NADIRE ATAS Applicant v. THE ATTORNEY GENERAL OF CANADA AND THE ATTORNEY GENERAL OF ONTARIO AND THE HONOURABLE, 2024 FC 241

Date: 20240214 Docket: T-721-23 Citation: 2024 FC 241 Toronto, Ontario, February 14, 2024 PRESENT: Mr. Associate Judge Michael D. Crinson BETWEEN: NADIRE ATAS Applicant and THE ATTORNEY GENERAL OF CANADA AND THE ATTORNEY GENERAL OF ONTARIO AND THE HONOURABLE JUSTICE D.L. CORBETT, THE HONOURABLE JUSTICE D.G. STINSON, THE HONOURABLE JUSTICE SUSAN G. HIMEL, THE HONOURABLE JUSTICE GEOFFREY B. MORAWETZ, THE HONOURABLE STEPHEN E. FIRESTONE, THE HONOURABLE JUSTICE M.H. TULLOCH, THE HONOURABLE JUSTICE GRANT HUSCROFT, THE HONOURABLE JUSTICE A. HARVISON YOUNG, THE HONOURABLE JUSTICE JAMES C.

MACPHERSON, THE HONOURABLE JUSTICE J. MICHAL FAIRBURN, THE HONOURABLE JUSTICE PETER D. LAUWERS, THE HONOURABLE JUSTICE GARY T. TROTTER, THE HONOURABLE JUSTICE PAUL S. ROULEAU, THE HONOURABLE JUSTICE M.L. BENOTTO, THE HONOURABLE JUSTICE DAVID BROWN Respondents ORDER AND REASONS [ 1 ] This motion arises in the context of an application for judicial review brought by the Applicant in response to the dismissal by the Canadian Judicial Council ( " “CJC” " ), through its early screening process, of the Applicant’s claim made against Justice Corbett.

That complaint arose from the Applicant’s dissatisfaction with adverse rulings made by Justice Corbett in his capacity as case manager of the Applicant’s proceedings before the Superior Court and with Justice Corbett’s vexatious litigant order against the Applicant dated January 3, 2018. [ 2 ] While judicial officers, in addition to Justice Corbett had some involvement with those proceedings before the Superior Court in dealing with motions or appeals from orders, the Applicant’s complaint to the CJC was solely in relation to Justice Corbett.

The CJC dismissed that complaint pursuant to its early screening process with reasons dated March 1, 2023. This led to the Applicant, on March 31, 2023, commencing this application for judicial review of the CJC dismissal decision dated March 1, 2023. [ 3 ] Notably, despite the fact that the decision that is subject to judicial review is in respect of a complaint directed against Justice Corbett, the Applicant seeks relief in the form of declarations against the Honourable Justice D.G. Stinson, the Honourable Justice Susan G. Himel, the Honourable Justice Geoffrey B. Morawetz, the Honourable Stephen E.

Firestone, the Honourable Justice M.H. Tulloch, the Honourable Justice Grant Huscroft, the Honourable Justice A. Harvison Young, the Honourable Justice James C. MacPherson, the Honourable Justice J. Michal Fairburn, the Honourable Justice Peter D. Lauwers, the Honourable Justice Gary T. Trotter, the Honourable Justice Paul S. Rouleau, the Honourable Justice M.L.

Benotto, the Honourable Justice David Brown (collectively the " “Judicial Officials” " ) as well as Justice Corbett, the Attorney General of Ontario and the Attorney General of Canada. [ 4 ] In the Applicant’s responding memorandum of fact and law on this motion (at paras. 38 and 39) the Applicant admits The issue before the Court on the application for judicial review is not to find whether Justices engaged in misconduct, but rather whether the AED of the CJC made a reviewable error in holding that the CJC had no jurisdiction to deal with the complaint…The Court will clearly be in no position to assess the Justices conduct, as there is no evidentiary record before the Court upon which to do so.

