Court File and Parties

CITATION: Atkinson v. College of Physicians and Surgeons for Ontario, 2020 ONSC 6973

DIVISIONAL COURT FILE NO.: CVD-TOR-34-20-MV

DATE: 20201117

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ZOE ATKINSON, Applicant

-AND-

College of Physicians and Surgeons for Ontario, Respondent

BEFORE: Penny J.

COUNSEL: Zoe Atkinson on her own behalf

Amy Block and Sayran Sulevani, for the Respondent

Endorsement

[1] In an endorsement of October 20, 2020 (Atkinson v. College of Physicians and Surgeons for Ontario, 2020 ONSC 6383) I raised concerns about a motion seeking a full panel review of the case management order of Favreau J. dated September 25, 2020. My endorsement set out the full procedural history of this matter. Among other things, I made the observation that:

None of the grounds asserted by Ms. Atkinson in her email state a basis to find that Favreau J. made a reviewable error of fact or law, or that she erred in the exercise of her discretion. Favreau J.’s September 25, 2020 case management endorsement did not “dismiss” Ms. Atkinson’s application for judicial review. The endorsement merely vacated the scheduled date for the hearing because the timetable originally set had not been followed such that a hearing could no longer reasonably proceed on that date. Further, the entire premise of the original motion/application was the alleged failure of the College to conduct an investigation. The College, it appears, has now conducted an investigation and issued its decision on Ms. Atkinson’s complaint. There may be other avenues of review for Ms. Atkinson to pursue but proceeding with an application for mandamus to compel the College to do what it apparently has now already done is, at first blush, not one that is available to her. Ms. Atkinson’s application and motion for review appear to be entirely without purpose in the circumstances.

[2] I also questioned:

the utility of Ms. Atkinson trying to review the decision of Favreau J. to then try to review the decision of Corbett J. to then try to reinstate a motion (or application) that has no chance of success because it appears to be moot. This is especially the case where Favreau J. explained to Ms. Atkinson that she can still pursue her complaint through other avenues and means.

[3] In the circumstances, I invoked Rule 2.1.02 and directed that Ms. Atkinson be required to file a submission to explain why the Court should allow her motion to proceed.

[4] My endorsement and the order of the registrar were mailed and emailed to Ms. Atkinson on October 21, 2020. According, under the Rules of Civil Procedure, Ms. Atkinson had until November 12, 2020 to file her 10-page submission. No submission has been received.

[5] Rule 2.1.02 provides:

Order to Stay, Dismiss Motion

2.1.02 (1) The court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

(2) Subrules 2.1.01 (2) to (7) apply, with necessary modifications, to the making of an order under subrule (1) and, for the purpose,

(a) a reference to the proceeding shall be read as a reference to the motion; and

(b) a reference to the plaintiff or applicant shall be read as a reference to the moving party.

Prohibition on Further Motions

(3) On making an order under subrule (1), the court may also make an order under rule 37.16 prohibiting the moving party from making further motions in a proceeding without leave.

[6] A “frivolous” motion is one that cannot succeed; a “vexatious” motion is one brought for an ulterior or wrongful purpose, Currie v. Halton Regional Police Services Board, 2003 7815 (ON CA).

[7] I find on the record before me that Ms. Atkinson’s motion for a review by a full panel of the Divisional Court is frivolous, vexatious and an abusive process of the court. Ms. Atkinson has not addressed the concerns raised in my prior endorsement. It is clear that Ms. Atkinson’s motion is moot; any review of Favreau J.’s order, in the circumstances, will have no practical value, meaning or relevance. If Ms. Atkinson’s motion for review is moot, it can have no chance of success. It would be a waste of court resources to deal with it any further. Ms. Atkinson can still pursue her complaint through other available avenues and means.

[8] Ms. Atkinson’s motion is dismissed.

[9] The appellant shall not bring this (or, under rule 37.16, any other) motion in this matter before this Court again without leave. The Divisional Court Registrar is directed to refuse to accept for filing any further motions in this matter by the Ms. Atkinson in the absence of a certified order granting her leave to do so.

Penny J.

Date: November 17, 2020