CITATION: Berentschot v. Ontario, 2025 ONSC 4857

OSHAWA DIVISIONAL COURT FILE NO.: DC-25-1669-00JR

DATE: 20250825

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHELLE LORAINNE BERENTSCHOT

Plaintiff/Applicant

– and –

CHARLES PHILIP ARTHUR GEORGE MOUNTBATTEN-WINDSOR, AS HIS MAJESTY THE KING IN RIGHT OF ONTARIO, AS REPRESENTED BY; ARIF VIRANI, AS THE ATTORNEY GENERAL OF CANADA, DOUG DOWNEY, AS THE ATTORNEY GENERAL OF ONTARIO AND ON BEHALF OF THE MEN OR WOMEN, AS AGENTS OF THE CROWN and PATRICIA DEGUIRE, AS CHEIF COMMISSIONER OF ONTARIO HUMAN RIGHTS COMMISSION

Defendants/Respondents

Michelle Lorainne Berentschot, Self-Represented

Sara Badawi, Counsel for the Defendants/Respondents, His Majesty the King in Right of Ontario and the Ontario Human Rights Commission

Emmette Bisbee, Counsel for the Defendant/Respondent, Attorney General of Canada

HEARD: In-Writing

REASONS FOR DECISION

CHARNEY J.:

[1] The Applicant has brought an Application for Judicial Review of the decision of Justice C.M. Smith dated May 22, 2025, dismissing the Applicant’s claim pursuant to Rule 2.1.01(1) of the Rules of Civil Procedure, and the decision of Justice Leibovich dated July 10, 2025, dismissing the Applicant’s motion to “reconsider” the decision of Justice Smith.

[2] On July 31, 2025, I directed the Registrar to give notice to the Applicant that the Court was considering making an order dismissing her application under Rule 2.1.01.

[3] My Endorsement of July 31, 2025 stated:

The Application for Judicial Review appears on its face to be frivolous, vexatious or an abuse of process.

The Divisional Court does not have jurisdiction to entertain an application for judicial review of a Superior Court Judge, but only those of an “inferior court”: Judicial Review Procedure Act, RSO 1990, c. J.1, s. 1. See: Bevan v. Ontario Society for the Prevention of Cruelty to Animals, 2006 10140 (ON CA), at para. 8; 1147335; 9383859 Canada Ltd. v. The Court of Appeal for Ontario, 2023 ONSC 5344, at para. 10; Kostiuk v. Liu, 2024 ONSC 3500, at paras. 4 and 5.

Decisions of Superior Court may be appealed to the Divisional Court or the Court of Appeal depending on the nature of the Order to be appealed and whether leave to appeal must first be obtained: see sections ss. 6 and 19 of the Courts of Justice Act. An appeal from the decision of Justice Smith to dismiss the action lies to the Court of Appeal.

Pursuant to Rule 2.1.01, the registrar is directed to send notice to the Applicant in Form 2.1A to provide the Applicant with one opportunity to explain why the Application should not be dismissed in accordance with the process set out in Rule 2.1.01(3).

[4] The Applicant provided her response on August 18, 2025. She takes the position that because the application is “constitutional in nature” Rule 2.1 “is not a proper basis to summarily extinguish Charter claims, which must be heard on their merits under s. 24(1)” of the Charter. She asserts that “Charter applications, by their very nature, cannot be frivolous ‘on their face’.” She asserts that the Divisional Court has jurisdiction to hear this application pursuant to s. 24(1) of the Charter, and that this “supersedes conflicting statutory interpretation”.

Rule 2.1

[5] Rule 2.1.01 permits the court to stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of process of the court. In Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6100, at para. 9, Myers J. explained:

Rule 2.1 is not meant to apply to close calls. It is not a short form of summary judgment. But that does not mean that it is not to be robustly interpreted and applied. Where a proceeding appears on its face to meet the standards of frivolous, vexatious or an abuse of process, the court should be prepared to rigorously enforce the rule to nip the proceeding in the bud. Rigorous enforcement of this rule will not only protect respondents from incurring unrecoverable costs, but should positively contribute to access to justice by freeing up judicial and administrative resources that are so acutely needed to implement the “culture shift” mandated by the Supreme Court of Canada. The new rule tailors appropriate procedural fairness for the category of cases involved and is an example of early resolution of civil cases that is very much in line with the goals set out in Hryniak.

