Superior Court of Justice – Ontario
Court File No.: CV-24-99
Date: 2025/02/19
Between:
Warren Michael Cummings
And:
Mayor Amy Martin, Councillor Adam Veri, Councillor Christopher Van Paassen, Councillor Michael Columbus, Councillor Alan Duthie, Councillor Linda Vandendriessche, Councillor Thomas Masschaele, Chief Administrative Officer Alan Meneses, collectively and personally, and the Corporation of the County of Norfolk
Before: A.D. Hilliard
Counsel:
Warren Michael Cummings – self-represented
Mark Abradjian – for the Respondents
Heard: In chambers – on written materials only
Reasons for Decision
Procedural Background
[1] On or about August 20, 2024, counsel on behalf of the Respondents filed a Request for stay or dismissal of this Application pursuant to Rule 2.1.01. The motion originally returned in court before Antoniani J., who by way of endorsement on August 29, 2024 adjourned the motion as it had not been confirmed. The return date was October 10, 2024.
[2] The matter was next before me on October 10, 2024. The Applicant had by that point filed and uploaded written submissions, an Affidavit, a Supplemental Affidavit and a Confirmation. After some discussion with Mr. Cummings on his own behalf and counsel on behalf of the Respondents, it was determined that the matter should proceed as a chambers matter with the parties filing further written submissions pursuant to the procedure set out in Rule 2.1.01. Having read the materials filed for the October 2024 return date and having heard some initial submissions, I seized myself with this matter.
[3] At the October appearance on this matter, Mr. Cummings withdrew some of the requests for relief in his application as moot. Therefore, these reasons deal only with the remaining items still at issue from Mr. Cummings' Application.
Legal Framework
[4] Rule 2.1.01 of the Civil Procedure Rules provides as follows:
(1) The court may make an order staying or dismissing a proceeding that appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.
(2) The court may make a determination under subrule (1) in a summary manner, subject to the procedures set out in this rule.
[5] The Ontario Court of Appeal set out the legal framework and principles governing the application of Rule 2.1:
The following principles govern the application of r. 2.1:
Rule 2.1 must be "interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process": Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488. The Rule is not for close calls -- it may be used only in "the clearest of cases where the 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": Scaduto, at paras. 8-9; Khan v. Law Society of Ontario, 2020 ONCA 320 ("Khan"), at para. 6, leave to appeal to S.C.C. requested, 39321.
A motion under r. 2.1 focuses on the pleadings and any submissions of the parties made under the rule. No evidence is submitted on a r. 2.1 motion: Scaduto, at paras. 9, 11-12. A court may, however, review reasons and pleadings from other proceedings to determine whether the case is abusive: Khan, at para. 9.
Rule 2.1 does not replace other rules in the Rules of Civil Procedure to strike out actions or to deal with other procedural irregularities summarily: Khan, at para. 7. The rule is "not meant to be an easily accessible alternative to a pleadings motion, a motion for summary judgment, or a trial": Khan v. Krylov & Company LLP, 2017 ONCA 625, para. 12; P.Y. v. Catholic Children's Aid Society of Toronto, 2020 ONCA 98, para. 11. The Rules provide many other remedies to address cases that are not clear on the face of the pleading: Khan, at para. 15.
The case law under r. 2.1 will continue to develop as the rule is used more widely: Scaduto, at para. 9.
A motion judge's ruling under r. 2.1 is a discretionary decision entitled to appellate deference. Such a decision may be set aside only if the motion judge misdirected themselves or their decision was so clearly wrong as to amount to an injustice: Khan, at para. 10; Penner v. Niagara Regional Police Services Board, 2013 SCC 19, para. 27. [1]
[6] Black’s Law Dictionary defines “frivolous” as: “Lacking a legal basis or legal merit; not serious; not reasonably purposeful.” If a party does not have standing to seek the relief being requested, then their pleading has no legal basis and is therefore “frivolous” as a matter of law. There are cases in which the Applicant’s lack of standing formed grounds to dismiss a proceeding under Rule 2.1. [2]
[7] Having established the legal framework for the request to dismiss pursuant to Rule 2.1, I will address each request for relief that Mr. Cummings is still pursuing in order.
