COURT FILE NO.: CV-20-85285
DATE: 2021/01/12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ade Olumide, Applicant
AND
Health Services Appeal Review Board, Respondent
BEFORE: Justice Sylvia Corthorn
COUNSEL: Mr. Olumide, as a self-represented applicant
The Respondent, as yet unrepresented
HEARD: In writing, at the Court’s initiative
RULING UNDER r. 2.1.01(1)
Introduction
[1] In October 2017, Ade Olumide was declared by Dunphy J., of this court, to be a vexatious litigant. That declaration was made pursuant to s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (“CJA”).
[2] Mr. Olumide now brings an application under s. 140(3) of the CJA for leave to address the contents of correspondence he received from the Chair of the respondent, the Health Services Appeal Review Board (“the Board”).
[3] At the request of the Local Administrative Judge, Civil, for Ottawa, I was asked to consider whether Mr. Olumide’s application for leave to pursue his claim for relief against the Board should be stayed or dismissed under r. 2.1.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[4] Mr. Olumide has, for several months, been attempting to obtain a referral to the St. Joseph Mental Health Hospital Forensics Program for what he describes as a “querulous paranoiac psychiatric assessment”. To that end, Mr. Olumide appears to have requested such a referral from the Champlain Local Health Integration Network (“LHIN”) and the Ontario Health Insurance Program (“OHIP”), amongst others. The requests made include that OHIP pre-approve that a lawyer representing Mr. Olumide “bill OHIP” for Mr. Olumide’s referral to St. Joseph’s.
[5] Mr. Olumide is unsatisfied with the responses he received from the LHIN and OHIP. In November 2020, Mr. Olumide began communicating with the Board. Mr. Olumide purported to appeal to the Board from eight “decisions” made by OHIP in response to communication from Mr. Olumide. He does not appear to have included “decisions” of the Champlain LHIN as the subject-matter of his communication with the Board.
[6] More than once, the Board responded by informing Mr. Olumide that the matters he seeks to address do not fall within the jurisdiction of the Board:
• In an email sent to Mr. Olumide on December 1, 2020, a Senior Manager and Registrar with the Health Boards Secretariat informed Mr. Olumide as follows: “Please note that the Appeal Board can only consider matters that fall within its jurisdiction, as defined under applicable legislation. Upon review of the materials you provided, we have determined that your concerns do not fall within the Appeal Board’s jurisdiction.” The Board advised Mr. Olumide that it would not be reviewing his request or proceeding with the matter.
• In an email dated December 8, 2020, the same Senior Manager and Registrar informed Mr. Olumide that he does not, for the stated purpose, fall within the category of persons who have a right of appeal to the Board. Once again, Mr. Olumide was informed that the Board would not be reviewing his request or proceeding with the matter.
• In a letter dated December 14, 2020, the Chair of the Board reiterated the December 1 and 8, 2020 responses summarized above. In her letter, the Chair said,
Further to the Appeal Board’s response to you of December 1 and 8 2020, this letter confirms that the Appeal Board can only consider matters that fall within its jurisdiction, as defined under applicable legislation. The Appeal Board confirms that your concerns and request for appeal do not fall within the Appeal Board’s jurisdiction.
Please note that at this time there is no recourse for you with the Appeal Board. As such, any further communication regarding this matter may not be acknowledged or actioned.
The Chair concluded her letter by suggesting that Mr. Olumide contact the Ontario Ombudsman and/or seek independent legal advice.
[7] Before this court and in support of his application for leave under s. 140(3) of the CJA, Mr. Olumide relies on his affidavit sworn on December 16, 2020. The only exhibit to Mr. Olumide’s affidavit is 52 pages. It consists of emails to or from Mr. Olumide, and a copy of a three-page, Ottawa Police Service General Occurrence Hardcopy printed in February 2020.
[8] Mr. Olumide seeks leave, under s. 140(3) of the CJA, to proceed on an urgent basis under ss. (1-1), (4), 5, 6(2) and 9 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. I note that there is no section 2(1-1) in the JRPA. Mr. Olumide appears to be referring to item 1 in s. 2(1) of that Act, namely a request for “an order in the nature of mandamus, prohibition, or certiorari.” Section 2(4) addresses the power of the court to set aside a decision made in the exercise of a statutory power of decision.
[9] Section 5 prescribes that “an application for judicial review shall be made no later than 30 days after the decision or matter for which judicial review is being sought occurred”. That 30-day limitation period is, however, subject to the discretion of the court to extend it if the requirements of s. 5(2) are met.
[10] An application for judicial review is to be made to the Divisional Court: s. 6(1). In a case of urgency or of delay that would likely involve a failure of justice, an application for judicial review may be made to s. 6(2). Mr. Olumide relies on that section. I take judicial notice of the fact that Mr. Olumide’s request for his application for leave to be heard on an urgent basis was denied in December 2020 by the LAJ, Civil for Ottawa.
[11] Section 9 addresses the contents of a notice of application, who is to be a party to the application, and other procedural matters.
[12] Mr. Olumide appears to be seeking leave to pursue judicial review of three Board decisions, each of which he describes as incorrect. Yet, it is clear that the Board has not made any decisions. The Board has done nothing more than communicate with Mr. Olumide to inform him that it does not have jurisdiction to deal with the matters about which he is concerned. Mr. Olumide does not fall within the category of persons who have a right to appeal to the Board.
