Sui v. Ontario, 2022 ONSC 5604

CITATION: Sui v. Ontario, 2022 ONSC 5604

DIVISIONAL COURT FILE NO.: 391/22 DATE: 20221005

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

HUA SUI

Hua Sui, self-represented

Applicant

– and –

MINISTRY OF ATTORNEY GENERAL

Respondents

In Chambers, In Writing

AMENDED ENDORSEMENT¹

D.L. Corbett J.

[1]

Background

On July 8, 2022, the applicant commenced a second proceeding in this court seeking judicial review to challenge a “decision” by staff of the Ministry of the Attorney General about the manner in which the Ministry provides recordings of proceedings in the Ontario Court of Justice for purposes of transcription.

2This is the third Divisional Court proceeding brought by the applicant this year raising a substantially identical issue. The first concerned transcripts from proceedings before the Landlord and Tenant Board for use on an appeal in this court. That proceeding was dismissed because Mr Sui failed to follow this court’s directions.² Leave to appeal that dismissal decision was dismissed by the Ontario Court of Appeal on July 18, 2022 (Div. Ct. File 056/22; Ont. CA File M53330). The second proceeding concerned transcripts from criminal proceedings in the Ontario Court of Justice. This court dismissed this second proceeding by email direction on June 20, 2022 (2022 ONSC 5600).

3Mr Sui advises that he decided not to appeal dismissal of the second proceeding, and instead commenced a third proceeding in this court on July 12, 2022.

[4]

The Rule 2.1 Notice

By direction of July 13, 2022, this court advised Mr Sui that the court is considering dismissing his third proceeding – this proceeding – pursuant to R.2.1 – and is also considering making related orders governing his future access to this court. The basis of the court’s concerns was explained to Mr Sui as follows:

Honourable Justice Corbett has directed me to issue notice under R.2.1 that His Honour is considering dismissing Mr Sui's recent application as frivolous, vexatious and an abuse of process, and ordering that he be prohibited from commencing or continuing any proceedings in the Divisional Court, or seeking or obtaining a fee waiver in the Divisional Court, without obtaining prior written permission from an administrative judge.

The concerns to which Mr Sui should direct his response are as follows:

1. The application appears to be re-litigation of an application previously dismissed by this court pursuant to R.2.1 in File 307/22 [the second proceeding]. In addition to the reasons the court provided for dismissing that proceeding pursuant to R.2.1, the court is concerned that Mr Sui is failing to respect the finality of court decisions and is seeking to re-litigate issues finally decided in, or which should have been raised in connection with, prior proceedings. In short, the court is concerned that, having dismissed Mr Sui's prior application as an abuse of process, Mr Sui has now re-commenced essentially the same claim in this court.

2. In addition, Mr Sui has sought to litigate the same issue, in a different context, in this court, in Sui v. Liang (File 056/22) [the first proceeding]. In that case, this court had jurisdiction over the issue of preparation of transcripts from an LTB hearing that was the subject matter of an appeal in this court. The court took jurisdiction over that issue and gave directions about transcript preparation. Mr Sui did not agree with the directions and so did not follow them. His appeal was dismissed as a consequence. The court is concerned that Mr Sui is defiant and will not follow the court's directions when he disagrees with them, a hallmark of procedural vexatiousness, and an indication of ungovernability.

3. The court is custodian of a scarce public resource: court resources. It appears that Mr Sui has been wasting the court's resources over trivialities and has refused to follow the court's directions about the proper procedural routes to address a legitimate question [obtaining authoritative transcripts of judicial proceedings]. It appears that it may be necessary to restrict Mr Sui's unfettered access to the justice system so that he does not waste scarce judicial resources on trivialities in future, and is restricted to pursuing legitimate claims through reasonable means. The court notes that the restriction the court is contemplating is a serious one, and that, in cases where it is imposed, the court generally does not provide substantive reasons for granting or refusing permission, and there is generally no appeal available from a decision to refuse or grant such permission. Similarly with fee waivers: they do not exist to facilitate abuse of the court's resources, but to enable access to justice for litigants of modest means to pursue legitimate concerns.

Mr Sui's application is stayed pending the court's decision on the R.2.1 issues.

