CITATION: Gelinas v. Bozzer, 2020 ONSC 359

COURT FILE NO.: DC-19-13-00

DATE: 20200120

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

Marc Gelinas and Lindsay Larocque

Rocco Achampong, counsel for the Applicants

Applicants

• and -

Daniel Raymond Bozzer and Joanne Bozzer

and

The Ontario Ministry of the Attorney General

Daniel Raymond Bozzer and Joanne Bozzer, Respondents, in person

Heather Burnett, counsel for the Respondents

Respondents

HEARD: In Chambers

ENDORSEMENT

Daley, RSJ.

1. Introduction:

1This application to the Divisional Court for judicial review came to my attention in my capacity as the Regional Senior Judge for Central West Region.

2As detailed below, I have considered the proper forum for the hearing of this application pursuant to my jurisdiction as the Regional Senior Judge related to the proper scheduling of matters before this court and in accordance with the court’s inherent jurisdiction to control its own process.

3This application has its genesis in an action in the Small Claims Court at Timmins, Ontario, wherein the respondents, Daniel Raymond Bozzer and Joanne Bozzer were plaintiffs and the applicants, Marc Gelinas and Lindsay Larocque were defendants.

4In their Amended Notice of Application dated May 29, 2019, the applicants seek a wide variety of relief against the respondents Bozzer and the Ontario Ministry of the Attorney General (the “Atty. Gen.”) including orders pursuant to s. 2 (1) of the Judicial Review Procedure Act R.S.O. 1990, c. J.1, requiring the Atty. Gen. to review the files managed by the Timmins Small Claims Court to determine whether litigants have received discriminatory, inappropriate or unlawful treatment and further requiring the Atty. Gen. to produce certain records, including emails between court staff and Deputy Judges.

5Further, the applicants seek an order prohibiting the Timmins Small Claims Court, as a branch of the Superior Court of Justice, including court administrative staff and Deputy Judges, from carrying out certain activities as specified in the Amended Notice of Application, including relief in the form of certiorari and an order quashing certain specified orders and decisions of several Deputy Judges for want of jurisdiction or for breach of natural justice or procedural fairness.

6As the application and the underlying legal issues have no connection with the Superior Court of Justice or the Divisional Court sitting in Brampton in Central West Region, in keeping with my duties and responsibilities for the scheduling of matters in Central West Region, upon learning of this matter by endorsement dated July 17, 2019, I requested submissions from all parties as to why the application was commenced before the Divisional Court at Brampton and whether the matter would be more properly heard by the Divisional Court at Sudbury in the Northeast Region.

7Submissions by counsel on behalf of all parties and by the self-represented respondents Bozzer were received.

2. Positions of the Parties as to the Proper Venue of This Application:

Position of the Respondents Bozzer:

8These respondents assert that the application has been instituted in the wrong jurisdiction and that in fairness the judicial review should be heard before the Divisional Court in the Northeast Region where the underlying Small Claims Court action was instituted.

Position of the Applicants:

9It is submitted on behalf of the applicants that they are entitled to institute an application for judicial review in any region where the Divisional Court is convened. Counsel for the applicants relies upon Rules 1.04 and 13.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for the applicants’ position that the just, most expeditious and least expensive determination of their application favours Brampton and further, that in view of the alleged breaches relating to the administration of justice at Timmins in the Northeast Region, the taint associated with those alleged breaches requires that the hearing of the judicial review application by the Divisional Court take place in another region such as Central West Region. This position is essentially founded upon the assertion that a fair and impartial hearing of the issues at stake on the application cannot occur by way of a hearing before the Divisional Court at Sudbury, in the Northeast Region.

Position of the Atty. Gen.:

10As to the appropriate venue for the hearing of the application, it is the position of the Atty. Gen. that all relevant factors favour the hearing of the application by the Divisional Court sitting at Sudbury.

