CITATION: Mohammad v. Information and Privacy Commissioner, 2024 ONSC 4827

DIVISIONAL COURT FILE NO.: 114/23

DATE: 2024-08-30

Superior Court of Justice – Ontario

Divisional Court

RE: Ahmad Mohammad, Moving Party AND: Information and Privacy Commissioner, Responding Party

BEFORE: D.L. Corbett J.

COUNSEL: Self-represented Applicant

HEARD: In Writing

Endorsement

[1] This endorsement explains why I am dismissing Mr Mohammad’s motion to review the direction of Matheson J. before a panel of three judges of the Divisional Court pursuant to s. 21(5) of the Courts of Justice Act.

[2] By my direction, on July 30, 2024, the Registrar issued a notice pursuant to r. 2.1 of the Rules of Civil Procedure that the court was considering dismissing Mr Mohammad’s review motion. The email to the parties attaching the r. 2.1 notice, stated as follows:

Justice Corbett directs me to advise you as follows:

Mr Mohammed moves to review the decision of Matheson J. dated July 26, 2024, refusing to schedule a motion to extend the time to seek judicial review of the decision of the Information and Privacy Commissioner dated January 26, 2023. For the reasons that follow, the Registrar is directed to issue a notice pursuant to r. 2.1 of the Rules of Civil Procedure that the court is considering dismissing the motion as frivolous, vexatious and an abuse of process, as a result of the following concerns.

1. The deadline to seek judicial review is thirty days: Judicial Review Procedure Act, s. 5(1). Thus, the deadline to seek judicial review of the decision of the Privacy Commissioner in this case expired at the end of February, 2023 - roughly eighteen months ago.

2. The court may, on such terms as it considers just, extend the time for making an application for judicial review if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of delay: Judicial Review Procedure Act, s. 5(2).

3. This case has been actively case managed in this court. It was initially commenced as an appeal. At a case management conference on March 14, 2023, Schabas J. struck out the notice of appeal and directed that Mr Mohammad deliver a Notice of Application by March 31, 2023.

4. Mr Mohammad did not comply with the direction of Schabas J., and on April 26, 2023, Schabas J. issued a further direction suspending the respondent's obligation to produce a Record until Mr Mohammad complied with the requirement to deliver a Notice of Application. Still, Mr Mohammad did not serve a Notice of Application. He did nothing.

5. On April 26, 2024, the respondent wrote to the court asking that the proceeding be dismissed for delay. By direction dated May 3, 2024, O'Brien J. directed as follows: "It has now been over a year since Mr. Mohammad was required to file his notice of application and he has yet to do so. In these circumstances, Mr. Mohammad shall write to the court within 14 days justifying why his proceeding should not be dismissed for delay. If Mr. Mohammad does not respond within 14 days, the IPC is asked to bring this matter back to the court’s attention and Mr. Mohammad should expect the court will dismiss the matter for delay."

6. Mr Mohammad did not respond to the direction of O'Brien J. On June 13, 2024, O’Brien J. directed as follows: "On May 3, 2024, the court issued directions giving Mr. Mohammad a last chance to file an application for judicial review in this matter. Justice Schabas had originally directed Mr. Mohammad to file the notice of application by March 31, 2023. In my May 3, 2024 directions, I gave Mr. Mohammad a last chance to file within 14 days, which would have been by May 17, 2024. It is now almost a month later and Mr. Mohammad has not filed his application nor otherwise communicated with the court. In these circumstances, his appeal is dismissed if it was not already withdrawn and Mr. Mohammad is no longer entitled to an extension of time to file his material on the proposed application." (emphasis in original)

7. Mr Mohammad then sent the court a motion for an extension of time to bring his application for judicial review. This motion was sent to Matheson J. for case management. Upon inquiry, the only explanation provided by Mr Mohammad for his longstanding delay was that he had not received the directions of O'Brien J.: he says that he was precluded from seeing them because a release order made by a Justice of the Peace required him to use only one email address, and as a consequence he had not checked his "in-box" for the email address he had been using for this proceeding in this court.

