Court File and Parties

COURT FILE NO.: CV-23-00706542-0000

DATE: 20231117

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Mr. Kevin Mark Clarke (on behalf of the people), Applicant

-and-

City of Toronto, Respondent

BEFORE: Robert Centa J.

COUNSEL: Mr. Clarke, self-represented

Mark Siboni and Alex Redinger, for the City of Toronto

HEARD: November 17, 2023

ENDORSEMENT

[1] Kevin Clarke issued a notice of application asking the court to determine that the City of Toronto’s mayoral election, held on June 26, 2023, was invalid. The City of Toronto requested that the application be dismissed as frivolous, vexatious or an abuse of the court pursuant to rule 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194.

[2] I reviewed the application. It appeared to me that Mr. Clarke’s application may be frivolous and vexatious. On October 31, 2023, I issued an endorsement permitting Mr. Clarke to make submissions in writing as to why the application should not be dismissed. I have now reviewed his submissions.

The application and Mr. Clarke’s submissions

[3] In his notice of application, Mr. Clarke challenges the election of Olivia Chow as the mayor of the City of Toronto pursuant to s. 83 of the Municipal Elections Act, 1996, S.O. 1996, c 32, Sched., which provides that:

83 (1) A person who is entitled to vote in an election may make an application to the Superior Court of Justice requesting that it determine,

(a) whether the election is valid;

(b) whether a person’s election to an office in the election is valid;

(c) if a person’s election to an office is not valid, whether another person was validly elected or is entitled to the office;

(d) if an election is not valid or a person’s election to an office is not valid, whether a by-election should be held.

[4] Mr. Clarke was an unsuccessful candidate for mayor of the City of Toronto. He indicates in the grounds for his application that “major pollsters appear to subjectively select which candidates they include in their polling surveys.” He alleges that debate organizers relied on the results of these flawed polls to select which candidates for mayor they would include in the debates. The debates, in turn, attracted further media attention.

[5] Mr. Clarke submits that the election result “would have been much different had the media, debate organizers, and pollsters worked together to ensure a better means to poll all candidates equally and thusly deliver fairer coverage.” In conclusion, he submits that:

Olivia Chow, Ana Bailao, Mark Saunders, Josh Matlow, Brad Bradford, and Mitzie Hunter loosely and unfairly received far more opportunity for media coverage than the other 96 candidates. This means Olivia Chow only defeated five candidates, not 101 candidates. Therefore, a new election must take place with Olivia Chow and the remaining 96 candidates of whom she has yet to defeat.

[6] In his written submissions, Mr. Clarke describes the election as “rigged” and states that Ms. Chow did not win the election fairly:

The evidence that this is a controverted rigged election is overwhelming and clear. The courts must defend democracy, a fundamental cornerstone in Canada. The office of Toronto mayor cannot be left in the hands of someone who clearly did not fairly and democratically earn it through legal democratic means. We therefore request a special emergency hearing in the interests of the people of Toronto.

[7] Mr. Clarke further submits, without identifying a specific legislative instrument, that:

According to legislation, this hearing must take place within 90 days of the application submission, or else Premier Doug Ford will legally be obliged to assume the position of interim legal mayor, and then in turn declare a state of emergency in the city until a new legal mayor is elected. This application was submitted on September 22nd, 2023. The hearing would have to take place by December 21st, 2023.

The principles underpinning Rule 2.1

[8] Rule 2.1.01 permits the court to stay or dismiss a proceeding (including an application) if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of process of the court.

[9] In Gao v. Ontario (Workplace Safety and Insurance Board), Myers J. reviewed rule 2.1 and provided the following guidance on its application:

Rule 2.1 is not meant to apply to close calls. It is not a short form of summary judgment. But that does not mean that it is not to be robustly interpreted and applied. Where a proceeding appears on its face to meet the standards of frivolous, vexatious or an abuse of process, the court should be prepared to rigorously enforce the rule to nip the proceeding in the bud. Rigorous enforcement of this rule will not only protect respondents from incurring unrecoverable costs, but should positively contribute to access to justice by freeing up judicial and administrative resources that are so acutely needed to implement the “culture shift” mandated by the Supreme Court of Canada. The new rule tailors appropriate procedural fairness for the category of cases involved and is an example of early resolution of civil cases that is very much in line with the goals set out in Hryniak.[^1]

[10] The court is not to use rule 2.1.01 for close calls. However, neither the opposing parties nor the court should be required to devote scarce resources to proceedings that are clearly frivolous and vexatious. Allowing such proceedings to occupy space on the court docket takes time away from other cases. There is simply no benefit to allowing clearly frivolous and vexatious motions to continue.[^2]

[11] A frivolous application is one that is readily recognizable as devoid of merit, as one having little prospect of success.[^3] Put differently, a frivolous application is one that lacks a legal basis or legal merit or has been brought without reasonable grounds.[^4] A frivolous application is one that will necessarily or inevitably fail.[^5] A vexatious application is one taken to annoy or embarrass the opposite party or is conducted in a vexatious manner.[^6]

Conclusion

[12] In my view, Mr. Clarke’s application is frivolous and vexatious.

[13] The Municipal Elections Act does not regulate the conduct of pollsters, the media, or members of the community that organize debates. Mr. Clarke does not suggest that election officials (or anyone else) breached any provision of the Municipal Election Act. Moreover, s. 83(6) of the Municipal Elections Act provides that the court shall not determine an election to be invalid if the election was conducted in accordance with the principles of the Act.

[14] Mr. Clarke’s application will inevitably fail because even if a court accepted the validity of his complaints about the media coverage of the candidates for mayor, or the polling questions, or the organization of the debates, that would not form a legal basis for the court to determine that the election was not valid within the meaning of the Municipal Election Act.

[15] In addition, Mr. Clarke included with the notice of application of a picture of Mayor Chow with a fictional quote attributed to her. That is one reason, but certainly not the only reason that I conclude the application seems taken to annoy or embarrass the sitting mayor and the City of Toronto. The application is clearly vexatious.

[16] In my view, it is obvious that Mr. Clarke’s application is frivolous and vexatious. I dismiss the application pursuant to rule 2.1.01.

Robert Centa J.

Date: November 17, 2023

[^1]: 2014 ONSC 6100, 37 C.L.R. (4th) 1, at para. 9. The Court of Appeal for Ontario approved of this approach in Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87.

[^2]: Dunning v. Colliers Macaulay Nicolls Inc., 2023 ONSC 73, at para. 26.

[^3]: Gill v. MacIver, 2023 ONCA 776, at para. 3; Lavallee v. Isak, 2022 ONCA 290, at para. 19; Pickard v. London Police Services Board, 2010 ONCA 643, 268 O.A.C. 153, at para. 19.

[^4]: Annotation to rule 2.1 in Ontario Superior Court Practice, the Hons. Todd Archibald, Stephen Firestone and Tamara Sugunasiri; Van Sluytman v. Orillia Soldiers' Memorial Hospital, 2017 ONSC 692, at para. 11

[^5]: R. v. Haevischer, 2023 SCC 11, at para. 67.

[^6]: Gill, at para. 3; Lavallee, at para. 19; Pickard, at para. 19, and Henderson v. Wright, 2016 ONCA 89, 345 O.A.C. 231, at para. 20.