McIntosh v. Shore et al., 2023 ONSC 3124

Court File No.: CV-23-692870 Date: 2023/05/25 Superior Court of Justice - Ontario

Re: Adan McIntosh, Plaintiff -and- Sharon Shore, Faye McWatt and Geoffrey Morawetz, Defendants

Before: Justice S. Corthorn

Counsel: Adan McIntosh, Self-represented Ananthan Sinnadurai, for the Defendants

Heard: In Chambers

Endorsement

Introduction

[1] In a letter dated January 27, 2023, addressed to the Registrar of this court, the defendants’ counsel requests the dismissal of the action against all three defendants. In support of that request counsel relies on r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Counsel asks the court to conclude the action is frivolous, vexatious, and an abuse of process. A copy of the statement of claim, issued on January 12, 2023 (“the Pleading”), is enclosed with counsel’s letter.

[2] Counsel’s letter came before me in late March 2023.

The Statement of Claim

[3] The claims are set out in 11 pages of substantive text, comprised of 59 paragraphs.

[4] Adan McIntosh alleges he is the father of four children and, for more than three years, has been denied time with his children. At the heart of Mr. McIntosh’s action are allegations the denial of Mr. McIntosh’s time with his children is the result of deliberate and/or intentional conduct of judges of this court.

[5] In general, the allegations regarding the conduct of judges of this court are that,

• the judges acted “in concert to deliberately deny [Mr. McIntosh] justice” (para. 2);
• Justice Shore disseminated “defamatory and unfounded remarks” about Mr. McIntosh to, and with the intention of influencing, her colleagues (para. 3);
• for more than a year after the impugned remarks were disseminated by Justice Shore, Associate Chief Justice McWatt intentionally delayed taking any steps to address the remarks. As a result of that alleged intentional delay, Mr. McIntosh was denied access to justice (paras. 4 and 43); and
• Chief Justice Morawetz failed to take any steps to address the impugned remarks made by Justice Shore. As a result of that alleged failure to act, Mr. McIntosh was denied access to justice (paras. 5 and 43).

[6] At paras. 6-23 of the Pleading, Mr. McIntosh makes a series of allegations related to the outcome of proceedings before Justice Shore in 2020 and 2021 and of proceedings before several other judges of this court in 2019, 2021, and 2022. The outcomes of the various proceedings described in the Pleading include the following:

• In 2019, a restraining order was obtained without notice to Mr. McIntosh, and later continued. Mr. McIntosh was prohibited from communicating with and seeing his family (para. 6). The initial and continuing orders were made by two different judges, neither of whom is a defendant in this action;
• The dismissal by Justice Shore, in March 2020, of an urgent motion by Mr. McIntosh for an order permitting him to see his children before the pandemic-related closure of Canada’s borders to individuals in other countries (para. 7);
• The dismissal by Justice Shore, in June 2020, of an application by Mr. McIntosh under The Hague Convention (para. 8); and
• The January 2021 decision of Justice Shore permitting the opposing party in Mr. McIntosh’s family litigation to proceed to an uncontested trial on the issue of custody of the parties’ four children (para. 11).

[7] The outcome of the uncontested trial is not described in the Pleading. I infer from the contents of the Pleading as a whole that (a) the trial judge is not one of the defendants named in this action, (b) the trial judge’s reasons for decision were released in January 2022, and (c) the opposing party to Mr. McIntosh was awarded sole custody of the parties’ four children.

[8] Mr. McIntosh alleges the outcome of the uncontested trial reflects his lack of access to justice.

[9] Mr. McIntosh also alleges he was denied access to justice because his efforts to appeal the January 2021 decision of Justice Shore (permitting the opposing party to proceed to an uncontested trial) were unsuccessful. Mr. McIntosh describes his motion for leave to appeal the January 2021 decision of Justice Shore being dismissed on two separate occasions, by two different judges. Neither of those judges is a defendant in this proceeding (paras. 12, 15, and 17). On both occasions Mr. McIntosh’s motion for leave to appeal was dismissed pursuant to r. 2.1.01.

[10] Mr. McIntosh also describes being unsuccessful on a motion for leave to appeal one of the above-noted r. 2.1.01 dismissals (i.e., of the motions for leave to appeal the January 2021 decision of Justice Shore). This subsequent motion for leave to appeal was dismissed, pursuant to r. 2.1.01, by a judge who is not a defendant in this action (para. 20).