8. Matheson J. then issued the following direction dated July 26, 2024:

The chronology regarding this file is summarized in Justice O’Brien’s directions of May 3, 2024 and June 13, 2024. After a long-standing failure to deliver a notice of application for judicial review (which was ordered due in March 2023), and a delay of over a year, those directions conclude that Mr. Mohammad is no longer entitled to an extension of time to file an application for judicial review of the Order of the Privacy Commissioner dated Jan. 26, 2023.

Mr. Mohammad has since submitted a notice of motion for an extension of time to bring that same application for judicial review. He submits that a release order from June 2023 precluded him from using more than one email address. He submits that going forward he was obliged to use a different email than the email address that he had been using in his communications with this Court on this file. He submits that he therefore just noticed Justice O’Brien’s emails (which were sent to the address he had been using for this file).

Mr. Mohammad’s proposed motion relies on the above release order even though he did not draw to the attention of this Court on this file, or give the Court notice that he was switching to a new email address for this file, in the year that has gone by since then. Mr. Mohammad’s proposed notice of motion submits that the Justice of Peace who granted the release order is in a conspiracy to prevent the fair processing of this case.

Justice O’Brien has already precluded this proposed motion. Mr. Mohammad’s failure to notify this Court of his changed email address on this file underscores the lack of attention to this file that grounded Justice O’Brien’s decision.

This motion shall not be accepted for filing.

8. A review motion is based on the record before the court below. That record discloses that this proceeding was dismissed by O'Brien J., and that O'Brien J. directed that no further motion for an extension of time could be brought. That direction has not been reviewed or appealed, and the further direction of Matheson J. does nothing more than implement the decision of O'Brien J.: it is apparent that there is no error in principle in the decision of Matheson J.

9. On the record before Matheson J., Mr Mohammad attended the case management conference before Schabas J. and was told by Schabas J. at the case management conference that he had to serve his notice of application by March 31, 2023. His failure to comply with this deadline was brought to his attention by the further direction of Schabas J. in April 2023. These events all preceded the restrictions placed on his use of email accounts, which were ordered in June 2023. Mr Mohammad has provided no explanation for his failure to comply with the directions of Schabas J. and no explanation as to why he took no steps whatsoever to advance his application for over a year.

10. Mr Mohammad did provide an explanation for his failure to respond in a timely manner to the direction of O'Brien J. Matheson J. rejected this explanation, as she as entitled to do: it was Mr Mohammad's responsibility to keep his contact information current with the court, and in any event the terms of his release did not preclude him from checking his "in-box" in the email account he used for communication with the court for this proceeding.

11. Taking the history of this matter into account, Mr Mohammad has failed to follow clear court scheduling directions, failed to take any positive steps to move his application forward for over a year, has provided no explanation for his long period of inactivity, and his explanation for his failure to open recent emails from the court in a timely manner was not accepted by Matheson J. In all of these circumstances, it does not appear that Mr Mohammad has raised an arguable issue for a motion to review the decision of Matheson J.

The usual page limits shall apply to Mr Mohammad's response to the r. 2.1 notice, but he shall have thirty days to provide his response. Respondents shall not provide responding submissions unless this court subsequently directs otherwise.

[3] Mr Mohammad responded to the r. 2.1 notice the very next day, July 31, 2024. In lucid and well-argued submissions, Mr Mohammad addressed concerns related to his failure to receive and respond to the direction of O’Brien J. in May 2024, and he also addressed bases on which he submits that he has a meritorious case and why it is important to him. However, he did not address two important points:

(a) His failure to comply with the directions of Schabas J. for a period of more than a year prior to the directions of O’Brien J.; and

(b) The principled basis for the decision of the Information and Privacy Commissioner, and the grounds upon which he says he has an arguable case in this court that the decision is unreasonable.

[4] The court then provided Mr Mohammad with further directions, on August 2, 2024, as follows:

Mr Mohammad has provided materials in response to the r. 2.1 notice. He has also advised the court that these materials are his complete response to the r. 2.1 notice. In these materials Mr Mohammad addresses the circumstances that led to his failure to respond to the directions of O'Brien J. (among other things). However, his submissions do not address his failure to meet the scheduling deadline directed by Schabas J. (March 31, 2023), or his failure to take any steps to move forward with his application between March 2023 and June 2024.

