Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210518 DOCKET: C68228

Juriansz, Huscroft and Jamal JJ.A.

BETWEEN

Stephen Fitzgerald Plaintiff (Appellant)

and

Leslie Reaume Defendant (Respondent)

Counsel: Michael N. Bergman, for the appellant Trevor Guy, for the respondent

Heard: May 10, 2021 by videoconference

On appeal from the order of Justice Calum U.C. MacLeod of the Superior Court of Justice, dated March 2, 2020.

Reasons for Decision

[1] This is an appeal from the decision of the Superior Court judge [the judge] dismissing the appellant’s action pursuant to Rule 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The claim sought $1,050,000 in damages against the respondent, a Vice‑Chair at the Human Rights Tribunal of Ontario. The action arose out of a hearing into a human rights complaint against the appellant, over which the respondent was presiding. The appellant alleged that the respondent failed to conduct the hearing in accordance with the required rules, norms, and standards, and that her actions concerning an adjournment in the proceedings during which the appellant sought medical attention from paramedics infringed his rights to health, dignity, and liberty.

[3] The respondent wrote to the Registrar of the Superior Court, copying the appellant, requesting an order under r. 2.1 dismissing the claim. The appellant wrote to the Registrar stating that he contested the respondent’s submissions and would provide reasons “should the court consider the request to dismiss”.

[4] The judge dismissed the claim without receiving submissions from the parties. He noted that the appellant’s concerns regarding the human rights hearing should have been raised before the Tribunal and that the only jurisdiction the court had was by way of an application for judicial review in the Divisional Court. The appellant had no right to sue the respondent concerning the manner in which she conducted the hearing. Moreover, the statement of claim disclosed no cause of action and could not be saved. It was, on its face, an improper pleading and a frivolous action.

[5] The principles governing the operation of r. 2.1 are set out in Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8. It is well established that the decision of the judge is a discretionary decision that is entitled to deference. We see no basis to interfere with the judge’s decision in this case.

[6] We accept, as the appellant submits, that the statement of claim in this case is not marred by the sorts of inflammatory rhetoric or hyperbolic claims often seen in a frivolous and vexatious action. Nevertheless, the claim cannot succeed given the respondent’s immunity from suit, and this immunity precludes the pleadings from being saved. It was open to the judge to conclude that this is the sort of litigation that r. 2.1 was designed to weed out. We do not accept the appellant’s attempt to avoid the immunity by distinguishing the respondent’s actions conducting the hearing from those taken when she was not physically present in the hearing room.

[7] Nor do we accept that the judge’s decision to not to permit submissions violated the duty of fairness. Determinations under r. 2.1.01(1) are to be made in a summary manner and pursuant to subsection (3) may, in the court’s discretion, be made without written submissions. The judge considered the matter and stated that he would have dealt with the request pursuant to a different procedure if it were decided on the basis of a failure to comply with either the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17 or the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. However, given that the action could not possibly succeed, it was open to the judge to conclude that no purpose would be served in putting the plaintiff on notice and providing an opportunity to make written submissions.

[8] The appeal is dismissed.

[9] The respondent does not seek costs and none are awarded.

“R.G. Juriansz J.A.”

“Grant Huscroft J.A.”

“M. Jamal J.A.”