Court File and Parties
Court File No.: CV-22-692331 Date: 2023/05/09 Superior Court of Justice - Ontario
Re: Adan McIntosh, Plaintiff -and- Phillip Sutherland, Defendant
Before: Justice S. Corthorn
Counsel: Adan McIntosh, Self-represented Ananthan Sinnadurai, for the Defendant
Heard: In Chambers
Endorsement
Introduction
[1] In July 2022, the defendant, a judge of this court, presided over two motions in McIntosh Berry v. Kim (Court file no. FS-20-15651). The parties to that proceeding are Adan McIntosh’s sister and the mother of Mr. McIntosh’s four children. Mr. McIntosh is not a party to that proceeding.
[2] The two motions heard in July 2022 were conducted by videoconference. Mr. McIntosh attended the hearing through the virtual courtroom link. Justice Sutherland did not permit Mr. McIntosh to make submissions on the motions because, as a non-party, he did not have standing.
[3] The outcome of the two motions is the subject of a previous endorsement of this court: McIntosh-Berry v. Kim, 2022 ONSC 6637. At paras. 3 and 4 of that decision, the outcome of the July 2022 motions is summarized:
[3] In the July endorsement, Justice Sutherland determined two motions. First, he dismissed Ms. McIntosh-Berry’s motion for contempt. Second, he determined the terms pursuant to which Ms. McIntosh-Berry would be permitted to have “physical visitation”, over a single, fixed, three-day period, with the four children who were the subject of the motion. That three-day period ran from July 4, 2022 at 7:00 p.m. to July 6, 2022 at 2:00 p.m.
[4] The terms pursuant to which Ms. McIntosh-Berry was permitted to have physical visitation with the children included that Mr. McIntosh “shall not be present or in the vicinity of the children while [Ms. McIntosh-Berry] has visitation with the children and the children are in her care. This means that [Mr. McIntosh] shall remain at least 200m away from the children”: see para. 2(b)(ii) of the July endorsement.
[4] In October 2022, approximately three months after the endorsement for the July 2022 motions was released, Mr. McIntosh filed a document titled, “notice of motion for leave to appeal”. In that document, Mr. McIntosh requested leave to appeal from the decision of Justice Sutherland on one of the motions. The court dismissed Mr. McIntosh’s motion for leave to appeal as an abuse of process: McIntosh-Berry v. Kim, at paras. 16-20.
[5] In January 2023, Mr. McIntosh commenced this action. The claims advanced are based on the manner in which Justice Sutherland conducted, and the outcome of, the July 2022 motions. At para. 33 of his statement of claim (“the Pleading”), Mr. McIntosh alleges that Justice Sutherland acted intentionally, “in bad faith, and without jurisdiction, contrary to the duty owed by audi alteram partem.” Mr. McIntosh alleges that Justice Sutherland is not protected by judicial immunity.
[6] Mr. McIntosh also alleges that, for more than three years, judges of this court have acted “in concert to deliberately deny him access to justice” (para. 2). Mr. McIntosh alleges that the end result of the judges’ collective conduct is that he has been denied time with his four children.
[7] In the Pleading, Mr. McIntosh adds Justice Sutherland to the contingent of judges who have acted “in concert”. Mr. McIntosh alleges that Justice Sutherland acted “unlawfully” (para. 2), without jurisdiction (para. 3), and deliberately so as to harm Mr. McIntosh (para. 3).
[8] At para. 18 of the Pleading, Mr. McIntosh alleges that he “is seeking no relief for himself and the importance of this matter extends far beyond the Plaintiff.” The relief claimed is set out in para. 1 of the Pleading, as follows:
a) nominal damages in the amount of $1;
b) a declaration [that] the order of the defendant dated 4th of July 2022 restraining Adan McIntosh from his children, and the accompanying order from 5th July 2022, are of no force or effect, and
c) an order granting the defendant a leave of absence for a period of six months.
[9] On January 27, 2023, counsel for Justice Sutherland requested in writing that the court dismiss Mr. McIntosh’s action pursuant to r. 2.1.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In their letter to the court, counsel for Justice Sutherland asks the court to do so on the basis that the action is, on its face, frivolous, vexatious, and an abuse of process. Counsel’s letter came before me in late March 2023.