Mr Sui shall have thirty days and a maximum of twenty pages in which to respond to these concerns - an increase from the time and page limits imposed by the Rules of Civil Procedure, in light of the nature and significance of the issues raised in respect to R.2.1.

Accordingly as directed, please find attached a copy of the notice issued by the Registrar pursuant to rule 2.1.

[5]

Mr. Sui's Response

In his response to the R.2.1 notice, Mr Sui argues that his claims in the second proceeding and the third proceeding are different. In the second proceeding, he brought an application pursuant to s.2(1)1 of the Judicial Review Procedure Act, and in the third proceeding he brings an action pursuant to s.2(1)2 of the Judicial Review Procedure Act. The second proceeding, Mr Sui argues, sought review of a statutory power of decision. The third proceeding, in contrast, seeks remedies for failure to exercise a statutory power (a declaration and an order of mandamus to do that which the law requires) and remedies for breaches of Mr Sui’s constitutional rights arising because of failure to provide a certified recording of court proceedings.

6Mr Sui further argues that this court has engaged in “discriminatory, predatory, abusive practices against Sui (a self-represented litigant)” by refusing to let him pursue his claims that the Ministry of the Attorney General is obliged to provide certificates respecting recordings of court proceedings.

[7]

Analysis

This court has been very clear with Mr Sui about the proper way in which to obtain transcripts (or recordings for the purpose of transcript preparation). If Mr Sui had followed these directions, he would have obtained authoritative transcripts by now.

8It is still open to Mr Sui to obtain authoritative transcripts of the proceedings before the OCJ. He may do that by recourse to the OCJ or to any court with jurisdiction over an appeal brought from a decision of the OCJ. Those processes should provide an efficient and appropriate means for settling any issue respecting transcription of OCJ proceedings. As previously explained to Mr Sui, this court will not entertain an application for judicial review where there is another, more appropriate process, available to a claimant.

9Mr Sui’s argument in response to the R.2.1 notice is, itself, inherently vexatious. A litigant is required to advance all claims he has in respect to an issue brought before the court. Litigation is not a reiterative process. The arguments Mr Sui now raises about jurisdiction under s.2(1)2 of the Judicial Review Procedure Act had to be raised within the second proceeding.

10Mr Sui is correct that, as a self-represented litigant, he is entitled to assistance form the court to enable him to pursue his claims. If this court had considered that there was jurisdiction in this court for the application, but that Mr Sui had identified the wrong basis for jurisdiction in his notice of application in the second proceeding, then this court would have raised that issue with Mr Sui. This court did not do so because there was no alternate basis that would have led this court to take jurisdiction and decide the second proceeding on its merits. The essence of this court’s decision – in both the first proceeding and the second proceeding – is that Mr Sui is not entitled to what he is seeking (judicial review of administrative actions in the Ministry of the Attorney General regarding recordings and transcripts), but that he is entitled to obtain authoritative transcripts. If, using the process followed by the Ministry for release of recordings and preparation of transcripts, there is any issue about the accuracy of a particular transcript, then an appropriate court is available to settle the issue. In the first proceeding, this court was an appropriate court to settle a transcript dispute: an appeal had been brought to this court and so this court had jurisdiction to settle the record before this court. In respect to criminal proceedings before the OCJ, this court has no jurisdiction over the matter, and transcript issues must be brought before the OCJ itself, or before a court having jurisdiction over an appeal from the OCJ.

[11]

Disposition

This court has now explained to Mr Sui, three times, how he may obtain authoritative transcripts. Enough is enough. Henceforth, Mr Sui may not commence or continue any proceedings in the Divisional Court or obtain a fee waiver in respect to any matter in Divisional Court, without prior permission from an administrative judge of the Divisional Court or her designate. Such permission shall be sought by way of an email which, when printed on letter-sized paper in ordinary font, with ordinary margins, is no longer than ten pages, including attachments (but not including hyperlinked references to legal authorities).

12This application (391/22) is dismissed without costs pursuant to R.2.1 as frivolous, vexatious and an abuse of process.

___________________________ D.L. Corbett J.

Footnotes

1. 1This endorsement was released on October 5, 2022. An amended endorsement was released on October 13, 2022, correcting the date in para. 1 from July 12, 2022 to July 8, 2022.
2. 2Through administrative error, the dismissal decision was not released to the parties until October 4, 2022 (see 2022 ONSC 5623).