[11] After setting out the history of his matters before this court, Mr. McIntosh then sets out his claims against the defendants.

[12] Mr. McIntosh alleges that, on January 12, 2021, Justice Shore sent an email to 90 judges of this court in Toronto, including the Chief Justice and the Associate Chief Justice. Mr. McIntosh alleges the email contained “inappropriate, unfounded and defamatory remarks” about him (para. 10). The remarks were also included in a Case History Report for Mr. McIntosh’s family litigation. Mr. McIntosh alleges Justice Shore sent the email, and included the remarks in the Case History Report, with the intention of influencing other judges before whom Mr. McIntosh might appear (paras. 10 and 29).

[13] As against Associate Chief Justice McWatt, the allegations are that her delayed response to the January 2021 email was intentional, with the goal of depriving Mr. McIntosh access to justice (paras. 4 and 43). The Associate Chief Justice’s response is described in the Pleading as a “directive” issued on February 3, 2022 (para. 18). Mr. McIntosh alleges the directive prevented “any judge who received the defamatory email from [Justice Shore] from adjudicating any matters involving [Mr. McIntosh] and removing the defamatory comments from court records” (para. 18).

[14] Mr. McIntosh alleges the timing of the Associate Chief Justice’s directive was deliberate – a matter of days following the release of the decision in the uncontested trial (para. 45).

[15] Mr. McIntosh alleges the Chief Justice received the January 2021 email and took no steps in response to the email. Mr. McIntosh alleges the Chief Justice was deliberate in choosing not to act – with the intention of denying Mr. McIntosh access to justice (paras. 5 and 43).

[16] Mr. McIntosh alleges that the Associate Chief Justice’s delay in responding and the Chief Justice’s failure to respond resulted in judges who lacked impartiality determining matters in Mr. McIntosh’s family litigation and, ultimately, in Mr. McIntosh being denied access to justice (para. 5).

[17] It is not always clear from the Pleading whether an allegation is intended by Mr. McIntosh to apply to all or to only one or two of the defendants. Mr. McIntosh frequently relies on the singular “the defendant” or “the defendant’s”, without identifying an individual defendant by name. Such unspecified allegations include, for example, those made in para. 57. Mr. McIntosh therein alleges, “The Defendant’s intentional actions were in bad faith and without jurisdiction, contrary to the duty owed by audi alteram partem and therefore satisfy the exemption to judicial immunity.”

[18] Paragraph 57 appears towards the end of the section of the Pleading in which the claims against the Chief Justice and the Associate Chief Justice are set out; it appears to relate only to the claims against those defendants. It is, however, possible that para. 57 is intended to apply to all of the defendants.

[19] Last, I summarize the relief which Mr. McIntosh seeks. That relief is set out in para. 1 of the Pleading:

a) Nominal damages in the amount of $3; b) A finding that Sharon Shore defamed the Plaintiff; c) A finding that Sharon Shore, Faye McWatt and Geoffrey Morawetz each acted in want of jurisdiction; and d) An order granting Sharon Shore, Faye McWatt and Geoffrey Morawetz, a leave of absence for a period of six months each.

[20] At para. 26, Mr. McIntosh alleges he “is seeking no relief for himself and the importance of this matter extends far beyond the Plaintiff.”

[21] I will first review the law with respect to r. 2.1 and then address Mr. McIntosh’s claims against each of the defendants.

The Substantive Test Under r. 2.1.01

[22] 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.

[23] In at least three decisions, the Court of Appeal for Ontario highlights 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, 343 O.A.C. 87, leave to appeal refused, [2015] S.C.C.A. No. 488; Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581; and Khan v. Law Society of Ontario, 2020 ONCA 320, 446 D.L.R. (4th) 575, leave to appeal to S.C.C. refused, 39321 (January 28, 2021). 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.

[24] The principles to be applied by a judge considering a requisition under r. 2.1.01 include, but are not limited to, the following principles:

• 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 “the frivolous, vexatious, or 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 of rule 2.1”: 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.

[25] By applying the above principles, the court fulfils its role as a gatekeeper of the justice system. In Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 21, Pepall J.A. says, “Abusive litigants should be screened out of the system so that parties with true justiciable disputes may have them adjudicated by the courts.”