The Applicant acknowledges that the Court cannot make a finding of fact regarding the Justices’ conduct and that she is not seeking any such findings by way of the Impugned Declarations. [ 5 ] The issue or live controversy before the Court on the judicial review application is whether the decision of the Executive Director of the CJC to screen out the Applicant’s complaint about Justice Corbett was unlawful or in contravention of the Applicant’s rights. The Issues on this Motion [ 6 ] The Judicial Officials and the Attorney General of Ontario bring this motion and raise four issues: A .

Should the notice of application be struck and dismissed as against the Attorney General of Ontario and the Judicial Officials (as defined); B . Should paragraphs (a), (d), 37-40 and 44-46 of the notice of application be struck, and if so, with or without leave to amend? C . Should an extension of time to file a notice of appearance and subsequent steps in the proceeding be granted to the Respondents who have not yet filed one and remain as Respondents to this application? D . Should this matter be case managed?

[7] In determining these issues on this motion the Court has read and considered the moving parties’ motion record, the respondingmotion record and the letter dated June 8, 2023 on behalf of the Attorney General of Canada whereby the Attorney General of Canadaconsents to the moving parties’ requests for orders extending the time to serve and file a Notice of Appearance and complete other stepsin this proceeding and the request for case management, and does not oppose the other relief sought by the moving parties.

Issue 1: Should the notice of application be struck and dismissed as against the Attorney General of Ontario and the Judicial Officials? [8] At the heart of this issue is a determination whether the Attorney General of Ontario and the Judicial Officials are proper andnecessary parties to the judicial review application. Rule 104(1)(

a) of the Federal Courts Rules (the "“Rules”") provides the Court thediscretion at any time to: (a) … order that a person who is not a proper or necessary party shall cease to be a party; [9] Rule 104(2) adds that any order made under subsection 104(1): (2) … shall contain directions as to amendment of the originating document and any other pleadings. [10] Both the moving and responding parties on this motion agree that Rule 303(1)(

a) governs who must be named as a respondent tothis application for judicial review. Rule 303(1)(

a) provides that an applicant shall name as a respondent every person "“directly affectedby the order sought in the application…”".

These parties also agree that the Federal Court of Appeal in Forest Ethics AdvocacyAssociation v Canada (National Energy Board), 2013 FCA 236 at paragraphs 20-21 set out the functional test for determining whether aparty is directly affected, within the meaning of Rule 303(1)(a), by the relief sought: A party has a “direct interest” under subsection 18.1(1) of the Federal Courts Act when its legal rights are affected, legalobligations are imposed upon it, or it is prejudicially affected in some direct way: League for Human Rights of B'Nai BrithCanada v.

Odynsky, 2010 FCA 307 at paragraphs 57-58; Rothmans of Pall Mall Canada Ltd. v. Canada (M.N.R.), (FCA), [1976] 2 F.C. 500 (C.A.); Irving Shipbuilding Inc. v. Canada (A.G.), 2009 FCA 116. Translating this to Rule 303(1)(a), the question is whether the relief sought in the application for judicial review will affect aparty’s legal rights, impose legal obligations upon it, or prejudicially affect it in some direct way. [11] The Federal Court of Appeal in Forest Ethics, supra at para. 18 described the test even more succinctly: The words “directly affected” in Rule 303(1)(

a) mirror those in subsection 18.1(1) of the Federal Courts Act. Under thatsubsection, only the Attorney General or “anyone directly affected by the matter in respect of which relief is sought” maybring an application for judicial review. Rule 303(1)(

a) restricts the category of parties who must be added as respondents tothose who, if the tribunal’s decision were different, could have brought an application for judicial review themselves. [12] Application of that test to the facts at hand on this motion leads to the question: if the Executive Director of the CJC had arrived atthe conclusion that the complaint involving an allegation of misconduct by Justice Corbett warranted consideration, would the JudicialOfficials have faced the prospect of an investigation or a risk that they be removed from office?

The answer to this question is clearly no.This conclusion is reinforced by the admission of the Applicant that the issue before the Court on the application for judicial review iswhether the Executive Director of the CJC made a reviewable error in holding that the CJC had no jurisdiction to deal with thecomplaint against Justice Corbett. The complaint was not against the Judicial Officials or alleging the Judicial Officials engaged inmisconduct.