[6] See also: Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, at paras. 8-9.

[7] In Wang v. Canada, 2025 ONSC 4261, at paras. 5-7 (footnotes omitted), Centa J. stated:

A frivolous proceeding lacks a legal basis or legal merit or has been brought without reasonable grounds. A frivolous proceeding is one that is readily recognizable as devoid of merit, as one having little prospect of success. A frivolous action is one that will necessarily or inevitably fail.

A vexatious application is one taken to annoy or embarrass the opposite party or is conducted in a vexatious manner.

The court is not to use rule 2.1.01 for close calls. However, neither the opposing parties nor the court should be required to devote scarce resources to proceedings that are clearly frivolous. Allowing such proceedings to occupy space on the court docket takes time away from other, more meritorious cases. There is simply no benefit to allowing clearly frivolous proceedings to continue.

[8] Any attempt to bring a claim in a court that has no jurisdiction to grant the relief sought qualifies as an abuse of process, even if the claim is not otherwise frivolous or vexatious: Edusei v. Philips, 2025 ONSC 4723, at para. 17.

Analysis

[9] The Divisional Court is a statutory court and has no jurisdiction other than that conferred on it by statute: Re Service Employees International Union, Local 204 and Broadway Manor Nursing Home et al., 1984 2112 (ON CA); Wabinski v. Pickleball Ontario, 2023 ONSC 7020, at para. 2; Harris-Saunders v. Toronto, 2021 ONSC 1407, at para. 14.

[10] As indicated, the Divisional Court does not have jurisdiction to entertain an application for judicial review of a Superior Court Judge, but only those of an “inferior court”. This is by virtue of the definition of “statutory power of decision” in s. 1 of the Judicial Review Procedure Act (JRPA), which includes “the powers of an inferior court”. Judicial Review in the context of the JRPA is a public law concept that establishes a statutory court to review the decisions of tribunals and inferior courts (and other persons exercising statutory powers) to ensure that these tribunals respect the rule of law: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, at para. 13.

[11] Decisions of Superior Court judges are subject to review by the Court of Appeal or the Divisional Court by way of appeal: ss. 6 and 19 of the Courts of Justice Act.

[12] The fact that the Applicant in this case characterizes her claim as a “Charter” claim does not immunize it from Rule 2.1, nor does s. 24(1) of the Charter operate as an independent source of jurisdiction: Mills v. The Queen, 1986 17 (SCC), [1986] 1 SCR 863, at paras. 261-262. “Section 24(1) gives no jurisdictional or procedural guide”, Mills at para. 267.

[13] As a statutory court, the Divisional Court’s jurisdiction must be found in its enabling statute, in this case, the JRPA. The Charter does not expand these statutory limits.

[14] Since the Divisional Court has no jurisdiction to judicially review the decision of a Superior Court judge, the Application for Judicial Review is dismissed under Rule 2.1.01 as an abuse of process. There will be no order as to costs.

Justice R.E. Charney

Released: August 25, 2025

CITATION: Berentschot v. Ontario, 2025 ONSC 4857

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHELLE LORAINNE BERENTSCHOT

Plaintiff/Applicant

– and –

CHARLES PHILIP ARTHUR GEORGE MOUNTBATTEN-WINDSOR, AS HIS MAJESTY THE KING IN RIGHT OF ONTARIO, AS REPRESENTED BY; ARIF VIRANI, AS THE ATTORNEY GENERAL OF CANADA, DOUG DOWNEY, AS THE ATTORNEY GENERAL OF ONTARIO AND ON BEHALF OF THE MEN OR WOMEN, AS AGENTS OF THE CROWN and PATRICIA DEGUIRE, AS CHEIF COMMISSIONER OF ONTARIO HUMAN RIGHTS COMMISSION

Defendants/Respondents

REASONS FOR DECISION

Justice R.E. Charney

Released: August 25, 2025