Court File and Parties

Newmarket Court File No.: CV-24-0000001 Date: 2024-04-29 Superior Court of Justice - Ontario

Re: Murray Earl Brown, Applicant And: The Attorney General of Ontario and Lake Simcoe Regional Conservation Authority, Respondents

Before: The Honourable Mr. Justice R.E. Charney

Counsel: John Olah, Counsel for Lake Simcoe Regional Conservation Authority Murray Brown, Self-Represented

Heard: In-Writing

Endorsement

Introduction

[1] On November 9, 2023, the Defendant, Murray Earl Brown, commenced an Application for Judicial Review under the style of cause: His Majesty the King in Right of Ontario v. Murray Brown.

[2] The relief requested in his Notice of Application for Judicial Review is as follows:

a. have his s. 140 Vexatious Litigant finding reviewed in order to permit him to proceed with his Judicial Review Application and Appeal.

b. to have his Appeal brought forward and adjudicated with the Judicial Review Application;

c. for the Court to appoint legal representation due to financial and health incapacity;

d. to seek the direction of the court on a question of transposing the legal rights, powers, privileges, immunities, duties, and liabilities onto the Applicant in contravention of the rights of a person in a fiduciary position in respect of the administration, care, and control of a trust property where the government imposed restrictions and interpretation of their governing statute made to be applied to property and to land use is so substantial and oppressive so as to constitute conversion and the constructive taking of property under common law and statutory law;

e. to have a permanent injunction made to apply to the Restoration Order, where any attempts to implement this Order will result in permanent injury to agricultural land belonging to a third-party and further expose the farm property to extensive flooding events;

f. to have the court undertake in the public interest to give an interpretation of the Conservation Authorities Act. The seriousness of the interpretation given by the regulatory agency to its governing statutes puts at issue the constitutional validity, intent, and purpose of the enactment and provides the regulatory agency with a substantive advantage to exercise a power of decision not conferred by legislation to be enforced over unsuspecting members of the public who are owners of property; wherein the manner in which the proceeding was carried out a stay of proceedings is necessary to protect the integrity of the justice system;

g. a further interpretation of the Conservation Authorities Act where its application is denoted as capable of superseding, the Occupiers Liability Act s. 2; Trustee Act s. ; Trespass to Property Act s.2; Courts of Justice Act s. Criminal Code ss. 35 and 72 where the availability of the jurisdiction to grant the remedial remedy based on the regulation is asserted as not existing;

h. to have the merit of the Breach of Probation proceeding determined as an abusive proceeding advanced as an oppressive, vexatious conspiracy to injure with the intention of inflicting harm on the three elements of the Charge, the person, not being a person of authority, the subject matter, being a Trust Agricultural Property and the Remedy being sought to be applied to the agricultural features of the soil. The Breach of Probation being undertaken without jurisdiction over all elements of the Offence therefore capable of being stayed;

i. To have the CEO of the Lake Simcoe Region Conservation Authority, Alex Baldwin cross-examined on all mapping evidence sought to be introduced in the Breach of Probation Trial.

j. Any further relief or Order this Honourable Court deems just and appropriate.

[3] The Restoration Order referred to in para. e is an Order of the Ontario Court of Justice dated August 31, 2023, which ordered Mr. Brown to restore and rehabilitate certain wetlands on his property in the Town of Georgina. That Restoration Order was granted on the application of the Lake Simcoe Region Conservation Authority (LSRCA) following Mr. Brown’s conviction of five offences involving a breach of ss. 28 and 75 of the Conservation Authorities Act and Ont. Reg. 179/06. The convictions for the breaches of s. 28 of the Conservation Authorities Act date back to 2018.

[4] In addition to the Application for Judicial Review, on September 5, 2023, Mr. Brown filed a Notice of Appeal of the August 31, 2023 Order of the Ontario Court of Justice.

