Court File and Parties

CITATION: Ahmed v. Crawford and Company, 2020 ONSC 7656

DIVISIONAL COURT FILE NO.: 365/20

DATE: 2020-12-10

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Farhan Ahmed, Applicant

AND: Crawford and Company, Respondent

BEFORE: Favreau J.

COUNSEL: Farhan Ahmed – the applicant, representing himself Bruce Hutchison – for the respondent, Crawford and Company

Endorsement

[1] By endorsement dated November 9, 2020, I directed that the applicant, Farhan Ahmed, 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.

[2] Mr. Ahmed was given an opportunity to make submissions in response to the notice.

[3] Mr. Ahmed sent submissions to the Divisional Court on November 10, 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 November 9, 2020 endorsement, Mr. Ahmed’s notice of application for judicial review states that he is 28 years old and that last year he discovered that he has a learning disability. He claims that the Peel District School Board should have recognized his learning disability at the time he was a student with the Board.

[6] In his notice of application for judicial review, the applicant describes the respondent as “an insurance company, who represents the Peel District School Board regarding the applicants claim”. The applicant claims that the respondent did not provide a “rational reason” for denying his claim against the Peel District School Board. The notice of application for judicial review refers to the Human Rights Code and the Education Act as requiring the School Board to identify and accommodate people with disabilities.

[7] During a case conference held prior to the issuance of the November 9, 2020 case conference, I was informed that Mr. Ahmed has commenced a civil suit against the Peel District School Board.

[8] In his submissions in response to the Rule 2.1 notice, Mr. Ahmed apologized for making an error in naming Crawford and Company as the respondent on this application for judicial review and, instead, asked that the Peel District School Board be substituted as the respondent.

Principles applicable to Rule 2.1

[9] 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.

[10] Recently, in Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8, the Court of Appeal for Ontario indicated 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.

[11] 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

[12] The Divisional Court is a statutory court. The Court’s jurisdiction is limited to those matters prescribed by statute.

[13] 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.

[14] 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]

[15] On its face, the application for judicial review against Crawford and Company is not an exercise of state authority. Crawford and Company is not a public body and, in denying Mr. Ahmed’s claim, it was not exercising authority of a public character. Rather, it was assessing whether Mr. Ahmed should be compensated for the School Board’s alleged failure to identify his learning disability.

[16] In my view, Mr. Ahmed’s request that the Peel District School Board be substituted as the respondent on the application is not appropriate. At the very least, Mr. Ahmed would have to bring a motion to do so on notice to the School Board. He would also have to amend his notice of application for judicial review so that it sets out a claim for relief available against the School Board on an application for judicial review.

[17] My dismissal of this application for judicial review does not preclude Mr. Ahmend from commencing an application for judicial review against the School Board. However, before doing so, Mr. Ahmed may well want to consider whether he has proper grounds for bringing an application for judicial review against the School Board. If what he is seeking is compensation for the School Board’s alleged failure to diagnose his learning disabilities, the Divisional Court does not have jurisdiction to award damages. If, as I was advised during the case conference, Mr. Ahmed has commenced a civil claim against the School Board, that is the proper forum in which a claim for damages should be adjudicated.

[18] I strongly urge Mr. Ahmed to seek legal advice before pursuing this matter further in the Divisional Court.

Conclusion

[19] Accordingly, I find that the application for judicial review against Crawford and Company 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: December 10, 2020