Superior Court of Justice – Ontario
CITATION: Rowe v. College of Nurses of Ontario, 2025 ONSC 4437
OTTAWA COURT FILE NO.: DC-22-2755
DATE: 2025/07/30
RE: Craig Rowe Applicant
AND
College of Nurses of Ontario Respondent
BEFORE: Justice Marc Labrosse
COUNSEL: Craig Rowe, self-represented Linda R. Rothstein and Douglas Montgomery, Lawyers for the Respondent, College of Nurses of Ontario
HEARD: In Chambers
ENDORSEMENT
Overview
[1] In a letter dated August 10, 2023, addressed to the Registrar of the Divisional Court (“the 2.1 Letter”), counsel for the Respondent, College of Nurses of Ontario (“the College”) requests the dismissal of the Applicant’s motion to set aside the decision of Justice Ryan Bell (the “Motion Judge”) dated June 16, 2023. In her decision, the Motion Judge, sitting as a judge of the Divisional Court, dismissed the Applicant’s motion to extend time to bring an application for judicial review.
[2] This request is made pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”). The 2.1 Letter came before the court in August 2023. Unfortunately, there was confusion with this court as to the outstanding matters that required adjudication following the release of the Divisional Court’s decision in 2023 ONSC 6414. This was another application for judicial review involving the same parties that was dismissed on November 17, 2023, with costs payable to the College in the amount of $5,000.00.
[3] Following the dismissal of that proceeding, and through no fault of the parties, it was unclear to this court that the 2.1 request was still a live issue. On February 24, 2025, a case conference was held with the parties to determine what the outstanding issues were in this proceeding. It was then confirmed that the 2.1 request by the College was still outstanding.
[4] On March 28, 2025, the Registrar of the Divisional Court in Ottawa issued a notice under Rule 2.1 confirming that the court was considering making an order staying or dismissing this proceeding because it appears on its face to be frivolous or vexatious or otherwise an abuse of process. I regret that there has been delay in this proceeding. While the parties did not raise any specific issue of prejudice at the case conference, this matter should have been dealt with sooner. The completion of this decision has been significantly impacted by the judicial calendar.
[5] Although the Applicant appealed the Divisional Court’s decision in 2023 ONSC 6414 to the Court of Appeal, the Respondent has advised that the appeal at the Court of Appeal has not been perfected and that costs are still outstanding.
[6] The Applicant responded to the 2.1 notice by way of a written submission dated April 3, 2025, which also referred to submissions made in a previously filed case conference brief. The Respondent provided its written submissions on April 14, 2025.
[7] The author of the 2.1 Letter requests that the motion to set aside the Motion Judge’s decision of June 23, 2023, be dismissed because it is frivolous and vexatious as it makes allegations of bias against the Motion Judge that were not raised before her and allegations of misconduct against counsel who represented the College. The motion to set aside was brought out of time and there has been no motion to extend time to bring the motion to set aside.
Background
[8] The factual background to this application is set out in detail by the Motion Judge in her decision reported at 2023 ONSC 3735. I will only provide a brief summary of that background information and a summary of the Motion Judge’s decision on the motion to extend time.
[9] Mr. Rowe became a registered member of the College of Nurses of Ontario in October 2000. While employed as a nurse at the Kemptville District Hospital, he was terminated as a result of multiple incidents involving his clinical practice and conduct.
[10] In December 2019, the College received a mandatory report from the Kemptville District Hospital in respect of multiple incidents involving Mr. Rowe’s work at the hospital. The college conducted an intake investigation and appointed an investigator. Mr. Rowe was represented by a lawyer at the Ontario Nurse's Association.
[11] On April 6, 2022, a panel of the College of Nurses of Ontario's Inquiries Complaints and Reports Committee (“ICRC”), reviewed the investigation report into Mr. Rowe’s nursing practice. On June 6, 2022, the ICRC released a decision which was emailed to Mr. Rowe and his counsel. In its decision, the ICRC directed Mr. Rowe to appear before the ICRC to be cautioned. Mr. Rowe sought a review of the ICRC decision before the Health Professions Appeal and Review Board (“HPARB”) but that request was submitted beyond both the 30-day deadline and the ultimate 60-day deadline for reviews at the HPARB.
[12] On November 18, 2022, Mr. Rowe requested corrections of alleged factual errors in the ICRC decision. He then requested that certain members of the ICRC panel who were involved in the decision recuse themselves from the caution. Eventually, Mr. Rowe’s caution was carried out on November 23, 2022.
[13] Mr. Rowe commenced his application for judicial review on December 21, 2022.
