Court File and Parties

CITATION: Mcmull v. Ministry of Health, 2021 ONSC 6569

DIVISIONAL COURT FILE NO.: 555/21

DATE: 20211004

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Miriam Eitana macmull and roni chai macmull, Applicants

AND:

MINISTRY OF HEALTH, PROVINCE, NURSES COMPLAINTS, APPEAL BUREAU AND SUNNYBROOK, Named Responding Parties

BEFORE: Favreau J.

COUNSEL: Miriam Eitana MacMull and Roni Chai MacMull – representing themselves David Jacobs – for the Health Professions Appeal and Review Board Tara Birkenheier – for Sunnybrook Health Centre Lisa Brownstone – for the College of Physicians and Surgeons of Ontario Sarah Kushner – for Drs. Mark Silvin, Cameron Burton Guest and Hannah Wunsch

NOTICE UNDER RULE 2.1.01 OF THE RULES

[1] Miriam Eitana MacMull and Roni Chai MacMull sent a request to the Divisional Court to commence an application for judicial review of three decisions of the Health Professions Appeal and Review Board. The decisions arise from medical treatment provided to their father before his death.

[2] The request did not include a properly formatted Notice of Application for Judicial Review but was in letter form with various attachments. The request purports to name several parties that were not parties before the Health Professions Appeal and Review Board, including the Ministry of Health, the Province and Sunnybrook Health Centre. The Request does not name any of the parties to the proceedings before the Health Professions Appeal and Review Board, including the responding doctors, nor does it name the Board. The relief sought and the grounds for the application for judicial review do not address alleged defects in the Board’s decisions but rather make broad allegations about the treatment the MacMulls’ father received at Sunnybrook Health Centre and seeks broad relief that is far beyond the Divisional Court’s jurisdiction on an application for judicial review.

[3] Through case management of this matter, I gave the MacMull’s two opportunities to correct the defects in their notice of application for judicial review and urged them to consult a lawyer. In their latest communication to the Divisional Court dated September 27, 2021, the MacMulls have refused to do so and instead suggested that they should not be required to do anything further to move forward with this matter. The challenge with this position is not just that the MacMulls have failed to comply with matters of form; in my view, they also appear to have failed to comply with matters of substance.

[4] An application for judicial review is not a civil action. It is limited in scope and these constraints circumscribe the proper parties to the proceedings and the issues that can be raised. An application for judicial review is limited to a review of the decision made by the decision maker below, which in this case is the Health Professions Appeal and Review Board. The proper record before the Divisional Court on an application for judicial review, with narrow exceptions, is limited to the record that was before the Board. The parties to an application for judicial review are limited to the parties to the original proceeding with the addition of the decision maker – in this case the Board. The relief the Divisional Court can grant is also limited. Typically, if the Court finds that the Board’s decision was unreasonable or procedurally unfair, the Court will send the matter back to the Board to be decided afresh. In unique circumstances, the Court may substitute its decision for the Board’s decision but, in doing so, the Court is limited to the relief that the Board could have granted when it heard the matter.

[5] Rule 2.1.01 of the Rules of Civil Procedure provides that the court may dismiss a proceeding that appears on its face to be frivolous, vexatious, or an abuse of the process of the court.

[6] The court is considering whether to dismiss this application for judicial review on the basis of Rule 2.1.01. I appreciate that the death of the McMull’s father and the events leading up to his death are not frivolous, vexatious or an abuse of process. However, the manner in which they are conducting this litigation to date appears to be frivolous, vexatious and an abuse of process. Despite two opportunities to do so, they have failed to submit a Notice of Application for Judicial review in a proper form, they have failed to name the proper respondents, they have named respondents who were not parties to the original hearings before the Board and they seek relief that is not within the jurisdiction of the Divisional Court on an application for judicial review.

[7] However, the McMulls should be given an opportunity to explain why their application for judicial review should not be dismissed as frivolous, vexatious and an abuse of process.

[8] Accordingly, the court makes the following order:

a. Pursuant to Rule 2.1.01(3)(1), the registrar is directed to give notice to the MacMulls in Form 2.1A that the court is considering making an order under rule 2.1 dismissing their application;

b. If the MacMulls choose to make written submissions in response to the notice in accordance with Rule 2.1.01(3)2, their written submissions should address the apparent deficiencies identified above;

c. Pending the outcome of the written hearing under Rule 2.1 or further order of the court, the application for judicial review is stayed pursuant to section 106 of the Courts of Justice Act, R.S.O. 1990, c C.43;

d. The registrar shall accept no further filings on the application except for the McMull’s written submissions delivered in accordance with rule 2.1.01(3); and

e. In addition to the service by mail required by Rule 2.1.01(4), the registrar is to send a copy of this endorsement and a Form 2.1A notice to the McMulls and counsel for the respondents listed above by email.

Favreau J.

Date: October 4, 2021