Court File and Parties
Court File No.: CV-19-118 Date: 2019-04-18 Ontario Superior Court of Justice
Between: Navin Joshi, Applicant – and – Her Majesty the Queen in Right of Ontario, Respondent
Counsel: Navin Joshi, for himself Thomas Lipton, for the respondent
Read: April 18, 2019 Before: F.L. Myers J.
Reasons for Decision
This Proceeding
[1] By letter dated January 23, 2019, submitted under Rule 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, counsel for the respondent asked the court to consider making an order dismissing this application under Rule 2.1.01(1). The applicant delivered a letter dated January 25, 2019 responding to the request before the court had considered the matter.
[2] On February 22, 2019, after reviewing the file, Coats J. directed the registrar to serve a notice on the applicant to advise him that the court was considering dismissing this application under Rule 2.1. The applicant responded with further submissions by letter dated March 4, 2019.
[3] By endorsement dated March 14, 2019, Coats J. directed the registrar to send a copy of the applicant’s submissions to the respondent under Rule 2.1.01(4). The respondent had ten days from its receipt of the applicant’s submissions to deliver its own submissions in reply under Rule 2.1.01(5). The respondent delivered submissions dated April 1, 2019.
[4] I am therefore dealing with the issue joined by the parties of whether this application ought to be dismissed summarily under Rule 2.1.01(1).
This Application
[5] The applicant seeks compensation from the Province of Ontario for alleged violations of his right to equality under the law guaranteed by s. 15 of the Canadian Charter of Rights and Freedoms. He claims that his constitutional rights have been violated by: a number of judges of this court (including a Deputy Judge of the Small Claims Court and judges sitting on the Divisional Court); several judges of the Court of Appeal for Ontario, the Federal Court of Canada, and the Saskatchewan Court of Queen’s Bench; a number of federal and provincial administrative tribunals; and a number of adjudicative officers associated with those tribunals. His claims all boil down to a fundamental allegation that his constitutional right to equality under the law has been violated by decisions made by the judges and quasi-judicial decision-makers in civil and criminal law cases that went against him. He claims that he has suffered systemic racism in his unsuccessful legal proceedings spanning over 31 years and he wants compensation from Ontario for his claimed losses of more than $100 million under s. 24 of the Charter.
The Applicant has made these same claims already
[6] This is not the first time that the applicant has sought this relief. His three most recent proceedings before this court in Brampton sought relief on the same grounds and were all dismissed under Rule 2.1.
[7] In Joshi v The Attorney General of Canada (unreported decision of Tzimas J. dated November 24, 2017) the court dismissed the applicant’s claims against the Governments of Canada, Saskatchewan, and Ontario under Rule 2.1. Justice Tzimas noted that the applicant’s allegations against judicial officers are to be addressed by way of appeal and not by separate civil proceedings.
[8] By endorsement dated April 18, 2018, the Court of Appeal found that the applicant’s appeal from Justice Tzimas’s decision was also frivolous, vexatious, and an abuse of process. It dismissed the appeal summarily under Rule 2.1. In its endorsement the court expressly adopted the reasons given by Justice Tzimas.
[9] The Supreme Court of Canada dismissed the applicant’s application for leave to appeal from the decision of the Court of Appeal. Navin Joshi v. Attorney General of Canada, et al., 2018 SCC 119136.
[10] By an unreported, handwritten endorsement dated July 12, 2018, Tzimas J. dismissed under Rule 2.1 another attempt by the applicant to sue the same three governments based on the same allegations. (Joshi v Canada, CV-17-4800).
[11] In Joshi v. Canadian Imperial Bank of Commerce, 2018 ONCA 537, the Court of Appeal upheld the dismissal of another proceeding by the applicant in which he also challenged his prior unsuccessful proceedings before the Canadian Human Rights Commission, a Canada Labour Code adjudicator, the Federal Court, and the Federal Court of Appeal. The Court of Appeal held that there is no merit in the applicant’s claim that these decisions amount to an infringement of his constitutional rights under s. 15(1) of the Charter.
[12] The Supreme Court of Canada dismissed the applicant’s application for leave to appeal from the decision of the Court of Appeal. Navin Joshi v. Canadian Imperial Bank of Commerce, et al., 2018 SCC 119131.
Rule 2.1
[13] Rule 2.1 provides a summary process to allow the court to weed out litigation that is plainly frivolous, vexatious, or an abuse of process. In Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 the Court of Appeal set out the parameters for the application of the rule as follows:
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.