[26] 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 (“CJA”). 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, 37 C.L.R. (4th) 7, at para. 15.

[27] 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), 179 O.A.C. 67, 233 D.L.R. (4th) 657, at para. 14.

[28] 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.

[29] In Scaduto, Khan v. Krylov, and Khan v. Law Society, the Court of Appeal endorsed the approach taken to r. 2.1.01 in Gao and Raji.

The Procedure Under r. 2.1.01

[30] 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.

[31] 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.”

[32] Waiving the requirement for further submissions is the exception, rather than the general rule.

The Claim Against Justice Shore

[33] I return to the Pleading – specifically, the claims made against Justice Shore.

a) The Allegations

[34] At para. 3 of the Pleading, Mr. McIntosh describes Justice Shore as having been a judge of this court since 2018 and a lawyer since 1998. In the same paragraph, Mr. McIntosh alleges Justice Shore “has, without jurisdiction, intentionally sought to influence every judge of the Superior of Toronto to rule against the Plaintiff in ongoing legal matters, by sending defamatory and unfounded remarks.” The portion of the preceding sentence which appears in quotation marks is reproduced without correction for words which may be missing or for other errors.

[35] Mr. McIntosh alleges he appeared before Justice Shore on four occasions in 2020 (para. 9); on two of those occasions, Justice Shore dismissed Mr. McIntosh’s matter (a motion and an application: see paras. 7 and 8).

[36] At para. 10, Mr. McIntosh begins the allegations in support of his claim against Justice Shore in defamation:

On the 12th January 2021, Defendant 1 circulated an email to all Superior Court judges in Toronto, including the other defendants, making inappropriate, unfounded and defamatory remarks against the Plaintiff. These comments were reproduced in a Case History Report in FS-19-12193 but this was not known to the Plaintiff at the time and he was not provided an opportunity to respond to the comments.

[37] Mr. McIntosh alleges that, approximately two weeks after disseminating the email and preparing the Case History Report, Justice Shore made an order for Mr. McIntosh’s family litigation relating to custody of the four children to proceed to an uncontested trial (see the final bullet point in para. 6, above).

[38] Mr. McIntosh alleges that, nine months later, he learned of the January 2021 email and the Case History Report. At para. 13 of the Pleading, Mr. McIntosh makes the following allegations:

On 20th October 2021, the day of the uncontested trial Defendant 1 had ordered, the Plaintiff received an email from the assistant of Defendant 1 which contained a Case History Reports showing the inappropriate comments by Defendant 1 and indicating that these comments had been distributed to all Toronto judges. These comments cannot be repeated as it would risk undermining the impartially the adjudication of this matter.

[39] In paras. 14-22, Mr. McIntosh makes allegations regarding the uncontested trial of his family litigation, other proceedings subsequent to October 2021, and the February 2022 directive issued by the Associate Chief Justice.

[40] Under the heading “Legal Basis”, at paras. 24-28, Mr. McIntosh addresses the concept of judicial immunity. Paragraphs 24, 25, and 27 consist of argument only and lack any substantive allegations.

[41] At para. 28, Mr. McIntosh cites s. 142 of the 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”.

[42] 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.

[43] The section of the Pleading in which allegations specific to Justice Shore are made is titled “Defendant 1”. The fourteen paragraphs (paras. 29-42) therein include citations for and quotations from three decisions of the Supreme Court of Canada, one decision of the Court of Appeal for Ontario, and Part 1.3 of a book titled the “Ethical Principles for Judges”.

[44] The majority of paras. 29-42 consist of argument only and lack substantive allegations: see, for example, paras. 29-30, 32-35, and 41-42.

[45] Paragraphs 31, 36, 37, and 39 address the alleged dissemination of defamatory remarks and the impact on Mr. McIntosh of the dissemination of those remarks:

31. Defendant 1 did not have jurisdiction to communicate unfounded, defamatory and inappropriate comments about the Plaintiff to other judges which was done intentionally and with extreme prejudice. This was done with any evidence, notice and without giving the Plaintiff the opportunity to defend himself contrary to the principle of audi alteram partem. This alone is a want of jurisdiction.

