Court of Appeal for Ontario

Date: 2024-05-15 Docket: COA-24-OM-0126

Gomery J.A. (Motions Judge)

Between

Jordan Ash Applicant (Appellant/Moving Party)

and

Chief Medical Officer of Health of Ontario Respondent (Respondent/Responding Party)

Counsel: Jordan Ash, acting in person Vanessa Glasser and Michael Saad, for the respondent

Heard: May 9, 2024

Endorsement

[1] In his notice of motion, the appellant Jordan Ash seeks [1]:

1. A judge’s order to set aside a registrar’s order to refuse a filing – r. 37.14(1)(c)
2. Transfer of the applicant’s motion to set aside Justice Corbett’s r. 2.1 dismissal (from Divisional Court file no. 112/22 to Court of Appeal file no. M53696) as an application for leave to appeal – Courts of Justice Act s. 110
3. Direction that the motion for leave to appeal be heard by the COA panel orally (r. 61.03.1(15)) and that an interim order to grant the original relief sought – mandamus regarding the availability of pediatric covid injections in Ontario – be considered at that hearing – Judicial Review Procedure Act, s. 4.

[2] For the reasons below, the only question I address is whether the appellant is entitled to an extension of time to bring a motion for leave to appeal from the Divisional Court’s r. 2.1 dismissal.

Background

[3] In 2022, the appellant brought an application for judicial review before the Divisional Court for a mandamus order requiring the Chief Medical Officer of Health of Ontario (CMOH) to issue a directive to all public health units in the province to halt the administration of COVID-19 vaccinations to children under the age of 12.

[4] On July 22, 2022, the respondent’s motion to quash the application was granted. The Motion Judge found it plain and obvious that the application could not succeed. First, the application did not allege the conditions precedent for the CMOH to act under s. 77.9(1) of the Health Promotion and Protection Act, R.S.O. 1990, c. H.7, or pursuant to any other authority. Second, even if such conditions had been alleged, the court did not have the authority to make a mandamus order directing the CMOH on how to exercise their discretionary powers under s. 77.9(1). Third, even had the Motion Judge found that the application had any prospect of success, the appellant did not have public interest standing to bring the application.

[5] The appellant moved to have a panel of the Divisional Court review the Motion Judge’s decision. On August 24, 2023, the Review Panel dismissed his motion from the bench, concluding that the Motion Judge made no reviewable error.

[6] The appellant then served a motion to set aside the Review Panel’s decision under r. 59.06(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. He alleged that, a few days after the Review Panel issued its decision, the CMOH disclosed that he received funding for research from Pfizer, a manufacturer of COVID-19 vaccines. In the appellant’s submission, this put the CMOH in a conflict of interest, and his failure to disclose the conflict amounted to fraud.

[7] On October 20, 2023, Corbett J. dismissed the motion to set aside the Review Panel’s decision pursuant to r. 2.1 of the Rules of Civil Procedure.

[8] On October 23, 2023, the appellant served a motion seeking a review of the r. 2.1 dismissal by a Divisional Court panel. On November 16, 2024, the administrative judge directed that the motion was not accepted for filing. She advised the appellant that, since the dismissal is a final order, it could be challenged by bringing a motion for leave to appeal to this court.

[9] In response, the appellant asked the Divisional Court to transfer his review motion to this court as a motion for leave to appeal. The administrative judge denied this request. She noted that r. 61.03.1(3)(a) requires that a motion for leave be filed within 15 days of the order being challenged. She also noted that the appellant could seek to obtain an extension of time in the Court of Appeal. In response to further correspondence from the appellant, the administrative judge issued a further direction later that same day. She agreed that the appellant had attempted to move promptly after receiving the r. 2.1. dismissal, but affirmed her initial decision to deny the transfer request while again noting that the appellant could bring a motion for leave to appeal to this court.

[10] The appellant then requested a case conference in this court with respect to the transfer of the proceeding from the Divisional Court. This was refused. The appellant was advised by letters from the Executive Legal Officer on December 5, 2023, December 6, 2023, and April 8, 2024, that he would have to bring a motion before a single judge of this court to obtain leave to proceed.

[11] On May 1, 2024, the notice of motion currently before me was accepted for filing by the court.

The relief that can be sought on this motion

[12] A decision by a judge of the Divisional Court dismissing a proceeding under r. 2.1 is a final order which can be challenged by way of an appeal to this court pursuant to s. 6(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, if leave to appeal is obtained: Hemchand v. Toronto (City), 2016 ONSC 7134; Tran v. Office of the Independent Police Review Director, 2023 ONSC 3207. A motion for leave to appeal must however be served and filed within 15 days of the order under r. 61.03.1(3)(a), unless the court grants an extension of time.

[13] I have been presented with no authority for the proposition that I could simply order the transfer of the appellant’s motion to set aside the r. 2.1 dismissal to this court. This would have the effect of circumventing the usual process for obtaining leave to appeal from this court.

[14] As I advised the parties at the hearing of the motion, the only relief I could grant to the appellant that would move this matter forward is an order extending the time for his filing of a motion for leave to appeal the r. 2.1 dismissal. The appellant did not seek an extension order in his notice of motion, but both parties were unambiguously told that such an order would be required in an April 8, 2024 letter from the Office of the Executive Legal Officer. To ensure that the parties had a full opportunity to address the criteria for leave for an extension of time, I stood the matter down for over an hour after the parties made their submissions so that they had the opportunity to prepare and present additional submissions.

