Court File and Parties

CITATION: Taylor v. Pivotal, 2021 ONSC 7388

DIVISIONAL COURT FILE NO.: 381/20

DATE: 2021-11-08

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Paul Taylor, Moving Party

AND:

Pivotal Integrated HR Solutions, Responding Party

AND:

Workplace Safety and Insurance Appeals Tribunal, Added Party

BEFORE: Favreau J.

COUNSEL: Paul Taylor – representing himself Andrew Lokan – representing the Workplace Safety and Insurance Appeals Tribunal No one representing the Pivotal Integrated HR Solutions

Endorsement

[1] By endorsement dated July 19, 2021, I directed that the moving party, Paul Taylor, be given notice that the Court was considering dismissing his motion for interim relief and notice of constitutional question pursuant to Rule 2.1.02 of the Rules of Civil Procedure. The Rule 2.1.02 notice indicated that the motion and notice of constitutional question appear to be frivolous, vexatious and an abuse of process because the motion is being brought in the context of a motion to review an order dismissing Mr. Taylor’s application for judicial review on the grounds of delay.

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

[3] Mr. Taylor sent written submissions to the Divisional Court on August 2, 2021.

[4] For the reasons below, I find that the motion and notice of constitutional question should be dismissed pursuant to Rule 2.1.02.

Background

[5] As set out in my endorsement dated July 19, 2021, Mr. Taylor has brought a motion for interim relief and a notice of constitutional question in the context of a pending motion under section 21(5) of the Court of Justice Act, R.S.O. 1990, c. C.43.

[6] The underlying motion seeks reconsideration of an order dismissing Mr. Taylor’s application for judicial review. In a decision dated October 8, 2020, reported at 2020 ONSC 6108, Sachs J. dismissed Mr. Taylor’s application for judicial review on the basis of delay. Her decision includes a comprehensive review of the history of Mr. Taylor’s proceedings before the Workplace Safety and Insurance Appeals Tribunal, the Superior Court, this Court and the Court of Appeal. These proceedings all stem from a workplace injury that occurred in 1997 and a decision by the Tribunal made on February 11, 2008. Mr. Tayor has already sought to challenge that decision by way of two applications in the Superior Court and an action in the Superior Court. In her decision, the motion judge found that Mr. Taylor’s delay in bringing the underlying application for judicial review exceeded twelve years and was unjustified. In reaching this conclusion, at para. 40, the motion judge made the following finding:

In this case, contrary to his submissions, Mr. Taylor was provided with accurate advice from the Tribunal’s counsel about the legal avenue he should pursue on more than one occasion. He chose to ignore this advice and seek to litigate his concerns in inappropriate forums. He was entitled to make those choices, but he cannot rely on those choices to justify his delay in proceeding to judicially review the decisions at issue in a proper manner. His position that the law surrounding the entitlement of injured workers is complicated and uncertain is belied by the fact that, in his case, his option to pursue a remedy in respect of the impugned decisions was clear and made known to him – apply for judicial review in the Divisional Court.

[7] The motion to set aside the motion judge’s order dismissing the application for judicial review is currently scheduled to be heard by a three-judge panel of the Divisional Court on November 17, 2021.

[8] The materials sent to the Divisional Court on the motion for interim relief include a notice of motion and a notice of constitutional question. In his notice of motion, Mr. Taylor seeks the interim reinstatement of Workers’ Compensation benefits and medical care. He also asks for the appointment of amicus curia to serve as a “knowledge interpreter” to assist him with the court proceedings. In his notice of constitutional question, Mr. Taylor seeks to “question the constitutional validity of the WSIB, the WSIAT and the Court practice of not paying injured workers while they await the outcome of appeal decisions of the WSIB, the WSIAT and/or the Court”. He also seeks to justify his request for a “knowledge interpreter” based on various provisions of the Charter.

Principles applicable to Rule 2.1

[9] Rule 2.1 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.

[10] 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.

[11] 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

[12] The motion brought by Mr. Taylor seeks interim relief pending the hearing of his motion for reconsideration. The relief he seeks is what the courts refer to as mandatory relief; he is asking this Court to direct the Board to pay him benefits pending the hearing of his motion for reconsideration: R. v. Canadian Broadcasting Corp, 2018 SCC 5, [2018] 1 S.C.R. 196, at para. 15. On the motion, Mr. Taylor also asks for assistance from the court in navigating the legal system.

[13] Pursuant to section 4 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, the Divisional Court has jurisdiction to make an interim order pending the final determination of an application for judicial review. In this case, given that Mr. Taylor’s application for judicial review has been dismissed and will only be reinstated if he succeeds on his motion for review, arguably there is no application for judicial review currently pending within which interim relief can be granted.