[14] Mr. Rowe then presented his motion to extend time to file his application for judicial review. The Motion Judge heard the matter on June 16, 2023, and issued her decision on June 23, 2023. She identified the issues before her as being the following:
a. On what day did the 30-day time limit in s. 5(1) of the Judicial Review Procedure Act (“JRPA”) begin to run?
b. If Mr. Rowe commenced his application beyond the 30-day limit should the court grant an extension of time under s. 5(2) of the JRPA.
[15] On the first issue, the Motion Judge confirmed that the 30-day time limit to commence the application for judicial review began to run on the date that the ICRC decision was sent to Mr. Rowe and his counsel, being June 6, 2022. Mr. Rowe tried to advance the argument that the time limit should not begin to run until after the caution was received on November 23, 2022. The Motion Judge disagreed as it would be contrary to the legislative goal if the time could be extended well into the future, after remedial activity was completed.
[16] As a result of that conclusion, it was determined that Mr. Rowe’s application for judicial review was filed 198 days beyond the 30-day limit under the JRPA.
[17] The Motion Judge then considered the grounds to extend the time for the commencement of judicial review under s. 5(2) of the JRPA where the court is satisfied (i) there are apparent grounds for relief and (ii) no substantial prejudice or hardship will result.
[18] With respect to the delay, the Motion Judge concluded that Mr. Rowe had not provided clear evidence of when he first formed the intention to review the ICRC decision. She relied on the fact that it was not until October 3, 2022, four months after he received notice of the ICRC decision that Mr. Rowe sought review before the HPARB. There was also no evidence to explain the reason for the four-month delay in seeking that review, let alone the 198 day delay for bringing the Application for Judicial Review.
[19] It was also noteworthy that Mr. Rowe was represented by counsel in June of 2022 when he received the ICRC decision and thereafter, until at least September of 2022. Mr. Rowe’s submission before the Motion Judge suggested that he was not aware of his right to bring an application for judicial review. He also relied on certain mental health challenges. The Motion Judge reviewed those issues and concluded that she was unable to find that the delay was attributable to any mental condition.
[20] Turning to the merits of the application for judicial review, the Motion Judge considered the applicable standard of review and noted that Mr. Rowe was advancing numerous grounds of review many of which were raised for the first time in this court. Generally, she considered the grounds of review to being weak. She then specifically addressed the following grounds:
a. That the College acted outside its statutory authority in numerous different ways and addressed each specifically;
b. That the College intentionally violated the Freedom of Information and Protection of Privacy Act;
c. That the ICRC misapprehended evidence;
d. That the College erred by failing to provide him with proper notice;
e. That the investigation was flawed because of an incorrect patient chart;
f. That the ICRC decision was unreasonable by reason of investigative delay;
[21] The Motion Judge then concluded that having regard to the unexplained delay and the weakness of the application on the merits, she was not satisfied that there were apparent grounds for relief under s. 5(2) of the JRPA. She then went on to consider the issue of substantial prejudice or hardship to the College and concluded that there would be such prejudice to the College to allow judicial review after the caution had been administered. The result would be to undermine the College’s public interest mandate. The Motion Judge then awarded costs to the College in the amount of $20,000.
The Substantive Test Under r. 2.1.01
[22] Rule 2.1 establishes streamlined procedures that permit the court to fairly, and in a just manner, resolve a particular category of disputes in a timely, proportionate, and affordable way.
[23] The Court of Appeal for Ontario has highlighted on numerous occasions that dismissal of an action under r. 2.1.01 is reserved for the clearest of cases: Khan v. Law Society of Ontario, 2020 ONCA 320.
[24] At para. 15 of Khan v. Law Society, the court cautions judges regarding reliance on Rule 2.1.01:
We reiterate that judges should be cautious about allowing parties to have recourse to r. 2.1 except where it is plain and obvious on the face of the pleading that the action is frivolous, vexatious or an abuse of process. There are many other remedies provided for in the Rules of Civil Procedure by which parties can deal with cases that are not clear on the face of the pleading.
[25] In a decision released in early 2025, the Court of Appeal for Ontario again emphasizes that Rule 2.1 applies in limited circumstances: Kokic v. Johnson, 2025 ONCA 4, at para. 6. In the same paragraph, the Court of Appeal highlights that Rule 2.1 “serves an important role in screening out meritless claims that drain the limited resources of the justice system.”
[26] In Auguste v. Ottawa Police Service et al., 2025 ONSC 894, Corthorn J. set out certain principles to be applied by a judge considering a request under Rule 2.1:
• The statement of claim must be read generously. Drafting deficiencies may be overlooked and the plaintiff given the benefit of the doubt if it appears that the action might be viable;
• “Rule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves”: Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at para. 9;
• An action should be dismissed under r. 2.1 only if “the frivolous, vexatious, or abusive nature of the proceeding [is] apparent on the face of the pleading [and there is] a basis in the pleadings to support the resort to the attenuated process of rule 2.1” : Raji, at para. 9;
• The procedure under r. 2.1.01 should not be used as a substitute for a pleadings motion; and
• The procedure is intended to serve the purpose of “nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources”: Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664, at para. 3.
