Court File and Parties
CITATION: Brown v. Ford, 2019 ONSC 6695
DIVISIONAL COURT FILE NO.: 567/19
DATE: 20191121
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RE: GARY DAVID BROWN a.k.a. GARY DAVID ROBERT BROWN, Applicant
AND: ROB FORD (POSTHUMOUSLY) et al., Respondents
BEFORE: F.L. Myers J.
READ at Toronto: November 20, 2019
Endorsement
[1] By endorsement dated November 6, 2019, reported at 2019 ONSC 6436, the Court directed the registrar to send notice to the applicant that the court was considering dismissing this application for being frivolous, vexatious, or an abuse of process of the court under Rule 2.1.01(1) of the Rules of Civil Procedure, RRO 1990, Reg. 194.
[2] Mr. Brown has submitted written argument in support of the proceeding.
[3] As described in the first endorsement:
Mr. Brown has brought an application for judicial review in the Divisional Court. The notice of application provides that Mr. Brown is bringing this proceeding under the Criminal Proceedings Rules, SI/202-7.
The application concerns Mr. Brown’s assertion that in 1997 he was injured on municipal property in Toronto. He says that at that time he communicated with City officials to seek compensation. He says that in retaliation for his efforts to obtain compensation for his injuries, in 2001 Toronto police wrongfully evicted him from his premises. In further retaliation, he says that in 2012, Toronto police wrongfully arrested and strip-searched him, made him walk shoeless in the rain for over four hours, and required him to live in a homeless shelter for over nine months.
4 In this application for judicial review, Mr. Brown asks the court to make a number of declarations of the guilt of the respondents for numerous criminal offences, abuse of power, breach of trust, violation of his rights under the Charter of Rights, intentional affliction of pain, and negligence. He also asks the court to order that the respondents: be photographed and fingerprinted for the CPIC database, spend a day at Metro West Detention Centre, pay the applicant one year of their respective salaries with interest at 24% from the date of his arrest in 2012, and sign an admission of guilt and apology to Mr. Brown. He also asks the court to strip the respondent Doug Holyday of his “Key to the City” award.
[4] On August 10, 2018, Mr. Brown sent an email to Premier Ford and copied it to the other respondents asserting the complicity of the late Mayor and the current and former Chiefs of Police in the injuries that he suffered. Service of a copy of the email was apparently admitted by the Ministry of the Attorney General and the Department of Justice. None of the respondents answered Mr. Brown’s email. Mr. Brown asserts an entitlement to the declaratory relief set out above on the basis that his email was “binding” and the silence of the respondents is inculpatory civilly and criminally.
[5] In the first endorsement, the court explained to Mr. Brown that judicial review proceedings in the Divisional Court cannot be used to bring criminal charges or civil lawsuits for damages.
[6] In his written submissions, Mr. Brown explains that given the gravity and magnitude of the wrongdoing that he suffered, he felt that applying to the Divisional Court for judicial review was the appropriate course for him to take. He acknowledges that he is not an expert and submits that if he commenced the wrong proceeding, the court should apply the saving provisions of Rules 2.01 and 2.02. Those rules provide that the failure to comply with the Rules is not a nullity. Rather, the court may grant amendments or other relief necessary to secure the just determination of the real matters in dispute. The court may dismiss the proceeding “only where and as necessary in the interests of justice”.
[7] Rule 2.1 applies only where a proceeding is frivolous, vexatious, or an abuse of process. In Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, the Court of Appeal commented on the proper approach to Rule 2.1 in this way:
… the court has recognized that the rule should 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. However, the use of the rule should be limited to 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.
[8] It follows that if Rule 2.1 applies to a proceeding then it is very likely to be in the interests of justice to dismiss the proceeding. Rule 2.1 is unlikely to apply if the court finds a cause of action that is inelegantly pleaded or that the action has just been brought using the wrong form of originating process. In those cases, the court may then make orders under Rule 2.01 and 2.02 or otherwise to try to regularize the proceeding. Or it may simply leave the parties to their procedural rights under the Rules. See: Brown v. Lloyd's of London Insurance Market, 2015 ONCA 235, at paras. 6 and 11.
[9] For Rule 2.01 to apply, there must “real matters in dispute” that are capable of being resolved in a civil lawsuit. An assertion that the Premier or other officials will be deemed to incur criminal or civil liability for failure to respond to an email that makes allegations against the former Mayor and seeks financial compensation for a twenty year old slip-and-fall injury or a seven year old arrest does not assert any recognizable legal issue.
[10] Mr. Brown’s application does not raise any government decision that can properly be the subject of judicial review under the Judicial Review Procedure Act, RSO 1990, c J.1. It sets out no recognizable basis for legal relief and it bears the hallmarks of a vexatious litigant. See: Gao v. Ontario WSIB, 2014 ONSC 6497.
[11] The application is therefore dismissed without costs.
F.L. Myers J
Date: November 21, 2019