11It is further submitted that simply by the fact that the application impugned the conduct of Deputy Judges and court staff at the Timmins Small Claims Court does not create circumstances of a reasonable apprehension of bias for judges of the Superior Court of Justice sitting as judges of the Divisional Court at Sudbury.

12As to the real nature of the pending application, it is urged on behalf of the Atty. Gen. that the proceeding is really an appeal from several Small Claims Court orders and not truly in the nature of a judicial review application.

13In lieu of transferring the pending judicial review application from Brampton to Sudbury, it is urged on behalf of the Atty. Gen. that the application be summarily dismissed pursuant to Rule 2.1 of the Rules of Civil Procedure on the basis that the proceeding is frivolous and an abuse of process.

3. Applicable Legal Framework and Analysis:

14As to the application of Rules 13.1.01 and 13.1.02 when considering whether a proceeding should be transferred to another county or judicial centre, as these rules refer to a “proceeding” and not simply an action and Rule 1.03 defines “proceeding” as “an action or application”, the present judicial review application would be caught by these rules.

15However, the only circumstances in which the Rules allow for the court, and in particular a Regional Senior Judge to transfer a proceeding “on their own motion” applies with respect to the proposed transfer of a proceeding to another county within the same region.

16Thus, I have concluded that the Rules of Civil Procedure in and of themselves do not expressly establish jurisdiction in the court generally or with the Regional Senior Judge to transfer a proceeding from one judicial region to another, on their own motion.

17Furthermore, although Rules 13.1.01 and 13.1.02 apply to both actions and applications, Rule 13.1.01 only applies to proceedings that have been improperly brought in a particular region. It only applies “if a statute or rule requires a proceeding to be commenced, brought, tried or heard in a particular county.”

18Sections 20 (I) and (2) of the Courts of Justice Act R.S.O. 1990, c. C.43 allow applications for judicial review to be brought before the Divisional Court in any region. Section 20 (1) provides that barring the parties’ consent or an order from the Chief Justice, appeals to the Divisional Court must be heard in the region where the hearing or the process under appeal took place. However, section 20 (2) notes that “any other proceeding in the Divisional Court may be brought in any region.”

19An application for judicial review is not an appeal: Zirger v. The Normal Farm Practices and Protection Board, 2018 ONSC 2236 (Div Ct.), at paras. 9 – 11; Douglas Aircraft Co. of Canada v. McConnell, 1979 51 (SCC), [1980] 1 SCR 245, at p. 293.

20However, Rule 13.1.02 (2) does provide that if Rule 13.1.02 (1) does not apply – i.e. if the proceeding was not erroneously commenced in the county when it was required to be brought elsewhere – the court may transfer the matter to any county on any party’s motion.

21None of the parties in the pending application have brought a motion for the transfer of this proceeding out of Brampton to any other judicial region or centre.

22The Divisional Court in Chatterson et al. v. M & M Meat Shops Ltd., 2014 ONSC 1897, at para. 30 in considering the inherent jurisdiction of the court to control its own process stated:

“The Siemens case does not address the situation where the venue chosen by the plaintiff is not reasonable and the defendant declines to bring a motion to change the venue. In such a situation it is quite likely that the plaintiff’s choice of venue will be respected. This is not absolutely true because the court has control over its own processes and can always on its own motion insist that the venue of the trial be addressed by the parties.”

23This statement by the Divisional Court is most apt in the present circumstances.

24I am satisfied that the court’s inherent jurisdiction to manage and control its own process is properly engaged here. Although the considerations typically examined when applying the terms of Rule 13.1.02 (2) are not directly applicable in circumstances where the court is exercising its inherent jurisdiction to control its own process, several of the considerations addressed in that sub rule are important in determining the proper venue for the pending judicial review application.

25Before turning to those considerations, I will firstly address the serious allegation made by the applicants that there is a real and perceived institutional bias on the part of the administration of justice in the Northeast Region court in the City of Timmins.