[14] The applicant submits that he has asserted a cause of action under the Charter and that is sufficient to satisfy Rule 2.1. He points to the Court of Appeal’s decision in Khan v Krylov, 2017 ONCA 625 for the proposition that where an originating process sets out a known cause of action, it should be allowed to proceed.
[15] The applicant also argues that because he seeks relief under the constitution, Rule 2.1 should not apply. Otherwise an aggrieved party could never seek Charter relief without facing dismissal.
[16] Finally, he pleads that the judicial system treats “a person of colour and/or the self-represented with disrespect, indignity and malice while it treats a white party and/or the represented party with respect, dignity, and favour.” He says that the respondent would “rather defend, condone and sanction systemic racism, xenophobia and nepotism in our justice system than to admit the Charter violations.”
[17] In my view, this is not a case like Khan in which a statement of claim appeared to plead a cognizable cause of action and in which there was no apparent reason to resort to the summary process of Rule 2.1. Rather, the present proceeding is one of the “clearest cases” as referred to by the Court of Appeal in Scaduto. The Notice of Application and the applicant’s submissions bear both attributes of a proceeding to which Rule 2.1 applies. The abusive nature of the proceeding is apparent on its face and there is ample reason to apply the summary or attenuated process of Rule 2.1.
[18] On its face, the application against Ontario is based on the baldest of allegations of systemic racism. But the only particulars of the breaches pleaded by the applicant relate to the fact that he has repeatedly been unsuccessful in litigation. The applicant understands from prior decisions that he cannot sue for compensation based on allegations that judges and quasi-judicial decision-makers violated his rights by deciding the cases before them. The applicant was entitled to appeal or to seek judicial review of any decision that he believed to be wrongly decided. But the Supreme Court of Canada has determined that judicial immunity bars claims for compensation in such circumstances. Morier and Boily v. Rivard, [1985] 2 SCR 716, 1985 SCC 26, at paras. 110 and 112.
[19] Moreover, the Court of Appeal has already found that there is no merit in the applicant’s claims that his equality rights under the Charter were violated by his prior litigation outcomes. Furthermore, the Court of Appeal upheld the use of Rule 2.1 and dismissed an appeal to itself under Rule 2.1 thereby confirming that Rule 2.1 does indeed allow courts to weed out frivolous and vexatious proceedings even when Charter remedies are claimed.
[20] As to the reason to resort to the attenuated process of Rule 2.1, the applicant’s attempt to litigate the same points that have already been dismissed multiple times is an abuse of process. In Scaduto the Court of Appeal approved of the use of Rule 2.1 where a party seeks to re-litigate an issue that has already been determined against him or her. In light of the repeated dismissals of the same claims by this court and the Court of Appeal, in my view, in addition to being an abuse of process, this proceeding is manifestly vexatious.
[21] The applicant has persistently and without reasonable grounds instituted frivolous, vexatious, and abusive proceedings in this court. In my view this is a proper case in which Rule 2.1 allows the court to end an abusive piece of litigation summarily to prevent the applicant’s misuse of the court’s process before it costs the respondent significant time and legal expense to respond to a meritless and vexatious claim.
Outcome
[22] This application is therefore dismissed under Rule 2.1.01(1).
[23] The respondent may deliver no more than three pages of costs submissions plus a costs outline setting out both the quantum and scale of costs that it seeks by no later than April 26, 2019. The applicant may respond by no more than three pages of submissions to be delivered by May 3, 2019. Costs submissions should be sent to the court in searchable PDF format attached to an email to my Assistant. No copies of case law or statutory materials are to be sent to me. Rather, references to case law and statutory materials, if any, shall be made by hyperlinks embedded in the parties’ submissions.
[24] The court dispenses with any requirement for the applicant to approve the form or content of the formal order implementing the terms of this order.
[25] For the reasons set out by Marrocco ACJSC in Ellis v Wernick, 2017 ONSC 1461, at para. 10, I order that in the event that the applicant has a fee waiver in this proceeding, it is revoked. In addition, unless the applicant obtains an order of the court in advance, no further fee waivers are to be issued to the applicant by any registrar in any court office of the Superior Court of Justice in connection with this proceeding or any proceeding that the applicant proposes to commence or continue against the respondent or any other party claiming compensation or any other relief regarding the outcome of prior litigation.
[26] In addition to the service by mail required by Rule 2.1.01(4), the registrar is to send a copy of this endorsement to the applicant and counsel for the respondent by email if it has their email addresses.