Endorsement

Overview

Court File No.: 477/24
Date: 2025-01-08
Superior Court of Justice – Ontario
Re: John Cipolla, Appellant
And: Senem Ozkin, Respondent
Before: O’Brien
Counsel: John Cipolla, Self-represented; Timothy Gindi, for the Respondent
Heard: In-writing

[1] This endorsement addresses whether this appeal should be dismissed as frivolous, vexatious, or otherwise an abuse of the process of the court pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The appeal is from an order of the Small Claims Court dismissing a motion in which Mr. Cipolla sought to have a decision of the Alliance of Indigenous Nations (AIN) Tribunal recognized by the court. The underlying issue related to a claim for trespass against Senem Ozkin, who was the Crown prosecutor assigned to prosecute a criminal matter against Mr. Cipolla in 2022.

[3] Deputy Judge Vicars dismissed the motion for three reasons: (1) The claim was barred by prosecutorial immunity; (2) there was a failure to provide 60 days’ notice to the Crown prior to issuing the claim as required by the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17; and (3) the AIN Tribunal is not a recognized legal entity. She concluded no decision of that entity can be recognized by the court.

[4] In his notice of appeal, Mr. Cipolla alleges the deputy judge erred in dismissing his claim because he had sued Senem Ozkin in her private capacity, not her official capacity as a prosecutor. He also alleges the deputy judge erred by dismissing the motion without providing him an opportunity to address the respondent’s submissions that the claim was frivolous, vexatious and an abuse of the process of the court. His notice of appeal does not address whether the finding that the AIN Tribunal is not a recognized legal entity.

[5] I am the Divisional Court case management judge in this matter. On October 7, 2024, I released directions asking the Registrar to issue a notice pursuant to r. 2.1.01 and advising that the court was considering dismissing the appeal as frivolous or vexatious or an abuse of the process of the court. The directions advised that the court was considering dismissing the appeal for the following reasons:

• Mr. Cipolla’s motion in Small Claims Court was based entirely on seeking to register an order of the Alliance of Indigenous Nations (AIN) Tribunal in the Small Claims Court.
• The Deputy Judge dismissed the action in part because she found the AIN Tribunal is not a recognized legal entity and, therefore, no judgment from that entity could be registered in Small Claims Court.
• While Mr. Cipolla’s appeal alleges the respondent was named in her private capacity and therefore not protected by Crown immunity, the notice of appeal does not dispute the finding that the AIN is not a recognized legal entity.
• If the AIN is not a recognized legal entity whose orders can be registered in court, there can be no merit to the appeal.

[6] In his submissions responding to the r. 2.1 notice, Mr. Cipolla reiterated that his claim against Senem Ozkin was not a claim against her in her official capacity. He also stated that the definition of “tribunal” under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA) requires that a statutory power of decision be conferred by statute. In this case, he submits, Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, is a statute recognizing Indigenous judicial systems. He also relies on decisions of the Supreme Court of Canada to the effect that Indigenous laws are presumed to continue, and that Canada’s domestic laws do not justify avoiding international obligations. Finally, he relies on terms of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) that refer, for example, to recognizing the laws of indigenous peoples and giving “due consideration” to their legal systems.

[7] Mr. Cipolla also sent the court additional documents. One is a letter dated December 13, 2024 from the Minister of Crown-Indigenous Relations. The letter is addressed to “Eagle Eyes aka Geoffrey, Grand Council Representative, Alliance of Indigenous Nations” and expresses thanks for a September 3, 2024 letter that provided “an update on the activities of the Alliance of Indigenous Nations of Turtle Island.”

[8] The second document is from the World Service Authority addressing the “World Passport,” which affirms the human right to freedom of movement. The document lists various international instruments that require Canada to recognize the validity and legality of the World Passport.

[9] I have decided to dismiss the appeal under r. 2.1.01 for the following reasons.

Analysis

[10] Rule 2.1.01 allows the court to stay or dismiss a proceeding where it appears on its face to be frivolous, vexatious, or otherwise an abuse of the process of the court. The application of r. 2.1 is “limited to 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 resort to the attenuated process”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, para 8; Mohammad v. McMaster University, 2023 ONCA 598, para 6.

[11] The rule “must be interpreted 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, at para. 8; Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, para 8.

[12] In this case, the appeal is clearly frivolous, vexatious or an abuse of process because there is no plausible basis to find the AIN Tribunal to be a tribunal whose decisions the court would recognize.

[13] The deputy judge found there was “no evidence… that AIN is associated with any recognized Indigenous group or community in Canada or anywhere on Turtle Island.” She further stated: “There is no evidence before me that AIN exists in any capacity other than it maintains a website.” The deputy judge relied on World Energy GH2 Inc. v. Ryan, 2023 NLSC 109, which found the AIN, if it existed, had no jurisdiction or authority over the court. When the deputy judge asked counsel for Mr. Cipolla who had established the AIN, he replied “I have no idea.”

[14] Mr. Cipolla has not challenged the deputy judge’s finding that there was no evidence the AIN was associated with any recognized Indigenous group or community other than to now provide the letter from the Minister of Crown-Indigenous Relations. Even if that letter were to be admitted as fresh evidence on appeal, it is too generic to provide a basis for a finding that the AIN Tribunal is associated with a recognized Indigenous group or community. Mr. Cipolla has not provided any evidence to explain the foundation or basis for the AIN Tribunal.

[15] In any event, there is no authority that the AIN Tribunal has been created or recognized by statute. The SPPA defines a “tribunal” to mean “one or more persons, whether or not incorporated and however described, upon which a statutory power of decision is conferred by or under statute.”

[16] Bill C-15 does not confer any statutory power on the AIN Tribunal. It does not even mention the AIN Tribunal. Mr. Cipolla has not referred to any legal authority that could possibly authorize the AIN Tribunal to render decisions that would be legally recognized in this court.

[17] Bill C-15 and UNDRIP recognize and affirm the rights of indigenous people. Bill C-15, for example, requires the Government of Canada to prepare and implement an action plan to achieve the objectives of UNDRIP. Mr. Cipolla relies on broad statements, such as article 5 of Bill C-15, which provides: “The Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.” These are important but broad obligations. They do not mean that any organization can claim to be associated with an indigenous community and its orders, without more, will then be recognized by the courts. They do not provide any authority that would allow the court to recognize an order of the AIN Tribunal.

Disposition

[18] There is no possibility that the AIN Tribunal’s decision would be recognized in this court. The appeal therefore is dismissed under r. 2.1.01.

O’Brien
Date: January 8, 2025