Court File and Parties

COURT FILE NO.: CV-23-92506 DATE: 2023/08/18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michael Tardif, Plaintiff AND City of Ottawa, Defendant

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Michael Tardif, Self-represented Plaintiff Mary Simms, Counsel for the City of Ottawa

HEARD: In writing

Decision on Requisition Under Rule 2.1.01

M. Smith J

[1] This decision relates to the action commenced by Michael Tardif (the “Plaintiff”) against the City of Ottawa.

[2] The court has received a letter from counsel for the City of Ottawa dated July 12, 2023, requisitioning an order to dismiss the Plaintiff’s action against the City of Ottawa, pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). This rule allows the court to dismiss an action if it appears, on its face, to be frivolous or vexatious or otherwise an abuse of the process of the court.

[3] The parties filed written submissions.

[4] In support of the City of Ottawa’s request, they attach four previous endorsements regarding the following actions: CV-22-88902, CV-22-89009, CV-22-89250, and CV-22-89677.

The Plaintiff’s Statement of Claim (“SOC”)

[5] The Plaintiff’s claim against the City of Ottawa can be summarized by the first paragraph of the Statement of Claim, which reads as follows:

1. The plaintiff claims: The City of Ottawa bylaw implemented additional charge if the occupants exceed 3 bag limit insuring in extending our landfill life expectancy should be quash. This does not conform to regulations stipulated in the Municipal Act 2001 10(2)(5) or in compliance with our Charter of Rights and Freedoms, Section 2(a), Section 7 Liberty – choice and Section 26.

[6] The Plaintiff is not seeking any damages against the City of Ottawa.

[7] The only relief sought by the Plaintiff is the quashing of the new garbage by-law, which limits residents to three garbage bags, during every scheduled 14-day cycle.

[8] The Plaintiff says that this lawsuit would not have been commenced if “Ottawa City Council were transparent by allowing me to visit the separation facility to view the residue plastic (non-recyclable) by the tons being transferred to the Ottawa landfill site.”

[9] The Plaintiff claims that the City of Ottawa failed to provide any evidence in support of the proposition that this new garbage by-law would prolong the life of the City of Ottawa’s landfill.

[10] The Plaintiff claims that the new garbage by-law is unconstitutional.

Legal Principles under r. 2.1.01

[11] In Tardif v. Ottawa (City), 2021 ONSC 3269, at paras. 4 to 10, Corthorn J. provides a very helpful analysis of the substantive test under r. 2.1.01 of the Rules. I adopt Corthorn J’s summary of the legal principles:

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, 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.

Analysis

[12] The Plaintiff’s SOC should be dismissed for several reasons.

[13] First, the Plaintiff is not seeking any relief other than the quashing of a by-law. Section 273(1) of the Municipal Act, 2001, S.O. 2001, c. 25 states that “upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality.”

[14] Rule 14.05(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), provides that a proceeding may be brought by an application where the relief claimed is “the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution.” Given that the Plaintiff is not seeking any relief against the City of Ottawa other than the quashing of a municipal by-law, he must proceed by way of an application.

[15] Second, the Plaintiff’s SOC contains many of the hallmarks of querulous litigant behaviour, including the repetitious use of exclamation and question marks; rhetorical questions; rambling discourse and disconnected facts; numerous references to breaches of the Canadian Charter of Rights and Freedom, without any legal or factual foundation whatsoever for any remedies being sought by the Plaintiff; irrelevant references to articles; vague and incomprehensible allegations against the City of Ottawa. The SOC is a disjointed claim, without a clear narrative. Even by allowing generous drafting deficiencies, I do not believe that there is a cause of action set out in the SOC. There are no viable legal theories to support the Plaintiff’s claim.

[16] Third, the Plaintiff has previously commenced four proceedings against the City of Ottawa in respect to By-Law No. 2012-370, a by-law that provides for solid waste management. In all four cases, the action was dismissed pursuant to r. 2.1.01 of the Rules: CV-22-88902, CV-22-89009, CV-22-89250, and CV-22-89677.

[17] In his submissions, the Plaintiff argues as follows: “The other four cases were in relation to have an option of not recycling toxic plastics. As this case is solely based on all recyclables in relation to extending our landfill life but also with a cost savings…this civil case is based on a bylaw of tagging garbage bags, only if over 3 bags a cycle. This is totally based on extending the life expectancy of our landfill with a cost savings.” While there is a slight difference in the framing of the within action, it is my view that in substance, it is the same, in that the Plaintiff is attacking once again the solid waste management by-law and expressing his views on the recycling of plastics.

[18] Several paragraphs of the Plaintiff’s SOC and submissions are copied verbatim from the statements of claim in the previous proceedings. They include the following:

a. Paragraph 4 of the within action uses verbatim language in paragraph 9 of action CV-22-89009. b. Paragraph 5 of the within action uses verbatim language at a bulleted point under Part II of action CV-89250. c. Paragraph 9 of the Plaintiff’s submissions uses verbatim language in Note 7 of action CV-22-89250.

[19] A proximity of pleadings exists between the within action and the previous four actions. The Plaintiff has cut and pasted paragraphs from previous claims that have already been found to be frivolous, vexatious, and an abuse of process. The Plaintiff is attempting to relitigate matters that have already been resolved by the court.

[20] Furthermore, in the Plaintiff’s submissions, he argues as follows: “The endorsement of Justice Sylvia Corthorn in action no. CV-22-89677; she refused to consider the Freedom of Information requests and my submissions. She solely relied on the first three endorsements from Justice Marc Smith (Statement of Claim) in which I believe there was a lack of factual evidence.” These submissions clearly demonstrate that this action is a collateral attack on the previous orders of the court.

[21] For all these reasons, I find that the Plaintiff’s claim against the City of Ottawa is frivolous, vexatious, and an abuse of the court’s process. The Plaintiff’s action is dismissed.

[22] The City of Ottawa is entitled to its costs of this proceeding. Within 15 days of the date of this decision, the City of Ottawa shall file and serve its costs submissions (limited to three pages), along with any offers to settle. The Plaintiff shall then have 15 days to respond, with the same page limitations.

M. Smith J Date: August 18, 2023

COURT FILE NO.: CV-23-92506 DATE: 2023/08/18 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Michael Tardif Plaintiff -and- City of Ottawa Defendant Decision on Requisition under rule 2.1.01 M. Smith J

Released: August 18, 2023