Court File and Parties

CITATION: Fabrikant v. Ontario Judicial Council, 2021 ONSC 6792

DIVISIONAL COURT FILE NO.: 578/21

DATE: 2021-10-13

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Dr. V.I. Fabrikant, Applicant

AND: Ontario Judicial Council, Respondent

BEFORE: Favreau J.

COUNSEL: Dr. V.I. Fabrikant – representing himself Alison Warner – for the respondent

NOTICE UNDER RULE 2.1.01 OF THE RULES OF CIVIL PROCEDURE

[1] On July 19, 2021, Dr. V.I. Fabrikant sent a request to the Divisional Court for the purpose of commencing an application for judicial review of a decision of the Ontario Judicial Council relating to a complaint against Chief Justice Maisonneuve.

[2] The notice of application for judicial review seems to allege that the Ontario Judicial Council refused to consider Dr. Fabrikant’s complaint. The notice of application for judicial review is bare bones. The grounds for review do not provide any coherent information about the nature of the complaint Dr. Fabrikant made to the Ontario Judicial Council. In addition, the relief sought is unclear but is described as follows:

Even presuming that absence of response from L. Maisonneuve to the applicant’s denunciation should be considered as negative response, the applicant then asks the divisional court to conduct a judicial review of this negative response and to order L. Maisonneuve to consider the applicant’s denunciation of Commissioner Kelly on merit.

[3] In response to Dr. Fabrikant’s request to commence this application for judicial review, the Court directed that he provide copies of the decision(s) he seeks to review.

[4] On July 31, 2021, Dr. Fabrikant sent the Court letters from the Council dated May 3, 2021 and June 3, 2021. Both letters state that the Ontario Judicial Council does not have jurisdiction to investigate the complaint. In the first letter, the Council indicated that it did not have jurisdiction “over judicial decision-making, which includes a decision about whether to have an Information sworn, issue process, commence a criminal proceeding, or issue an order”. In the second letter, the Council stated that Chief Justice Maisonneuve did not have the authority to charge someone criminally in Quebec and that the Council did not have jurisdiction to investigate conduct outside Ontario.

[5] It is not possible to discern from the notice of application for judicial review or from the additional materials sent by Dr. Fabrikant what the underlying complaint relates to and the basis on which he challenges the Ontario Judicial Council’s decisions that it does not have jurisdiction over the complaint. In addition, it is not apparent that the relief sought falls within the Divisional Court’s jurisdiction on an application for judicial review. Specifically, neither the Ontario Judicial Council nor the Divisional Court would have the jurisdiction to order Chief Justice Maisonneuve to undertake a “denunciation” of a specified individual.

[6] 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.

[7] The court is considering whether to dismiss this application for judicial review on the basis of Rule 2.1.01.

[8] However, Dr. Fabrikant should be given an opportunity to explain why his application for judicial review should not be dismissed as frivolous, vexatious and an abuse of process.

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

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

b. If Dr. Fabrikant chooses to make written submissions in response to the notice in accordance with Rule 2.1.01(3)2, his written submissions should address the apparent deficiencies identified above (in doing so, he may wish to include a copy of the original complaint letter he sent to Ontario Judicial Council);

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 Dr. Fabrikant’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 Dr. Fabrikant and counsel for the respondents listed above by email.

Favreau J.

Date: October 13, 2021