Having due regard for Mr Mohammad's status as a self-represented litigant, the court will afford him a chance to make further submissions, if he wishes, to address the reason(s) for his failure to comply with the direction of Schabas J. and the reason(s) he took no steps in this matter from the time of the direction of Schabas J. in March 2023 until he sought an extension in June 2024.

Secondly, an extension would only be granted if there was arguable merit to the proposed application. It appears that the IPC denied Mr Mohammad's request on the basis that the requested document is protected by solicitor-client privilege. The application fails to state any ground for challenging this basis for the decision, and the issues that are raised in the proposed application do not appear to displace a finding that the requested document is protected by solicitor-client privilege. In light of this concern, Mr Mohammad is also asked to explain why his proposed application has any arguable merit.

Mr Mohammad shall have thirty days to respond to this direction. Responding parties shall not provide responding submissions unless this court subsequently directs otherwise.

[5] It is apparent that Mr Mohammad’s proposed motion to review the order of Matheson J. is doomed to fail. O’Brien J. ordered that Mr Mohammad not be permitted to bring an extension motion; the order of Matheson J. did no more than implement the prior order of O’Brien J. It is apparent, however, that what Mr Mohammad wishes to do is challenge the decision that he not be permitted to seek an extension to apply for judicial review of the decision of the Information and Privacy Commissioner. To do that, Mr Mohammad would have to move to vary or to review the order of O’Brien J., which is the order that precludes Mr Mohammad from seeking an extension.

[6] The current procedural complexity arises from Mr Mohammad’s failure to discharge his obligations as a litigant in this court, and the court’s efforts to give him a reasonable opportunity to bring his case forward. In particular:

a. Mr Mohammad commenced his proceeding as an appeal. There is no appeal available. Schabas J. struck the Notice of Appeal, but permitted Mr Mohammad to bring an application for judicial review provided he did so by March 31, 2024. Mr Mohammad failed to comply with the order of Schabas J. In his submissions pursuant to r. 2.1, Mr Mohammad does not address, let alone explain, why he did not comply with the order of Schabas J.

b. Schabas J. issued a further case management direction once Mr Mohammad was in default of the March 31, 2023 deadline to deliver his Notice of Application. This direction relieved the Information and Privacy Commissioner of their deadline to file a Record, since there was no Notice of Application to establish the scope of the Record. A copy of this direction was provided to Mr Mohammad on April 26, 2023. From this direction, it would have been apparent to Mr Mohammad that he had failed to follow the court’s directions and was in default of the deadline of March 31, 2023. Mr Mohammad did nothing in response to the direction. In his submissions pursuant to r. 2.1, Mr Mohammad does not address, let alone explain, why he did not comply with the order of Schabas J. after receiving a copy of the direction of April 26, 2023.

c. Mr Mohammad then did nothing in respect to his proposed application for a further year. In his submissions pursuant to r. 2.1, Mr Mohammad does not address, let alone explain, why he did nothing at all to advance his proposed application for more than a year.

d. The first direction of O’Brien J. directed Mr Mohammad to provide an explanation for his lengthy delay. The second direction respecting the r.2.1 notice expressly raised this concern with Mr Mohammed in clear terms:

In these materials Mr Mohammad addresses the circumstances that led to his failure to respond to the directions of O'Brien J. (among other things). However, his submissions do not address his failure to meet the scheduling deadline directed by Schabas J. (March 31, 2023), or his failure to take any steps to move forward with his application between March 2023 and June 2024.

