Court File and Parties

COURT FILE NO.: CV-16-555099 DATE: 20160729 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Eugene D’Orazio, Applicant – and – Attorney General of Ontario, Respondent

BEFORE: F.L. Myers J.

READ: July 29, 2016

Endorsement

[1] This application was referred to the court by the registrar upon receiving a written request from the respondent under Rule 2.1.01(6) of the Rules of Civil Procedure. The applicant received a copy of the respondent’s request and has already delivered written submissions although no notice in Form 2.1A has been sent to him.

[2] The application involves a constitutional challenge to parts of the Human Rights Code, RSO 1990, c H.19, which, the applicant contends, violate the equality rights protected by s. 15 of the Canadian Charter of Rights and Freedoms and are otherwise beyond the legislative competence of the Province of Ontario under the Constitution Act, 1867.

[3] The applicant acknowledges that he brought a similar constitutional challenge before this court in 2015. That case was dismissed by Wright J. on the basis that the applicant lacked standing to bring the constitutional claim that he wishes to bring. That is, Wright J. held that the applicant lacked a personal legal interest in the subject matter of the claim and that he did not meet the three-part test to establish that he is a proper person who should be recognized to represent the public generally in advancing this type of claim. A person with no “standing” has no right to sue. Therefore, Wright J. dismissed his claim.

[4] The applicant takes umbrage with portions of Justice Wright’s reasons in which Her Honour found that the application before her, as drafted, was “almost indecipherable” and “[a]t points, ìt is completely incomprehensible.” His objection is that Justice Wright seemed to have engaged in an “academic evaluation of a poorly written research essay” and that she “failed to follow the long standing tradition of discussing the respective merits, or lack thereof” of his claim. He says that Justice Wright’s reasons are not a credible basis to deny him standing under Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 SCR 524, 2012 SCC 45. Moreover, he says that the costs award made against him by Justice Wright was punitive and violated his constitutional protection against cruel and unusual punishment.

[5] The applicant summarizes his submissions as follows:

The critical point is this: If the Court finds Justice Wright’s decision acceptable, by all means “stay” or “dismiss the proceedings.” The A/G’s office would be correct in requesting so. [Emphasis in original]

[6] I note that Justice Wright was not analyzing the plaintiff’s language skills in the abstract. Rather, she set out the three-part test for public interest standing and discussed her concerns with the manner in which the applicant presented his claim as part of her discussion of the third step. That is, she looked at the claim itself in assessing whether the claim was a “reasonable and effective means of bringing the issue before the court” as that test was set out by the Supreme Court of Canada. She held that the applicant’s claim did not meet that standard.

[7] The applicant is content with the dismissal of this proceeding if the court finds Justice Wright’s decision “acceptable.” But that is not a decision that the applicant can ask this court to make. If the applicant was not content with Justice Wright’s decision, his remedy, if any, was in that proceeding whether by way of appeal or otherwise. It is an abuse of process to commence a second proceeding to obtain the same relief as has previously been decided. Toronto (City) v. C.U.P.E., Local 79, [2003] 3 SCR 77, 2003 SCC 63, at para. 37. Moreover, this court has no jurisdiction to review the decision of Wright J. for “acceptability” or otherwise.

[8] The application before the court is an abuse of process and bears many of the hallmarks of a querulous litigant. Therefore, I am content that the matter is properly resolved under Rule 2.1 of the Rules of Civil Procedure. Gao v. Ontario WSIB, 2014 ONSC 6497, at para. 15.

[9] This application is therefore dismissed. Costs are payable by the applicant to the respondent on a partial indemnity basis forthwith after the assessment thereof by an assessment officer. The court dispenses with any requirement that the applicant approve the form or content of the formal order. The court directs the registrar to send a copy of this endorsement to the parties by email if it has their email addresses and by mail. In addition, the registrar shall serve the formal order on the applicant as set out in Rule 2.1.01(5) of the Rules of Civil Procedure.

F.L. Myers J.

Date: July 29, 2016