COBOURG COURT FILE NOS.: CV-76-20
CV-78-20
CV-79-20
DATE: 20201211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ATTORNEY GENERAL FOR CANADA
Respondent
– and –
FRANK DORSEY
CORY NEWTON
GHASSAN SALAH
Applicants
John Provart, Benjamin Wong, and Jacob Tollice, for the Respondent
Simon Borys and Kate Mitchell, for the Applicants
HEARD: by written submissions
REASONS FOR RULING ON R. 2.1.01 MOTION
SPEYER J.
Introduction
[1] The applicants are inmates in penitentiaries operated by the Correctional Service of Canada (“CSC”). They have each applied, pursuant to the Habeus Corpus Act, R.S.O. 1990, c. H.1, and the Canadian Charter of Rights and Freedoms, ss. 7, 9, 10(c), and 12, for a writ of habeus corpus ad subjicendum, with certiorari in aid if necessary, for orders that they be transferred to minimum-security institutions unless the respondent, on behalf of the CSC, can justify their continued detention in a medium-security penitentiary.
[2] The applicants plead that their requests for transfers to minimum-security institutions were denied even though they met the statutory criteria for placement in a minimum-security institution, and that their continued detention in medium-security institutions is unlawful.
[3] The Respondent Attorney General of Canada (“Canada”) requests that the applications be summarily dismissed, pursuant to Rule 2.1.01(1) and (6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Canada argues that the applications are frivolous because they have no chance of success.
[4] Canada made its request in writing. In accordance with Rule 2.1.01(3), the applicants were given an opportunity to make submissions and have done so in writing. Canada filed written responding submissions.
The positions of the parties
[5] By letter, Canada requests that the applications be summarily dismissed, pursuant to Rules 2.1.01(1) and (6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, because the applications have no chance of success and are therefore frivolous. In its letter, Canada argues that it is clear on the face of the Notices of Application that the applications are frivolous and that they can be determined without a full hearing. Canada argues that the applicants cannot establish the first pre-requisite to habeas corpus review, because their residual liberty interests have not been reduced or restricted by CSC’s decisions to deny their requests for transfer to minimum security institutions, and therefore the applications should be summarily dismissed as frivolous. Canada argues that the jurisprudence clearly establishes that habeus corpus is not available to remedy the applicants’ complaints because denial of an application for transfer to an institution with a lower security classification does not amount to a deprivation of liberty.
[6] Canada’s position challenges the viability of the applications on their merits. Canada does not argue that the applications involve re-litigation of claims previously advanced by these applicants. Canada does not suggest that the applicants have a history of litigation with Canada.
[7] The applicants respond that their applications are not within the category of the clearest of cases that warrant dismissal pursuant to Rule 2.1.01. They argue that these are test cases that challenge a refusal-to-transfer decision in light of recent appellate decisions, including from the Supreme Court of Canada, that affirm the importance of access to habeus corpus, which is available to remedy a wide variety of ongoing deprivations of residual liberty. The applicants point to judicial decisions that conflict with those relied on by Canada. They submit that their argument that denial of their applications for transfer to institutions with lower security classifications amounts to deprivation of their residual liberty is not frivolous.
Rule 2.1.01 – Governing principles
[8] Rule 2.1.01(1) provides a streamlined procedure for disposing of litigation that is frivolous, vexatious, or otherwise an abuse of the process of the court. The Rule provides:
2.1.01 (1) 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 process of the court. O. Reg. 43/14, s. 1.
[9] The principles that govern the application of Rule 2.1 were recently summarized by the Ontario Court of Appeal in Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8:
Rule 2.1 must 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”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488. The Rule is not for close calls — it may be used only in “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, at paras. 8-9; Khan v. Law Society of Ontario, 2020 ONCA 320 (“Khan”), at para. 6, leave to appeal to S.C.C. requested, 39321.
A motion under r. 2.1 focuses on the pleadings and any submissions of the parties made under the rule. No evidence is submitted on a r. 2.1 motion: Scaduto, at paras. 9, 11-12. A court may, however, review reasons and pleadings from other proceedings to determine whether the case is abusive: Khan, at para. 9.
Rule 2.1 does not replace other rules in the Rules of Civil Procedure to strike out actions or to deal with other procedural irregularities summarily: Khan, at para. 7. The rule is “not meant to be an easily accessible alternative to a pleadings motion, a motion for summary judgment, or a trial”: Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 12; P.Y. v. Catholic Children’s Aid Society of Toronto, 2020 ONCA 98, at para. 11. The Rules provide many other remedies to address cases that are not clear on the face of the pleading: Khan, at para. 15.
The case law under r. 2.1 will continue to develop as the rule is used more widely: Scaduto, at para. 9.
A motion judge’s ruling under r. 2.1 is a discretionary decision entitled to appellate deference. Such a decision may be set aside only if the motion judge misdirected themselves or their decision was so clearly wrong as to amount to an injustice: Khan, at para. 10; Penner v. Niagara Regional Police Services Board, 2013 SCC 19, [2013] S.C.R. 125, at para. 27.
[10] In Khan v. Law Society of Ontario, at para. 15, the Court of Appeal noted the exceptional nature of the Rule 2.1 procedure.
We reiterate that judges should be cautious about allowing parties to have recourse to r. 2.1 except where it is plain and obvious on the face of the pleading that the action is frivolous, vexatious or an abuse of process. There are many other remedies provided for in the Rules of Civil Procedure by which parties can deal with cases that are not clear on the face of the pleading.
See also: Aurora (Town) v. Lepp, 2020 ONCA 528, at para. 19.
