Court File and Parties

Court File No.: CV-19-00627566 Date: 2020-03-03 Superior Court of Justice - Ontario

Re: Marlene Jenkins, Plaintiff And: City of Toronto, Xavier Boothe, Shaun Booth, Rob Johnson, Local Union 79 and McTamney’s Jewellers, Defendants

Before: Madam Justice O’Brien

Counsel: M. Jenkins, for the Plaintiff S. Moutsatsos, for the Defendant, City of Toronto R. Church, for the Defendant, Local Union 79

Heard: In Writing

Endorsement

[1] By endorsement dated November 18, 2019, I directed the registrar to send a notice in Form 2.1A to the Plaintiff, inviting submissions as to why the court should not dismiss the action under r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as being frivolous, vexatious or an abuse of process. The Plaintiff provided responding submissions, which I directed the registrar to provide to counsel for the union, CUPE Local 79 (“CUPE”) and counsel for the City of Toronto. CUPE filed submissions in response to the Plaintiff’s submissions.

[2] Having reviewed the additional submissions, I conclude that it is obvious on the face of the Statement of Claim and considering Ms. Jenkins’ additional submissions that the action cannot succeed and therefore that it is frivolous and vexatious in the sense of being instituted without a reasonable basis: Gao v. WSIB, 2014 ONSC 6497.

[3] As set out in my endorsement dated November 18, 2019, the Statement of Claim and additional submissions do not set out a discernable cause of action against the Defendants. There are multiple allegations against various people and institutions that are not Defendants. In Ms. Jenkins’ additional submissions, she again has set out complaints against York University, the Toronto Children’s Aid Society, and other institutions that are not Defendants, as well as various individuals related to these institutions, who also are not Defendants. These allegations relate primarily to her daughter and grandson, who are not Plaintiffs.

[4] Ms. Jenkins does make some allegations related to the Defendants, Xavier Booth and the City of Toronto. Although these allegations do not set out a clearly discernable cause of action, they raise issues of the loss of Ms. Jenkins’ employment and allegations of bullying, racism and a toxic workplace. However, even if these allegations were more clearly set out, it does not appear that they raise a viable cause of action, as Ms. Jenkins was a unionized employee and member of CUPE Local 79. Courts typically find that the essential character of allegations of wrongful dismissal and a toxic work environment in a unionized context arise from the interpretation, application or alleged violation of the collective agreement and do not fall within the jurisdiction of the court: A. (K.) v. Ottawa (City) (2006), 80 O.R. (3d) 161 (C.A.). To the extent Ms. Jenkins is alleging racism in her workplace, the Ontario Human Rights Tribunal also may have jurisdiction: Ontario (Human Rights Commission) v. Naraine (2001), 209 DLR (4th) 465 (Ont. C.A.).

[5] Ms. Jenkins also makes some allegations related to CUPE Local 79. I understand these allegations to be that CUPE did not fairly represent her when she raised her workplace complaints. Again, the court does not have jurisdiction to address these types of claims. Claims related to the alleged failure of a union to adequately represent its member fall within the exclusive jurisdiction of the Ontario Labour Relations Board: Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 SCR 1298.

[6] Looking at the allegations against the union in isolation, it may be appropriate to allow them to stand, to be addressed on a r. 21 motion (which CUPE indicates that it intends to bring in the alternative) if Ms. Jenkins were seeking a viable remedy. However, viewing the Statement of Claim and additional submissions as a whole, I conclude that it is appropriate to strike out the Statement of Claim.

[7] Specifically, Ms. Jenkins’ claim is frivolous and vexatious as she does not claim remedies that are available through the court. Her Statement of Claim appeared to claim a systemic remedy as follows: “a sum of $300,0000.00 [sic] three hundred million for pain and suffering and for the rehabilitation of the youth and young people that I am working with now and others I forecast to work with in the future.” She further stated: “I want peace love and harmony in the country and the youth international community and this is why I am doing this – for the nation.”

[8] In her additional written submissions, Ms. Jenkins further made the following requests: Your honour I am asking you to do an investigation into some of the claims I have brought forward with respect to my work and the ethics of my labour and toil while on the job. I think it is very important for you to confirm in order, to decipher my intent while working with the young people in the community. I am asking Your Honour to please do an investigation to find out the truth and when you find out the truth please take the appropriate action to ensure that these people never commit this [sic] crimes ever again. And the thousands of other people that have done this before. My life has been ruined and no one is taking account for what they have done to me and my grandson has almost disappeared into thin air. I believe the pressure is on me to fix and correct this situation not, only by man but God or else I cannot go on and continue the work that I need to do. The work that is necessary for the betterment of mankind. This is why I am asking of the three hundred million dollars to start this organization for the young people who have been abused in many facets of life; social, emotional, financially, sexually, intellectual, culturally, racially, mentally and psychologically.

[9] I accept that Ms. Jenkins has a genuine belief in the work she wishes to accomplish. However, neither an investigation, nor the systemic remedies she seeks are within the jurisdiction of the court.

[10] Accordingly, the action is dismissed against all Defendants pursuant to r. 2.1. The court dispenses with any requirement to obtain the approval of Ms. Jenkins as to the form and content of the draft order.

O’Brien, J. Date: March 3, 2020