Review on the Court’s Initiative
[13] Under r. 2.1.01(1) of the Rules of Civil Procedure, a 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”.
The Clearest of Cases
[14] The Ontario Court of Appeal has highlighted that dismissal of an action under r. 2.1.01 is a blunt instrument, reserved for the clearest of cases: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 and Khan v. Krylov & Company LLP, 2017 ONCA 625.
[15] The principles to be applied by a judge considering whether to dismiss or stay a proceeding include the following:
• The statement of claim must be read generously. Drafting deficiencies may be overlooked and the plaintiff given the benefit of the doubt if it appears that the action might be viable;
• “[R]ule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves”: Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at para. 8;
• An action should be dismissed under r. 2.1.01 only if there is “a basis in the pleadings to support the resort to the attenuated process” in the rule: Raji, at para. 8;
• The procedure under r. 2.1.01 should not be used as a substitute for a pleadings motion; and
• The procedure is intended to serve the purpose of “nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources”: Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664, at para. 3.
[16] To determine whether an action may be characterized as “vexatious, frivolous or an abuse of the court” under r. 2.1.01, the court may consider the criteria developed for applications pursuant to s. 140 of the Courts of Justice Act. Alternatively, the court may consider the typical characteristics of the form and content of an action brought by a “querulous litigant”. Those characteristics were reviewed by Myers J. in Gao v. Ontario WSIB, 2014 ONSC 6497, at para. 15.
[17] Care is to be taken, however, not to dismiss an action out of hand simply because the plaintiff has either difficulty communicating their claim or has previously engaged in unsuccessful litigation. At para. 18 in Gao, Myers J. said,
It should be borne in mind … that even a vexatious litigant can have a legitimate complaint. It is not uncommon for there to be a real issue at the heart of a vexatious litigant’s case. The problem is often that the litigant either cannot properly communicate the concern or, more typically, cannot accept that the law may not provide the remedy sought despite the unfairness felt by the litigant. While rule 2.1 should be applied robustly to bring to an early end to vexatious proceedings, the matters should not be considered lightly or dismissively.
[18] In Scaduto and again more recently in Khan, the Ontario Court of Appeal endorsed the approach taken in Raji and Gao to r. 2.1.01.
Analysis
[19] For the reasons that follow, I conclude that the application is, on the face of it, an abuse of process. There is no “real issue at the heart” of the application: Gao, at para. 18. The remedy of judicial review from the letter and email communication received by Mr. Olumide from the Board is simply not available to him.
[20] Mr. Olumide does not set out precisely the relief he will seek if he is granted leave to bring an application for judicial review. From paragraph 2 of the notice of application, it appears that he will ask the court to “set aside the HSARB decision”. Yet, the Board did not make any decision in the exercise of its statutory powers.
[21] I have also considered the problems with the grounds listed in the notice of application in support of the request for judicial review. Those problems are so fundamental and pervasive that it is appropriate to dismiss the motion for leave in its entirety under r. 2.1.01(1) and without considering submissions from Mr. Olumide:
• In a span of approximately seven pages, Mr. Olumide lists in excess of ten statutes and regulations upon which he relies. He also includes links to web pages;
• Mr. Olumide relies on multiple methods of formatting for emphasis including bold font, italicized font, and underlining;
• The format of the notice of application and the supporting affidavit are not in keeping with either Rule 4 of the Rules of Civil Procedure or common practice. Mr. Olumide uses a variety of spacing and attaches many documents, grouped together, as a single exhibit to his affidavit; and
• It is difficult, if not impossible, to ascertain from para. 1(I), 1(II), and 1(III) the decisions that Mr. Olumide requests be the subject of judicial review.
[22] Mr. Olumide’s request for leave to bring an application for judicial review is, therefore, dismissed.
Disposition
[23] The problems with and deficiencies in the notice of application are fundamental and pervasive. I find that it is appropriate to apply the blunt instrument available under r. 2.1.01. Mr. Olumide’s application for leave to proceed with an application for judicial review from one or more decisions of the Health Services Appeal Review Board is dismissed.
[24] The dismissal of this application is without prejudice to Mr. Olumide’s right to bring another application for leave to pursue a proceeding as part of his effort to obtain a referral to the St. Joseph Mental Health Hospital Forensics Program. If Mr. Olumide decides to proceed with such an application, he will want to make certain that the proceeding he seeks to pursue is not frivolous, vexatious, or an abuse of process. He may wish to seek the advice of counsel.
[25] The notice of application in this matter is addressed to the Health Services Appeal Review Board and to the Crown Law Office (Civil Law), Ministry of the Attorney General. A copy of this ruling is being provided to both offices so that they are aware of the court’s decision in this matter.
Madam Justice Sylvia Corthorn
Date: January 12, 2021
COURT FILE NO.: CV-20-85285
DATE: 2021/01/12
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Ade Olumide, Applicant
AND
Health Services Appeal Review Board, Respondent
BEFORE: Justice Sylvia Corthorn
COUNSEL: Mr. Olumide, as a self-represented applicant
The Respondent, as yet unrepresented
HEARD: In writing, at the Court’s initiative
RULING UNDER R. 2.1.01(1)
Corthorn J.
Released: January 12, 2021