Court File and Parties
CITATION: Segura Mosquera v. Child and Family Services Review Board, 2023 ONSC 3277
COURT FILE NO.: DC-21-2685
DATE: 2023/06/12
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Gladys M. Segura Mosquera, Applicant
AND
Child and Family Services Review Board, Children’s Aid Society of Ottawa, Ottawa Police Services Board, Respondents
BEFORE: Justice R. Ryan Bell
COUNSEL: Applicant, self-represented Shawn Cléroux, for the Respondent Ottawa Police Services Board
HEARD: In writing
ENDORSEMENT on requisition under rule 2.1.01
This proceeding
[1] The court received a requisition from the Ottawa Police Service (“OPS”) seeking a dismissal of this judicial review application against the respondent Ottawa Police Services Board pursuant to r. 2.1.01 of the Rules of Civil Procedure.[^1]
[2] Notice was provided to the applicant that the court was considering dismissing her application for judicial review “because it appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.” The applicant delivered written submissions and “supporting documents” in response to the notice that was sent to her. The OPS declined to provide written submissions.
Background
[3] The applicant made an access request under the Municipal Freedom of Information and Protection of Privacy Act[^2] (“MFIPPA”) to the OPS for records about complaints made to the police that she initiated or were initiated by others against her. The OPS denied access to the responsive police reports in part, relying on the discretionary exemptions in s. 38(a) of MFIPPA (discretion to refuse requester’s own information), s. 8(1) (law enforcement), and s. 38(b) (personal privacy). The OPS asked the applicant to purchase each individual responsive occurrence report from them and provided her with a copy of her Person Hardcopy report, which summarizes her interactions with the OPS and lists the reports.
[4] The applicant appealed the OPS’ decision to the Information and Privacy Commissioner of Ontario (“IPC”). During mediation, the OPS issued a revised decision. The applicant confirmed that she took issue with all the severances applied to the records. The OPS provided a second revised decision, advising that additional information was being disclosed, but that the remaining severed information continued to be denied under s. 38(b) of MFIPPA and as non-responsive to the applicant’s request.
[5] The matter then proceeded to adjudication by the IPC. On October 27, 2021, the IPC adjudicator issued Order MO-4118. In MO-4118, the adjudicator upheld the OPS’ decision that certain information in the records was not responsive to the applicant’s request. The adjudicator also upheld the OPS’ decision under s. 38(b) in part, but did not uphold the decision under s. 38(a) or s. 8(1). The adjudicator upheld the OPS’ search for responsive records as reasonable but did not uphold the OPS’ $5 request fee for the applicant’s correction request.
[6] In her written submissions, the applicant acknowledges that the OPS has, as of March 2023, complied with MO-4118.
[7] In her notice of application for judicial review, at para. 1, the applicant seeks “Judicial Review of the OPS’s policies and procedures that allow its staff to base their investigations on outdated information and enter them in their reports” and “Judicial Review of the violation of the constitutional rights of the applicant by the respondents’ [including the OPS] decisions, policies and procedures.”
[8] In her factum filed on the application for judicial review, the applicant identifies the IPC adjudicator’s Order MO-4118 under the heading “The decision(s) to be reviewed.” No decision of the OPS is identified.
Rule 2.1
[9] The Court of Appeal for Ontario has, repeatedly, highlighted that dismissal of a proceeding under r. 2.1.01 is a blunt instrument, reserved for the “clearest of cases”: Scaduto v. The Law Society of Upper Canada, at para. 8;[^3] Simpson v. The Chartered Professional Accountants of Ontario, at para. 43;[^4] Khan v. Law Society of Ontario, at para. 7.[^5] As the Court of Appeal stated in Khan v. Krylov & Company LLP, at para. 12:[^6]
Rule 2.1 is an extremely blunt instrument. It is reserved for the clearest of cases, where the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading. Rule 2.1 is not meant to be an easily accessible alternative to a pleadings motion, a motion for summary judgment, or a trial.
