Court File and Parties

CITATION: Fabrikant v. Ontario Judicial Council, 2022 ONSC 336

DIVISIONAL COURT FILE NO.: 578/21

DATE: 20220114

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

DECISION UNDER RULE 2.1.01 OF THE RULES OF CIVIL PROCEDURE

Introduction

[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 of the Ontario Court of Justice.

[2] By notice dated October 13, 2021, the Divisional Court gave Dr. Fabrikant notice that the Court was considering dismissing the 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 defects in Dr. Fabrikant’s proposed application for judicial review.

[3] Dr. Fabrikant responded to the Notice by providing additional documents from the proceedings below, by amending his notice of application for judicial review and by making submissions on why the application for judicial review should not be dismissed pursuant to Rule 2.1 of the Rules of Civil Procedure.

[4] I have reviewed the materials and submissions provided by Dr. Fabrikant 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] As set out in the Rule 2.1 Notice, Dr. Fabrikant’s original Notice of Application for Judicial Review challenged a decision by the Ontario’s Judicial Council refusing to consider a complaint made against the Chief Justice. However, the Notice of Application for Judicial Review contained very little information about the decision and the original complaint.

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

[7] On July 31, 2021, Dr. Fabrikant sent the Court letters from the Ontario Judicial 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.

[8] The Court then sent Dr. Fabrikant the Rule 2.1 Notice identifying the following defects in his application for judicial review:

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.

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.

[9] As indicated above, after the Court sent Dr. Fabrikant the Rule 2.1 Notice, he sent the Court additional background documents related to his complaint to the Ontario Judicial Council. The documents set out more background about Dr. Fabrikant’s complaint against the Chief Justice. Specifically:

a. In a letter dated January 9, 2021 from Dr. Fabrikant to Chief Justice Maisonneuve, he states that he is making a “private criminal complaint pursuant to Sec. 507.1 of the Criminal Code” against the Commissioner of Correctional Services Canada, Anne Kelly. Dr. Fabrikant alleges that he had repeatedly tried to get the Warden at the Archambault Jail to reduce person-to-person contact for inmates to lower the risk of COVID. He claims that he had made Commissioner Kelly aware of this situation and that she had failed to do anything. He alleged that this is criminal conduct.

b. Dr. Fabrikant sent the Chief Justice two follow up letters on January 15, 2021 and January 21, 2021.

c. On March 15, 2021, Dr. Fabrikant sent the documents referred to above to the Ontario Judicial Council with a cover letter that stated “Please consider this as an official complaint against professional misconduct of Chief Justice Lise Maisonneuve. She breached section 507.1 by ignoring my denunciation…”

[10] It was in this context that the Ontario Judicial Council sent its first letter dated May 13, 2021 to Dr. Fabrikant, stating that the “legislative authority of the Ontario Judicial Council is limited to the investigation of complaints about the conduct (not decisions) of provincially appointed judges of the Ontario Court of Justice. The Council has no 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”.

[11] By letter dated May 13, 2021, Dr. Fabrikant responded that he had consulted a lawyer, who indicated that a judicial decision was either in writing or an oral judgment. Given that the Chief Justice did not provide a decision in response to his request to make a complaint, this was a matter of misconduct.

[12] This prompted the Ontario Judicial Council’s second letter dated June 3, 2021, which stated that the Chief Justice “does not have the authority or jurisdiction to deal with your request to charge someone criminally in the Province of Quebec. As well, the Ontario Judicial Council can only investigate complaints about the conduct of provincially-appointed judges of the Ontario Court of Justice occurring in the province of Ontario, not conduct occurring in the province of Quebec.”

[13] As mentioned above, in response to the Rule 2.1 Notice, Dr. Fabrikant amended his Notice of Application for Judicial Review. The amended Notice of Application for Judicial Review now specifies that Dr. Fabrikant seeks an order that “the respondent adjudicate the applicant’s complaint on merit according to section 50 and 51.4 of the Courts of Justice Act”. The grounds for judicial review are expanded to state that “no legitimate response was ever received from the Ontario Judicial Council, since sections 50 and 51.4 were breached (the complaint was not forwarded to a sub-committee) and Ms. Brigido, who signed the letters, had no legal authority to speak on behalf of the respondent”.

