CITATION: Tran v. Office of the Independent Police Review Director, 2023 ONSC 2098

DIVISIONAL COURT FILE NOS.: TBA

DATE: 2023-04-04

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: TRAN v. Office of the Independent Police Review Director

BEFORE: D.L. Corbett J.

HEARD: In Writing, In Chambers

ENDORSEMENT

[1] Ms Tran brings an application for judicial review of a decision of the OIPRD not to investigate allegations of misconduct against two police officers.

[2] The initial Notice of Application alleged that the OIPRD Decision should be quashed because of “errors of law” and “palpable and overriding errors of fact” but provided no particularity respecting these grounds of review. By email direction dated January 30, 2023, this court struck out the Notice of Application, with leave to amend, and advised Ms Tran that she must plead some particulars that could ground an application for judicial review.

[3] Ms Tran provided a fresh Notice of Application. On reviewing the fresh Notice, the court directed the Registrar to issue a notice pursuant to R.2.1 that the court is considering dismissing the application as frivolous, vexatious and an abuse of process. The court explained its concerns leading to the R.2.1 notice as follows in an email sent to Ms Tran on February 8, 2023:

1. Ms Tran made complaints against two Durham Regional police officers. This complaint was decided against Ms Tran. Ms Tran submitted a Request to Review the decision, which the OIPRD rejected on July 12, 2022. Ms Tran then commenced a judicial review respecting this decision in August 2022. By direction from this court on August 15, 2022, the Notice of Application was struck out, with leave to amend, on the basis that the Application was so generic that it failed to state any meaningful grounds for review. Ms Tran was directed that her Notice of Application needed to specify "legal and factual findings in the impugned decision with which the applicant takes issue." Ms Tran did not provide an amended Notice of Application, and the application was therefore dismissed on November 1, 2022.

2. Ms Tran made a second complaint to the OIPRD. That complaint was dismissed on the basis that it had already been dealt with in the first complaint. Ms Tran then brought this application for judicial review. Once again, this court struck out the Notice of Application with leave to amend for failure to state any meaningful grounds for review. In the direction striking out the application, the court stated as follows:

The Notice of Application is struck out, without prejudice to a fresh Notice of Application being provided by the Applicant by no later than February 15, 2023.

The Notice of Application makes bald allegations of "errors of law" and "palpable and overriding errors of fact" without providing any particularity. While the court will not require that every issue be set out with the particularity at the outset, there must be sufficient detail for the court to be able to assess whether there is any arguable issue for review in this court.

3. Ms Tran then provided an amended Notice of Application providing some particulars. However, the particulars refer, not to the second decision of the OIPRD, but to the first decision of the OIPRD.

On the face of the case, Ms Tran is seeking to re-litigate the issues that were the subject-matter of her first application for judicial review, which was dismissed by this court on November 1, 2022. This she may not do.

4. In a prior decision in this court involving Ms Tran, I held as follows (Tran v. AMC Environmental, 2021 ONSC 7419, para. 6):

Ms Tran’s conduct as a litigant in this court, while demonstrating ungovernability, has not been so excessive to warrant an order restricting her recourse to the justice system. Indeed, her conduct has been more destructive of her self-interest than of the interests of her litigation opponents. I therefore decline to make an order restricting Ms Tran’s future recourse to this court. However, Ms Tran has been ungovernable in this court, and this pattern may be taken into account if a court, in future, is called upon to decide whether Ms Tran is a vexatious litigant.

Ms Tran has now, twice in succession, filed two Notices of Application so devoid of particularity as to fail to state a single ground for judicial review. The first time may be excused on the basis that Ms Tran is self-represented. The second time is more difficult to excuse. Once a particularized notice of application was provided, it was clear that Ms Tran was seeking to re-litigate proceedings that had already been dismissed.

The court is considering making an order under R.2.1, restricting Ms Tran's access to this court without first obtaining leave from a judge of this court, in view of her conduct in this proceeding and other proceedings in this court. Ms Tran may address this issue as part of her response to the R.2.1 notice.

[4] Ms Tran responded to this notice by purporting to bring a motion to set aside the R.2.1 notice. The “motion” is largely incoherent. The relief sought is stated as follows:

(i) An order granting of the motion to set aside the Assistant Registrar’s allegation informal order, inappropriately procedure order, threaten order, default judgment order, and abuse of process order to discrimination against the party/Applicant under disability, etc on February 8, 2023….