Section 140 Application

[5] On October 3, 2019, Mr. Brown was declared to be a vexatious litigant pursuant to s. 140(1) of the Courts of Justice Act by Faieta J. The Order prohibits Mr. Brown from commencing any proceedings “in any capacity whatsoever directly or indirectly, in any court, as against the LSRCA, its officers, its directors, employees, agents…except with leave of a judge of the Superior Court of Justice pursuant to s. 140(3) of the Courts of Justice Act.”

[6] That Order was amended by Faieta J. on January 30, 2020, although the amendment is not relevant to the issues on this Application.

[7] Upon receipt of the Application for Judicial Review, I directed Mr. Brown to bring an application under s. 140(3) and (4) of the Courts of Justice Act, which provides:

Application for leave to proceed

(3) Where a person against whom an order under subsection (1) has been made seeks leave to institute or continue a proceeding, the person shall do so by way of an application in the Superior Court of Justice.

Leave to proceed

(4) Where an application for leave is made under subsection (3),

(a) leave shall be granted only if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding;

(b) the person making the application for leave may seek the rescission of the order made under subsection (1) but may not seek any other relief on the application;

(c) the court may rescind the order made under subsection (1);

(d) the Attorney General is entitled to be heard on the application; and

(e) no appeal lies from a refusal to grant relief to the applicant.

[8] My direction stated:

It is not clear from the material filed whether the Applicant intended to bring an Application for leave to institute a proceeding, and has mistakenly brought an Application for Judicial Review, or whether he intended to bring a Judicial Review of the Amended Restoration Order without first seeking leave.

In any event, the Applicant cannot commence an Application for Judicial Review without first obtaining leave, and the Application for Judicial Review is therefore stayed pending the Applicant bringing an Application to seek leave to proceed. The application for leave must comply with s. 140(4), and, in particular, the only relief that may be sought on the Application is leave to commence a proceeding, as set out in s. 140(4)(b).

The Applicant is directed to bring an Application for leave to proceed, and must give notice of the application to the Attorney General of Ontario and the LSRCA.

[9] On January 2, 2024, Mr. Brown filed his s. 140(3) application. He seeks leave to institute an application for judicial review against both the LSRCA and the Attorney General of Ontario. His proposed judicial review of the LSRCA relates to “the regulatory process undertaken by the regulatory agency LSRCA commenced on October 5, 2015, by way of a third party Search and Seizure Warrant that was carried forward in prosecutions against the Applicant until December 1, 2023”. The application also seeks to “have a determination of the [LSRCA] exercise of discretion and authority over the manner in which the prosecution was first undertaken in 2015 against the Applicant.

[10] Mr. Brown also states that he “seeks to challenge the conduct of the Attorney General of Ontario where it adopted not to intervene or investigate the correctness of the assumed jurisdiction made to apply to the Provincial Offences Court”.

[11] The Attorney General of Ontario declined to participate in these proceedings.

[12] The LSRCA takes the position that the s. 140(3) application should be dismissed because Mr. Brown is trying to relitigate the issues relating to his 2018 convictions in the Provinial Offences Court, and is therefore an abuse of process.

Facts

[13] On October 5, 2015, the LSRCA brought charges against Mr. Brown for breaching the Conservation Authorities Act (CAA) and Ontario Regulation 176/09.

[14] On March 27, 2018, JP Seglins convicted Mr. Brown on the 5 counts for breaching the CAA and Ontario Regulation 179/06. JP Seglins found that the property was being used as a “commercial disposal site.” In addition to the two (2) year Probation Order, and joint Restoration Order requiring the subject property to be restored, Mr. Brown was fined $40,000.00 ($8,000.00 per count).

[15] On a number of occasions during Mr. Brown’s trial before JP Seglins, Mr. Brown and/or Mrs. Brown, on Mr. Brown’s behalf, brought several motions and interlocutory applications for prerogative remedies in the Superior Court of Justice. On four separate occasions, Mr. Brown was told by various Justices of the SCJ that if he had any complaints about the decision rendered by JP Seglins, he should raise such complaints as a potential ground of appeal on an appeal to the Ontario Court of Justice (“OCJ”).

