CITATION: Ahmed v. Peel District School Board, 2021 ONSC 2745
DIVISIONAL COURT FILE NO.: 365/20
DATE: 2021-04-13
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: FARHAN AHMED, Applicant
AND: PEEL DISTRICT SCHOOL BOARD, Respondent
BEFORE: Penny J.
COUNSEL: Mr Ahmed on his own behalf
HEARD: In writing
ENDORSEMENT
Overview and Background
[1] By endorsement of Favreau J. dated March 17, 2021 (2021 ONSC 2003), the court initiated a process to determine whether to dismiss this application for judicial review on the basis of Rule 2.1.01 of the Rules of Civil Procedure.
[2] The notice of application for judicial review in this matter purports to make application for:
a. an expedited hearing process due to the nature of this case. The applicant discovered he had a learning disability at the age of 27. It has been verified by a psychologist. It has had a significant impact on his health and academic life. His friends and family did not tell him he was disabled. His life is currently in danger;
b. an extension of the 30-day time period, stated in the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 due to the applicants learning disability and the nature of the case; and
c. an order in the nature of certiorari and mandamus, regarding the Peel District School Board’s position in this matter.
[3] This was the second application for judicial review brought by the applicant raising similar issues. In his first application for judicial review, the applicant named Crawford and Company as a respondent. Crawford and Company is the Peel Board’s insurer. The application was dismissed under Rule 2.1.01 as frivolous and vexatious (2020 ONSC 7656).
[4] The court’s March 17, 2021 endorsement observed that the applicant appears to be seeking to challenge the respondent’s decision not to provide compensation for an alleged historical failure to diagnose and accommodate a learning disability many years ago while the applicant was a student with the Peel Board. The court went on to say that if the relief being sought is some form of compensation, it would be through a civil action for damages in the Superior Court and not through an application for judicial review to the Divisional Court.
[5] Under the Rule 2.1.01 process, the applicant was given an opportunity to explain why his application should not be dismissed as frivolous or vexatious.
[6] The applicant was also advised to seek legal advice to assist him in determining what, if any, claim he may have against the respondent and how best to advance that claim. The applicant was also directed to the Law Society of Ontario’s website at https://lso.ca/public-resources/finding-a-lawyer-or-paralegal.
[7] Notice to the applicant under Rule 2.1.01 issued from the office of the Registrar on March 18, 2021.
[8] The applicant’s written submission was delivered to the court on March 31, 2021.
Analysis
[9] The application alleges that:
• The applicant was a student in the Peel District School Board from the age of 8 until 18.
• He had an undiagnosed learning disability during that time.
• He has since suffered loss and damage which he attributes to his undiagnosed and untreated or un-accommodated learning disability.
• In May of 2020, the plaintiff contacted the Peel District School Board to address this issue.
• He was told this matter would be handled by the Board’s insurance company, Crawford and Company. He was then asked to file a claim with them.
• In June, he received a formal denial letter from Crawford and Company. His claim was denied because:
i. the Board was not made aware of any difficulties he was experiencing as this was never bought to their attention.
ii. his grades did not suggest there was an issue.
iii. the limitation period for his claim expired on July 29th, 2012, two years after his 18th birthday.
• The applicant initially applied for a judicial review of Crawford and Company. He was informed that the Divisional Court does not have jurisdiction over Crawford and Company and the case was dismissed.
• The Peel District School Board did not provide a rational explanation for their decision (not to pay compensation to him).
• Under the Human Rights Code and the Education Act the Board and its employees were legally responsible for identifying and accommodating people with disabilities.
• In order for the limitation period to have commenced, the claim would have to have been discovered. The applicant did not discover he had a claim until August 2019, the day on which it was verified that he has a learning disability.
[10] In his written submission delivered March 31, the applicant “openly admits that his end goal is compensation, whether it be through the PDSB reassessing the situation or a civil action”.
[11] The Divisional Court derives its jurisdiction from statute. Judicial review is governed by the Judicial Review Procedure Act. The jurisdiction of the Divisional Court on an application for judicial review is limited to making orders to which the applicant would have been entitled in two circumstances:
by way of an application in the nature of mandamus, prohibition or certiorari, or
by way of an action for a declaration or injunction in relation to the exercise of a statutory power of decision.
The Divisional Court has no jurisdiction to award damages or compensation.
[12] The only “decision” of the respondent in respect of which the applicant seeks relief in his application for judicial review is the decision not to pay him compensation in 2020 for loss and damage alleged to have been caused by the failure of the respondent to accommodate his learning disability while he was a student from 2000 to 2010.
[13] This is not relief in the nature of mandamus, prohibition or certiorari. Nor does it involve declaratory or injunctive relief arising from the exercise of a statutory power of decision.
[14] In the context of R. 2.1.01, a “frivolous” application is one that cannot succeed. A “vexatious” application is one brought for an ulterior or wrongful purpose, Currie v. Halton Regional Police Services Board.
[15] Rule 2.1.01 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. Rule 2.1.01 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 Rule 2.1.01 process”: Scaduto, at paras. 8-9.
[16] This case is not a close call. The application, on its face, is clearly doomed to fail. Because it cannot succeed, it is frivolous. It must be “weeded out” in order to avoid needless waste of the parties’ and the court’s limited resources.
[17] For these reasons, the application for judicial review is dismissed under Rule 2.1.01.
Penny J.
Date: April 13, 2021