CITATION: Harris-Saunders v. Toronto, 2021 ONSC 1407
DIVISIONAL COURT FILE NO.: 043/18
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: GREGORY HARRIS-sAUNDERS, Moving Party
AND:
CITY OF TORONTO, Responding Party
BEFORE: Favreau J.
ENDORSEMENT
1In a previous endorsement, I directed that the applicant, Gregory Harris-Saunders, be given notice that the Court was considering dismissing his motion pursuant to Rule 2.1 of the Rules of Civil Procedure The motion purports to challenge a settlement agreement made in the context of a labour arbitration. The Rule 2.1 notice indicated that the Divisional Court does not appear to have jurisdiction over this matter or jurisdiction to grant some of the relief requested.
2Mr. Harris-Saunders made written submissions in response to the Rule 2.1 notice.
3For the reasons below, the motion brought by Mr. Harris-Saunders is dismissed on the basis that it is clearly frivolous and vexatious and an abuse of process.
Background
4Mr. Harris-Saunders originally brought an application for judicial review to the Divisional Court in 2018. By endorsement dated September 19, 2018, Associate Chief Justice Marrocco, as he then was, granted a motion brought by the City of Toronto, with the consent of the union and Mr. Harris-Saunders, to remit the matter back to another arbitrator. ACJ Marrocco’s order also quashed the application for judicial review.
5Mr. Harris-Saunders now brings a motion to set aside the minutes of settlement made in the context of the arbitration that took place in 2019. He purports to bring the motion under the Court File number assigned to application for judicial review previously quashed by ACJ Marrocco. In the notice of motion, Mr. Harris-Saunders asks for the following relief:
a. That the Court set aside minutes of settlement signed on November 25, 2019;
b. That the City of Toronto provide Schedule B to an affidavit of documents with “surveillance particulars”; and
c. That the Court make a finding of liability and award him damages, including punitive damages.
6The grounds for the motion are described as “undue influence and misrepresentation”, “lack of capacity” and “the agreement is unconscionable”.
7In his submissions, Mr. Harris-Saunders argues that the Divisional Court has jurisdiction over this motion pursuant to Rules 37.14 and 59.06 of the Rules of Civil Procedure because it relates to the previous order made by ACJ Marrocco.
8The balance of Mr. Harris-Saunders’s submissions addresses the arbitration process in 2019, and the basis for Mr. Harris-Saunders’s claim that the settlement reached during the arbitration was made under duress, while he lacked capacity and that it is unconscionable.
Principles applicable to Rule 2.1
9Rule 2.1.02 of the Rules of Civil Procedure provides for a summary procedure that allows the court to dismiss a motion that appears on its face to be frivolous, vexatious, or an abuse of the process of the court.
10In Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8, the Court of Appeal for Ontario indicated that one of the principles to be applied by the courts in considering whether to dismiss a proceeding pursuant to Rule 2.1 is as follows:
Rule 2.1 must be “interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488. The Rule is not for close calls — it may be used only in “the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process”: Scaduto, at paras. 8-9; Khan v. Law Society of Ontario, 2020 ONCA 320 (“Khan”), at para. 6, leave to appeal to S.C.C. requested, 39321.
11In addition, in Visic, at para. 8, the Court of Appeal emphasized that a Rule 2.1 motion “focuses on the pleadings and any submissions of the parties made under the rule. No evidence is submitted on a r. 2.1 motion…”
Analysis
12Mr. Harris-Saunders purports to bring a motion within the prior Divisional Court proceedings to challenge a settlement subsequently reached during an arbitration. On its face, the motion is frivolous and vexatious and an abuse of process.
13The previous application for judicial review was quashed. Mr. Harris-Saunders does not seek to revisit the order previously made by the Divisional Court quashing the application for judicial review and referring the matter to another arbitrator. Rather, he challenges the settlement reached at a subsequent arbitration. There is no proceeding withing which to bring a motion. Rule 37.14 of the Rules of Civil Procedure is of no assistance because it deals with setting aside orders obtained without notice or where a party inadvertently failed to appear. Rule 59.06 is also of no assistance because it deals with motions to set aside an order based on errors or fraud. In this case, Mr. Harris-Saunders does not seek to set aside the Divisional Court’s order but, rather, the arbitration settlement.
14In addition, the relief Mr. Harris-Saunders purports to seek on the motion is not available in the context of an application for judicial review in the Divisional Court. The Rules of Civil Procedure regarding documentary discoveries do not apply to applications for judicial review. Therefore, even if this matter were allowed to proceed, Mr. Harris-Saunders could not compel the respondents to provide a Schedule B to an affidavit of documents. Similarly, the Divisional Court does not award damages, including punitive damages, on an application for judicial review. The Divisional Court is a statutory court. The relief the court can grant is limited to those matters set out in section 2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
15Mr. Harris-Saunders may have legal avenues for challenging the settlement he reached in the context of the 2019 arbitration. Before commencing any further proceedings, I strongly urge Mr. Harris-Saunders to seek legal advice about what options, if any, he may have. However, this motion, which he purports to bring in the context of an application for judicial review that has already been quashed, is on its face frivolous and vexatious and an abuse of process.
Conclusion
16For the reasons above, the motion is dismissed pursuant to Rule 2.1 of the Rules of Civil Procedure.
Favreau J.
Date: February 24, 2021