[16] For example, on January 16, 2017, Campbell J. dismissed Mr. Brown’s “appeal and/or prerogative remedy application” in the Superior Court in which Mr. Brown attempted to review some of the rulings of JP Seglins before the trial was completed. The Court explained that it had no jurisdiction to hear an appeal or prerogative remedy application against any of the decisions that JP Seglins had made to date. The Court further explained that, once the trial was over, Mr. Brown had the right to appeal the decision to a judge of the Provincial Court pursuant to s. 116 of the Provincial Offences Act. No appeal lies immediately to the Superior Court of Justice.

[17] Campbell J. stated:

To the extent that, contrary to the manner in which it is styled, this matter might potentially be viewed as a prerogative remedy application, it must simply be dismissed. The respondent has conceded that he has launched these proceedings in the wrong region. This is a case from the Central East Region. It has no connection to the Toronto Region. Moreover, prerogative remedies are discretionary in nature, and will not usually issue where there is an alternative remedy. The respondent clearly has an alternative (and much more practical and efficient remedy). He may launch an appeal, at the conclusion of the case, to the Ontario Court of Justice, in the event that he is ultimately convicted. On any such broad-based appeal he could conceivably raise any valid complaints he may have in relation to these and any other rulings or decisions made by the Justice of the Peace during the course of the trial. The respondent would not be limited to alleging jurisdictional errors by the presiding judicial officer (as he would be limited on a prerogative writ application). In the result, as I have indicated, to the extent that this matter might be viewed as a prerogative remedy application, it must be dismissed.

[18] Mr. Brown filed a Notice of Appeal and Application for Judicial Review on September 11, 2017. This proceeding was dismissed by Bird J. on September 18, 2017. In her decision, Bird J. noted that this proceeding was the same as the one dismissed by Campbell J. on January 16, 2017. She stated:

I have carefully reviewed the defendant’s Notice of Appeal and Application for Judicial Review. He alleges that Justice of the Peace Seglins has made 10 errors to date in the conduct of the trial. Further, he relies on the doctrine of res judicata and claims that the current charges are a repeat of allegations that were the subject of charges in 1991. This is a claim that can be made to Justice of the Peace Seglins. If she concludes that res judicata does not apply, that ruling can be the subject of an appeal at the end of the trial. With respect to the 10 alleged errors, they all involve rulings pertaining to disclosure, evidentiary issues and the conduct of the trial. Even if there is merit to any of the grounds raised by the defendant, they do not provide a route of appeal to the Superior Court of Justice in the middle of his trial. If they are to be raised, the appropriate forum will be in the Ontario Court of Justice on an appeal from a final disposition.

[19] Bird J. ordered $2,000 costs against Mr. Brown, stating:

Unfortunately the defendant has not learned from his past mistakes as Campbell J. hoped he would. Taking into account the history of this matter, I have no choice but to conclude that the defendant is using the Superior Court of Justice as a means by which to delay and/or avoid his continuing trial in the Ontario Court of Justice. This cannot be pennitted to continue.

[20] Two weeks after Mr. Brown’s conviction, Mrs. Brown and her business entities brought an Application for Injunctive Relief (“Injunction Application”), challenging the decisions made by JP Seglins. One week later, on April 17, 2018, Mr. Brown, Mrs. Brown, and Mrs. Browns’ business entities filed a “Notice of Appeal and Determination of Infringement to Constitutional Rights within the Provincial Offences Court” (the “Notice of Appeal”) once more in the Superior Court of Justice in Toronto. The appeal to the SCJ was from the judgment and sentencing order of JP Seglins dated March 27, 2018 and April 11, 2018, respectively, and sought to by-pass the appeal provisions set out in the POA.

[21] On July 3, 2018, Mr. Brown, Mrs. Brown, and Mrs. Brown’s business entities served a Motion Record, including a Notice of Motion, returnable July 6, 2018, a Notice of Appeal, Mr. Brown’s Probation Order, affidavits by Mr. Brown, and various other documents. The motion was returnable in the SCJ, which sought, among other things, an order that Mr. Brown’s appeal of his conviction and sentence be heard in Toronto in the SCJ, and that Mr. Brown’s sentence be stayed until “the Fresh as Amended Notice of Appeal and Constitutional Issue be dealt with to its finality and law”.

