Court File and Parties

Court File No.: CV-24-00733144
Date: May 12, 2025
Court: Superior Court of Justice - Ontario

Plaintiff:
J. Craig Anderson, Litigation Guardian of his son, the Minor Plaintiff

Defendants:
Toronto District School Board, TDSB Superintendents Andrew Howard, Ronald Felsen, TDSB Executive Superintendent Uton Robinson, TDSB Principals Robert Hochberg and Andrew Thompson, TDSB Trustees Chair Rachel Chernos Lin, Toronto Police Service, TPS Detective Constable Matthew Mungal, The Ombudsman of Ontario

Before: Justice Anna Papageorgiou

Counsel:

• Jacob Pollice, for the Toronto Police Service Board and Detective Constable Matthew Mungal
• Robin Bates, on behalf of Ombudsman of Ontario
• Robert Smith, on behalf of TDSB Defendants, Toronto District School Board, Rachel Chernos Lin, Robert Hochberg, Uton Robinson, Andrew Thompson, Andrew Howard and Ronald Felsen

Heard: May 2, 2025

Endorsement

Overview

[1] The Defendants the Toronto Police Service Board (“TPS”) and Detective Constable Matthew Mungal (“Detective Mungal”) request that this proceeding be dismissed pursuant to r. 2.1.01 on the basis that, on its face, it is frivolous, vexatious or an abuse of process.

The Nature of the Proceeding

[2] The action is brought by Craig Anderson on behalf of his son, the Minor Plaintiff. The Statement of Claim pleads that the Minor Plaintiff is a gifted student with autism and severe ADHD.

[3] The Statement of Claim recounts various allegedly unjustified school transfers, inadequate accommodations, bullying, assaults, denial of previously granted educational supports and the Toronto District School Board’s failure to properly address the issues he was facing. It pleads that the TDSB, administrators, trustees, educators and other agents enabled or ignored misconduct that harmed the Minor Plaintiff. It also alleges that the Defendants, where applicable, blocked Mr. Anderson’s attempts to advocate for his son.

[4] Mr. Anderson made complaints to the TPS.

[5] He alleges that Detective Mungal conducted a biased, incomplete investigation, refused to gather critical evidence or treat Mr. Anderson’s concerns seriously. He alleges that Detective Mungal was callous, dismissive, and that he was unduly influenced by the TDSB’s narrative. He pleads that Detective Mungal’s incomplete, callous, dismissive approach undermined justice and security for the Plaintiffs. As well, the TPS exhibited a consistent pattern of non-responsiveness and indifference. On multiple occasions it failed to provide support, timely updates or follow up on reported incidents of misconduct. This caused the Plaintiffs heightened anxiety.

[6] There are general pleadings of negligence, breach of fiduciary duty, breach of statutory duty, and intentional infliction of emotional distress as against all Defendants, which would include Detective Mungal and the TPS.

Decision

[7] For the reasons that follow I do not dismiss this pursuant to r. 2.1.01 or direct any further process to consider this matter pursuant to r. 2.1.01. However, I do direct that the parties attend a case conference with me.

Analysis

[8] This is not an appropriate case for the use of Rule 2.1.01(1) which provides as follows:

The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

[9] As set out in Myers, J.’s decision in Gao v. Ontario WSIB and Ontario Ombudsman, 2014 ONSC 6100, at para. 9, r. 2.1.01(1) “is not meant for close calls.” Decisions pursuant to this rule must be based upon whether the Claim, on its face is frivolous, vexatious or an abuse of process.

[10] This Statement of Claim does not have any of the usual hallmarks of a frivolous and vexatious proceeding elaborated upon by Myers J. in Gao v. Ontario WSIB, 2014 ONSC 6497. There is no rambling discourse. The Statement of Claim is intelligible, concise and well written. It is only 16 pages long. It contains facts and then relates those facts to pleaded causes of action. There is no reference to any other proceedings brought by the Plaintiffs. There is no evidence of the Plaintiffs having failed to pay costs. There is no curious formatting. There are no odd or irrelevant attachments. There are no threats, ultimatums or any of the other features set out in Myers J.’s decision.

