DIVISIONAL COURT FILE NO.: 107/21
SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: RUSTY DALE MORGAN BARRON, Applicant
AND:
SOCIAL BENEFITS TRIBUNAL, Respondent
BEFORE: Kristjanson J.
COUNSEL: Rusty Dale Morgan Barron – the applicant, representing himself
Katia Snukal – for the respondent, Social Benefits Tribunal
ENDORSEMENT
1Mr. Barron commenced two applications for judicial review of decisions of the Social Benefits Tribunal relating to Ontario Disability Support Program payments. The grounds for judicial review are identical, that the Tribunal breached Mr. Barron’s rights to procedural fairness, showed prejudice, breached procedural rules, and “provided false and misleading information to the applicant during the ongoing proceedings”. The grounds consist of vague and bald allegations: the decisions are not identified; the decision-makers are not identified; the time period is not identified; the errors in the decisions are not identified; the result of the decisions below are not identified.
2In her endorsement reported at Barron v. Social Benefits Tribunal, 2021 ONSC 2402, Favreau J., as she then was, directed the Registrar to give the applicant notice that the court was considering dismissing his application for judicial review on the basis that it appeared to be frivolous, vexatious and an abuse of process pursuant to Rule 2.1 of the Rules of Civil Procedure. Favreau J. referred specifically to the applicant’s statutory right to appeal the decisions of the Social Benefits Tribunal on a question of law alone within 30 days of receiving the decision (s. 31(1) of the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B). Favreau, J. informed the applicant that judicial review is a discretionary remedy, and that this court has repeatedly held that an application for judicial review should not be permitted to proceed where there is an adequate alternative remedy, referring to Franssen v. Association of Professional Geoscientists of Ontario, 2015 ONSC 651 (Div. Ct.).
3The Rule 2.1 notice requested Mr. Barron to make submissions about why he should be allowed to proceed with the application for judicial review given the appeal provisions and timelines for appeals set out in section 31(1) of the Ontario Disability Support Program Act, 1997.
4Mr. Barron requested an extension of time to make submissions, which I granted. I directed Mr. Barron to make further submissions responding to the court’s concerns that the grounds for the applications were so vague that the court could not discern a legal basis for the proceeding. The court noted that there was no reference to the nature of the decisions below, or the specific errors alleged to have been made in any of the decisions. The court directed:
In making his submissions, Mr. Barron should consider the court’s concerns that the applications lack a legal basis, or were instituted without reasonable grounds, given the bald nature of the allegations.
5The applicant responded to the Rule 2.1 Notice and the supplementary direction with a 10-page letter which was unresponsive to the specific concerns raised.
Rule 2.1 of the Rules of Civil Procedure
6Rule 2.1 of the Rules of Civil Procedure allows the court to dismiss a proceeding that appears on its face to be frivolous, vexatious, or an abuse of the process of the court. It is a summary procedure based on a review of the pleadings and submissions.
7In Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, the Court of Appeal for Ontario in para. 8 set out the following principles to be applied when considering whether to dismiss a proceeding pursuant to Rule 2.1:
(a) 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”.
(b) The Rule is to 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”.
(c) A Rule 2.1 motion “focuses on the pleadings and any submissions of the parties made under the rule. No evidence is submitted. . . “
Analysis
8I am satisfied that both judicial review applications should be dismissed under Rule 2.1.
9The first application concerns a decision of the SBT dated March 28, 2019, and a reconsideration decision dated December 11, 2019. In a letter dated January 16, 2020, the SBT declined to consider a second reconsideration request of that decision. The thirty-day period for commencing an appeal expired on February 17, 2020. The judicial review was commenced on February 9, 2021, almost a year later.
10The second application concerns a decision of the SBT dated June 29, 2020, and a reconsideration decision dated August 31, 2020: these are the decisions from which the statutory appeal period runs. The letter of December 16, 2020 is not a decision on the merits. The 30-day period for commencing a statutory appeal expired on October 1, 2020. The judicial review was commenced on February 9, 2021, over 4 months later.
11In both applications, the grounds upon which the applicant seeks relief are set out in their entirety as follows:
The SBT and it’s Staff have acted with prejudice, procedural unfairness and breached of the SBT Rules of Procedure against the applicant. The SBT has also provided false and misleading information to the applicant during the ongoing proceedings.
12Each notice of application for judicial review fails to meet the basic requirement to set out the grounds for judicial review. It is impossible to discern the legal basis of the proceeding. The purpose of the notice of application is to provide sufficient notice to the responding party of matters in issue, so they can provide a meaningful response. For the court, the notice serves as the framework for the adjudication. The grounds here are nothing but identical, bald allegations. The decisions are not identified, the decision-makers are not named, the actions and actors complained of, the flaws, the relief sought or denied or granted below, the time period – all of it is a mystery. The Social Benefits Tribunal (and the Director, not named, but the initial decision-maker), would be unable to make a meaningful response because there is, effectively, no notice. The Court would be unable to adjudicate the mystery. The grounds for judicial review are incomprehensible. There is not even a remote prospect that the applications, if allowed to proceed, would succeed. It would be a misuse of court time, and public funds, to allow the applications to proceed. For this reason, I dismiss the applications under Rule 2.1
13Further, Mr. Barron had a statutory right of appeal which he failed to pursue. Judicial review is a discretionary remedy and will generally not be afforded where there is an adequate alternative remedy. Mr. Barron provided no explanation for failing to pursue the statutory appeals. I would dismiss the applications pursuant to Rule 2.1 of the Rules of Civil Procedure on the grounds of adequate alternative remedy.
14Finally, Mr. Barron proffers no reasonable explanation for the delay – one year in the first application, four months on the second. On April 14, 2021 in his request for extension, Mr. Barron stated:
Legal Aid Ontario has already been taking 2 weeks to respond to the applicant request for guidance in filing his initial request. Legal Aid Ontario is NOT representing the applicant due to case loads but has agreed to provide guidance on forms and submissions. (emphasis added)
15From this reference to “two weeks to respond to guidance in filing his initial request”, I infer that he did not contact Legal Aid Ontario until January 2021. In his subsequent submissions, he simply states that sometime after December 16, 2020 he contacted Legal Aid “which took exceptionally long to respond and did not mention anything about a time limit but said the sooner the better.” Mr. Barron provided no information as to when he first contacted Legal Aid following the Reconsideration decisions, when Legal Aid responded, or what steps he took once advised that Legal Aid would not assist. This does not explain the delay. I would also dismiss on the grounds of delay.
16The Court recognizes the challenges facing unrepresented litigants in pursuing appeals and judicial reviews. Here, in two separate endorsements, the Court explained the issues and requested responsive submissions. The applicant failed to respond meaningfully to the concerns identified. As Favreau, J. held in Macmull v. Ministry of Health, 2022 ONSC 182 (Div. Ct.) at para. 14:
While self-represented litigants can be excused from complying with some of the Court’s formal requirements in appropriate circumstances, they nevertheless have an obligation to inform themselves about court processes and to ensure that their proceedings are tenable at law.
17I have reviewed the applicant’s materials, including his response to the Rule 2.1 Notice and the supplementary April notice, and I am satisfied that the applications for judicial review should be dismissed pursuant to Rule. 2.1 of the Rules of Civil Procedure.
18The respondents were not required to make any submissions in response to the Court’s Rule 2.1 notice. As a result, no costs are ordered.
“Justice Kristjanson”
Release Date: January 25, 2022