[27] In Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 21, Pepall J.A. stated, “Abusive litigants should be screened out of the system so that parties with true justiciable disputes may have them adjudicated by the courts.”
[28] To determine whether a proceeding may be characterized as “vexatious, frivolous or an abuse of the court”, Myers J. reviewed these notions in Gao v. Ontario WSIB, 2014 ONSC 6497, 37 C.L.R. (4th) 7, at para. 15. At para. 9, Myers J. refers to the definition in Black’s Law Dictionary of “frivolous”: "Lacking a legal basis or legal merit; not serious; not reasonably purposeful".
[29] Care is to be taken, however, not to dismiss an action out of hand simply because the plaintiff has either difficulty communicating their claim or has previously engaged in unsuccessful litigation. See Gao, at para. 18, wherein Myers J. says the following:
It should be borne in mind … that even a vexatious litigant can have a legitimate complaint. It is not uncommon for there to be a real issue at the heart of a vexatious litigant’s case. The problem is often that the litigant either cannot properly communicate the concern or, more typically, cannot accept that the law may not provide the remedy sought despite the unfairness felt by the litigant. While rule 2.1 should be applied robustly to bring an early end to vexatious proceedings, the matters should not be considered lightly or dismissively.
Analysis
[30] Judges determining a request under Rule 2.1 must “allow generously for drafting deficiencies and recognize that there may be a core complaint which is quite properly recognized as legitimate even if the proceeding itself is frivolously brought or carried out and ought to be dismissed”: Gao, at para. 18.
[31] I leave aside the deficiencies in form and turn to the substance of the Applicant’s motion to set aside. I find that the motion is simply an extension of the balance of the proceedings advanced by the Applicant. Throughout, the Applicant has missed applicable timelines, has raised unsubstantiated allegations involving various participants and decision makers and has failed to adequately address the substantive deficiencies in his application.
[32] I begin with the original Application for Judicial Review which was commenced far beyond the normal delay for commencing such a proceeding. This was identified by the Motion Judge in her decision refusing the request to extend time. The Applicant had the opportunity to explain the delay and to substantiate the merits of his application. The Applicant failed to meet the test for granting the extension of time and the Motion Judge’s decision properly addresses the applicable legal principles.
[33] The same pattern follows this motion to set aside the decision of the Motion Judge. That request did not follow the four-day timeline set out in Rule 61.16 and was brought 22 days late with no motion to extend time to file the motion to set aside.
[34] Consideration must also be given to the parallel proceeding that was dismissed by the Divisional Court for prematurity in November 2023 and then appealed to the Court of Appeal without being perfected. The Applicant has also neglected to pay the costs of the dismissed Divisional Court proceeding.
[35] The Applicant has demonstrated the hallmarks of vexatious and frivolous litigation.
[36] This view is confirmed by the substantive issues raised in the motion to set aside. The Applicant has failed to maintain his focus on challenging the substance of the Motion Judge’s decision. To the contrary, the Applicant embarked on a meritless attack on counsel for the Respondent and on the Motion Judge.
[37] The Applicant challenges the integrity of the lawyer for the Respondent by suggesting that she did not present his legal arguments. While the Respondent has an obligation to avoid misleading the court on the state of the law, there is no expectation that both sides of all arguments are to be presented. That is why we have an adversarial process, and the Applicant is expected to properly advance his position.
[38] He also saw fit to accuse the Motion Judge of bias. To advance the argument of an apprehension of bias because a judge participates in a continuing legal education session with a lawyer is preposterous. It shows a serious lack of judgment in advancing such a position and an attempt to bring a disruptive proceeding.
[39] There is no merit to the suggestion that the motion to extend was somehow flawed. Both parties had the opportunity to present their respective positions. The Applicant was given the opportunity to adequately explain the delay and failed to do so. The Motion Judge had the argument before her and was not persuaded by it.
[40] The Motion Judge considered the evidence and arguments on delay and properly determined that the delay was not adequately addressed. That decision was properly motivated and fully within her jurisdiction.
[41] Then, turning to the merits of the application, The Motion Judge provided a full analysis of the merits of the application. She considered the legal arguments and once again came to a conclusion that was entirely within her jurisdiction.
[42] When faced with the unfavourable decision by the Motion Judge, the Applicant neglected once again to follow the applicable rules and present his motion to set aside with all its additional unavailable relief within the applicable timelines. I have also considered paras. 15-23 of the Applicant’s Case Conference brief which are the paragraphs he relies upon regarding the alleged delay in filing the motion to set aside. Those arguments do not persuade me.