[5] The court then directed as follows on February 15, 2023:

Ms Tran has purported to bring an urgent notice to set aside the notice issued pursuant to R.2.1. This motion is vexatious: a notice pursuant to R.2.1 is an administrative step, not an order, that permits a party to respond to concerns the court has that a proceeding is frivolous, vexatious and/or an abuse of process. It is not susceptible to appeal or to a motion to vary or set aside.

Ms Tran shall respond to the R.2.1 notice by March 1, 2023, failing which the court will dispose of the R.2.1 issue without the benefit of a response from Ms Tran. The court notes that this deadline is an extension of the initial deadline.

The court considers Ms Tran's "urgent motion" to be a continuation of a pattern of vexatious behaviour as a litigant in this court and will take that into account in considering whether an order should be made restricting Ms Tran's access to the Divisional Court without prior permission from a judge.

[6] On February 21, 2023, Ms Tran provided a further “urgent motion”, this time seeking an order that the court appoint a lawyer for her. In her notice of motion, Ms Tran alleges that she is “mentally incapable”. She alleges that a doctor has provided a recent opinion that she is “incapable of self-represent in this matter.” She alleges that the court’s direction that she respond to the R.2.1 notice is a step with which she is incapable of complying, and that the requirement that she do so is making “her health condition deteriorate.” She alleges that she went to see a lawyer, who advised her that her disabilities are not being accommodated by the court appropriately, that the court and court staff are “prejudiced against her” but that Ms Tran is unable to afford to retain a lawyer because of “her health condition and unemployed.”

[7] The court then directed as follows on February 21, 2023:

Ms Tran has written the court, claiming to be suffering from a disability that prevents her from self-representing in court, and wishing to bring a motion that the court appoint a lawyer for her.

This is previously trod ground with Ms Tran in this court. Morgan J., in a previous case, found that Ms Tran is incapable of representing herself and appointed the Public Guardian and Trustee as her litigation guardian. In a different proceeding, J. Speyer J. dismissed a motion brought by Ms Tran for the appointment of amicus curiae to represent her. Both orders were brought to this court by way of motions for leave to appeal, and both of those motions were dismissed by this court for failure to follow case management directions.

It is open to Ms Tran to retain counsel to represent her in this case.

It is open to Ms Tran to appoint a litigation guardian for herself in this case.

It is open to Ms Tran to move for an order that the Public Guardian and Trustee be appointed as her litigation guardian.

Ontario does not provide counsel, at public expense, to represent persons such as Ms Tran to pursue disciplinary complaints against police officers (in particular) or in civil proceedings (generally). In a rare case the court will appoint an amicus curiae to assist the court when the court concludes that it needs this assistance to adjudicate properly the issues before the court. The amicus curiae is not the lawyer for an unrepresented party in this circumstance.

These points have been made to Ms Tran previously. The court will not schedule a motion for an "urgent motion" that the court appoint a lawyer for Ms Tran.

Ms Tran is cautioned that the deadline for her response to the R.2.1 notice has not been extended by her most recent emails.

[8] Ms Tran subsequently wrote to the court, at least on a daily basis, stating that she does not know what the court is requiring of her, and that the court should take these matters up with her lawyer, once the court appoints a lawyer for her. Starting on February 21, 2023, Ms Tran’s emails were sent to court staff, and directly to me. In response, this court directed as follows on February 21, 2023:

Justice Corbett directs me to advise you as follows:

1. It is not proper for you to write by email directly to a judge of the court, as you have just done. Please do not do that again.

2. The court has provided directions. You must follow them.

3. No motions will be scheduled in this court until the R.2.1 issue has been disposed of, in accordance with Justice Corbett's directions.

[9] The court directed as follows, also on February 21, 2023:

Justice Corbett directs me to respond to you as follows:

1. You have been directed not to email Justice Corbett directly. If you do it again, the court may require you to show cause why you should not be cited for contempt of court.

2. The deadline for your response to the R.2.1 notice is March 1, 2023, as previously directed.

3. No other motions or steps in your proceeding will be scheduled in Divisional Court until the R.2.1 issue has been adjudicated.

4. The court has already provided these directions to you and will not respond to further emails from you in defiance of these directions.

5. In responding to the R.2.1 issue, you are advised that your conduct in respect to these matters, in this application, will be considered in determining the court's proper response under R.2.1.

6. If you are dissatisfied with the court's final disposition of the R.2.1 issues, your recourse is a motion for leave to appeal to the Court of Appeal, and not further proceedings in this court.

7. Staff have been directed not to respond to any further communications from you unless Justice Corbett expressly directs otherwise.

[10] The court directed as follows on February 22, 2023:

We have responded to your inquiries.

Your response to the R.2.1 notice is due February 28th, as previously directed. No motions will be scheduled in the meantime.

