CITATION: Sivanadian v. Kanagaratnam, 2020 ONSC 6760
DIVISIONAL COURT FILE NO.: 227/20
DATE: 20201105
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: RUBAN R. SIVANADIAN, Applicant
AND:
raveendran kanagaratnam, kugathasan sarangapani, kaneshapillai somasUnderam, sayon balasuntharam, vaikuntharasa nadarasa, suboshan thevarajah, aravinthan stathAnanthan, kanagavarathA kanagaratnam, kesavan KANAGARAJAH, sutharshan sirinivasan, MATHIALAGAN RAJAGOPAL, KRISHNANANDAN RATNASINGHAM, VILOSANAN SIVATHARMAN, WAKISAN MATHIAPARANAM, SIVAKUMARAN GUNARETNAM, VASANTHAKUMAR VELMURUGU and SHANTHYPOOSAN JEYABALAN, Respondents (JHCAC Executives)
JAFFNA HINDU COLLEGE ASSOCIATION CANADA (JHCAC), Respondent
MOHAN RATNASINGHAM, PONNUDURAI BALENDRAN, RATNAM SENTHILMARAN, NATHAN SRITHARAN and SUBRAMANIAN SANMUGARAJAH, Respondents (JHCAC Patrons)
BEFORE: Favreau J.
ENDORSEMENT
[1] By endorsement dated October 23, 2020, I directed that the applicant be given notice that the Court was considering dismissing his application for judicial review pursuant to Rule 2.1.01 of the Rules of Civil Procedure. The notice indicated that the applicant appeared to be seeking to judicially review a decision that is not subject to judicial review as it was not an exercise of state authority.
[2] The applicant was given an opportunity to make submissions in response to the notice.
[3] The applicant sent submissions to the Divisional Court on October 29, 2020.
[4] For the reasons below, I find that the application should be dismissed pursuant to Rule 2.1.01 of the Rules of Civil Procedure.
Background
[5] As set out in the notice of application for judicial review, the applicant seeks to challenge a decision made by the JHCAC suspending him from the executive committee of the JHCAC. In his notice of application for judicial review, the applicant describes the JHCAC and the other respondents as follows:
The Respondent JHCAC is an old boy’s association through paid membership driven from the old boys of the Jaffna Hindu College who reside in Canada.
The JHCAC is a registered non-profit organization in Ontario (CPN. #916235) and is operated and located in P.O. Box 92074, RPO Bridlewood Mall, Scarborough, ON, M1W 3Y8.
The individual Respondents JHCAC-EC are paid members of the JHCAC and are the Executive Committee members of the JHCAC.
The Respondents-Patrons are old boys of JHC, JHC teacher, JHC principal and JHCAC life-members and past presidents.
[6] The notice of application for judicial review refers to the JHCAC By-Laws and the JHCAC Constitution as the binding rules that govern the JHCAC’s decision making.
[7] The applicant claims that the JHCAC and its members contravened the association’s by-laws when they suspended him. In particular, he alleges that he should have been given notice of the suspension and an opportunity to be heard.
Principles applicable to Rule 2.1
[8] Rule 2.1.01 of the Rules of Civil Procedure provides for a summary procedure that 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.
[9] Most recently, in Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8, the Court of Appeal for Ontario identified that one of the principles to be applied by the courts in considering whether to dismiss a proceeding pursuant to Rule 2.1 is as follows:
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”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488. The Rule is not for close calls — it may 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”: Scaduto, at paras. 8-9; Khan v. Law Society of Ontario, 2020 ONCA 320 (“Khan”), at para. 6, leave to appeal to S.C.C. requested, 39321.
[10] In addition, in Visic, at para. 8, the Court of Appeal emphasized that a Rule 2.1 motion “focuses on the pleadings and any submissions of the parties made under the rule. No evidence is submitted on a r. 2.1 motion…”
Analysis
[11] The Divisional Court is a statutory court. The Court’s jurisdiction is limited to those matters prescribed by statute.
[12] The Judicial Review Procedure Act, R.S.O. 1990, c. J.1, gives the Court jurisdiction over applications for judicial review. Specifically, section 6(1) provides that, except in the case urgent matters, applications for judicial review are to be heard by the Divisional Court.
[13] In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, at para. 13, the Supreme Court of Canada held that the “purpose of judicial review is to ensure the legality of state decision making… Judicial review is a public law concept that allows s. 96 courts to “engage in surveillance of lower tribunals” in order to ensure that these tribunals respect the rule of law…” In Wall, at para. 14, the Court went on to say that judicial review “is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character.” [emphasis added]
[14] In this case, the applicant seeks to judicially review the decision of the JHCAC, which he describes in the notice of application for judicial review as a “non-profit organization”. In his submissions in response to the Rule 2.1 notice, the applicant provides the following additional information about the JHCAC:
JHCAC being nonprofit organization does charity work in Canada and donate funds to Hospitals and registered charity organizations in Canada and send money to Sri Lanka to registered nonprofit organization known as Serakubal and other nonregistered organization for the following needs: student basic education, students monthly basic living support, students group projects, Covid-19 emergency relied and Google classroom for children and to uplift destitute families’ living standard.
[15] Based on the applicant’s description of JHCAC, this nonprofit organization is not a government or public body, and it and its members do not exercise state authority. Rather, this is clearly a charitable non-governmental organization. It is therefore evident on the face of the application that the decisions of the JHCAC are not subject to judicial review.
[16] In his submissions, the applicant argues that the JHCAC exercises state authority because its Code of Ethics requires its members to “comply with applicable federal, provincial and local laws, regulations and fiduciary obligations”. These are laws of general application and are not sufficient to make the JHCAC a state decision maker.
[17] The applicant also relies on the Canadian Charter of Rights and Freedom to argue that his rights have been violated and he is therefore entitled to redress by the courts. However, the Charter only applies to state action and therefore would not apply to decisions made by the JHCAC or its members. Again, this was addressed directly by the Supreme Court in Wall, at para. 39:
As this Court held in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at p. 603, the Charter does not apply to private litigation. Section 32 specifies that the Charter applies to the legislative, executive and administrative branches of government: ibid., at pp. 603-4. The Charter does not directly apply to this dispute as no state action is being challenged, although the Charter may inform the development of the common law: ibid., at p. 603. In the end, religious groups are free to determine their own membership and rules; courts will not intervene in such matters save where it is necessary to resolve an underlying legal dispute.
[18] This does not mean that the applicant has no routes of redress against the respondents. His allegations may give rise to a private law claim. In Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10 (leave to appeal to the SCC granted on June 18, 2020), the Court of Appeal for Ontario addressed the circumstances in which members may have a contractual claim against a non-profit organization in the context of an expulsion. However, it is clear on the face of the notice of application for judicial review, that the decision of the JHCAC and its members is not subject to judicial review and the Divisional Court therefore does not have jurisdiction over this matter.
[19] Accordingly, I find that the application for judicial review has no chance of success. Rule 2.1 is a helpful tool for addressing such a clear jurisdictional issue. By dismissing the application for judicial review at this early stage, the parties and the court will be spared any further time or expense in this proceeding.
[20] The application for judicial review is therefore dismissed pursuant to Rule 2.1 of the Rules of Civil Procedure.
Favreau J.
Date: November 5, 2020