32. Clearly Defendant 1 knew that her attempts to influence other judges were not public, they were not made in a court room and were not made by advocates or litigants. The email was not part of this defendant's judicial duties and was not subject to any review.

33. If the Plaintiff did not have the right to audi alteram partem, then it was not a judicial proceeding and if it was not a judicial proceeding Defendant 1 did not have jurisdiction to make any findings and certainly not distribute those findings to other judges but not the parties.

34. Given there was not jurisdiction to make the comments, and this Defendant clearly knew this, then the Libel and Slander Act applies although it is not necessary to prove for the relief claimed. The comments were published approximately 90 judges and caused the Plaintiff the loss of judges with impartial minds. This was not simply an attempt to influence other judges but a successful endeavour to influence other judges.

[46] At para. 38, Mr. McIntosh alleges that Justice Shore “did not provide any transparency in her finding” and that it was only by chance that he became aware of it some nine months later. For the purpose of the r. 2.1.01 request before the court, I assume that the “finding” referred to in para. 38, means the contents of the email and/or of the Case History Report.

[47] Is the claim against Justice Shore in defamation to be dismissed pursuant to r. 2.1.01?

b) Analysis

[48] 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.

[49] Mr. McIntosh’s core complaint is that (a) he has been defamed by Justice Shore; (b) the dissemination of the allegedly defamatory remarks made by her to 90 colleagues had an impact on proceedings in which Mr. McIntosh was involved before this court; and (c) the end result of the dissemination of the allegedly defamatory remarks is that Mr. McIntosh was denied justice.

[50] Even without considering the specific cause of action – defamation – there are deficiencies in the Pleading as it relates to Justice Shore. Some of those deficiencies are discussed above. Others include the failure to comply with r. 25.06 of the Rules. That rule sets out the requirements for the contents of a statement of claim.

[51] When considering the specific cause of action, Mr. McIntosh is attempting to advance – defamation – even more deficiencies in the Pleading are evident.

[52] The requirements for a statement of claim in a defamation case were considered by the Court of Appeal in Catalyst Capital Group Inc. v. Veritas Investment Research, 2017 ONCA 85, 136 O.R. (3d) 23. Writing for the Court, at para. 22, Blair J.A. highlights that “pleadings in such actions have traditionally been held to a higher standard than in the case with other types of actions, in terms of the precision with which the material facts must be pleaded.” In the same paragraph, Blair J.A. notes that the modern approach to assessment of defamation pleadings is less strict than the approach historically taken.

[53] At para. 23, Blair J.A. briefly reviews the requirements pursuant to r. 25.06(1) to set out “a concise statement of the material facts on which the [plaintiff] relies.” Blair J.A. emphasizes that “the material facts must be sufficient, if proved, to establish a cause of action.” He then lists the material facts to be pleaded in a defamation case:

In libel actions (defamatory statements in writing, as in this case), the material facts to be pleaded are: (i) particulars of the allegedly defamatory words; (ii) publication of the words by the defendant; (iii) to whom the words were published; and (iv) that the words were defamatory of the plaintiff in their plain and ordinary meaning or by innuendo.

[54] In the balance of the decision, Blair J.A. reviews the requirements for a statement of claim in defamation where the plaintiff knows the name of some, but not all, of the persons to whom allegedly defamatory remarks were made. Blair J.A. also reviews the requirements for such a pleading where the plaintiff does not know the exact wording of the defamatory remarks.

[55] The first of the four requirements for a pleading in defamation is the inclusion of particulars of the defamatory words. At para. 13 of the Pleading, Mr. McIntosh alleges that the impugned remarks “cannot be repeated as it would risk undermining the impartiality [of] the adjudication of this matter.” Mr. McIntosh does not set out either the contents of the January 2021 email or the Case History Report (paras. 10, 13). It is not clear from the Pleading whether Mr. McIntosh is alleging that the contents of the two documents are identical. In any event, the Pleading does not satisfy the first requirement for a pleading in defamation.

[56] The Pleading does, however, satisfy the second requirement for a pleading in defamation. The Pleading includes allegations related to the publication, in both the January 2021 email and the Case History Report, by Justice Shore of the allegedly defamatory remarks.