[11] The principles that generally govern the application of Rule 2.1.01 are supplemented in this case by the principle that a Superior Court cannot decline to exercise its habeas corpus jurisdiction except in very narrow circumstances: May v. Ferndale Institution, [2005] 3 S.C.R. 809, 2005 SCC 82, at para. 50. The right to judicial review of the validity of any deprivation of liberty is constitutionally mandated by s. 10(c) of the Charter: May, at para. 38.
[12] The relationship between the Superior Court’s habeus corpus jurisdiction, s. 10(c) of the Charter, and Rule 2.1.01 is not straightforward. It does not appear to have been the subject of prior judicial consideration, probably because the invocation of Rule 2.1.01 is a novel approach by Canada to applications such as those presently before me. The relationship between Rule 2.1.01 and s. 10(c) of the Charter was not addressed by the parties. However, it is not necessary to untangle the intricacies of that relationship to address Canada’s request for a Rule 2.1.01 remedy in these cases because, applying the principles that generally govern the application of Rule 2.1.01, I have concluded that Canada has not established that the applications are frivolous, vexatious, or abusive.
Analysis
[13] As the Ontario Court of Appeal explained in Toure v. Canada (Public Safety and Emergency Preparedness), 2018 ONCA 681, at para. 12, “habeas corpus applications proceed in two stages. First, the applicant must show that he or she has been deprived of liberty and that there is a legitimate ground upon which to question the legality of the detention. If the applicant succeeds in meeting that threshold, the onus shifts to the authorities to show that the deprivation of liberty is lawful: see Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 30”.
[14] Judicial decisions go both ways on the question whether rejection of an inmate’s request for transfer to a minimum-security institution amounts to a deprivation of liberty capable of surmounting the first threshold pre-condition to judicial review of the validity of detention by habeus corpus.
[15] On one side are the cases that decide that refusal of a request to transfer an inmate to a lower security institution amounts to a deprivation of liberty. Some courts have concluded that a federal inmate who claims an unlawful deprivation of his or her residual liberty alleging that he or she has been unlawfully assigned a higher security classification than appropriate meets the threshold requirement for habeas corpus with certiorari in aid. See: Moulton v. Canada (Attorney General), 2010 ONSC 2448, at paras. 80-85, appeal dismissed without reference to this issue 2011 ONCA 85; Canada (Attorney General) v. Hollinger, 2007 CanLII 36816 (ONSC), at para. 16; Musitano v. Canada (Attorney General), 2006 CanLII 9151 (ONSC), at para. 2; R v. Scarcella, 2009 CanLII 32918 (ONSC), at paras. 15-20; Hutchison v. Canada (Attorney General), 2010 ONSC 535, at para. 35.
[16] On the other side are decisions that conclude that refusal to transfer an inmate to a lower security level institution does not amount to a deprivation of residual liberty. See, for example: Holland v. Canada (Attorney General) 2013 QCCS 5317; Robinson v. Canada (Attorney General), 2013 ONSC 7992; Storry v. Canada (Warden, William Head Institution), 1997 CanLII 5925 (FC), at para. 5; Wood v Canada (Atlantic Institution), 2014 NBQB 135, at para. 36; Ahmad v. Canada (Attorney General), 2015 ONSC 7010; Canada (Attorney General) v. White, 2015 ONSC 6994; Lao v. Canada (Attorney General), 2016 ONSC 1273; Bell v. Canada (Attorney General), 2019 ONSC 540, at para. 22; Moldovan v. Canada (Attorney General), 2012 ONSC 2682; R. (L.V.) v. Mountain Institution, 2016 BCCA 467.
[17] The applicants submit that the recent decisions of the Ontario Court of Appeal in Toure, at paras. 51 and 79, and Wang v. Canada, 2018 ONCA 798, at para. 25, and the Supreme Court of Canada in Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, and R. v. Bird, 2019 SCC 7, support their position that CSC’s failure to transfer the applicants to a lower security level institution is capable of amounting to a deprivation of liberty.
[18] Whether the applicants’ position is correct, or not, is not the issue to be decided when the applications are screened through the Rule 2.1.01 filter. Neither is the issue for determination whether the applicants are likely to succeed or not. Rule 2.1.01 is not a mechanism for weeding out weak cases. It is a mechanism for weeding out cases that are frivolous, vexatious or otherwise abusive.
[19] The cases relied on by the parties do not provide unambiguous and authoritative guidance as to whether these applicants have or have not suffered a cognizable deprivation of liberty for habeas corpus purposes in this case. The fact that each party is able to credibly cite a number of cases in support of their position compels me to conclude that the issues raised by these applications, as disclosed by the pleadings, are not frivolous.
[20] The applications are not in the nature of the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleadings. There is no basis in the pleadings to support resort to the attenuated process provided by Rule 2.1.01(1). It is not plain and obvious on the face of the pleadings that the applications are frivolous, vexatious or an abuse of process.
Conclusion
[21] Canada’s request that the applications be summarily dismissed, pursuant to Rules 2.1.01(1) and (6) of the Rules of Civil Procedure is denied.
The Honourable Madam Justice J. Speyer
Released: December 11, 2020
COBOURG COURT FILE NOS.: CV-76-20
CV-78-20
CV-79-20
DATE: 20201211
ONTARIO
SUPERIOR COURT OF JUSTICE
ATTORNEY GENERAL FOR CANADA
– and –
FRANK DORSEY
CORY NEWTON
GASSAN SALAH
REASONS FOR RULING
Justice J. Speyer
Released: December 11, 2020