.1(1) of the CJA and provided no copy of any such complaint;

(b) if a complaint was sent to the Regional Senior Justice in error, there is no evidence of what was exactly sent and based on what is reproduced in the Application Record, it is not a complaint capable of being responded to;

(c) as presented by the Applicant, the Notice of Application for Judicial Review is impossible to be responded to in substance by the Respondent and is not worthy of any form of adjudication. It is simply a series of bald statements that are not supported by any proper evidence. The content is scandalous and clearly vexatious as it accuses the Chief Justice and Regional Senior Justice for the Eastern Region of fraud and conflict of interest;

(d) the Application is clearly an abuse of process as it does not demonstrate that any proper complaint was made. In addition, there is nothing in the complaint which is worthy of a response given the absence of supporting information to explain the nature of the complaints and what the deputy judges in question are alleged to have done; and

(e) finally, the Applicant was provided with an opportunity to respond to the Form 2.1 Notice and my Endorsement dated July 31, 2018. The Applicant chose to attack the local Registrar of the Divisional Court in Ottawa and not respond in any substantive way to the concerns of the Court.

Disposition

[25] For the reasons set out above, the Notice of Application for Judicial Review, being file number 18-2387 is dismissed pursuant to Rule 2.1.01 as being frivolous, vexatious and an abuse of process.

[26] As the letter of the Crown Law Office - Civil Law dated June 25, 2018 does not seek an order for costs, there shall be no costs of the Application.

LABROSSE J.

DATE: September 13, 2018