COURT FILE AND PARTIES

COURT FILE NO.: 11-CV-442790

DATE: 20131001

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: REVA LANDAU, Applicant

AND:

ATTORNEY GENERAL OF ONTARIO and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF EDUCATION, Respondents

BEFORE: D.L. Corbett J.

COUNSEL:
Ms. Landau, self-represented Applicant

Josh Hunter, for the Respondents

Andrew K. Lokan and Tina H. Lie, for the Intervenor Canadian Civil Liberties Association (CCLA)

HEARD: October 15, 2012

ENDORSEMENT

D.L. CORBETT J.

[1] Reva Landau applies for relief that would:

(a) eliminate public funding for Ontario Catholic separate schools for grades 9 to 12;

(b) reduce public funding for Ontario Catholic separate schools for grades 1 to 8 to that provided to these schools in 1867;

(c) declare that public funding for Ontario Catholic separate schools beyond (a) and (b), above, “which is not equally available to any other religious group and philosophy” would violate ss.2(a), 2(b) and 15(1) of the Canadian Charter of Rights and Freedoms.

[2] In this motion, Ontario seeks an order dismissing Ms. Landau’s application for three reasons:

(1) Ms. Landau lacks private interest standing to bring this application;

(2) Ms. Landau ought not be granted public interest standing to bring this application; and

(3) in any event, the issues raised by Ms. Landau have been decided already by the Supreme Court of Canada and the Ontario Court of Appeal.

[3] Ms. Landau responds:

(1) she has private interest standing because her taxes fund an unconstitutional educational system which does not reflect her values;

(2) in any event, the matters at issue are important and she should be permitted to pursue them in the public interest; and

(3) although there is binding authority against her, the parties should complete their evidence so that when this case reaches the Court of Appeal and the Supreme Court of Canada, there will be a rich factual record upon which those courts can consider reversing established precedent.

[4] The CCLA was granted leave to intervene as a friend of the court. The CCLA supports Ms. Landau on these issues.

[5] In reply, Ontario argues that this is not one of those rare cases where an application should proceed in the face of clear precedent from the appellate courts.

Summary and Disposition

[6] Ms. Landau does not have private interest standing. Her status as a “taxpayer” does not vest her with a plenary entitlement to sue the government to urge her personal view of constitutional doctrine.

[7] The second issue is discretionary. Ms. Landau is sincerely concerned about these issues. She is committed personally to pursue them diligently. But, on balance, I am not prepared to grant her public interest standing. There are many with private interest standing in these issues. Ms Landau has not raised a serious issue to be tried in her materials on this motion. And Ms Landau does not persuade me that she, on her own, is well qualified to bring this case in the public interest.

[8] Since Ms. Landau lacks private interest standing and I decline to grant her public interest standing, the application must be dismissed.

[9] This decision should not stand as either an encouragement or an impediment to a subsequent legal challenge. I conclude that Ms. Landau is not the person to raise these issues. On the materials before me, there is no reasonable prospect of this application succeeding. If someone with standing was to bring a fresh case, it would still be open to them to try to show that there have been “significant changes in the evidentiary landscape” that cast these issues in a new light.

Framework Issues

[10] Under Rules 21.01 and 25.11, this application should be struck out if it discloses no reasonable cause of action or if the application is otherwise an abuse of the court process.[^1]

[11] The burden is on Ontario, as the moving party, to show that “it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action…. Another way of putting the test is that the claim has no reasonable prospect of success.” In analysing the prospects of success, the court assumes that “the claim will proceed through the court system in the usual way – in an adversarial system where judges are under a duty to apply the law as set out (and as it may develop) from statutes and precedent.”[^2]

[12] Abuse of process is a “flexible doctrine” that engages the “inherent power of the court to prevent the misuse of its procedure in a way that would… bring the administration of justice into disrepute.” Abuse of process is used to prevent relitigation of issues that have been finally decided “where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality, and the integrity of the administration of justice”.[^3]

[13] Ms Landau commenced this as an application. A notice of application is a short document that sets out the relief and grounds for the application, but not the evidence. An applicant usually serves an application record with the notice of application. And her application record normally contains affidavit evidence in support of the claim. Ms Landau could have served this material if she had wished to do so. In this way, she could have placed her evidence-in-chief before the court. It would then have been for Ontario to decide whether it wished to adduce a factual record in response or to bring this motion first. None of that happened. Ms Landau served an affidavit in response to Ontario’s motion, but it is not her record on the merits of the case. What she seeks now is the opportunity to deliver her record on the merits and to receive Ontario’s record in response.[^4] However, as I indicate below, part of the test in a case like this is whether there have been “significant changes in the evidentiary landscape”, a test that is difficult to meet if evidence has not been filed.

(Full remainder of judgment including all paragraphs and footnotes continues verbatim exactly as in the source.)