Court File and Parties

CITATION: Ling v. Justice of the Peace Review Council, 2021 ONSC 1182

DIVISIONAL COURT FILE NO.: 226/20

DATE: 20210216

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: joe ling, Applicant

AND:

the justice of the peace review council, Respondent

BEFORE: Favreau J.

ENDORSEMENT

[1] By endorsement dated September 28, 2020, I directed that the applicant, Joe Ling, 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 relitigate matters already decided and be seeking relief over which the Divisional Court does not have jurisdiction.

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

[3] Mr. Ling sent submissions to the Divisional Court on October 4, 2020.

[4] For the reasons below, subject to a requirement that the applicant amend his notice of application for judicial review to remove the claim for damages, the application for judicial review will not be dismissed on the basis of Rule 2.1.01.

Background

Dismissal of complaint

[5] Mr. Ling seeks to judicially review a decision dated December 9, 2019, made by the Justice of the Peace Review Council (the “Council”) dismissing a complaint Mr. Ling made against a Justice of the Peace. The focus of the complaint is the conduct of a trial before the Justice of the Peace arising from a traffic ticket issued to Mr. Ling.

[6] The Council’s decision is set out in a one page letter that provides the following reasons for dismissing the complaint:

The complaints committee reviewed your letter of complaint and the transcript of the full tier of proceedings before Her Worship on the date in question.

Based on its review of the transcript, the committee found no evidence to support the allegation that the justice of the peace treated you differently from other defendants. The committee observed that Her Worship was very patient with you, listened to your submissions, explained the trial process, and made a determination based on the evidence.

The committee observed from the transcript that, contrary to your allegations, Her Worship gave you an opportunity to make submissions regarding the problems with your ticket and the red-light camera prior to the start of your trial.

The committee observed that Her Worship’s assessment of the evidence, and her decision to find you guilty and impose a fine were matters of judicial decision-making outside the jurisdiction of the Review Council. Justices of the peace have decision-making independence in accordance with the Constitution Act, 1867. The Council has no authority to change a decision of the justice of the peace.

After completing its investigation, the complaints committee concluded that there was no evidence to support the allegations of misconduct and the allegations related to Her Worship’s decision-making were outside the jurisdiction of the Review Council…

Notice of application for judicial review

[7] The applicant commenced an application for judicial review of the respondent’s decision on July 30, 2020. In his notice, the applicant states that he seeks the following relief:

a. That the respondent “either provide evidence to justify its decision or admit error in decision”;

b. That the respondent “amend its decision to agree with facts and serve justice”; and

c. That the respondent “pay general/aggravated/punitive damage in the amount of $50,000 to the applicant”.

[8] The grounds for the application for judicial review focus primarily on allegations of unfairness and fraud before the Justice of the Peace. In his notice of application for judicial review, Mr. Ling also argues, amongst other matters, that the Council made its decision without justification and that it has failed to provide evidence to support its decision.

Rule 2.1.01 notice

[9] The Rule 2.1 notice sent by the Divisional Court to Mr. Ling raised the following issues with the Notice of Application for Judicial Review:

a. It seeks relief over which the Divisional Court does not have jurisdiction, including the request that the Council provide evidence in support of its decision and the claim for damages;

b. It appears to be an attempt to re-litigate the issues before the Justice of the Peace;

c. It appears to be primarily an attack on the Justice of the Peace’s decision-making process and decision, issues over which the Council does not have jurisdiction; and

d. It does not identify errors made by the Council in dismissing Mr. Ling’s complaint.

Mr. Ling’s submissions

[10] Mr. Ling made submissions in response to the Rule 2.1 Notice which include the following points:

a. He is self-represented which may explain some of the deficiencies;

b. He did not know that the Divisional Court does not have jurisdiction to award damages, but relies on this Court’s decision in Elmardy v. Toronto Police Services Board, 2017 ONSC 2074 to argue that the Court does have jurisdiction to award damages; and

c. Read generously, the balance of his submissions are that the Justice of the Peace Review Council failed to investigate and address Mr. Ling’s allegations of misconduct, which include his claim that the proceedings before the Justice of the Peace were unfair and fraudulent.

Principles applicable to Rule 2.1

[11] 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.

[12] 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.

[13] 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

[14] Having reviewed the Notice of Application for judicial review and the submissions made by Mr. Ling, subject to one exception, I do not find that the proposed application for judicial review is on its face clearly frivolous, vexatious or an abuse of process.

[15] Read very generously, it appears that Mr. Ling’s primary challenge to the Council’s dismissal of his complaint is that the Council did not justify its decision. The Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 81, established that, in cases where administrative decision makers are required to provide reasons, reasons allow courts to assess whether a decision is procedurally fair and whether it is substantively reasonable. As held at para. 85 in Vavilov, “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”. While Mr. Ling frames this complaint as a request that the Council “provide evidence to justify” its decision, this is essentially an argument that the Council did not provide sufficient reasons for its decision or that the decision is not justified. While Mr. Ling may not ultimately succeed in advancing these arguments, at this stage, I am not prepared to find that this is a clear case justifying dismissal.

[16] Similarly, I cannot find at this preliminary stage that, on its face, Mr. Ling’s application for judicial review is frivolous and vexatious or an abuse of process because it is an impermissible attack on the trial before the Justice of the Peace. While Mr. Ling’s Notice of Application for Judicial Review and submissions in relations to the Rule 2.1 notice focus extensively on the proceedings before the Justice of the Peace, he also claims that the Council did not address his allegations of misconduct by the Justice of the Peace. When this matter proceeds before a panel of the Divisional Court on a full record, the Court may conclude that Mr. Ling’s application for judicial review amounts to an attempt to relitigate the issues before the Justice of the Peace, but I cannot find at this early stage that the application is clearly an abuse of process.

[17] However, there is one fundamental deficiency in Mr. Ling’s application for judicial review. The Divisional Court does not have jurisdiction to award damages in the context of an application for judicial review. The orders that the Divisional Court can make on an application for judicial review are circumscribed by section 2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. The Divisional Court is a statutory court. The Court’s jurisdiction is limited to those matters prescribed by statute. The decision in Elmardy v Toronto Police Services Board that Mr. Ling refers to in his submissions was a Divisional Court decision granting an appeal from a civil trial. The Court in that case did not award damages in the context of an application for judicial review, but rather awarded damages in the context of granting a civil appeal. If this application for judicial review goes forward and Mr. Ling is successful, this court will not have jurisdiction to award damages but will be limited to the relief available in section 2 of the Judicial Review Procedure Act.

Conclusion

[18] For the reasons above, I am not dismissing Mr. Ling’s application for judicial review pursuant to Rule 2.1 with the exception of his claim for damages at paragraph 1.A of the Notice of Application for Judicial Review.

[19] If Mr. Ling wants to proceed with his application for judicial review, he is to prepare an amended Notice of Application for Judicial Review that removes the claim for damages. The amended Notice of Application for Judicial Review is to be served on counsel for the Justice of the Peace Review Council and sent to the Divisional Court by email by March 1, 2021. The amended Notice of Application for Judicial Review is to be directed to my attention, after which the Court will schedule a case conference for the purpose of scheduling the application for judicial review.

Favreau J.

Date: February 16, 2021