Analysis
1c) A request for the courts to review the complaint and decision of the Municipal Election Compliance Audit Committee of July 12, 2023 relating to a complaint by Krystal Chopp against Mayor Amy Chopp (sic)
[8] At the October appearance, Mr. Cummings clarified that what he is seeking in relation to this request is for directions from the Court. The request for directions is also set out in the Application, wherein it is requested that the court “direct the committee to provide a clear explanation on the decision” and provide an explanation for “why an investigator was not recommended on the many issues such as the redirection of the websites and the reference to Reg Cutler to determine the exact involvement of Amy Martin in these allegations.”
[9] The decision referred to in the Application arises out of a complaint made by Krystal Chopp, the former Mayor of Norfolk County, to the Municipal Election Audit Committee (MEAC) regarding financial contributions made to the election campaign of the current Mayor of Norfolk County, Amy Martin.
[10] On a plain reading, this request is seeking an Order compelling the MEAC to provide further reasons for their decision and an explanation for a failure to make a specific recommendation. There is no basis in law for me to make such an Order. Even on a judicial review or an appeal, a reviewing court cannot order the lower court or administrative tribunal or decision-maker to provide supplementary reasons. On that basis, this request is frivolous.
[11] If I read this request more broadly, I could interpret this as a request for an appeal. Decisions of the MEAC may be appealed to the Superior Court of Justice. On an appeal, the Court could assess whether the reasons provided were sufficient to allow for meaningful review. However, Mr. Cummings was not a party to the process arising out of the complaint made by Ms. Chopp to the MEAC. Therefore, he does not have standing to seek a review of the MEAC’s decision by way of an appeal because he was not a party to the complaint.
[12] I have also considered the issue of the limitation period. A decision of the MEAC may be appealed to the Superior Court within 15 days of the decision being made. The MEAC’s decision was July 27, 2023. This Application was issued on July 16, 2024, almost one year later. Although in his responding materials, Mr. Cummings argues that his request should be interpreted to include leave to extend the timelines, any such request would need to include the reason for the delay, which Mr. Cummings' materials do not. Furthermore, even if Mr. Cummings had requested leave and provided an explanation for the delay in filing the appeal, a determination of whether to grant leave to extend the timelines necessarily involves a preliminary assessment of the merits of the appeal. In my view, even if Mr. Cummings had sought leave to extend the timelines, leave would not have been granted as he has no standing to appeal the MEAC’s decision.
[13] Given my findings on both a plain reading and a more broad and generous reading of this request, I am satisfied that this claim is frivolous and should be summarily dismissed.
1d) A request for the court to review the conduct of Council, The Mayor, Alan Meneses relating to the approval of a bylaw on May 22, 2024 relating to the amendment to the Official Plan, in particular but not limited to the submission of County Planning staff on April 16th, 2025 as a comparison to the final bylaw of May 22, 2024
[14] Under section 276 of the Municipal Act, a municipality may request that a judge of the Superior Court of Justice conduct an investigation into an alleged breach of trust or misconduct of a member of council, or other employee of the municipality. However, that process requires that the municipality makes the request to the Superior Court of Justice by way of a resolution which would be passed by Council. Mr. Cummings is not a Norfolk County Councillor, nor does he have any authority to speak on behalf of Norfolk County Council.
[15] Section 273 of the Municipal Act provides that upon application of any person the Superior Court of Justice may quash a by-law in whole or in part for illegality. Mr. Cummings cites this section as providing the authority for his standing to seek the relief requested in his Application as set out in 1d). Even on a fulsome and expansive reading of Mr. Cummings' Application and all of his supplementary submissions filed in response to the Rule 2.01 request, there is nothing to indicate the basis upon which Mr. Cummings says that the by-law in question should be quashed for illegality. Even on a generous reading of the Application, it is a stretch to say that the request is even an application to quash.
[16] The request in 1d) explicitly relates to the conduct of members of council in the process of approving a by-law. That interpretation is further confirmed by the responding submissions filed by Mr. Cummings where he goes to great lengths to cite the lack of consultation with residents and the dismissal by councillors of the deputations that were made to Council. Mr. Cummings' request is best summed up by the following sentence in his Reply to Motion 2.01 by opposing counsel: “The question here is did the council act in a ‘Good Faith Effort’ to consider the will of the people.”
[17] I accept that as a resident of Norfolk County Mr. Cummings takes a personal interest in the decisions made by Council given the effect that those decisions have on all the residents of Norfolk County. I also accept that Mr. Cummings genuinely believes that there was a lack of fulsome consultation with residents of Norfolk County in relation to this particular by-law. However, a lack of consultation alone does not support an argument that the By-Law is illegal and should therefore be quashed.