[14] Even if this Court has the jurisdiction to grant the relief requested, given that Mr. Taylor is seeking mandatory relief, the bar for obtaining such relief is high. Mr. Taylor would have to show that (1) he has a strong chance of success in the underlying proceeding, (2) if the relief is not granted, there is a risk of irreparable harm and (3) the balance of convenience favours granting the interim relief.

[15] The first factor poses an insurmountable obstacle for Mr. Taylor and makes clear that the motion is frivolous, vexatious and an abuse of process. The Court has already dismissed Mr. Taylor’s application for judicial review on the basis that it is out of time. This was done based on a finding that he has brought the application for judicial review more than twelve years after the original decision was made and that he has not provided an adequate explanation for the delay. He has also raised the same issues in a number of other proceedings. To come now to this Court and ask for interim relief pending the reconsideration decision has all the badges of a frivolous, vexatious and abusive proceeding.

[16] In his written submissions, Mr. Taylor argues that his motion to set aside the order dismissing his application for judicial review raises a serious issue to be tried. As indicated above, the test is whether it has a strong chance of success. In any event, he argues that he should have been allowed to pursue all the other proceedings in the Superior Court before bringing an application for judicial review and that he should not be penalized for having done so. On the motion to set aside Sachs J.’s order, the Divisional Court will not be considering the matter de novo, but rather will be deciding whether the motion judge made an error of law, a palpable and overriding error of fact or mixed fact and law, or whether she applied incorrect principles in exercising her discretion: Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644. Mr. Taylor’s attack on the decision is focused primarily on her findings of fact and the exercise of her discretion. These are matters to which the panel will accord significant deference. This does not present a strong case.

[17] Mr. Taylor also argues that he is raising serious issues about whether there should be a requirement that injured workers receive benefits pending a challenge to the courts, whether the Board should be allowed to respond to the application for judicial review and whether the test for dismissing an application for judicial review for delay is fair. It is hard to see how any of these arguments give Mr. Taylor a strong chance of success on his motion. They run contrary to statutory provisions and well-established legal tests. Section 9(2) of the Judicial Review Procedure Act provides that the person who exercised the statutory power at issue “may be a party to the application” and, in Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, the Supreme Court addressed the issue of the proper role of a tribunal participating in a hearing challenging one of its decisions. There is also long established jurisprudence dealing with the test on a motion for interim relief and the test on a motion to dismiss for delay.

[18] Mr. Taylor challenges a decision of this Court dismissing his application for judicial review for delay. The decision he seeks to challenge by way of judicial review was made over twelve years ago. He has cited no authority that suggests that he can surmount the extreme delay in bringing this matter forward. To seek interim relief in the form of ongoing benefits pending the determination of the motion for review is clearly, on its face, frivolous, vexatious and an abuse of process.

[19] As part of the relief sought on the motion for interim relief, Mr. Taylor also asks for the appointment of a “knowledge interpreter”. Essentially, he is asking for the appointment of amicus curiae. The Court can appoint amicus in circumstances where it needs assistance with the presentation of a case; the purpose of amicus is not to help a self-represented litigant but to assist the court and is only to be ordered in exceptional circumstances where assistance is “essential to the adequate discharge of the judicial functions in the case”: Morwald-Benevides v. Benevides, 2019 ONCA 1023, at para. 27. Even if Mr. Taylor had framed the relief sought as a request for state funded counsel, Mr. Taylor would first have to demonstrate that he meets the criteria for such an order, which include demonstrating that he has been refused by Legal Aid Ontario, that he does not have the means to pay a lawyer and that state funded counsel is “essential for a fair hearing”: R. v. Imona-Russel, 2019 ONCA 252, at para. 38. This is a civil matter involving the payment of benefits. There are no precedents for ordering state funding in such a case. Even if there were, for all the reasons above, including the apparent lack of merit, this is clearly not a case in which state funded counsel is essential to a fair hearing.

Conclusion

[20] Accordingly, I find that the motion for interim relief and notice of constitutional question have no chance of success and are frivolous, vexatious and an abuse of process. Rule 2.1 is a helpful tool for addressing such a clear case. By dismissing the motion without a hearing, the parties and the court will be spared any further time or expense on this issue. Mr. Taylor will nevertheless have his chance to argue his motion to set aside the dismissal of his application for judicial review which is currently scheduled for November 17, 2021.

[21] The motion and notice of constitutional question are therefore dismissed pursuant to Rule 2.1 of the Rules of Civil Procedure.

Favreau J.

Date: November 8, 2021