[22] On March 4, 2019, Cavanagh J. heard submissions from the parties on the preliminary motions and the substantive proceedings. On March 5, 2019, he dismissed the application on the grounds that the applicants lacked standing and that the Injunction Application was an impermissible collateral attack on the validity of the decisions by JP Seglins: Brown v. Lake Simcoe Region Conservation Authority and Ministry of the Attorney General, Ontario, 2019 ONSC 1485. Cavanagh J. also struck the appeal and Notice of Motion for being brought in the wrong court, stating, at para. 28:

Section 116(2) of the Provincial Offenses Act provides that an appeal from a decision of a justice of the peace shall be to the Ontario Court of Justice presided over by a provincial judge. Therefore, an appeal from the convictions and sentence; imposed by Justice of the Peace Seglins lies to the Ontario Court of Justice presided over by a provincial judge.

[23] On April 4, 2019, Mrs. Brown served a Notice of Appeal to the Court of Appeal, appealing the decision of Cavanagh J.

[24] On April 8, 2019, Cavanagh J. ordered that the costs of the injunction application be payable by Mrs. Brown to the LSRCA on a partial indemnity basis in the amount of $14,727.41, and to the Ministry of the Attorney General in the amount of $500.00. Cavanagh J. also ordered costs of the appeal be payable by Mr. and Mrs. Brown to the LSRCA on a partial indemnity basis in the amount of $9,035.67, and to the Attorney General in the amount of $500.00: Brown v. Lake Simcoe Region Conservation Authority and Ministry of the Attorney General, Ontario, 2019 ONSC 2229.

[25] On March 18, 2020, the Ontario Court of Appeal dismissed Mr. Brown’s appeal from the decision of Cavanagh J. (Brown v. Canada (Attorney General), 2020 ONCA 223), stating, at para. 8:

Based on the record before us, we see no basis on which to interfere with the motion judge’s decision to strike the Superior Court proceeding. Any appeal of the POA convictions – which were decided by a Justice of the Peace – shall be to the Ontario Court of Justice, presided over by a provincial judge: POA, s. 116(2)(a)… The appellants’ remaining arguments were or could have been made by Mr. Brown in the course of the prosecutions or any appeal to the Ontario Court of Justice. To the extent the appellants were denied standing before the Justice of the Peace, any remedy to which they may have been entitled did not lie in the form of an appeal to the Superior Court.

[26] The Court of Appeal ordered costs to the LSRCA fixed in the amount of $4,500.00.

[27] On April 9, 2019, over one year after JP Seglins’ decision on sentencing, and after Mr. Brown’s unsuccessful attempt to appeal to the SCJ, Mr. Brown served a Notice of Appeal, appealing his conviction and sentence to the Ontario Court of Justice pursuant to s. 116 of the POA.

[28] Mr. Brown then brought an application pursuant to s. 111(2) of the POA, which permits a judge to waive compliance with s. 111(1) of the POA, requiring the payment of the fine, in Mr. Brown’s case $40,000.00, before filing a Notice of Appeal. On June 7, 2019, Justice Pirraglia ordered that compliance of s. 111(1) of the POA be waived, allowing Mr. Brown to file his appeal without paying the $40,000.00 fine imposed on him. However, Justice Pirraglia ordered a timetable requiring Mr. Brown to serve all appeal materials on LSRCA’s counsel by August 8, 2019. The appeal was scheduled to be heard on September 19, 2019.

[29] After warning Mr. Brown about his non-compliance with Justice Pirraglia’s timetable, on August 13, 2019, the LSRCA brought an urgent motion to dismiss, or alternatively adjourn, Mr. Brown’s appeal scheduled for September 19, 2019. Mr. Brown appeared at that time and Justice Dwyer adjourned the LSRCA’s motion to August 23, 2019, to allow Mr. Brown another seven (7) days to serve and file his appeal materials.