[18] The other argument raised by Mr. Cummings in support of his request for a review of the conduct of Council is an allegation that there was a “discriminatory effect” created by Council giving undue weight to the submissions of certain parties and dismissing the submissions of other parties without proper consideration. A By-Law is not illegal by virtue of Council having considered certain parties’ interests over others. To put it another way, Council choosing not to consider the submissions made by parties opposing the By-Law in deciding whether or not to enact the By-Law does not make the By-Law itself illegal.
[19] A By-Law enacted for the benefit of a small group of people is not necessarily illegal. In this case, the allegation that the interests of people involved in land development were considered and preferred over the interests of private citizens residing in Norfolk County, cannot in and of itself lead to a finding that the By-Law is illegal. In order for a court to make an order quashing the By-Law, there must be a basis upon which to find that the By-Law itself is illegal or ultra vires – purporting to deal with matters outside the jurisdiction of the municipality.
[20] There is nothing before me to indicate that the By-Law itself is illegal or ultra vires the municipality. All of Mr. Cummings' complaints are about the process by which the By-Law was enacted, not about the provisions or contents of the By-Law itself.
[21] The Court does not have the jurisdiction to hear and determine issues relating to the conduct of municipal council in the discharge of their official duties, unless that conduct constitutes a criminal or provincial offence. If the conduct of councillors runs afoul of any procedures, rules and policies governing ethical behaviour, that is a matter for the Integrity Commissioner appointed pursuant to section 223.3 of the Municipal Act, not the Court.
[22] Given that Mr. Cummings has no standing under s. 276 to request a review and has provided no basis under s. 273 to quash the By-Law, the request is frivolous and shall be summarily dismissed.
1e) If the courts agree that the discrepancies exist in the forementioned, a request is made for the appointment of an independent impartial auditor or investigator to review the conduct of council
[23] As I have found that Mr. Cummings has no standing to request a review of the conduct of council, there is no basis upon which a review should be conducted, and therefore there is no basis upon which I, or any other judge of the Superior Court of Justice, could make an appointment of an independent impartial auditor or investigator.
[24] I am also not satisfied that the court even has the jurisdiction to appoint an auditor or investigator to review the conduct of Council as requested.
[25] As there is no basis upon which this request could be granted, it is frivolous and shall be summarily dismissed.
1f) Should the auditor/investigator find discrepancies in the aforementioned process and report same to the court of these discrepancies, then the request for the courts would be to consider an order suspending the bylaw and all related activity within the county until a full determination on all issues have been made
[26] Given my findings that Mr. Cummings lacks standing to request a review and therefore the court has no basis or authority to appoint an auditor or investigator, this request is frivolous and will be summarily dismissed.
1h) A determination by the court as to who the Municipal Act refers in its definition of who is the “Municipality”. Does this definition in fact make the inhabitants as the parties in the Municipality such that they have the right to request or question the assessment of legal bills presented to the county by legal counsel
[27] Section 1(1) of the Municipal Act sets out the definitions of terms used in the Act, including the term municipality:
“municipality” means a geographic area whose inhabitants are incorporated.
[28] Section 2 of the Municipal Act sets out the purposes of the Act:
Municipalities are created by the Province of Ontario to be responsible and accountable governments with respect to matters within their jurisdiction and each municipality is given powers and duties under this Act and many other Acts for the purpose of providing good government with respect to those matters.
[29] These two sections read together make it clear that a “municipality” for the purpose of the Municipal Act is the corporation created to govern all of the residents living within specific territorial boundaries. For the purpose of this Application, the municipality in question is the corporation of Norfolk County, which has been duly incorporated to govern matters on behalf of the residents living within the geographic boundaries of Norfolk County.
[30] The Corporation of Norfolk County is managed by duly elected members of the municipal council who make decisions on behalf of the residents of the county, much the way a Board of Directors makes decisions on behalf of the shareholders of a private corporation. The purpose of municipal elections is to allow the residents of any particular county to exercise their democratic rights to participate in choosing elected officials. However, once a municipal council is constituted by way of individuals assuming the municipal office to which they were duly elected, the power of the municipality for the purpose of the Municipal Act is vested in the municipal council which acts pursuant to the powers and duties prescribed in the Municipal Act.