[14] In his submissions in response to the Rule 2.1 Notice, Dr. Fabrikant argues that his application for judicial review should not be dismissed as frivolous, vexatious or an abuse of process. The primary issue he raises is that the Court has shown bias in the way it has handled his application for judicial review.

Principles applicable to Rule 2.1

[15] 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.

[16] 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

[17] I am satisfied that Dr. Fabrikant’s 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.

[18] As mentioned above, in his submissions in response to the Rule 2.1 Notice, Dr. Fabrikant’s primary submission is that I have shown bias in the way I have handled this matter and that I should therefore recuse myself and allow this matter to proceed.

[19] I first address the issue of bias and then address the issue of whether Dr. Fabrikant’s application for judicial review should be dismissed as frivolous, vexatious and an abuse of process.

No bias or reasonable apprehension of bias

[20] In Rogerson v. Havergal, 2020 ONSC 2164, Kimmel J. set out the following principles applicable to a recusal motion based on allegations of bias:

[30] The parties agree that the question I must consider and answer when deciding whether to recuse myself is: Would an informed person, viewing the matter realistically and practically, and having thought the matter through, think it is more likely than not that the decision-maker, whether unconsciously or consciously, would not decide the matter fairly? See Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, at paras. 20-21.

[31] The “informed” person considering the bias must be an objectively reasonable person, and the apprehension of bias must be objectively reasonable. A reasonable person is one who has knowledge of all of the relevant circumstances, including knowledge of the judicial process and the nature of judging. See Duca Financial Services Credit Union Ltd. v. Smith, 2016 ONSC 6289, at para. 18.

[32] The inquiry is fact specific. A judge may be recused where there is actual bias or a reasonable apprehension of bias. See Wewaykum Indian Band v. Canada., 2003 SCC 45, [2003] 2 S.C.R. 259, at paras. 60 and 77. Bias connotes a predisposition to decide a matter in a certain way that does not leave the judicial mind open and impartial (Wewaykum, at para. 58). The moving party must establish that the judge suffers from “a condition or state of mind which sways judgement and renders the judicial officer unable to exercise his or her functions impartially in a particular case.” See R. v. S (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484 at para. 106.

[33] There is a strong presumption that judges will carry out their oath of office by conducting themselves impartially. The apprehension of bias must rest on strong grounds and compelling and cogent evidence. The burden is high on the moving party to show a real likelihood or probability of bias (see Duca, at para. 18). They must show that the judge has conducted him or herself in such a way as to raise a real or perceived apprehension of bias (see Stephenson v. Corporation of the Town of Gravenhurst, 2012 ONSC 5368, at para. 11).

[34] The motion for recusal should be made to the judge being asked to recuse himself or herself. See Arsenault-Cameron v. Prince Edward Island, 1999 641 (SCC), [1999] 3 S.C.R. 851.

[21] In this case, Dr. Fabrikant relies on a number of factors to argue that the Court has shown bias in its approach to this matter. I find that there is no merit to any of these concerns.

[22] First, Dr. Fabrikant argues that the respondent on the application for judicial review did not bring a motion to dismiss and that I am improperly assisting the respondent. Rule 2.1.0(1) of the Rules of Civil Procedure explicitly provides that the Court can dismiss a proceeding as frivolous, vexatious or an abuse of process “on its own initiative”. There is no need for a formal motion or even a request by the respondent. In this case, at the time the matter came to my attention, I was one of the administrative judges of the Divisional Court. In that capacity, I played a gatekeeping role to ensure that matters brought before the Divisional Court are properly before the Court. This includes an assessment of whether proposed proceedings should be dismissed on the basis that they are frivolous, vexatious or an abuse of process. Therefore, flagging concerns about this application for judicial review does not show bias or raise a reasonable apprehension of bias, but rather is consistent with my gatekeeping role as an administrative judge.