Accordingly, the conclusion must be that the Judicial Officials are not proper or necessary parties to the judicial reviewapplication and shall cease to be parties to this application. [13] The Applicant did not raise any argument to contradict the argument of the moving party, with which I agree, that since the provincedoes not appoint judges to the Superior Court and Court of Appeal it has no power to remove them. As with the Judicial Officials theAttorney General of Ontario is not a proper or necessary party to the judicial review application and shall cease to be a party to thisapplication.

The Notice of Application shall be amended accordingly. Issue 2: Should paragraphs (a), (d), 37-40 and 44-46 of the notice of application be struck, and if so, with or without leave to amend? [14] The moving parties seek to have struck from the notice of application several paragraphs which they have described as follows: A. Paragraphs a, d and 37-39 which relitigate “the Executive Director’s authority to dismiss complaints under the early screeningprocess”; B. Paragraphs a, 38 and 39 which allege “a violation of the Applicant’s Charter rights resulting from the screening out of hercomplaint”; C.

Paragraphs 39 and 40 which “baldly pleads a breach of natural justice or procedural unfairness”; D. Paragraphs 44 and 45 which “pleads immaterial facts”; and E. Paragraph 46, which “pleads evidence”. [15] The basis for striking a notice of application in whole or in

part is based upon the Court’s plenary power and is discretionary: [47] The Court will strike a notice of application for judicial review only where it is “so clearly improper as to be bereft ofany possibility of success” [footnote omitted]: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., (FCA), [1995] 1 F.C. 588 (C.A.), at page 600. There must be a “show stopper” or a “knockout punch”—an obvious, fatalflaw striking at the root of this Court’s power to entertain the application: Rahman v. Public Service Labour Relations

Board, 2013 FCA 117, at paragraph 7; Donaldson v. Western Grain Storage By-Products, 2012 FCA 286, at paragraph 6;Hunt v. Carey Canada Inc., (SCC), 1990 CabLii 90 (SCC), [1990] 2 S.C.R. 959. [48] There are two justifications for such a high threshold. First, the Federal Courts’ jurisdiction to strike a notice ofapplication is founded not in the rules but in the Courts’ plenary jurisdiction to restrain the misuse or abuse of courts’processes: David Bull, above, at page 600; Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50, 18C.C.L.I. (5th) 263. Second, applications for judicial review must be brought quickly and must proceed “without delay” and“in a

summary way”: Federal Courts Act, above, subsection 18.1(2) and

section 18.4. An unmeritorious motion—one thatraises matters that should be advanced at the hearing on the merits—frustrates that objective. [16] Based upon the evidence and arguments presented by the moving Respondents and considering the high threshold that must besatisfied to strike a notice of application, I am not satisfied that the impugned paragraphs (a), (d), 37-40 and 46 of the notice ofapplication should be struck.

Paragraphs (a) (ii) b to o shall be struck for the reasons set forth above and paragraphs 44 and 45 shall bestruck for the reasons that follow. [17] As part of the Courts’ plenary jurisdiction to "“restrain the misuse or abuse of courts’ processes”", an application that is scandalous,frivolous or vexatious warrants particular examination. There is no rigid test for determining whether a pleading is scandalous, frivolousor vexatious. However, Steiner v.

Canada, (FC) describes one such proceeding thus: A scandalous pleading includes one which improperly casts a derogatory light on someone, with respect to their moralcharacter. A claim is a frivolous one where it is of little weight or importance or for which there is no rational argumentbased upon the evidence or law in support of the claim.

A vexatious proceeding is one that is begun maliciously or without aprobable cause, or one which will not lead to any practical result. [18] The allegations found in paragraphs 44 and 45 of the notice of application relate to a CJC inquiry into the behaviour of a Judge thatis not a party to this application. These allegations even if taken as true do not support granting the relief the Applicant seeks in thisproceeding. Accordingly, such findings would not lead to any practical result and are vexatious. On this basis paragraphs 44 and 45 ofthe notice of application shall be struck.

Issue 3: Should extensions of time be granted and a timetable of steps established? [19] The notice of application that is the originating document for this proceeding was issued on March 31, 2023. Rule 304 of the Rulesrequires that the notice of application be served within 10 days of issuance, which in this case would be April 11, 2023.

