Court File and Parties

Citation: McQueen v. Douglas, 2026 ONSC 428 Divisional Court File No.: DC-00000819-00JR Date: 2026-01-29 Superior Court of Justice – Ontario Divisional Court

Re: Penny Eileen McQueen, Applicant And: Justice P.A. Douglas, Regional Senior Justice Edwards, Deputy Judge Bigioni, Deputy Judge Dalton Burger, Referee Theresa Jenkinson, Ministry of the Attorney General of Ontario, Kim Etherington, Samantha Tkalec, Respondents

Before: Shore J. Heard at Toronto: January 21, 2026, in writing

Endorsement

[1] The applicant seeks judicial review of Justice Douglas’s finding, set out in a letter dated September 4, 2025, that there was no misconduct by two Associate Judges and that there is no jurisdiction to review the conduct of a Referee.

[2] On September 5, 2025, after review of the Application for Judicial Review, I directed the Registrar to give the applicant notice in Form 2.1A that the court is considering dismissing the appeal because:

(a) the application does not contain any grounds for judicial review;

(b) the application appears to be a collateral attack on (or an appeal of) the underlying orders; and

(c) the court lacks jurisdiction.

[3] Under the provisions of Rule 2.1.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the applicant was invited to file written submissions within 15 days, consisting of no more than 10 pages explaining why the application should not be dismissed. The applicant provided submissions.

[4] Having reviewed the applicant's materials, including their response to the Rule 2.1 Notice, I am satisfied that the application for judicial review should be dismissed pursuant to Rule 2.1 of the Rules of Civil Procedure.

Background

[5] The applicant made a complaint to Justice Douglas, in his role as the Administrative Judge for the Small Claims Court, against Deputy Judge Burger, Deputy Judge Bigioni and against Referee Jenkinson.

[6] The applicant relied on Rule 33.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43:

33.1 (1) Any person may make a complaint alleging misconduct by a deputy judge, by writing to the judge of the Superior Court of Justice designated by the regional senior judge in the region where the deputy judge sits. 1994, c. 12, s. 13; 1996, c. 25, s. 9 (17)

(2) The judge shall review the complaint and may dismiss it without further investigation if, in his or her opinion, it falls outside the jurisdiction of the regional senior judge, is frivolous or an abuse of process, or concerns a minor matter to which an appropriate response has already been given. 1994, c. 12, s. 13.

[7] In a letter dated September 4, 2025, Justice Douglas advised the applicant that he had no jurisdiction to make findings against Referee Jenkinson, and that based on the complaint, he found there was no misconduct by the two Deputy Judges. At the outset of the letter, Justice Douglas explained as follows:

Misconduct is measured against the Ethical Principles for Judges which bind all deputy judges. A conduct complaint is not an appeal. I cannot change a deputy judge's decision. If you wish to challenge a deputy judge's decision, there may be other avenues open to you, including appeal.

[8] Justice Douglas then went through each of the complaints, explaining why he either had no jurisdiction or why he did not find misconduct.

Rule 2.1:

[9] Rule 2.1.01 outlines a process that permits the court to bring fair and just resolutions to a particular category of disputes in a proportionate, timely and affordable way. Under Rule 2.1.01(1) and 2.1.01(3), the Court may on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the court's process.

[10] The principles to be applied by a judge considering a requisition under Rule 2.1.01 include, but are not limited to, the following:

(a) 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;

(b) "[R]ule 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;

(c) An action should be dismissed under Rule 2.1 only if there is "a basis in the pleadings to support the resort to the attenuated process" resulting from the use of the rule: Raji, at para. 9;

(d) The procedure under Rule 2.1 should not be used as a substitute for a pleadings motion; and

(e) 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

[11] The Court of Appeal provided the following direction with respect to the use of Rule 2.1.

Under this line of authority, the court has recognized that the rule should be interpreted and applied 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. However, the use of the rule should be 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 support the resort to the attenuated process: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 OAC 87, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488.

[12] Having set out the law with respect to Rule 2.1, I will turn to the application of the law to the facts of this case.

Analysis:

[13] The applicant seeks the following relief in the application for judicial review:

(a) An order quashing the decision of Justice Douglas dated September 4, 2025, as unreasonable, procedurally unfair, and contrary to natural justice.

(b) A declaration that the acts of the Referee and Deputy Judges were ultra vires and in violation of the Rules of the Small Claims Court.

(c) A declaration that the Respondents' conduct infringed the Applicant's rights under sections 7, 15, and 24(1) of the Canadian Charter of Rights and Freedoms.

(d) An order staying all proceedings in Small Claims Court File SC-25-00000081-0000/00D1 pending the outcome of this Judicial Review.

(e) Costs and such further and other relief as this Honourable Court deems just.

[14] The entirety of the applicant's grounds for judicial review, as set out in the Application are as follows:

(a) The Referee acted beyond her jurisdiction by issuing endorsements ordering disclosure and amending the Applicant's claim without a motion, contrary to the Rules of the Small Claims Court.

(b) Deputy Judge Dalton Burger improperly signed the referee endorsements 39 days after the motion was heard by Deputy Judge Bigioni, rendering the decision ultra vires.