[23] Second, in his submissions Dr. Fabrikant makes allegations of bias against a Divisional Court staff member on the basis that he did not confirm that Dr. Fabrikant’s documents had been brought to my attention. As reviewed above, the documents did come to my attention. In addition, the Divisional Court staff do not decide the case and therefore these allegations have no bearing on the issue of whether this matter will be decided impartially.

[24] Third, Dr. Fabrikant argues that the Court has shown bias by failing to consider that he is a self-represented litigant. There is no doubt that the Court must afford some procedural leeway to self-represented litigants. In this case, the Court gave Dr. Fabrikant an opportunity to provide additional documents to ensure that the underlying facts and circumstances of his application for judicial review are understood. However, self-represented litigants are not excused from ensuring that their proposed proceedings are legally tenable.

[25] Finally, the balance of Dr. Fabrikant’s allegations of bias are essentially about the substance of the matter. Dr. Fabrikant seems to be arguing that the decision to give notice under Rule 2.1 shows bias because the application for judicial review has merit. However, the fact that Dr. Fabrikant disagrees with the Court’s proposed disposition of this matter does not form the basis for a finding of bias or reasonable apprehension of bias.

[26] Dr. Fabrikant has not established bias or a reasonable apprehension of bias in this case. His complaint is essentially that the Court showed bias by issuing a Rule 2.1 Notice. This process is provided for by the Rules of Civil Procedure and Dr. Fabrikant has not overcome the strong presumption of impartiality.

The application for judicial review is frivolous, vexatious and an abuse of process

[27] Having reviewed all the documents provided by Dr. Fabrikant, his amended Notice of Application for Judicial Review and his submissions, I am satisfied that the application for judicial review should be dismissed as frivolous, vexatious and an abuse of process.

[28] At its core, Dr. Fabrikant’s claim against the Chief Justice is that she did not address his complaint against Commissioner Kelly. In its original response, the Ontario Judicial Council stated that it does 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”.

[29] Dr. Fabrikant does not seem to disagree with this, but instead appears to argue that there was misconduct on the part of the Chief Justice for failing to respond to his request or, alternatively, that this Court should require the Chief Justice to address his proposed complaint against Commissioner Kelly. There is no merit to this argument. Whether and how the Chief Justice deals with a request to institute criminal proceedings is a core judicial decision and is discretionary in nature. Whether she responds explicitly to Dr. Fabrikant’s request or not is of no moment. As the Chief Justice, she no doubt regularly receives multiple requests of this nature and cannot be expected to respond quickly, or even at all, to every request. It is clear on its face that there is no merit to Dr. Fabrikant’s argument that the Ontario Judicial Council made an error in finding that it does not have jurisdiction over this matter.

[30] Similarly, Dr. Fabrikant’s request that this Court compel the Chief Justice to consider his request to issue a “denunciation” is without any merit or foundation. This Court has no jurisdiction to compel the Chief Justice to do so, especially in the context of an application for judicial review challenging a decision of the Ontario Judicial Council.

[31] In his amendment to the Notice of Application for Judicial Review, Dr. Fabrikant now argues that the Ontario Judicial Council did not follow the process it was required to follow in deciding that it does not have jurisdiction over the complaint. Specifically, he claims that section 51.4 of the Courts of Justice Act, R.S.O. 1990, c. C.43, requires that a “subcommittee” review the complaint and that only the subcommittee can dismiss a claim for lack of jurisdiction. Again, this argument has no merit. The Ontario Judicial Council is entitled to establish its own processes for reviewing complaints and communicating with the public. While the communications the Ontario Judicial Council sent to Dr. Fabrikant were not authored by a “subcommittee”, there is no basis for suggesting that the complaint was not processed in accordance with the requirements of the Courts of Justice Act. More importantly, this new ground of review does not affect the basic defect in the proposed application for judicial review which is that Dr. Fabrikant seeks to complain about the Chief Justice’s performance of her judicial functions, a matter over which the Ontario Judicial Council has no jurisdiction.

[32] For the reasons above, I am satisfied that the application for judicial review is frivolous, vexatious and an abuse of process.

Conclusion

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

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

Favreau J.

Date: January 14, 2022