Court File and Parties

CITATION: Teper v. IPC, 2024 ONSC 5607

DIVISIONAL COURT FILE NO.: 071/24

DATE: 20241009

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ROBERT MICHAEL TEPER

AND:

INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO

BEFORE: Justice O’Brien

COUNSEL: R. Teper, Self-Represented

L. Chen, Counsel for the IPC

HEARD: In-writing

ENDORSEMENT

Overview

[1] This endorsement provides my reasons for dismissing this judicial review application pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] Mr. Teper seeks to judicially review a letter of the Information and Privacy Commissioner of Ontario (IPC) dated January 3, 2024. In the letter, the IPC advised Mr. Teper that an appeal he had filed with the IPC (under file number MA24-00002) would be placed on hold due to an administrative practice that an individual may only have two appeals actively proceeding at any one time.

[3] During the case management process in this court, I issued directions stating that the application may raise an issue of prematurity. In the Notice of Application, Mr. Teper had touched on this question by alleging the IPC letter was final and “free-standing”. I asked the IPC to provide its position on prematurity. I also allowed Mr. Teper to provide a brief statement of his position if he wished to supplement the contents of his Notice of Application.

[4] The IPC responded with its position that the application was premature. Mr. Teper disagreed. He submitted by email that the decision to put his appeal on hold was unrelated to the merits or context of the appeal. Further, if he were to wait until the IPC concluded its processing of the appeal, the delay issue would become moot.

[5] The court then issued further directions raising the concern that the application may be frivolous, vexatious, or otherwise an abuse of process of the court for the following reasons:

a. The application seeks to challenge an interim procedural direction of the IPC;

b. The direction it seeks to review may not be a final decision and the application may be premature; and

c. The applicant would have the opportunity to address any undue delay and prejudice caused by the procedural direction in the hearing at the IPC and any review of that decision.

[6] The court asked the Registrar to issue a notice pursuant to r. 2.1 and advised Mr. Teper that he would have the opportunity to provide further submissions in response to the notice.

[7] Mr. Teper filed further submissions, in which he argued:

a. The letter is not an interlocutory decision to which the doctrine of prematurity applies. The appeal was never officially launched because the IPC did not issue the Notice of Appeal. The decision was instead a refusal to accept and proceed with the appeal;

b. There is no danger of fragmentation, disruption, or delay because the appeal was not formally commenced according to the IPC’s own practices; and

c. In the alternative, exceptional circumstances warrant early intervention by the court. The IPC letter has already delayed processing the appeal by over seven months. Because the appeal was eighth on the list of appeals Mr. Teper had filed with the IPC, it would likely take at least three years to begin processing it.

[8] For the following reasons, I find the application for judicial review should be dismissed as frivolous or vexatious or otherwise an abuse of the process of the court pursuant to r. 2.1.01.

Dismissal under r. 2.1.01

[9] Rule 2.1.01 allows the court to stay or dismiss a proceeding where it appears on its face to be frivolous, vexatious, or otherwise an abuse of the process of the court. The application of r. 2.1 is “limited to 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 resort to the attenuated process”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, [2015] O.J. No. 5692, at para. 8; Mohammad v. McMaster University, 2023 ONCA 598, [2023] O.J. No. 3997, at para. 6.

[10] The rule “must be interpreted 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, at para. 8; Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8.

[11] In this case, Mr. Teper’s application is patently premature. The letter issued by the IPC is an administrative direction to control the processing of the proposed appeal. It is not a final decision. This court has repeatedly emphasized the longstanding principle that it will not intervene in administrative proceedings unless there are exceptional circumstances. Fragmentation causes delay and disruptions in administrative proceedings. It is preferable to allow administrative proceedings to run their full course and then consider legal issues arising from the proceeding at their conclusion: Isaac v. Law Society of Ontario, 2021 ONSC 10, 2021 ONSC, at para. 10.

[12] I do not agree with Mr. Teper’s submission that the letter was not interlocutory because the Notice of Appeal was not issued. The letter formed part of the IPC’s administrative management of the appeal. It was directed at a particular appeal, regardless of whether the Notice of Appeal was issued. To the extent it represents a more general administrative practice, such a practice would not be the exercise of a statutory power subject to judicial review.

[13] I do not accept that there are exceptional circumstances that would justify interfering in the IPC’s process in this case. The reason Mr. Teper is facing the delay in his appeal is because he has filed multiple appeals. The IPC, like all administrative tribunals, has limited resources. The IPC has told Mr. Teper he can choose which of his appeals to activate next. If there are issues he considers more time-sensitive in this appeal, it remains open to him to prioritize it. If the delay in processing this appeal becomes undue in a manner that causes prejudice, it will remain open to Mr. Teper to raise that allegation when the appeal is heard. Doing so would allow the IPC to assess the allegation of procedural unfairness in the context of the case including the degree of any prejudice to Mr. Teper. In any event, raising an allegation of procedural unfairness does not on its own constitute an exceptional circumstance that would justify fragmenting an administrative proceeding. The circumstances here do not mandate early intervention by this court.

[14] In dismissing this application under r. 2.1.01, Mr. Teper is not foreclosed from recourse to the court. If by the conclusion of the IPC appeal he believes the process was procedurally unfair, it will remain open to him to seek judicial review.

Disposition

[15] The application is premature and there are no extraordinary circumstances that would justify interfering in the IPC’s processes. The application is doomed to fail and is therefore dismissed pursuant to r. 2.1.01.

O’Brien J

Date: October 9, 2024