[57] The Pleading also satisfies the third requirement for a pleading in defamation. The Pleading identifies, by name, several of the 90 judges to whom the January 2021 email is alleged to have been sent. The judges who are named include the Chief Justice and the Associate Chief Justice. For the purpose of this endorsement, it is not necessary to consider the significance, if any, of the lack of particulars of the names of all judges who received the January 2021 email and/or had access to the Case History Report.

[58] The findings that the second and third requirements for a pleading in defamation are met are not in any way intended as a commentary on the merits of the claim against Justice Shore.

[59] To satisfy the fourth requirement for a pleading in defamation, the Pleading must include an allegation that the impugned remarks were defamatory of Mr. McIntosh in their plain and ordinary meaning or by innuendo. The Pleading is replete with the description of the impugned remarks as defamatory. Absent anything more, however, the Pleading falls short of the fourth requirement. It would be difficult, if not impossible, to satisfy the fourth requirement without also satisfying the first requirement (i.e., including in the pleading the particulars of the impugned remarks).

[60] The importance of satisfying both the first and fourth requirements is perhaps better understood when considering the definition of the phrase “defamatory meaning”. At para. 62 of Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, Cory J. provided the following definition of defamatory meaning:

For the purposes of these reasons, it is sufficient to observe that a publication which tends to lower a person in the estimation of right‑thinking members of society, or to expose a person to hatred, contempt or ridicule, is defamatory and will attract liability. See Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067, at p. 1079. What is defamatory may be determined from the ordinary meaning of the published words themselves or from the surrounding circumstances. In The Law of Defamation in Canada (2nd ed. 1994), R. E. Brown stated the following at p. 1‑15:

[A publication] may be defamatory in its plain and ordinary meaning or by virtue of extrinsic facts or circumstances, known to the listener or reader, which give it a defamatory meaning by way of innuendo different from that in which it ordinarily would be understood. In determining its meaning, the court may take into consideration all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented.

[61] Even though the Pleading fails to meet the requirements of r. 25.06 and those for a pleading in defamation, I find that it would not be fair and just, in response to the r. 2.1.01 request, to dismiss the action as it relates to Justice Shore. Mr. McIntosh is a self-represented litigant attempting to navigate the complexities of a claim based in defamation. Even in the absence of the particulars of the wording of the January 2021 email, the context within which the email was sent, and the manner in which the email was presented, Mr. McIntosh is to be given the benefit of the doubt.

[62] Mr. McIntosh’s claim in defamation against Justice Shore is not so obviously devoid of merit on its face that it should be dismissed peremptorily at this very early stage. The action as against Justice Shore is not patently frivolous, vexatious, or abusive.

[63] My conclusion on this issue is in no way a commentary on the merits of the claim in defamation. Rather, to grant the r. 2.1.01 request with respect to the claim against Justice Shore would be to turn the request into precisely what it is not intended to be – “an easily accessible alternative to a pleadings motion”: Khan v. Krylov, at para. 12.

c) Conclusion

[64] The r. 2.1.01 request to dismiss the claim against Justice Shore in defamation is refused.

[65] Before turning to the claims against the Chief Justice and the Associate Chief Justice, I will first address the relief sought by Mr. McIntosh at paras. 1(c) and (d) of the Pleading. Mr. McIntosh therein requests that the trier of fact find that Justice Shore “acted in want of jurisdiction” and order that Justice Shore be placed on a six-month leave of absence, respectively. There is no legal basis for such relief to be granted. Mr. McIntosh’s claim for those two forms of relief, as it relates to Justice Shore, is dismissed pursuant to r. 2.1.01.

[66] Waiving the requirement for written submissions is the exception, not the rule. My finding with respect to the relief claimed in paras. 1(c) and (d) of the Pleading is not a matter of a close call. No purpose would be served by requiring written submissions and I waive the requirement for them.

The Claim Against the Associate Chief Justice

a) The Allegations

[67] The allegations in support of the claim against the Associate Chief Justice are set out in paras. 43-59 of the Pleading. Some of those allegations are specific to the claim against the Associate Chief Justice; others relate collectively to the claims against the Chief Justice and the Associate Chief Justice.

b) Analysis

[68] To the extent that paras. 24-28, under the heading “Legal Basis”, are intended to apply to the claims against the Associate Chief Justice, they suffer from the frailties and/or deficiencies described in paras. 40-42, above.

[69] I find that paras. 46-50, 52, 58, and 59 consist of argument only and lack any substantive allegations.

