Court File and Parties
CITATION: To v. Children’s Aid Society of Ottawa, 2021 ONSC 1718
DIVISIONAL COURT FILE NO.: 592/20
DATE: 20210308
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Ava To, Applicant
AND:
Children’s Aid Society of Ottawa, Child and Family Services, Respondents
BEFORE: D.L. Corbett J.
COUNSEL: Ms To, self-represented Applicant
IN WRITING, IN CHAMBERS
Endorsement
[1] By direction on December 2, 2020, I directed the Registrar to give notice to the Applicant pursuant to R.2.1.01 that the court was considering dismissing this application on the following basis:
Justice Corbett directs me to advise you as follows:
The HRTO dismissed the applicant's complaint pursuant to s.45.1 of the Code on the basis that the issues in her complaint were encompassed in other legal or administrative proceedings.
The applicant's complaint is that two Children’s Aid Societies discriminated against her on the basis of mental disability in the course of apprehending her children and seeking orders for Crown wardship.
The applicant's complaint to the HRTO is, on its face, a collateral attack on decisions of the Ontario Superior Court of Justice. The grounds set out in the applicant's notice of application state:
"The applicant believes that her legal rights have not been respected by the Superior Court of Justice and by the Respondents in a decision made by them to permanently remove my child for adoption on the basis of a medical condition that is mental health specific."
The Registrar is directed to give notice to Ms To that the court is considering dismissing the application as frivolous, vexatious and an abuse of process in that it seeks to relitigate the child protection proceedings.
Respondents are directed not to respond to Ms To's response to the R.2.1.01 notice unless the court subsequently directs otherwise.
[2] The applicant responded to the R.2.1.01 notice by email dated December 3, 2020, as follows:
Good Evening, Divisional Court Registrar,
I reviewed that the email sent from a JUD Registrar to me and the respondents (enclosed below) did not attach the 2 emails I sent to the Divisional Court on Dec 2 in which I provided to you 1) Notice of Application 2) HRTO decisions, in respond to two request emails sent from also the Registrar office on Dec 2 2020.
In respond to the preliminary intend of your dismissal of my Judicial Review application, I (Applicant) need to make the following submissions to you and request that your intended dismissal decision be revoked.
The Divisional Court cannot dismiss a judicial review application on an arbitrary basis or on the basis of the substantive merits of the Application.
Although a judicial review application is a “discretionary remedy”, meaning the Court has the power to dismiss a judicial review application, it can only do so on procedural grounds and cannot make a decision as to the substantive merits of the application. The court may dismiss an application for being premature, for delay or because available alternative remedies were not chosen before filing an application, such as requesting a reconsideration by the Tribunal. In my case, none of these conditions are met.
I want to further point to the following directive which is implied and stated in the referred source: While exercising its "discretionary" power in making a decision as to the substantive merits of the application, as a general rule, the Court shall set aside the Tribunal decisions when the application can show that the Tribunal made at least one (1) of the following kinds of legal errors:
Made an “error of law” such as interpreting a section(s) of the Code incorrectly;
Made a finding of fact based on no evidence or that is otherwise unreasonable in light of all the evidence;
Exercised its discretion in an unreasonable way, as, for example, by exercising it arbitrarily, in bad faith, or for an improper purpose;
Based its decision entirely or predominantly on irrelevant factors, or failed to take statutory requirements into account; or
Breached the rules of natural justice and procedural fairness, having regard to all of the circumstances.
The grounds set out in my Notice of Application address this legal criteria in full.
On these bases, I respectfully request your intended dismissal decision be revoked.
I look forward to receiving your remedied decision and to schedule the Judicial Review at the earliest available court date.