Analysis

[15] The court may order an extension of time to seek leave to appeal under r. 3.02(1) if it is persuaded that an extension is required by “the justice of the case”: Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 (ONCA), at p. 14; Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15; 2363523 Ontario Inc. v. Nowack, 2018 ONCA 286, at para. 4. Four factors are generally considered:

1. Whether the appellant formed an intention to appeal within the relevant period;
2. The length of the delay and any explanation for it;
3. Prejudice to the respondent as a result of the delay; and
4. The merits of the proposed appeal.

[16] Failure to meet any one factor, or even all of them, does not necessarily preclude an extension, if the overall justice of the case requires that leave be granted: Leighton v. Best, 2014 ONCA 667, at para. 14; Sutherland Lofts Inc. v. Peck, 2017 ONCA 803, at para. 13.

[17] The appellant clearly formed an intention to challenge the r. 2.1 dismissal within 15 days. There was a lengthy delay, however, before the notice of motion currently before me was served and filed in this court. The appellant was advised by the Divisional Court that his motion seeking a panel review of the r. 2.1. dismissal was not accepted for filing on November 20, 2023, and that he needed to seek leave to appeal from this court. He filed this motion on May 1, 2024, more than five months later. He has not provided cogent reasons explaining why he did not act more promptly, particularly after receiving the April 8, 2024 letter from the Office of the Executive Legal Officer.

[18] The delay weighs against granting an extension. The respondent does not, however, claim to have suffered any prejudice resulting from the delay, beyond frustration in not resolving the litigation more promptly.

[19] The critical factor is whether there is any merit to the appellant’s proposed appeal of the r. 2.1 dismissal. He raises two grounds of appeal. First, he contends that it was improper for Corbett J. to dismiss his motion under r. 2.1 based solely on its lack of merit. Second, he contends that Corbett J. erred in finding that the motion for reconsideration had no merit.

[20] With respect to the first ground of appeal, I do not agree that Corbett J. improperly used r. 2.1 to strike the appellant’s motion for reconsideration.

[21] As noted in Currie v. Halton Regional Police Services Board (2003), 233 D.L.R. (4th) 657, 179 O.A.C. 67, at para. 14 (Ont. C.A.), “frivolous” is defined in Black’s Law Dictionary as “lacking a legal basis or legal merit; not serious; not reasonably purposeful”. A proceeding has been held to be frivolous and vexatious when it is instituted without any reasonable ground, or when it seeks the determination of an issue that has already been adjudicated: Currie, at para. 15, citing Foy v. Foy (No. 2) (1979), 26 O.R. (2d) 220 (C.A.) at 226.

[22] Corbett J. did not have to engage in a complex analysis to find the appellant’s motion to set aside would serve no purpose. As he found, the motion does not address the fundamental deficiencies in the application for judicial review identified by the Motion Judge and the Review Panel, that is, that no arguable claim was pleaded and that the appellant lacked public or private interest standing to bring the claims in any event. The admission of proposed new evidence about the CMOH’s alleged conflict of interest would not assist the appellant because the application itself “was not properly conceived, as a matter of law” and the allegation of conflict of interest “does not displace [the] core findings on which the decisions of [the Motion Judge] and the [Review Panel] were based”.

[23] The appellant relies on Collins v. Ontario, 2017 ONCA 317, at para. 19, which held that “[a]bsence of merit on its own … is not sufficient to justify dismissal under r. 2.1”. Courts have repeatedly emphasized that r. 2.1 is not a shortcut or substitution for a motion to strike or dismiss. But a mere lack of merit is not the basis on which Corbett J. dismissed the appellant’s motion to set aside. He effectively found that the motion was frivolous and vexatious on its face. This is a proper basis for dismissal under r. 2.1. The first ground of appeal accordingly has no merit.

[24] I conclude that the second ground of appeal likewise has no merit. The appellant contends that alleging a conflict of interest is equivalent to alleging fraud, and that Corbett J. therefore erred in finding that the appellant’s motion to set aside raised a completely new argument. Even if the appellant’s argument on this issue were accepted, however, it would not change the outcome of the proposed motion. As found by the Review Panel, the appellant’s allegations of bad faith “are irrelevant to the analysis in this case”, because, as the Motion Judge correctly found, the court has no jurisdiction to order the mandamus sought by the appellant.

[25] Having considered all relevant factors, I conclude that the overall justice of the case does not require that the motion be granted. As Roberts J.A. found in Hill v. Cambridge (City), 2023 ONCA 164, at para. 13, this is “one of those occasions where the lack of merit in these proposed appeals is so clear-cut that, having regard to this factor on its own, and when considered in combination with the other factors that I have just considered, leave to extend the time for appealing should not be granted”.

[26] The appellant’s motion for an extension of time to seek leave to appeal is denied. As a result, his appeal is dismissed. The respondent did not seek costs, and so none are granted.

“S. Gomery J.A.”

[1] I have reproduced the relief sought by the appellant exactly as set out in his notice of motion.