[30] On August 23, 2019, neither Mr. nor Mrs. Brown appeared at the motion. After satisfying herself that Mr. Brown knew about the motion, Justice Johnston concluded that Mr. Brown knew of the scheduled Court attendance, and due to his failure to appear or file his appeal material in accordance with the timeline ordered by Justice Pirraglia, and the extension granted by Justice Dwyer, Mr. Brown’s appeal was dismissed as abandoned.

[31] On September 23, 2019, Mr. Brown served a Notice of Motion for Leave to Appeal, seeking leave from the Court of Appeal of Justice Johnston’s Order dismissing his appeal pursuant to ss. 131 and 140 of the POA.

[32] On December 18, 2019, Justice Miller of the ONCA dismissed Mr. Brown’s motion for leave to appeal. Justice Miller held that Mr. Brown’s explanation for nonattendance before Justice Johnston had to be taken together with the history of noncompliance that necessitated a court-imposed timetable and Mr. Brown’s failure to deliver the materials in accordance with the timetable.

[33] On or about January 17, 2020, Mr. Brown served a Notice of Appeal, appealing the decision of Justice Miller. In addition, on or about January 20, 2020, Mrs. Brown served an interlocutory motion titled “Notice of Motion by Third Party Applicant.

[34] On February 19, 2020, the Ontario Court of Appeal quashed the appeal from Justice Miller’s denial of leave to appeal on the basis that there was no right to appeal from a denial of leave to appeal.

[35] Mr. Brown’s trial for breach of probation pursuant to s. 75 of the POA for failing to comply with the Probation Order and joint Restoration Order dated April 11, 2018, commenced on June 2, 2023 before Justice of the Peace D. White (“JP White”). Mrs. Brown acted as Mr. Brown’s agent throughout the prosecution, until Mrs. Brown sought to be removed as his agent just before the sentencing hearing.

[36] Prior to the commencement of his trial, Mr. Brown brought another pre-trial application seeking a “Directed Verdict of Acquittal”. He also filed a Notice of Constitutional Question challenging the validity of sections of the CAA and Regulation 179/06. JP White dismissed the application and ruled that there was no violation of Mr. Brown’s constitutional rights under the Charter of Rights and Freedoms.

[37] Following JP White’s decision dismissing Mr. Brown’s pre-trial application, the trial proceeded on June 2 and 8, 2023. On June 27, 2023, Mr. Brown was convicted of breach of probation pursuant to s. 75 of the Provincial Offences Act for failing to comply with the Probation Order and Restoration Order dated April 11, 2018. These orders were imposed by JP Seglins as part of Mr. Brown’s sentencing for breaching Regulation 179/06 and s. 28 of the CAA. Specifically, JP White found Mr. Brown guilty for failing to apply for a permit from the LSRCA to undertake the works required by the Restoration Order in the time period specified therein.

[38] The sentencing submissions were adjourned to August 31, 2023. Mr. Brown refused to participate in the sentencing submissions and left the courtroom.

[39] JP White commented on Mr. Brown’s “complete and total disregard for the law, complete and total disregard for this court, complete and total disregard for the rules of the Court and decorum”, and fined Mr. Brown $1,000.00, payable within 30 days, and extended the terms of the Probation Order and Restoration Order by one (1) year, pursuant to s. 75 of the POA.

[40] On September 27, 2023, Mr. Brown served a Notice of Appeal on the LSRCA from JP White’s decision. Mr. Brown also served a Notice of Motion under s. 112 of the POA seeking a stay of JP White’s decision pending Mr. Brown’s appeal. On October 6, 2023, Justice Misener of the OCJ heard Mr. Brown’s motion to stay JP White’s decision pending Mr. Brown’s appeal. Justice Misener dismissed Mr. Brown’s motion, concluding that Mr. Brown failed to meet his onus to demonstrate why such a stay was warranted.