[31] Based on the following interpretation of the Municipal Act I have determined that the definition of “municipality” does not extend to individual residents of Norfolk County so as to give them standing to request or question the legal bills presented to the county by retained legal counsel. Given that an individual resident of Norfolk County, such as Mr. Cummings, does not have standing to challenge or question the legal bills of Ross & McBride as the county’s solicitors, I decline the request of Mr. Cummings to permit residents of Norfolk County to commence an assessment process of Ross & McBride’s accounts rendered to Norfolk County.
Conclusion
[32] I accept that Mr. Cummings is a concerned citizen of Norfolk County who takes his civic rights and responsibilities seriously. In finding that much of what he has requested in his Application should be summarily dismissed, I have not concluded that Mr. Cummings’ Application is an abuse of process. Mr. Cummings genuinely believes that elected officials should be accountable for their actions. To that end, he has sought redress from the Courts. My findings that there is no legal basis for the relief he is requesting does not amount to a finding that Mr. Cummings' Application itself is an abuse of process.
[33] I also decline to find that the relief Mr. Cummings has sought is vexatious as the stigma that can attach to that term is not appropriate in this case. I am not aware of any other litigation commenced by Mr. Cummings seeking the same or similar relief. Mr. Cummings is not a repeat litigant, coming before the Court again and again requesting relief that cannot be granted.
[34] Most of the relief that Mr. Cummings is seeking cannot be granted due to a combination of a lack of standing or legal basis for the request made. That relief therefore falls within the definition of frivolous. Having found those claims to be frivolous, summary dismissal is appropriate. However, this finding is not meant to be a judgment on the intent of Mr. Cummings in commencing these proceedings but simply an assessment of whether or not there is a legal basis to any of the claims he has made.
[35] The final claim requested at paragraph 1h) I have summarily determined by way of these reasons.
[36] The proper use of scarce judicial resources is a very delicate balance. Rule 2.01 is one mechanism by which the Court can manage its own processes to ensure the appropriate allocation of judicial time. At the same time, it is important that Rule 2.01 decisions not deter individuals from seeking redress from the Court when they have a genuine belief that there has been a wrong committed or harm done. It is simply the reality of our common law system that sometimes relief from the Court is not possible or not available in the circumstances.
[37] A finding that a claim meets the legal definition of frivolous does not mean that the matter is without value or merit in a normative sense. I accept that Mr. Cummings has genuinely held concerns about the manner in which Norfolk County council has made decisions on behalf of the citizens residing and paying taxes in the municipality. However, the reality of our system of justice is that not every grievance between two parties gives rise to an opportunity to have a court hear and determine the case on its merits.
[38] That is not to say though that councillors and mayors who choose to ignore the deputations of their constituents cannot be held accountable for that decision. Every four years councillors and mayors must submit themselves to the will of the voters by way of an election. During the election process, councillors and mayors must answer to their constituents about the decisions they made during their tenure and the voters decide whether or not councillors and mayors are given another mandate.
[39] For all of these reasons, the balance of Mr. Cummings’ Application not already withdrawn on consent is hereby summarily dismissed.
[40] If the parties wish to file written submissions on costs, despite my comments above, those submissions shall be filed as follows:
- Submissions by the Respondent, no longer than 3 pages in length, double-spaced, 12-point font, exclusive of Costs Outline, on or before February 21, 2025.
- Submissions by the Applicant, no longer than 3 pages in length, double-spaced, 12-point font, exclusive of Costs Outline, on or before February 28, 2025.
- Reply by the Respondent, no longer than 2 pages in length, double-spaced, 12-point font, on or before March 7, 2025.
A.D. Hilliard
Released: February 19, 2025
Cited Cases
- Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, para 8-9
- Khan v. Law Society of Ontario, 2020 ONCA 320, para 6, 9, 10, 15
- Khan v. Krylov & Company LLP, 2017 ONCA 625, para 12
- P.Y. v. Catholic Children's Aid Society of Toronto, 2020 ONCA 98, para 11
- Penner v. Niagara Regional Police Services Board, 2013 SCC 19, para 27
- Visic v. Elia Associates Professional Corp., [2020] OJ No 4757 (CA)
- Rebello v. Canada (Attorney General), [2024] OJ No 658 (CA)
- Campisi v. Ontario (Attorney General), 2018 ONCA 869
- Mohammad v. Springer Nature, [2024] OJ No 4609 (CA)