You will have appeal rights flowing from the decision on your R.2.1 issues.

[11] The court directed as follows on February 24, 2023:

Justice Corbett directs me to advise you as follows:

Ms Tran has proved herself ungovernable in this proceeding. A similar finding has been made about Ms Tran, in this court, in prior proceedings: Tran v. AMC Environmental, 2021 ONSC 7419.

The application is stayed pending further order of this court, subject only to the other terms of this direction.

Ms Tran may respond to the R.2.1 notice by February 28, 2023, as previously directed.

Ms Tran shall take no other steps and shall make no further communications with the court aside from responding to the R.2.1 notice. Court staff is directed not to respond to any further communications in violation of this direction.

[12] The court directed as follows on February 27, 2023:

The court will not be responding to your communication of February 27th until it has disposed of the R.2.1 issue, as previously directed.

[13] The court subsequently directed as follows on February 27, 2023:

The court will not be responding to your second communication of February 27th until it has disposed of the R.2.1 issue, as previously directed.

[14] The court directed as follows on February 28, 2023:

Justice Corbett directs me to advise you as follows:

The court will not be responding to your communication of February 28th until it has disposed of the R.2.1 issue, as previously directed.

Your response to the R.2.1 notice was due February 28th. The court's decision of the R.2.1 issue is now under reserve and will be released in due course.

[15] By my direction, staff were directed to respond to any further communications from Ms Tran in the same manner as the directions sent on February 27 and 28, 2023, and not to forward further communications from Ms Tran to me dated after March 1, 2023.

[16] I am advised by staff that Ms Tran has continued to send emails to the court and has broadened her communication to include emails to staff of the Attorney General, complaining about this court’s directions. This is consistent with Ms Tran’s previous conduct in this court: she will not comply with directions with which she disagrees, and she will engage in ongoing repetitive communication that is inconsistent with the directions that she has been given.

This Proceeding Is Dismissed

[17] Ms Tran has failed to respond to the court’s concerns about this application. She has stated no grounds for judicial review of the OIPRD decision. Instead, she has stated grounds to review a prior decision of the OIPRD, the review of which has already been dismissed.

[18] The predicate complaint concerned an allegation that police failed to investigate and lay charges in response to allegations made to them by Ms Tran. The predicate complaint was dismissed by the OIPRD on the basis that a discretionary decision by police not to lay charges – in the context of Ms Tran’s allegations – could not amount to a breach of the Police Services Act.

[19] This application is dismissed pursuant as frivolous, vexatious and an abuse of process on the basis that it seeks to relitigate a case that has been decided previously and states no basis to review a subsequent decision of the OIPRD to this effect.

Ms Tran is a Vexatious Litigant

[20] Ms Tran has apparently been before the courts frequently and been the subject of judicial comment to the effect that she is ungovernable as a litigant, appears to be suffering from serious mental illness, may not be legally competent to bring legal proceedings and litigates vexatiously.

[21] In a criminal appeal in which Ms Tran was represented by counsel, Ms Tran, on her own behalf, sought to review the decision of a single judge of the Court of Appeal. In its decision, the Court of Appeal found (2017 ONCA 482, paras. 4-6):

In light of the appellant’s release by Vanier Institute, the review of Justice MacPherson’s order would appear to be moot. As a result, we dismiss the application that the appellant brings this morning for a s. 684 order and for an adjournment of the review of Justice MacPherson’s order.

The appellant’s persistence in seeking various remedies in the face of an appeal that is in the hands of counsel, is vexatious. She has consumed much more than her fair share of judicial and other resources. We therefore order that the appellant will not be permitted to pursue additional motions or applications to this court without the permission in writing of a member of this court, based on a written request by the appellant no more than three pages in length without any additional material. Counter staff are instructed not to accept any material from the appellant that is inconsistent with this direction.

This direction does not apply to the appellant’s counsel.

[22] Ms Tran owned a health spa. One day, she had a loud argument with one of her customers. This prompted another customer, Ms Howard, to get up and leave the spa. Ms Howard had just started her treatment. She refused to pay. There was then an altercation between Ms Tran and Ms Howard that led to police charging Ms Tran with unlawful confinement and assault. At trial, Ms Tran defended on the basis that she was effecting a citizen’s arrest, and was justified in so doing by Ms Howard’s unlawful refusal to pay. The trial judge in the Ontario Court of Justice rejected Ms Tran’s defence and convicted her. This decision was upheld by M.A. Edwards J. (as he then was) of the Superior Court of Justice. Leave to appeal the SCJ decision was refused by the Court of Appeal: 2014 ONCA 146.