(c) RSJ Edwards and Justice Douglas failed to exercise their supervisory jurisdiction and enforce compliance with court rules.

(d) The September 4, 2025 decision ignored clear evidence of procedural unfairness, failed to provide reasons, and perpetuated discrimination against the Applicant as a Métis woman.

(e) The cumulative failures have deprived the Applicant of her rights to procedural fairness and equality under sections 7, 15, and 24(1) of the Charter.

No jurisdiction to order relief requested:

[15] This Court does not have jurisdiction to order some of the relief requested, and therefore these claims should be dismissed.

[16] The application for judicial review is with respect to the decision of Justice Douglas, dated September 4, 2025. This Court does not have jurisdiction to interfere with or stay the orders made by the Deputy Judges or the Referee, because they are not properly before the court. The applicant's recourse for those decisions lies in an appeal or an application for judicial review of those decisions. Those steps were not taken.

[17] The relief requested under 13(b) and (d) above are therefore dismissed for lack of jurisdiction.

No claims made against various parties:

[18] The applicant included Kim Etherington, Samantha Tkalec and RSJ Edwards as defendants in the style of cause but failed to specify any claims and/or relief sought against them. The claims against these respondents are dismissed.

[19] The applicant included eight respondents in her application. As set out above, the claims against the Referee and the Deputy Judges are dismissed for lack of jurisdiction. The applicant sought judicial review of Justice Douglas’s administrative decision, dated September 4, 2025. There is no mention of the other respondents, and/or any decisions made by those respondents for which the applicant seeks judicial review. It is impossible to know, from the application, what claims or grounds exist as against the other respondents or what their involvement was in the decision for which the applicant seeks judicial review.

[20] As such, the claims against Kim Etherington, Samantha Tkalec and RSJ Edwards are dismissed.

No grounds pleaded:

[21] I must now consider the grounds for judicial review of the administrative decision of Justice Douglas and whether the claim appears on its face to be frivolous or vexatious or otherwise an abuse of the court's process.

[22] With respect to the sufficiency of the claims set out in the application, Justice Trimble provided some guidance in T.B. v. OCL, 2016 ONSC 3816, at para. 19:

In determining whether a Statement of Claim or motion should be dismissed under Rule 2.1, the Statement of Claim, especially when drawn by a self-represented litigant as in this case, should be read generously. The words that the Plaintiff uses should be given their broadest ordinary meaning. The court should search for the cause of action which may be expressed inelegantly by the litigant, buried among statements that may be vexatious or superfluous, to find what Myers J called "a core complaint". This does not mean, however, that the claim should be read over-broadly, that the words used should be given a tortured meaning, or the rules of pleading should be abandoned merely because the litigant the [sic] self-represented. The rules of pleading still apply. A cause of action and the facts supporting each of the elements of the cause of action must be pleaded. (emphasis added)

[23] The applicant has asked for "[a] declaration that the Respondents' conduct infringed the Applicant's rights under sections 7, 15, and 24(1) of the Canadian Charter of Rights and Freedoms." The only ground for this claim, is a repeat of the relief requested: “The cumulative failures have deprived the Applicant of her rights to procedural fairness and equality under sections 7, 15, and 24(1) of the Charter”, and “[t]he Applicant intends to raise constitutional questions regarding violations of sections 7, 15, and 24(1) of the Canadian Charter of Rights and Freedoms. Notice will be served upon the Attorney General of Ontario and the Attorney General of Canada pursuant to section 109 of the Courts of Justice Act”.

[24] The allegations with respect to the Charter infringement are bare or bald statements unsupported by any facts necessary to sustain them. The only reference to a Charter right was a claim that Justice Douglas “perpetuated discrimination against the Applicant as a Métis woman”. It is impossible to know from the application what actions, if any, infringed the Applicant’s rights. Therefore, on their face, I find they are frivolous and should be dismissed.

[25] That leaves just one head of relief: An order quashing the decision of Justice Douglas dated September 4, 2025, as unreasonable, procedurally unfair, and contrary to natural justice.

[26] The applicant submits that Justice Douglas failed to exercise his supervisory jurisdiction and enforce compliance with court rules and that "the decision ignored clear evidence of procedural unfairness, failed to provide reasons, and perpetuated discrimination against the Applicant as a Métis woman".

[27] The complaint is that the underlying orders were procedurally unfair. As set out above, the correct route to challenge or question the underlying orders was to bring an appeal. The applicant failed to do so. The role of the administrative judge is limited to complaints alleging misconduct.

[28] Further, there are no facts or particulars pleaded to support any of the grounds raised by the applicant. The purpose of the notice of application is to provide sufficient notice to the responding party of matters in issue, so they can provide a meaningful response. For the court, the notice serves as the framework for the adjudication. The grounds here are nothing but bare and bald allegations. Therefore, on their face, they too are frivolous and should be dismissed.

Disposition:

[29] The application for judicial review is dismissed pursuant to Rule. 2.1 of the Rules of Civil Procedure.

[30] The respondents were not required to make any submissions in response to the Court's Rule 2.1 notice. As a result, no costs are ordered.

Shore J.

Date: January 29, 2026