[3] The court provided further direction to Ms To by email on December 4, 2021, as follows:
Justice Corbett directs me to advise you as follows:
Ms To appears to have misunderstood the notice provided to her by the court. R.2.1.01 provides that the court may dismiss a proceeding if, on its face, it is frivolous, vexatious or an abuse of process. As described in the endorsement of Justice Corbett set out by email from the court, the court is concerned that the application is frivolous, vexatious and an abuse of process because it is a collateral attack on the child protection proceedings in the Superior Court and seeks to relitigate issues that have been decided elsewhere.
Ms To is entitled to respond to the court's concerns, and the court will consider any response Ms To makes to these concerns before it rules on the R.2.1.01 issues.
The response that Ms To has provided does not directly address the concerns raised by the court about the application, and the court wishes to give Ms To one further opportunity to respond. The deadline for a response is extended to December 18, 2020.
[4] Ms To responded as follows by email dated December 5, 2020:
A Response was already sufficiently provided to the Court’s attention by email and by Court submission with reference to the Human Rights Codes directives that exceedingly satisfies the R.2.1 requirements.
The Divisional Court Registrar has misunderstood my request which ask the Court to direct my Response R.2.1 and Application for Judicial Review to a different judge, hence, to have J. Corbett's decision set aside and remediated independent of his opinion.
Under the Rules of Civil Procedures, even with the provision of R.2.1 amendment the Court has adopted; I am not, at this stage, to provide to the Court and or Respondents a Factum regardless whether I am given time or I have already one prepared to argue for my Application. This, which the Court was implying me to do, in writing, by December 18, and without a Court date already scheduled to fully hear my Application, is not in accordance with the Law and does not effects proper safeguards of procedural integrity in the process and conduct of the Court.
The Court's repetitive requesting and rejecting submissions from me to address J. Corbett's opinion that my Application has no merits to proceed in the Court, is, in and by itself, a violation of my legal rights to a full defense, to make full submissions using the Laws most applicable, at the appropriate judiciary, without prejudice to a full hearing.
The Court undermines my Application and prevents my arguments, properly refer to the Law and properly submitted, from being heard and decided upon by a full judge-panel, which the Court has a duty to meet particularly in an Application that is sufficiently “colored” by law.
III. Order sought:
On these bases and grounds abovementioned, the Applicant respectfully requests:
- An Order granting the Applicant leave to make the Application for Judicial Review to the Court of Appeal on a without prejudice basis.
[5] In her covering email attaching her second response, Ms To stated as follows:
I respectfully request the Human Rights Tribunal to intervene diligently, with the assistance of the Attorney General, notwithstanding that both are also Respondents in the Application. This is necessary in order that my Notice of Application and Scheduling Request for Judicial Review, Response R.2.1, and Response Request R.2.1 (all three documents are enclosed with this email) including this entire email history (enclosed below), be directed to a judge or judge panel other than J. Corbett for proper determination of the Orders I sought, documented in my three submissions, and respectfully be done in accordance with the Human Rights Codes directives and the Rules of Civil Procedures. This is also to ascertain that in the event the Divisional Court is, after a judge's review, now intending to hear my Application at the Divisional Court but unable to do so by conference and in person due to Covid19 pandemic and or other reasons, the Court will notify its intention and provide, in due course, the necessary information, include:
The list of required submissions, a date for completing all required submissions from Applicant and Respondents, and a date for ruling decision by writing will be completed by the Court.
Clear instructions from the Court Registrar regarding providing service and filing document to the Court and to each Respondent, specific to security, privacy, and accuracy of records for repository that is available for document submissions and review.
[6] The applicant has been given two opportunities to explain why her complaint to the HRTO was not a collateral attack on Superior Court of Justice decisions in child protection proceedings to which she was a party. She has refused to do so. Her argument that she should not be called upon to respond to a R.2.1.01 notice is without foundation: it is clear on the face of the complaints that they are vexatious re-litigation of matters already decided authoritatively by the Superior Court of Justice.
[7] The application is dismissed pursuant to R.2.1.01, without costs.
D.L. Corbett J.
Date: March 8, 2021