The Applicantfiled an Affidavit of Service with the Court on April 17, 2023 attesting to having sent on April 6, 2023, an electronic copy of the noticeof application by email to the Attorney General of Ontario, to a judicial assistant for Justice Corbett and to either judicial assistants or theRegistrar of the Court of Appeal of Ontario for the Judicial Officials. [20] The Attorney General of Canada filed a notice of appearance on April 17, 2023. [21] The Ministry of the Attorney General, Crown Law Office – ("“CLOC”") received a copy of the notice of application on April 11,2023.

This resulted in Matthew Chung sending an email to the Applicant on April 19, 2023 confirming receipt of the Notice ofApplication and indicated that he along with his colleague Elizabeth Guilbault had carriage of the application on behalf of the AttorneyGeneral of Ontario and the Judicial Officials. [22] On April 27, 2023, the Applicant submitted a request for the CJC record and on May 12, 2023, the CJC responded providing the listof documents but indicated that all of those documents were "“already in the possession of the applicant”".

Then, after receiving theconsent of the Attorney General of Canada to a fifteen-day extension of time, the Applicant on May 15, 2023 filed with the Court, proofof service of an affidavit of the Applicant. [23] As part of the relief sought in this motion, the Honourable Justice Corbett is seeking an extension of time to serve a notice ofappearance. The question that must be addressed is an extension of time from what date. The time to serve and file a notice of appearanceruns from the date the notice of application is served in accordance with the Rules (Rule 305).

A notice of application is an originatingdocument (Rule 63(1)(d)) and Rule 127 (1) requires that: An originating document that has been issued…shall be served personally. [24] The rules provide a definition of what constitutes personal service on an individual in Rule 130. Based upon the record before me,personal service of the notice of application has not been effected on the Honourable Justice Corbett, as delivery by email to a third partysuch as a judicial assistant does not constitute personal service under the Rules.

As I have concluded that the Honourable Justice Corbetthas not been personally served it is premature to seek an extension of time. As the notice of application has not been personally served onthe individual Respondents, the time for serving and filing a notice of appearance does not start to run until service of the notice ofapplication has been validated by motion, or a successful motion for substituted service has been brought.

These reasons do not decide orprejudice the bringing of such motions, which have not to date been brought. [25] I would also add that considering the interests of justice as informed by the factors outlined in Canada (Attorney General) v.Hennelly (FCA), [1999] F.C.J. No.846 (CA) at paragraphs 2-4, if it were necessary I would allow the requestedextension of time to serve and file a notice of appearance seven (7) days after the date of this decision.

Issue 4: Should this matter be case managed? [26] There is a long history of contentious proceedings involving the Applicant in the Superior Court of Ontario entailing interlocutoryand procedural disputes in that Court. This history and observation supports a conclusion that contentious procedural issues are likely toarise in this Court and it will be beneficial for all parties to have a case management Judge appointed that will have ongoing familiaritywith the proceeding. The appointment of a case management judge is consistent with and likely to aid in achieving the general principle

of the Rules that they be applied in a manner so as to secure the just, most expeditious and least expensive outcome of this proceeding. Pursuant to rule 384 of the Rules this application shall continue as a specially managed proceeding and be referred to the office of the Chief Justice for appointment of a case management Judge. Costs [ 27 ] The Court has full discretionary power over the amount and allocation of costs (subrule 400(1) of the Rules).

The objective of an award of costs is to provide the party receiving them with partial compensation, to promote settlement, and to sanction or deter various kinds of conduct hampering the efficient resolution of a proceeding ( Air Canada v. Thibodeau 2007 FCA 115 at para 21 ; Bauer Hockey Ltd. v. Sport Maska Inc. 2020 FC 862 at para. 6 ).

However, in considering this latter function, caution should be exercised and recognition given to the difficulties associated with judging litigation conduct ( Bauer supra at para. 18). [ 28 ] As the Attorney General of Ontario and each of the Judicial Officials have been successful on their motion to remove themselves from this application and considering they ought never have been included as parties to this proceeding they are each awarded their costs of this motion in the amount of $1,000. [ 29 ] As no other party was successful on the balance of the motion there shall be no further award of costs of this motion to either the Applicant or the Honourable Justice Corbett.