26There is no evidence whatsoever that there exists any real or apprehended bias institutionally or on the part of the court with respect to the within proceeding being adjudicated by the Divisional Court in the Northeast Region sitting at Sudbury.

27To suggest otherwise is a most serious allegation going to the heart of the integrity of the administration of justice and the impartiality of the judges considering this application.

28The applicants, as a basis for having this application continue before the Divisional Court at Brampton, assert that both the court administration in Timmins and in the Northeast Region at Sudbury will not allow for a fair, impartial and cost-effective adjudication of the issues at stake in this application.

29Apart from allegations raised with respect to misconduct on the part of the court administration, the applicants also assert in their submissions regarding the proper venue for this matter that the alleged collegial intimacy of the bench, bar and court staff in the Northeast Region demonstrates that the pending application cannot be properly determined by the Divisional Court in Sudbury, even if the allegations are determined to be unfounded.

30There is a presumption of judicial impartiality in respect of all matters that come before the court. In R. v. Montoya, 2015 ONCA 786 the Court of Appeal stated as follows at para 9:

“We do not accept these submissions. An allegation of reasonable apprehension of bias should not be made lightly. That is because, as McLachlin C.J. said in Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, at para. 22:

There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently. [Emphasis added.]……

31Further, in Beard Winter v. Shekdor, 2016 ONCA 493, the appellant moved to have Doherty J.A. recuse himself on the appeal and in denying the recusal motion the court noted at para. 10:

“It is important that justice be administered impartially. A judge must give careful consideration to any claim that he should disqualify himself on account of bias or reasonable apprehension of bias. In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim. That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands. Litigants are not entitled to pick their judge. They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges. To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.”

32I have thus concluded that given the presumption of judicial impartiality and in the absence of compelling evidence in support of the applicants’ assertion of existing or apprehended institutional and judicial bias, the allegation of bias does not form any basis whatsoever in support of the applicants’ position that this application should be heard by the court at Brampton as opposed to Sudbury in the Northeast Region.

33Turning to the history of the underlying litigation and the factors in Rule 13.1.02(1) that may be examined, the allegations made by the applicants in this application all arose from court proceedings in Timmins.

34Similarly, the subject matter of the proceeding originates in Timmins.

35Clearly, there will be local community interest in the subject matter of the proceedings given the very serious allegations made with respect to the proper administration of justice in Timmins and in the Northeast Region.

36Further, the convenience of the parties, who reside in the Northeast Region, is an important consideration.

37As to any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on the merits, I have consulted with the Regional Senior Judge for the Northeast Region, Justice Greg Ellies, and he advises that the hearing of this matter can be scheduled equally as soon as the matter could be heard by the Divisional Court in Brampton, and as such there are no facilities or scheduling issues that would adversely affect the timely adjudication of the matters at stake in this application.

38In exercising the court’s inherent jurisdiction to control its own process and having examined the factors typically looked at when considering a transfer of a proceeding under Rule 13.1.02, I have concluded that all of those factors and considerations weigh in favour of transferring the pending judicial review application from Brampton in the Central West Region to Sudbury in the Northeast region. As such, the within application is hereby ordered to be transferred from the Divisional Court at Brampton in the Central West Region to the Divisional Court at Sudbury in the Northeast Region.

39As to the assertion by counsel on behalf of the Atty. Gen. that the pending judicial review application should be dismissed summarily pursuant to Rule 2.1 as a frivolous and vexatious proceeding, which is also an abuse of process, I have concluded that that determination cannot fairly be made on the basis of the evidence within the current record or having regard to the submissions made.

40As to costs, although the consideration of the within judicial review application was undertaken by the court on its own motion and not by any party involved, I will receive submissions with respect to costs from all parties and counsel within 20 days from the release of these reasons. Any such submissions shall be no longer than two pages plus a costs outline. No reply submissions are to be delivered.

41An order shall issue in these terms.

Daley, RSJ.

DATE: January 20, 2020

CITATION: Gelinas v. Bozzer, 2020 ONSC 359