COURT FILE NO.: CV-21-86084
CV-21-86085
DATE: 2021/05/04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Tardif, Plaintiff
AND
The City of Ottawa, Defendant
BEFORE: Justice Sylvia Corthorn
COUNSEL: Michael Tardif, as a self-represented Plaintiff
Stuart Huxley, for the Defendant
HEARD: By requisition and in writing
ENDORSEMENT
Introduction
[1] In a letter dated March 26, 2021 addressed to this court, the defendant makes a request in writing under r. 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Included with the letter are copies of a notice of action issued on March 22, 2021 in Court File No. CV-21-86084 and of a statement of claim, issued on the same date, in Court File No. CV-21-86085. The City of Ottawa asks the court to make an order under r. 2.1.01(1) dismissing these two actions because they are “frivolous and vexatious or otherwise an abuse of the process of the court.”
[2] These 2021 actions represent Mr. Tardif’s third and fourth attempts to pursue claims against the City of Ottawa in the context of the COVID-19 pandemic. In a previous endorsement from the court, Mr. Tardif’s claims against the City, advanced by way of a notice of action and a statement of claim, issued in 2020 in two separate actions, were dismissed under r. 2.1.01(6): Michael Tardif v. City of Ottawa, 2020 ONSC 6180 (“the First Ruling”).
[3] As this is Mr. Tardif’s second time facing a request made under r. 2.01.1, I shall review the substance of the subrule and its purpose.[^1]
The Substantive Test Under r. 2.1.01
[4] Rule 2.1 is a process that permits the court to bring “fair and just resolutions to a particular category of disputes in a proportionate, timely and affordable way”: Gao v. Ontario WSIB, 2014 ONSC 6497, at para. 12.
[5] In at least three decisions, 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; Khan v. Krylov & Company LLP, 2017 ONCA 625; and Khan v. Law Society of Ontario, 2020 ONCA 320). At para. 15 of Khan v. Law Society, the Court cautioned judges regarding reliance on r. 2.1.01:
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.
[6] The principles to be applied by a judge considering a requisition under r. 2.1.01 include, but are not limited to, 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 only if there is “a basis in the pleadings to support the resort to the attenuated process” resulting from the use of the rule: Raji, at para. 9;
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.
[7] 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, R.S.O. 1990, C. C.43. Alternatively, the court may consider the typical characteristics of the form and content of an action brought by a “querulous litigant” as reviewed by Myers J. in Gao, at para. 15.
[8] At para. 9 in Gao, Myers J. referred to the definition in Black’s Law Dictionary of “frivolous”: “Lacking a legal basis or legal merit; not serious; not reasonably purposeful”: quoting from Currie v. Halton Regional Police Services Board, 2003 CanLII 7815, Ont. C.A., at para. 14.
[9] 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. See Gao, at para. 18:
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 considered lightly or dismissively.
[10] In Scaduto, Khan v. Krylov, and Khan v. Law Society, the Ontario Court of Appeal endorsed the approach taken to r. 2.1.01 in such lower court cases as Gao and Raji, referenced above.
The Procedure Under r. 2.1.01
[11] Under r. 2.1.01(6), the judge considering a request for dismissal of an action under r. 2.1.01(1) may seek written submissions from the parties. When doing so, the procedure set out at r. 2.1.01(3) is followed. Where further submissions would serve no purpose, the judge may waive the requirement for them.
[12] As observed recently by the Court of Appeal in Khan v. Law Society, at para. 8, “if, after requesting submissions from the plaintiff as to why the action should not be dismissed under r. 2.1, the court feels it necessary to seek submissions from the defendants (who are seeking the dismissal), the fact that these additional submissions are needed ought to be a good indication that the situation is not one of those clearest of cases where the Rule should be invoked”.
[13] Waiving the requirement for further submissions is the exception, rather than the general rule.
[14] I turn first to the 2021 notice of action and then to the 2021 statement of claim.
Notice of Action (CV-21-86084)
[15] The notice of action is a single-page document. The parties to the action are not identified in the title of proceeding. Under the heading “Notice of Action” appears “Ottawa’s mandatory use of cotton face masks is a Violation of Canada’s Charter of Rights and Freedoms”. The matter is identified as being brought within the Simplified Procedure under Rule 76 of the Rules of Civil Procedure. Mr. Tardif’s name and address appear at the end of the page.
[16] Nowhere in the single page document is the City of Ottawa identified as the intended defendant. The notice of action is addressed “TO THE DEFENDANT”. The address for the City of Ottawa does not appear anywhere in the document.
[17] The only entry under the heading “CLAIM”, which appears at the bottom of the page, is: “The plaintiff’s claim is for [sic] To have the court quash the Ottawa by-law on mandatory use of cotton face masks, which is a violation of our Charter of Rights”. That is the full extent of the substantive content of the notice of action.
[18] As I have already noted, waiving the requirement under r. 2.1.01(3) for further submissions is the exception, rather than the general rule. I find, however, that this matter is one of those exceptional cases where further submissions would serve no purpose.
[19] I find that the notice of action falls into the category of the clearest of cases to which r. 2.1.01(6) is intended to apply. It is clear that the claim advanced in this matter cannot succeed and that it should not be permitted to continue.
[20] The action commenced by way of the 2021 notice of action is dismissed.
Statement of Claim (CV-21-86085)
[21] The statement of claim is five pages long, including the cover page and excluding a back page. I note the following about the contents of the document:
The parties to the action are not identified in the title of proceeding;
Under the heading “Statement of Claim” appears “Ottawa’s mandatory use of cotton face masks is a Violation of Canada’s Charter of Rights and Freedoms”;
The statement of claim is addressed “TO THE DEFENDANT”;
The matter is identified as being brought within the Simplified Procedure under Rule 76 of the Rules of Civil Procedure;
The prayer for relief is set out in para. 1 and is the same as that set out in the notice of action: “The plaintiff’s claim is for [sic] To have the court quash the Ottawa by-law on mandatory use of cotton face masks, which is a violation of our Charter of Rights”; and
Mr. Tardif’s name and address appear at the end of the first page of the document.