Having due regard for Mr Mohammad's status as a self-represented litigant, the court will afford him a chance to make further submissions, if he wishes, to address the reason(s) for his failure to comply with the direction of Schabas J. and the reason(s) he took no steps in this matter from the time of the direction of Schabas J. in March 2023 until he sought an extension in June 2024.

e. Mr Mohammad has addressed why he did not receive and respond to the direction of O’Brien J. – a point I address in more detail below. But even if it was accepted that Mr Mohammad has a good explanation for not reading and responding to the direction of O’Brien J. in May 2024, this still would not explain his failure to follow the order of Schabas J., and his failure to do anything to pursue his proposed application for more than a year after his deadline to file a Notice of Application.

f. In the second direction of O’Brien J., she stated that she had given Mr Mohammad another chance to deliver his Notice of Application. That is an overly generous characterization of the first direction of O’Brien J. In the first direction, O’Brien J. gave Mr Mohammad an opportunity to explain his lengthy delay. Implicit in this opportunity was a possibility that the court could have given Mr Mohammad “one last chance” to file his Notice of Application. Mr Mohammad has now had a full opportunity to provide an explanation for his failure to follow the order of Schabas J., and for his failure to take any steps to move forward with his proposed application between March 2023 and May 2024, including my second direction respecting the r. 2.1 notice, in which I expressly drew these issues to Mr Mohammad’s attention so that he could address them.

[7] In all these circumstances, no point would be served by a motion to review the directions of O’Brien J. They disclose no error in principle on the basis of the information before O’Brien J., and Mr Mohammad has not provided additional information that would ground an order granting him a further extension to commence his proposed application.

[8] Neither Matheson J. nor O’Brien J. based their directions on the merits of Mr Mohammad’s proposed application. While I do not consider it necessary to consider the underlying merits to dispose of this r. 2.1 process, I am mindful that Mr Mohammad is self-represented, and I have put my mind to the question whether the court should exercise its residual discretion to excuse a self-represented litigant’s default because the justice of the case would tend towards that result.

[9] The underlying proceeding was a request by Mr Mohammad for disclosure of a particular document in the possession of the respondent college. In detailed reasons the IPC upheld the college’s objection to producing the requested document on the basis of solicitor-client privilege. In his Notice of Application, Mr Mohammad fails to raise any issue with the principled basis of the IPC’s decision. That is, he does not challenge the IPC’s finding that the document was subject to solicitor-client privilege (a finding of fact) or the IPC’s finding that, in law, the respondent college was entitled to refuse to produce the document because it is privileged (a finding of law). On the face of the IPC’s decision, there is no reason to doubt either the factual or legal bases of the impugned decision. In the result, the apparent underlying merits of the proposed application do not favour excusing Mr Mohammad’s lengthy and unexplained delay.

[10] Finally, I note that Mr Mohammad does have an explanation for his failure to respond to the first direction of O’Brien J. in a timely way. He argues that he was restricted to one operating email account by terms of release imposed upon him. It is not clear whether these terms were first imposed in June 2023 or in September 2023.

[11] Matheson J. did not accept this explanation as sufficient to explain Mr Mohammad’s long delay in this case. It was Mr Mohammad’s responsibility to maintain an effective email address with this court. Had he done anything in respect to his proposed application after the release terms had been imposed, then he would have provided the court with an active and effective email account. Matheson J. noted that Mr Mohammad’s explanation showed a continuation in the pattern of his inattention to his proposed application – a conclusion that is unassailable on the record.

[12] In his submissions in response to the r. 2.1 notice, Mr Mohammad focuses considerable attention on this issue – his inability to open the email containing O’Brien J.’s direction because of his release conditions – a fact that, by itself, does not address the court’s fundamental concerns about his failure to discharge his responsibilities as a litigant.

[13] For these reasons:

a. The motion to review the order of Matheson J. is dismissed pursuant to r. 2.1 because it cannot possibly succeed;

b. No motion to review the order of O’Brien J. has been brought, and had one been brought I would have dismissed it pursuant to r. 2.1 on the basis that Mr Mohammad has failed to explain his failure to comply with the order of Schabas J. and his lengthy of more than a year in taking any steps to advance his proposed application, and the apparent lack of arguable merit for the underlying proposed application.

c. There shall be no costs of these r. 2.1 proceedings.

“D.L. Corbett J.”

Date: August 30, 2024