[70] The claim against the Associate Chief Justice is otherwise set out as follows:

• Upon receipt of the January 2021 email, the Associate Chief Justice had an obligation to act – specifically, to take steps to prevent Mr. McIntosh from being denied access to justice (para. 53);
• There was no basis for the Associate Chief Justice to delay, from January 2021 (when the email was sent) to February 2022, before issuing her directive (paras. 43 and 51);
• That one-year delay was unreasonable and unjust, intentional, and bad faith conduct (paras. 43, 54, and 56-57); and
• As a result of the one-year delay, Mr. McIntosh suffered a significant loss (para. 44).

[71] At para. 55 of the Pleading, Mr. McIntosh alleges that both the Chief Justice and the Associate Chief Justice “[knowingly] assigned judges to matters when they [i.e., the Chief Justice and the Associate Chief Justice] had direct knowledge that judges were not fit to adjudicate.” In support of that aspect of his claim, Mr. McIntosh cites and relies on ss. 14(1) and (4) of the CJA.

[72] In s. 14(1), the powers and duties of the Chief Justice are defined as directing and supervising the sittings of this Court and assigning judicial duties. Pursuant to s. 14(4), the role of the Associate Chief Justice is to exercise the powers and perform the duties of the Chief Justice if the latter is absent from the province or otherwise unable to act. Section 14 does not in any way set a standard as to, or mandate how, the Chief Justice and the Associate Chief Justice are to fulfil their respective roles. Section 14 does not provide a basis for a claim against either of those two defendants.

[73] Mr. McIntosh’s core complaint against the Associate Chief Justice is that she allegedly delayed in responding to the dissemination of the January 2021 email and the preparation of the Case History Report. The claim as made against the Associate Chief Justice lacks a legal basis, lacks legal merit, and is not reasonably purposeful. The abusive nature of the claim against the Associate Chief Justice is apparent on the face of the Pleading: see Raji, at para. 9.

c) Conclusion

[74] My findings with respect to the claim against the Associate Chief Justice are not a matter of a close call. No purpose would be served by requiring written submissions and I waive the requirement for them.

[75] The r. 2.1.01 request regarding the action against the Associate Chief Justice is granted.

The Claim Against the Chief Justice

a) The Allegations Against the Chief Justice

[76] The allegations against the Chief Justice are set out in paras. 43 and 45-59. Mr. McIntosh’s claim against the Chief Justice is that he failed to act at all in response to receipt of the January 2021 email.

b) Analysis

[77] The findings made in paras. 68 and 69, above, apply to Mr. McIntosh’s claim against the Chief Justice.

[78] The claim against the Chief Justice is as follows:

• Upon receipt of the January 2021 email, the Chief Justice had an obligation to act – specifically, to take steps to prevent Mr. McIntosh from being denied access to justice (para. 53);
• As a result of the failure of the Chief Justice to act in response to receipt of the January 2021 email, Mr. McIntosh was denied justice and suffered a significant loss (paras. 43, 44); and
• The failure to act was intentional and bad faith conduct (para. 57).

[79] Mr. McIntosh’s core complaint against the Chief Justice is that he failed to act in response to the dissemination of the January 2021 email and the preparation of the Case History Report. For the reasons set out above with respect to the claim against the Associate Chief Justice, I find that the claim as made against the Chief Justice lacks a legal basis, lacks legal merit, and is not reasonably purposeful. The abusive nature of the claim against the Chief Justice is apparent on the face of the Pleading: see Raji, at para. 9.

c) Conclusion

[80] My findings regarding the claim against the Chief Justice are not a matter of a close call. No purpose would be served by requiring written submissions and I waive the requirement for them.

[81] The r. 2.1.01 request regarding the action against the Chief Justice is granted.

Disposition

[82] For the reasons set out above, I make the following order:

1. The r. 2.1.01 request for the dismissal of Mr. McIntosh’s claim in defamation against Justice Shore is not granted.
2. The action as against Chief Justice Morawetz and Associate Chief Justice McWatt is dismissed.
3. Mr. McIntosh’s claim for the relief set out in paragraphs 1(c) and 1(d) of the Pleading is dismissed.

[83] There shall be no costs associated with the r. 2.1.01 request.

Madam Justice S. Corthorn Date: May 25, 2023