[22] In para. “1)”, Mr. Tardif sets out the “Background” to his claim. He does so in six sub-paragraphs (each bearing a Roman numeral). In para. I, Mr. Tardif alleges that “Elected officials always jump to conclusions on unknowns thus providing the conception that they are well in control of the matter. The reality is, they are not in this pandemic (COVID-19) in which there is a great deal of speculation from day one.” In paras. II-VI, Mr. Tardif deals with matters such as an insufficient supply of medical masks, the potential ineffectiveness of medical masks, and speculation as to a potential higher death toll in the event of a future pandemic.
[23] Paragraph “2)” is titled, “Substantiation through published research that cotton masks are not effective in stopping the virus particles from spreading”. In sub-paras. I-XVII, he provides links to various websites for medical journals and other sources of information about medical masks.
[24] In sub-paragraph 2) XVI, Mr. Tardif alleges that, “[a]s stated in Canada’s Charter of Rights, under liberty; the right to choose what to wear. I also have the right to good health such as second hand [sic] smoke is not allowed, no intoxicated drivers, etc., in which have been all proven. Ottawa Public Health and City of Ottawa speculation by using junk science is unconstitutional.”
[25] In sub-paragraph 2) XVII, Mr. Tardif alleges that if he and other members of the public are required to wear medical masks, there will not be sufficient medical masks for health-care professionals, and when another highly contagious virus appears “the facilities that take care of the sick and deceased will be inundated to levels they are unable to handle.”
[26] The statement of claim concludes with a “Note”, which says,
[i]f Ottawa Public Health states; they refer to the WHO and CDC recommendations. This does not substantiate the use of cotton masks scientifically. To not allow this civil suit to proceed by rendering a decision to strike out a pleading on the ground that it discloses no reasonable cause of action or defence; this would not be balancing the scales of justice.”
[27] I acknowledge that the contents of the statement of claim issued in 2021 are different from the contents of the statement of claim that was the subject of the First Ruling. Despite the different content, the 2021 statement of claim still falls short of identifying substantive allegations in support of an identifiable cause of action.
[28] Mr. Tardif’s core complaint is that by passing a municipal by-law, the City of Ottawa has mandated the use of masks. Mr. Tardif does not, however, identify, by number, the by-law that he seeks to quash.
[29] Nowhere in the statement of claim does Mr. Tardif identify the section of the Canadian Charter of Rights and Freedoms that he alleges is infringed by reason of the subject by-law. At para. XVI, he mentions the Charter and “liberty” and the “right to choose what to wear.” Section 7 of the Charter states that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
[30] In summary, Mr. Tardif attempts to tie a municipal by-law to an infringement of his rights under s. 7 of the Charter.
[31] The substance of the pleading, however, exhibits many of the hallmarks of vexatious and frivolous litigation. Those hallmarks include that the substantive allegations, when read in their entirety, are repetitive and rambling: Fleischhaker v. Royal Ottawa Health Care Group and Attwood, 2020 ONSC 980. The subject matters covered in the allegations include the operation of the World Health Organization and the Centers for Disease Control; a general history of viruses such as AIDS and Ebola; and conclusions reached in medical studies involving animals. Another hallmark of the vexatious and frivolous nature of the pleading is Mr. Tardif’s reliance on links to websites, articles, and the results of studies.
[32] Despite the differences between the 2020 and 2021 statements of claim, they are both of the same overall quality. I am satisfied that, as did the 2020 statement of claim, the 2021 statement of claim falls into the category of “the clearest of cases”. It is clear that the claim advanced in this matter cannot succeed and that it should not be permitted to continue.
[33] I am satisfied that no purpose would be served by requesting additional submissions from Mr. Tardif. The documents issued in 2021 represent his third and fourth attempts to pursue his core complaint – that the City of Ottawa chose to mandate mask-wearing. The 2021 documents were issued six months after the 2020 documents were issued. In that six-month stretch of time, Mr. Tardif was unable to improve upon the overall quality of the originating process documents.
[34] I find that it is appropriate to apply the blunt instrument available under r. 2.1.01 and order that the action commenced by way of the 2021 statement of claim is dismissed.
Summary
[35] In summary, I order as follows:
The action commenced by way of a notice of action issued on March 22, 2021 (Court File No. CV-21-86084) is dismissed.
The action commenced by way of a statement of claim issued on March 22, 2021 (Court File No. CV-21-86085) is dismissed.
[36] There shall be no costs payable with respect to the request made by the City under Rule 2.1.
Madam Justice Sylvia Corthorn
Date: May 4, 2021
COURT FILE NO.: CV-21-86084
CV-21-86085
DATE: 2021/05/04
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Michael Tardif, Plaintiff
AND
The City of Ottawa, Defendant
BEFORE: Justice Sylvia Corthorn
COUNSEL: Michael Tardif, as a self-represented Plaintiff
Stuart Huxley, for the Defendant
HEARD: By requisition and in writing
ENDORSEMENT
Corthorn J.
Released: May 4, 2021
[^1]: Paragraphs 5-14 are taken, exactly as they appear, from my ruling in Amikwabi v. Pope Francis, 2021 ONSC 1069, at paras. 27-36. Given that the original ruling in which the paragraphs appear is one that I wrote, I have not treated paras. 5-14 as I would paragraphs quoted from a decision written by any other judicial officer.