ORDER THIS COURT ORDERS that : 1 . The Notice of Application is struck without leave to amend and dismissed as against the following Respondents: a . The Attorney General of Ontario; b . The Honourable Justice D.G. Stinson; c . The Honourable Justice Susan G. Himel; d . The Honourable Justice Geoffrey B. Morawetz; e . The Honourable Stephen E. Firestone; f . The Honourable Justice M.H. Tulloch; g . The Honourable Justice Grant Huscroft; h . The Honourable Justice A. Harvison Young; i . The Honourable Justice James C. MacPherson; j . The Honourable Justice J. Michal Fairburn; k . The Honourable Justice Peter D.

Lauwers; l . The Honourable Justice Gary T. Trotter; m . The Honourable Justice Paul S. Rouleau; n . The Honourable Justice M.L. Benotto; o . The Honourable Justice David Brown. 2 . The style of cause of this proceeding shall be amended to remove as Respondents the Attorney General of Ontario and the Judicial Officials (as defined). 3 . The following paragraphs shall be struck from the Notice of Application without leave to amend: a . paragraphs (a) (ii) b. to o.; and b . paragraphs 44-45. 4 .

The request of the Honourable Justice Corbett for an extension of time to serve and file a notice of appearance is moot and academic as personal service of the notice of application has not yet been effected. This is without prejudice to any party bringing a motion to validate service or for substituted service. 5 . This matter shall proceed as a specially managed proceeding and be referred to the Office of the Chief Justice for the appointment of a Case Management Judge. 6 .

Within 15 days of the appointment of a Case Management Judge, the parties shall provide mutually convenient dates for a case management conference to review the status of the proceeding and establish a timetable for the next steps in the proceeding commencing with any motions to validate service or for substituted service.

7 . The Attorney General of Ontario and the Honourable Justices D.G. Stinson, Susan G. Himel, Geoffrey B. Morawetz, Stephen E. Firestone, M.H. Tulloch, Grant Huscroft, A. Harvison Young, James C. MacPherson, J. Michal Fairburn, Peter D. Lauwers, Gary T. Trotter, Paul S. Rouleau, M.L. Benotto, and David Brown are each awarded their costs of this motion in the amount of $1,000. "Michael D. Crinson" Associate Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-721-23 STYLE OF CAUSE: NADIRE ATAS v THE ATTORNEY GENERAL OF CANADA AND THE ATTORNEY GENERAL OF ONTARIO AND, THE HONOURABLE JUSTICE D.L.

CORBETT, THE HONOURABLE JUSTICE D.G. STINSON, THE HONOURABLE JUSTICE SUSAN G. HIMEL, THE HONOURABLE JUSTICE GEOFFREY B. MORAWETZ, THE HONOURABLE STEPHEN E. FIRESTONE, THE HONOURABLE JUSTICE M.H. TULLOCH, THE HONOURABLE JUSTICE GRANT HUSCROFT, THE HONOURABLE JUSTICE A. HARVISON YOUNG, THE HONOURABLE JUSTICE JAMES C. MACPHERSON, THE HONOURABLE JUSTICE J. MICHAL FAIRBURN, THE HONOURABLE JUSTICE PETER D. LAUWERS, THE HONOURABLE JUSTICE GARY T. TROTTER, THE HONOURABLE JUSTICE PAUL S. ROULEAU, THE HONOURABLE JUSTICE M.L.

BENOTTO, THE HONOURABLE JUSTICE DAVID BROWN PLACE OF HEARING: HELD BY WAY OF VIDEOCONFERENCE DATE OF HEARING: jUNE 15, 2023 ORDER AND reasons: CRINSON A.J. DATED: February 14, 2024 SOLICITORS OF RECORD: Nadire Atas For The Applicant Matthew Chung For The Respondents ATTORNEY GENERAL OF ONTARIO AND THE CANADIAN JUDICIAL OFFICIALS