Macmull v. Ministry of Health, 2022 ONSC 182

CITATION: Macmull v. Ministry of Health, 2022 ONSC 182

DIVISIONAL COURT FILE NO.: 555/21

DATE: 20220107

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

DECISION UNDER RULE 2.1.01 OF THE RULES OF CIVIL PROCEDURE

Introduction

[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] By notice dated October 4, 2021, the Divisional Court gave the applicants notice that the Court was considering dismissing their application for judicial review on the basis that it appeared to be frivolous, vexatious and an abuse of process pursuant to Rule 2.1 of the Rules of Civil Procedure. The Notice identified significant defects in the applicants’ materials.

[3] The applicants responded to the Rule 2.1 Notice on October 6, 2021.

[4] I have reviewed the applicants’ materials, including their response to the Rule 2.1 Notice, and I am satisfied that the application for judicial review should be dismissed pursuant to Rule. 2.1 of the Rules of Civil Procedure.

Background

[5] In the notice dated October 4, 2021, I set out the background to this matter and my concerns with the applicants’ notice of application for judicial review. I identified the following concerns:

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.

[6] As stated in the October 4, 2021 Rule 2.1 Notice, through case management of this matter, I gave the applicants two opportunities to correct the defects in their notice of application for judicial review and urged them to consult a lawyer. In a communication to the Court dated September 27, 2021, the applicants refused to do so and instead suggested that they should not be required to do anything further to move forward with this matter.

[7] As I explained in the October 4, 2021 Rule 2.1 Notice, “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”. As I further explained:

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.

[8] As mentioned above, the applicants responded to the Court’s Rule 2.1 Notice. In their response, rather than addressing the defects identified by the Court, the applicants essentially took the position that they should not be required to comply with the legal requirements for moving this matter forward. In doing so, they suggest that it is the Court’s role to investigate their allegations that Sunnybrook mistreated their father. They also take issue with the Court’s characterization of their failure to comply with prior directions meant to assist them in moving this matter forward.

Principles applicable to Rule 2.1

[9] Rule 2.1.01 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

[11] I am satisfied that the applicants’ proposed application for judicial review should be dismissed as frivolous, vexatious and an abuse of process pursuant to Rule 2.1 of the Rules of Civil Procedure.

[12] As reviewed above, the proposed proceeding does not meet the most basic legal requirements for an application for judicial review. It does not name the proper respondents. It names parties who were not parties before the Health Professions Appeal and Review Board. It does not state proper grounds for challenging the Board’s decisions. And it raises numerous issues that are not properly before the Divisional Court on an application for judicial review.

[13] As previously suggested in the Rule 2.1 Notice, while the applicants may have legitimate concerns about the care their father received at the hospital, they must follow the proper legal processes for bringing those concerns forward in a legal proceeding. On an application for judicial review, the scope of the Divisional Court’s powers is limited to reviewing the decision under challenge. The applicants’ proposed application does not purport to challenges the Board’s decisions and it raises issues that go far beyond the scope of this Court’s authority on an application for judicial review.

[14] While I accept the applicants’ general proposition that the Court should make some allowances for the fact that they are self-represented, this does not extend to allowing the applicants to bring forward a proceeding that names the wrong parties and that does not state proper grounds for judicial review. While self-represented litigants can be excused from complying with some of the Court’s formal requirements in appropriate circumstances, they nevertheless have an obligation to inform themselves about court processes and to ensure that their proceedings are tenable at law.

[15] Finally, I appreciate that the proposed application for judicial review arises from the death of the applicants’ father. Their father’s death has no doubt caused significant distress and grief. However, if the applicants wish to bring forward legal proceedings arising from their father’s death, they must nevertheless advance a tenable legal claim. An application for judicial review that does not name the proper respondents and that addresses issues that do not arise from the proceedings before the Board is not such a proceeding.

Conclusion

[16] Accordingly, the application for judicial review is dismissed as frivolous, vexatious and an abuse of process.

[17] Given that the respondents were not required to make any submissions in response to the Court’s Rule 2.1 notice, no costs are ordered.

Favreau J.

Date: January 7, 2022