[43] The Applicant advances the argument that the timelines under Rule 61.16(6) only apply to appeals. That is clearly not the case as the s. 21(5) of the CJA relief has been used to review orders of judges sitting in the Divisional Court on applications for judicial review: see Marsden v. Her Majesty the Queen, 2012 ONSC 6118 and Kovacevic v. Kovacevic, 2022 ONSC 2389. There is no merit to the Applicant’s argument that there should not be a time limit to set aside an order made in a judicial review proceeding. There needs to be certainty surrounding challenging orders made by judges of the Divisional Court. While the delay set out under Rule 61.16(6) is short, it is necessary because it applies to numerous time-sensitive orders of this court such as eviction orders, that may require prompt judicial intervention. Accordingly, time is of the essence.
[44] Being out of time for his motion to set aside was not fatal on its own. It is compounded by the fact that, the Applicant did not seek leave to extend the time to bring the motion to set aside given his non-compliance with the Rules.
[45] This is another hallmark of a frivolous and vexatious proceeding. The pleading that cannot remain focused on the legal issues and raises irrelevant or scandalous issues in an attempt to direct the focus away from the true substantive issues. This is precisely what the Applicant has sought to do in response to this Rule 2.1 Notice. The Applicant has sought to tarnish the reputation of the opposing counsel and also to challenge the Motion Judge with scandalous accusations. Once again, trying to deflect the attention away from the lack of merit in his motion to set aside and his failure to respect the Rules. Of note, I have re-read the Applicant’s Rule 2.1 submissions and once again, he did not address the substantive issue of when he first formed an intention to commence this application.
[46] A further hallmark of a frivolous and vexatious proceeding is a tendency to seek relief to which a party is not entitled. In this motion to set aside, the Applicant has also gone beyond the substantive issues of the Motion Judge’s decision and has sought an order for a protective cost order which has nothing to do with the motion to extend time that was heard by the Motion Judge.
[47] On the face of the motion to set aside the order of the Motion Judge, the Applicant raises issues which seem justiciable. However, when read in conjunction with the decision of the Motion Judge, those issues are clearly frivolous and fail to demonstrate potential error. They simply restate the submission before the Motion Judge and do not demonstrate any error which could allow a panel of this court to set aside the decision. Specifically, at para. 38 of his submission on the 2.1 Notice, the Applicant alleges that the Motion Judge failed to address the issue of inordinate delay, a theme he repeats often in his submission. However, para. 47 of the Motion Judge’s decision clearly addresses the issue of investigative delay. The Applicant ignores this.
[48] There is simply no reasonable prospect of success in the Motion to set aside and it is clearly doomed to fail.
[49] Accordingly, those grounds raised that seek to challenge the integrity of opposing counsel and of the court are clearly vexatious as the unsustainable allegations are clearly vexatious: Mukwa v. Farm Credit of Canada, 2022 ONCA 320 at para 9.
[50] In addition, the motion to set aside is frivolous because it lacks a proper legal basis or legal merit to suggest that there is any error in the Motion Judge’s exercise of her discretion. The suggestion that she would have needed to address each and every point raised by the Applicant is without merit. The motion is frivolous because it does not raise any issues upon which it could be granted. The court will only interfere if the Motion Judge made an error of law or palpable and overriding error of fact: see Guillaume v. Barney Rivers Investments Inc., 2022 ONSC 1123 at para. 4.
[51] Finally, the motion is out of time. No motion has been brought to extend the time to file the motion under rule 61.16(6) of the Rules. Once again, the Applicant has failed to substantiate why he was unable to meet the requirements of the Rules. As previously stated by the Divisional Court, the failure to meet the timelines can be sufficient reason to dismiss the motion: see Kovacevic at para. 11.
[52] Accordingly, the motion to set aside is frivolous, vexatious and brought out of time. Pursuant to rule 2.1, the motion to set aside is dismissed.
Costs
[53] It is not uncommon for Rule 2.1 proceedings that the matter is decided without costs as respondents often participate voluntarily or are not called upon. However, should the Respondent request an award of costs, it may do so in writing and must address the court’s exercise of discretion in similar cases. Any written submissions by the Respondent shall be served and filed within 7 days and the Applicant will have 7 days to respond. The written submissions on costs shall not exceed 3 pages plus attachments.
Date: July 30, 2025
Justice Marc Labrosse
CITATION: Rowe v. College of Nurses of Ontario, 2025 ONSC 4437
OTTAWA COURT FILE NO.: DC-22-2755
DATE: 2025/07/30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CRAIG ROWE
Applicant
AND
COLLEGE OF NURSES OF ONTARIO
Respondent
ENDORSEMENT
Justice Marc R. Labrosse
Released: July 30, 2025