[41] Shortly after the Court dismissed Mr. Brown’s motion, Mr. Brown delivered the Notice of Application for Judicial Review which is the subject matter of the current s. 140 Application.

[42] Mr. Brown has taken no further steps to perfect his appeal pursuant to the POA.

Analysis

[43] The purpose of s. 140 of the Courts of Justice Act was described by Nordheimer J., as he then was, in Chavali v. Law Society of Upper Canada, 2005 53071, at para. 17:

[I]t is recognized that the ability of the court to grant relief respecting a person whose is found to be a vexatious litigant must not include an absolute bar in all circumstances preventing that person from having resort to the courts. Therefore, any such order against a person must contain a provision that the person may institute or continue a proceeding if leave to do so is obtained from a judge. This condition is set out in section 140(1). The inclusion of such a provision recognizes that, notwithstanding that a person has conducted litigation in a vexatious manner in the past, he or she must still have the opportunity to demonstrate that they have a legitimate need to have recourse to the courts. However, unlike the regular process where a person may commence a proceeding as of right, in the case of a vexatious litigant, the court adopts a supervisory role to ensure that such persons may only resort to the courts where the court is satisfied that the person has a genuine reason or need to do so.

[44] The Court may only grant leave to Mr. Brown to continue the proceedings if he proves both that the proceeding to be continued is not an abuse of process and that there are reasonable grounds for the proceeding: Ibrahim v. Ontario, 2022 ONSC 6339, at para. 7, and cases cited therein. The onus is on the applicant for both elements of the test: Falardeau v. Owen Sound Police Service Board, 2021 ONSC 6180, at para. 70.

[45] An abuse of process is the misuse of the court’s procedure in a way that is manifestly unfair to a party to the litigation or would in some other way bring the administration of justice into disrepute. Abuse of process is a flexible doctrine unencumbered by specific requirements of technical legal rules: Ibrahim, at para. 8, and cases cited therein.

[46] Attempts to relitigate matters that have already been decided, or to circumvent the statutory appeal process, qualify as abuses of process: Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141, at para. 34; Winter v. Sherman Estate, 2018 ONCA 703, at para. 7.

[47] The following list, from Falardeau, at para. 73, although not exhaustive, is helpful to illustrate the concept of “abuse of process”:

a. a duplicate proceeding – for instance a lawsuit over an issue that was already decided in a previous lawsuit;

b. a multiplicity of motions or other efforts intended to drive up costs or delay a proceeding;

c. a proceeding or step in a proceeding taken for a collateral purpose, such as a motion to set aside an order when the proper step would have been an appeal;

d. a summons served not with the intent to secure a witness’s attendance to provide relevant evidence, but to harass;

e. repeated appeals without merit;

f. a motion brought to a court which does not have the jurisdiction to hear it.

[48] Mr. Brown’s proposed Application for Judicial Review is an improper collateral attack on the decisions of JP Seglins and the Ontario Court, Superior Court and Court of Appeal decisions that dealt with Mr. Brown’s various appeals and motions relating to the proceeding before JP Seglins. The proposed judicial review seeks to overturn Mr. Brown’s POC conviction and the resulting Restoration Order by way of judicial review in the SCJ—rather than an appeal to the Provincial Court. The proposed judicial review attempts to use the SCJ to collaterally attack JP Seglins’ 2018 decisions and relitigate legal issues argued and determined by the decisions of the appellate courts. This clearly constitutes abuse of process.

[49] In addition, Mr. Brown has failed to demonstrate that there are any reasonable grounds for a judicial review in the Divisional Court. His Notice of Application for Judicial Review requests relief that is beyond the jurisdiction of the Court, and, on its face, bares many of the hallmarks of a vexatious litigant: Gao v. Ontario WSIB, 2014 ONSC 6497, at para. 114; Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at paras. 19-20.

Conclusion

[50] For the foregoing reasons, the Applicant’s application for leave to institute an application for judicial review against the LSRCA and the Attorney General of Ontario is dismissed. The Application for Judicial Review is therefore quashed.

Justice R.E. Charney

Date: April 29, 2024