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Civil Litigation Dicta - Gate-keeping. Teper v. IPC
In Teper v. IPC (Div Court, 2024) the Divisional Court dismissed a self-presenting JR on R2.1 ['frivolous and vexatious'] grounds, here on 'prematurity' in a 'gate-keeping' context. The simple facts were:[2] Mr. Teper seeks to judicially review a letter of the Information and Privacy Commissioner of Ontario (IPC) dated January 3, 2024. In the letter, the IPC advised Mr. Teper that an appeal he had filed with the IPC (under file number MA24-00002) would be placed on hold due to an administrative practice that an individual may only have two appeals actively proceeding at any one time. The court reasoned as follows:[9] 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, [2015] O.J. No. 5692, at para. 8; Mohammad v. McMaster University, 2023 ONCA 598, [2023] O.J. No. 3997, at para. 6.
[10] 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, at para. 8.
[11] In this case, Mr. Teper’s application is patently premature. The letter issued by the IPC is an administrative direction to control the processing of the proposed appeal. It is not a final decision. This court has repeatedly emphasized the longstanding principle that it will not intervene in administrative proceedings unless there are exceptional circumstances. Fragmentation causes delay and disruptions in administrative proceedings. It is preferable to allow administrative proceedings to run their full course and then consider legal issues arising from the proceeding at their conclusion: Isaac v. Law Society of Ontario, 2021 ONSC 10 (CanLII), 2021 ONSC, at para. 10.
[12] I do not agree with Mr. Teper’s submission that the letter was not interlocutory because the Notice of Appeal was not issued. The letter formed part of the IPC’s administrative management of the appeal. It was directed at a particular appeal, regardless of whether the Notice of Appeal was issued. To the extent it represents a more general administrative practice, such a practice would not be the exercise of a statutory power subject to judicial review.
[13] I do not accept that there are exceptional circumstances that would justify interfering in the IPC’s process in this case. The reason Mr. Teper is facing the delay in his appeal is because he has filed multiple appeals. The IPC, like all administrative tribunals, has limited resources. The IPC has told Mr. Teper he can choose which of his appeals to activate next. If there are issues he considers more time-sensitive in this appeal, it remains open to him to prioritize it. If the delay in processing this appeal becomes undue in a manner that causes prejudice, it will remain open to Mr. Teper to raise that allegation when the appeal is heard. Doing so would allow the IPC to assess the allegation of procedural unfairness in the context of the case including the degree of any prejudice to Mr. Teper. In any event, raising an allegation of procedural unfairness does not on its own constitute an exceptional circumstance that would justify fragmenting an administrative proceeding. The circumstances here do not mandate early intervention by this court.
[14] In dismissing this application under r. 2.1.01, Mr. Teper is not foreclosed from recourse to the court. If by the conclusion of the IPC appeal he believes the process was procedurally unfair, it will remain open to him to seek judicial review.
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