[11] This claim appears to be a bona fide attempt by Mr. Anderson to seek redress for wrongs which he alleges were inflicted on his son. He appeared before me in January 2025 to schedule a motion to permit him to conduct this matter without a lawyer. He was polite, respectful, and deeply concerned about his son. It was clear to me that he is doing everything in his power to advocate for his son but he will listen to reason. He had included the Ombudsman in his proceeding and consented to a dismissal of the action against the Ombudsman at the case conference. This shows that he takes concerns raised about claims that he may have against various Defendants seriously.

[12] It is important to appreciate that when a request is made pursuant to r. 2.1.01, the moving party does not provide a submission on why they seek to have the matter dismissed.

[13] I assume that the reason they have made this request has to do with the issue of whether or not the police owe a private law duty of care, although I note that there are other causes of action pleaded.

[14] In general, r. 21 should be used where a defendant feels it is plain and obvious that a claim cannot succeed in law, not r. 2.1.01.

[15] When a motion to strike is brought pursuant to r. 21, the judge has an opportunity to ask questions and the party who the subject of the motion is has an opportunity to elaborate their claim and provide details that may be missing and that could answer the specific concerns raised by the moving party. Leave to amend will only be denied in the clearest of cases when it is plain and obvious that no tenable cause of action is possible on the facts as alleged and there is no reason to suppose that the party could improve his or her case by any amendment: Mitchell v. Lewis, 2016 ONCA 903, para 21; Conway v. Law Society of Upper Canada, 2016 ONCA 72, para 16; Adelaide Capital Corp. v. The Toronto-Dominion Bank, 2007 ONCA 456, para 6.

[16] Here, I am also instructed by the Canadian Judicial Council’s Statement of Principles on Self-Represented Litigants and Accused Persons, (Ottawa: Canadian Judicial Council, September 2006) (the “CJC Principles”). The CJC Principles have been endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23 at para 4.

[17] The CJC Principles note that those who are unrepresented by counsel face challenges within the court system. Access to justice for self-represented individuals requires all aspects of the court process to be convenient and accommodating. Self-represented individuals should not be denied relief on the basis of minor or easily rectified deficiencies. Judges should ensure that procedural and evidentiary rules are not used unjustly to hinder the legal interests of self-represented persons.

[18] Finally, words matter. Calling a proceeding “frivolous, vexatious and an abuse of process” carries with it a very negative judgment about the person bringing the claim that could also have future consequences for them because of the label. Attaching such labels to a person seeking redress in good faith for wrongs they feel they have suffered would diminish the justice system. The average person on the receiving end would come away from the justice system with a negative impression of it. While it is appropriate in some cases, it is not justified merely because a person may be wrong or because they may be self-represented and may not understand the law.

[19] For all of these reasons, if the Defendants feel that the causes of action cannot succeed, this issue should not be considered in this attenuated manner. The Defendants should bring the necessary motion, provide law and argument, and the Plaintiffs should be given the right to respond and potentially amend if it is possible to cure any defects.

[20] I appreciate that this carries with it the risk from the Plaintiffs’ point of view that the Defendants bring such a motion, succeed, and the Plaintiffs have to pay costs. This risk cannot justify the improper use of r. 2.1.01. If the case is as obvious as the Defendants implicitly suggest by making this request pursuant to r. 2.1.01, then the costs associated with a r. 21 motion should not be that significant.

[21] I suggest that the Plaintiffs may want to consider the issue of whether or not there is a valid claim against the TPS and Detective Mungal at this time with a lawyer. I can advise the Plaintiffs that should this matter proceed to a motion and be dismissed, the costs could be in the range of $10,000. They should factor that risk into their ongoing decisions about this case.

[22] I also direct that the parties appear at a case conference before me to address concerns about the case against TPS and whether they can be resolved.

Papageorgiou J
Date: May 12, 2025