[23] In 2014 and early 2015, Ms Tran stood trial for some seventy days before K. Wright J. of the Superior Court of Justice on eight charges of dishonesty, including fraud, forgery, and attempting to obstruct justice. She was found guilty of seven of these charges: 2015 ONSC 534. Her appeal to the Court of Appeal was dismissed (2019 ONCA 919) and leave to appeal to the Supreme Court of Canada was refused (2020 78418).

[24] More recently, Ms Tran has been involved in proceedings in the Toronto Superior Court against Durham Condominium Corporation 86 (Div. Ct. File No. 252/21) and in the Oshawa Superior Court against AMC Environmental Corp. (Div. Ct. File No. 133/21). The history of those matters is described in this court’s endorsement dated September 3, 2021: 2021 ONSC 5902 (Div. Ct.), which is incorporated into these reasons by reference.

[25] Other proceedings:

(a) Tran v. La Villa Sense Perception Apogee Inc., 2003 6141 (ON LRB). Ms Tran claimed against La Villa for unpaid wages. The Labour Relations Board found that Tran had begun work for La Villa on December 24, 2002. Things went badly, there was an altercation that required police involvement, and Ms Tran was escorted from the premises at noon. The Board found that Ms Tran was owed payment for three hours’ work, which it calculated at $24.96, including vacation pay.

(b) An appeal from a small claims court case that had been settled. The ground advanced by Ms Tran for the appeal was: “In short, the circumstances leading up to the appeal are as follows. In 2012, the Appellant entered into a settlement agreement as a result of an action brought in small claims court. She now wants to resile from that agreement and have it set aside on the basis that she did not understand or appreciate what she was agreeing to and that she was “tricked” into signing the agreement.” (2014 ONSC 1593 [SCJ]).

(c) An appeal from a small claims court decision in favour of Aviva Canada Inc. against Ms Tran and her company, for falsely holding herself out as a licensed massage therapist to obtain payments from Aviva for massage treatments. The trial judge did not accept Ms Tran’s defence that she told Aviva she was unlicensed and held that Ms Tran proceeded using false pretenses, a finding the appeal judge concluded was open to the trial judge on the evidence: Tran v. Schwartz, 2016 ONSC 549 (in this decision Ms Tran is given an extension of time in which to bring her appeal).

(d) Ms Tran commenced two proceedings against Ontario (Correctional Services) before the Human Rights Tribunal of Ontario. The HRTO directed both matters be addressed at a summary hearing on the basis that they appeared to have no reasonable prospect of success. Ms Tran made written submissions but took the position that she was unable to participate in the summary hearing because of mental illness, a position she supported with a note that said that “legal matters should be stayed until her mental status improves.” The HRTO did not accept that Ms Tran was unable to participate in the summary hearing. Ms Tran chose not to attend the teleconference, and the HRTO dismissed the two proceedings: 2017 HRTO 1641.

(e) Ms Tran commenced two proceedings in the small claims court against her former criminal defence lawyer, alleging negligence in the defence of her criminal proceedings. The two proceedings were consolidated by order of the small claims court. Ms Tran purported to appeal that consolidation order, which appeal was dismissed on the basis that there are no appeals from interlocutory orders of the small claims court: 2014 ONSC 5233 (Div. Ct.).

[26] The foregoing is a review of decisions posted on involving Ms Tran. In prior proceedings in this court, this court directed Ms Tran to confirm whether she is the same “Jenny Tran” as the party in these prior proceedings. Ms Tran failed to respond to this inquiry, in direct violation of this court’s direction.

[27] Ms Tran’s conduct in this application is sufficient to give rise to concerns that she is a vexatious litigant. When placed in the context of her prior recent proceedings in the Divisional Court, the concerns are sufficient enough to restrict her future access to proceedings in the Divisional Court – it is clear that she must be closely supervised as a litigant to prevent her from wasting scarce court resources. Her apparent conduct in other prior proceedings could lead to an inquiry as to whether her access to any court in Ontario ought to be restricted. I decline to devote the resources required to examine that issue further in this case but should there be further vexatious conduct in this court or the courts below, a broader order may be made.

[28] For these reasons, this court orders as follows:

(a) This application is dismissed without costs as frivolous, vexatious and an abuse of process pursuant to R. 2.1.

(b) Ms Tran may not commence or continue any proceeding in the Divisional Court without first obtaining permission to so do from an administrative judge of the Divisional Court, or her designate. Such permission shall be sought by way of letter from Ms Tran, no longer than three pages in length, to which is attached no more than ten pages of additional documents in support of the request.

D.L. Corbett J.

Released: April 04, 2023