[10] Absence of merit on its own is not sufficient to justify dismissal under r. 2.1. As the Court of Appeal stated in Collins v. Ontario, at para. 19:[^7]
Simpson, at para. 43, makes it clear that a r. 2.1 request is not a substitute for a motion to quash and filing the appropriate materials. The rule does not replace the bringing of a motion to quash an appeal for want of jurisdiction or for lack of merit. However, it does allow for a speedy process for disposing of proceedings and motions that are on their face frivolous, vexatious or otherwise an abuse of process.
Analysis
[11] In my view, the application for judicial review is, on its face, frivolous because it is “lacking a legal basis or legal merit…[and is] not reasonably purposeful”: Currie v. Halton Regional Police Services Board, at para. 14.[^8]
[12] Section 2(1) of the Judicial Review Procedure Act sets out the Divisional Court’s jurisdiction to hear an application for judicial review. That jurisdiction rests on the availability of the traditional prerogative writs and, more broadly, on the exercise of a statutory power of decision. In order to be subject to judicial review, a statutory power of decision “must be a specific power or right to make the very decision in issue”: Paine v. University of Toronto, at p. 722.[^9]
[13] On its face, the application for judicial review against the OPS is frivolous because the decision the applicant seeks to challenge is that of the IPC – MO-4118 – and not a decision of the OPS.
[14] In addition, the decision under judicial review must relate to a power “conferred ‘by or under a statute’…There must be a specific power or right to make the very decision in issue”: McLeod v. City of Brantford, at paras. 9-12[^10] (emphasis added). Unspecified “policies and procedures” cannot be judicially reviewed. The applicant’s written submissions confirm that what the applicant appears to seek is an audit of the OPS’ policies and procedures. For example, the applicant states in her written submissions that one of the issues the OPS “must respond to in this proceeding” is “whether the OPS is erring by keeping in its databases and record systems outdated records that no longer reflect the situation of the involved individuals?” An audit is not within the purview of judicial review under the Judicial Review Procedure Act.
[15] In Currie, the Court of Appeal stated that “any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process. The common example appears to be the situation where a plaintiff seeks to relitigate a cause which has already been decided by a court of competent jurisdiction”: Currie, at para. 17. The applicant has already availed herself of the right to appeal the OPS’ decision responding to her request under s. 39(1) of the MFIPPA. Decisions of the IPC are subject to judicial review. The applicant is not permitted to relitigate the OPS’ decision.
Conclusion
[16] For these reasons, I conclude that the application against the Ottawa Police Service Board is, on its face, frivolous and an abuse of process of the court. The OPS’ request under r. 2.1.01 is granted and the application for judicial review against the Ottawa Police Services Board is dismissed.
Justice R. Ryan Bell
Date: June 12, 2023
CITATION: Segura Mosquera v. Child and Family Services Review Board, 2023 ONSC 3277
COURT FILE NO.: DC-21-2685
DATE: 2023/06/12
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Gladys M. Segura Mosquera, Applicant
AND
Child and Family Services Review Board, Children’s Aid Society of Ottawa, Ottawa Police Services Board, Respondents
BEFORE: Justice R. Ryan Bell
COUNSEL: Applicant, self-represented Shawn Cléroux, for the Respondent Ottawa Police Services Board
ENDORSEMENT on requisition under rule 2.1.01
Ryan Bell J.
Released: June 12, 2023
[^1]: R.R.O. 1990, Reg. 194. [^2]: R.S.O. 1990, c. M.56. [^3]: 2015 ONCA 733, 343 O.A.C. 87, leave to appeal refused, 2016 21790 (SCC). [^4]: 2016 ONCA 806. [^5]: 2020 ONCA 320. [^6]: 2017 ONCA 625. [^7]: 2017 ONCA 317. [^8]: 2003 7815 (ON CA). [^9]: (1981), 1981 1921 (ON CA), 34 O.R. (2d) 770 (C.A.). [^10]: 2018 ONSC 943.