

COURT OF APPEAL FOR ONTARIO

CITATION: Fitzgerald v. Reaume, 2021 ONCA 330

DATE: 20210518

DOCKET: C68228

Juriansz, Huscroft and Jamal JJ.A.

BETWEEN

Stephen Fitzgerald

Plaintiff (Appellant)

and

Leslie Reaume

Defendant (Respondent)

Michael N. Bergman, for the appellant

Trevor Guy, for the respondent

Heard: May 10, 2021 by videoconference

On appeal from the order of Justice Calum U.C. MacLeod of
    the Superior Court of Justice, dated March 2, 2020.

REASONS FOR DECISION

[1]

This is an appeal from the decision of the Superior Court judge
    [the judge] dismissing the appellants action pursuant to Rule 2.1.01
of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194.

[2]

The claim sought $1,050,000 in damages against
    the respondent, a Vice‑Chair at the Human Rights Tribunal of Ontario. The
    action arose out of a hearing into a human rights complaint against the
    appellant, over which the respondent was presiding. The appellant alleged that
    the respondent failed to conduct the hearing in accordance with the required
    rules, norms, and standards, and that her actions concerning an adjournment in
    the proceedings during which the appellant sought medical attention from
    paramedics infringed his rights to health, dignity, and liberty.

[3]

The respondent wrote to the Registrar of the
    Superior Court, copying the appellant, requesting an order under r. 2.1
    dismissing the claim. The appellant wrote to the Registrar stating that he
    contested the respondents submissions and would provide reasons should the
    court consider the request to dismiss.

[4]

The judge dismissed the claim without receiving
    submissions from the parties. He noted that the appellants concerns regarding
    the human rights hearing should have been raised before the Tribunal and that
    the only jurisdiction the court had was by way of an application for judicial
    review in the Divisional Court. The appellant had no right to sue the
    respondent concerning the manner in which she conducted the hearing. Moreover,
    the statement of claim disclosed no cause of action and could not be saved. It
    was, on its face, an improper pleading and a frivolous action.

[5]

The principles governing the operation of r. 2.1
    are set out
in
Visic v. Elia Associates Professional Corporation
, 2020 ONCA 690, at para. 8. It is well established that the
    decision of the judge is a discretionary decision that is entitled to
    deference. We see no basis to interfere with the judges decision in this case.

[6]

We accept, as the appellant submits, that the
    statement of claim in this case is not marred by the sorts of inflammatory
    rhetoric or hyperbolic claims often seen in a frivolous and vexatious action.
    Nevertheless, the claim cannot succeed given the respondents immunity from
    suit, and this immunity precludes the pleadings from being saved. It was open
    to the judge to conclude that this is the sort of litigation that r. 2.1 was
    designed to weed out. We do not accept the appellants attempt to avoid the
    immunity by distinguishing the respondents actions conducting the hearing from
    those taken when she was not physically present in the hearing room.

[7]

Nor do we accept that the judges decision to
    not to permit submissions violated the duty of fairness. Determinations under
    r. 2.1.01(1) are to be made in a summary manner and pursuant to subsection (3)
    may, in the courts discretion, be made without written submissions. The judge
    considered the matter and stated that he would have dealt with the request
    pursuant to a different procedure if it were decided on the basis of a failure
    to comply with either the
Crown Liability and Proceedings Act
, 2019
,

S.O. 2019, c. 7, Sched. 17

or the
Limitations Act
, 2002
,

S.O. 2002, c. 24, Sched.
    B.

However, given that the action could not possibly
    succeed, it was open to the judge to conclude that no purpose would be served
    in putting the plaintiff on notice and providing an opportunity to make written
    submissions.

[8]

The appeal is dismissed.

[9]

The respondent does not seek costs and none are
    awarded.

R.G. Juriansz
    J.A.

Grant Huscroft
    J.A.

M. Jamal J.A.