[10] Before dealing with the request under r. 2.1.01, it is helpful to review the substantive test and procedure under that rule.
The Substantive Test and Procedure
[11] Rule 2.1 establishes streamlined procedures that permit the court to fairly, and in a just manner, resolve a particular category of disputes in a timely, proportionate, and affordable way.
[12] 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.
[13] 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. 9;
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.
[14] 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 v. Ontario WSIB, 2014 ONSC 6497, at para. 15.
[15] 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, Ont. C.A., at para. 14.
[16] 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 an early end to vexatious proceedings, the matters should not be considered lightly or dismissively.
[17] 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
[18] 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.
[19] As observed 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.”
[20] Waiving the requirement for further submissions is the exception, rather than the general rule.
[21] I turn, then, to the Pleading and the claims made against Justice Sutherland.
The Pleading
[22] For Mr. McIntosh to be permitted to advance his claims, including those based in bad faith and excess of jurisdiction, he must state a proper legal claim. For the reasons that follow, I conclude that the claims, as framed by Mr. McIntosh in this action, are frivolous, vexatious, and an abuse of process within the meaning of r. 2.1.01 and must be dismissed. For the same reasons, I find that no purpose would be served by requiring written submissions and I waive the requirement for further submissions.
[23] Judges determining a request under r. 2.1.01 must “allow generously for drafting deficiencies and recognize that there may be a core complaint which is quite properly recognized as legitimate even if the proceeding itself is frivolously brought or carried out and ought to be dismissed”: Gao, at para. 18.
[24] Regarding the action before this court, I make the following findings.
[25] First, I find that Mr. McIntosh’s core complaint is his dissatisfaction and disagreement with the outcome of the July 2022 motions in a proceeding in which Mr. McIntosh is not a party. Mr. McIntosh’s dissatisfaction and disagreement with the process followed for, and the outcome of, the July 2022 motions feature prominently in the Pleading: see, for example, paras. 2, 3, 9, 10, 21, 24, 26, 27, 30, and 31.
[26] Second, I find that under the guise of this proceeding, Mr. McIntosh is attempting to seek redress personally against a judge with whose decision Mr. McIntosh disagrees. The outcome for which Mr. McIntosh now seeks relief is an order setting out the terms pursuant to which Ms. McIntosh-Berry was permitted to spend time with the four children over several days in early July 2022. Ten months have passed since the dates to which Justice Sutherland’s order applies. It is an abuse of process for Mr. McIntosh to now seek an order or judgment declaring Justice Sutherland’s July 5, 2022 order to be of no force and effect.
[27] Third, I find that the Pleading is replete with both citations for decisions from Canadian courts and argument as to why those decisions support the relief sought in this proceeding. Many of the paragraphs in which the decisions are cited consist of argument only and lack substantive allegations: see, for example, paras. 16-19, the first and second sentences of para. 22, para. 26, the first sentence of para. 27, and paras. 28, 29, and 32 of the Pleading.
[28] Fourth, the only statutory or regulatory provision cited in the Pleading is s. 142 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). At para. 20 of the Pleading, Mr. McIntosh alleges that “s142 of the CJA prevents any liability from an act done in good faith but it does not protect a person from an act done in bad faith” (quote appears as it does in the Pleading).
[29] Mr. McIntosh’s reliance on s. 142 of the CJA is misguided. The marginal note or heading for s. 142 is “Protection for acting under court order”. The single-sentence section provides, “A person is not liable for any act done in good faith in accordance with an order or process of a court in Ontario.” Section 142 is intended to govern litigants and persons who may be affected by the terms of an order; the section does not apply to the conduct of a presiding judge.
[30] Having carefully considered the substantive content of the Pleading, I am unable to find “a real issue at the heart of” Mr. McIntosh’s claims against Justice Sutherland: see Gao, at para. 18, quoted above. Mr. McIntosh does not have difficulty communicating his claim; he has simply failed to state a proper legal claim.
Disposition
[31] For the reasons set out above, I waive the requirement for further submissions and the action is dismissed. There shall be no costs of the action.
Madam Justice S. Corthorn Date: May 9, 2023