A.H. v. Toronto District School Board, 2023 ONSC 6277

CITATION: A.H. v. Toronto District School Board, 2023 ONSC 6277

DIVISIONAL COURT FILE NO.: 023/23

DATE: 2023-11-15

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: A.H. represented by their Litigation Guardian Xiangdong He, A.L. represented by their Litigation Guardian Shuang Liu, A.L. represented by their Litigation Guardian Yongmei Xue, C.H. represented by their Litigation Guardian Lin Huang, D.W. represented by their Litigation Guardian Yanzhi Mao, K.P. represented by their Litigation Guardian Marcin Peski, Q.M. represented by their Litigation Canying Ye, O.L. represented by their Litigation Guardian Jia Li, and S.L. represented by their Litigation Guardian Yuan Xue, Applicants

AND:

TORONTO DISTRICT SCHOOL BOARD, Respondent

BEFORE: Matheson J.

COUNSEL: Self-represented moving party Mao Ye

Yun Lu, for the Applicants

Jennifer P. Saville, for the Respondent

HEARD: In writing.

ENDORSEMENT

[1] The moving party has brought a motion under s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 seeking a review of the directions of Corbett J. (the “review motion”). I directed the Registrar to send out a notice under r. 2.1 of the Rules of Civil Procedure with respect to the review motion, as follows:

The moving party, Mao Ye a.k.a. Michael/Mike Hume, seeks a review of the directions of Corbett J. of Sept. 15, 2023, sent out on Sept. 18, 2023, under s. 21(5) of the Courts of Justice Act. The moving party is not a party to this application. He is an applicant in another proceeding – file 653/23. The directions related to a motion he brought seeking to stay this application.

In the directions that the moving party seeks to challenge, Corbett J. declined to schedule the moving party’s motion to stay because this application has been dismissed by the Court. The applicants had failed to comply with the Court’s directions. As well, Counsel to the applicants wrote to the Court on September 13, 2023, asking that the application be dismissed without costs and the TDSB confirmed it was not seeking costs. An order to dismiss without costs was submitted to the Court and signed September 15, 2023. Corbett J. directed that the motion for a stay would not be heard because it was moot.

The Registrar is directed to send out a notice under r. 2.1 of the Rules of Civil Procedure that the Court is considering making an order dismissing this s. 21(5) motion as frivolous or vexatious or otherwise an abuse of the process of the Court.

[2] In response to the notice under r. 2.1, the moving party submitted another motion under s. 21(5) of the Courts of Justice Act, seeking to review the initiation of the r. 2.1 process (the “second review motion”). The second review motion was not accepted by the Court. I gave the following directions:

The initiation of the r. 2.1 process is an administrative step and cannot be the subject of a review under s. 21(5). Once the r. 2.1 process is complete, if the moving party is unhappy with the outcome, he may seek to exercise any appeal rights.

[3] The moving party has since provided submissions in response to the notice under r. 2.1. The moving party challenges r. 2.1 itself, its initiation by the Court, its constitutionality, and its use in this case. The moving party also submits that I cannot address the r. 2.1 issue because I cannot hear an appeal from my own decision, having given the above directions. On the contrary, r. 2.1 permits its process to be initiated by the Court and a decision under r. 2.1 is not an appeal.

[4] The moving party also submits that I should recuse myself for other reasons. As set out in an email dated November 13, 2023, the moving party relies on the following steps from the case management of his application that is file no. 653/22. First, I indicated that the moving party needed to identify the decision he sought to judicially review in his application for judicial review. Second, I sent directions indicating that the Court office had not been able to locate a review motion that had been brought in that case. Third, certain requests he had made were deferred until the need to locate that review motion was addressed.

[5] I have considered all the submissions made by the moving party based upon which he has asked me to recuse myself. I decline to do so. The claim for bias, on its face, does not give rise to a reasonable apprehension of bias.

[6] On the subject of procedural fairness under r. 2.1, the moving party has been given the opportunity to make written submissions and has done so.

[7] Subrule 2.1.01(1) authorizes the court to dismiss the review motion as frivolous or vexatious or otherwise an abuse of the process of the court. However, r. 2.1 should only be used for “the clearest of cases”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8. This is a clear case. There is no purpose served by the review motion, which seeks to stay a proceeding that has been dismissed.

[8] The review motion is therefore dismissed, without costs.

Matheson J.

Released: November 15, 2023