Background
Michelle Berentschot, a self-represented litigant, commenced this action in November 2024 arising from her experience at the Canadian border on August 5, 2022. Upon returning to Canada during the COVID-19 pandemic, she was required to comply with federal border measures including PCR testing and the ArriveCan application. After refusing certain requirements, she was charged under the Contraventions Act, S.C. 1992, c. 47, though that charge was apparently later withdrawn. She pursued complaints through various administrative and political channels before turning to the courts.
In her statement of claim, Berentschot alleged violations of the Canadian Charter of Rights and Freedoms and principles of international law, naming as respondents the Attorneys General of Ontario and Canada as well as the Chief Commissioner of the Ontario Human Rights Commission. She sought sweeping declaratory relief and damages of $366,000,000.
Justice Clyde Smith of the Superior Court of Justice dismissed the action on May 22, 2025 under r. 2.1.01 of the Rules of Civil Procedure, finding the pleading incoherent, incapable of supporting a recognized cause of action, and disclosing no viable legal claim against Ontario. Berentschot appealed to the Court of Appeal.
The Court’s Holding
The Court of Appeal, per Tulloch C.J.O., Lauwers and Miller JJ.A., dismissed the appeal in its entirety. The court held that the motion judge committed no reviewable error: his conclusion that the action was frivolous, vexatious, and an abuse of process was fully supported by the record and fell squarely within the scope of r. 2.1.01. Decisions under that rule are discretionary and attract appellate deference, and the appellant failed to identify any error in principle, misapprehension of the legal framework, or clearly wrong result.
The court rejected the argument that the presence of Charter claims immunizes a proceeding from summary dismissal under r. 2.1.01, affirming that the court’s inherent authority to control its own process is not displaced by a constitutional claim. The court also rejected the argument that the motion judge should have granted leave to amend, finding it open to him to conclude that the claim was incapable of being transformed into a sustainable action. Berentschot had received notice of the court’s concerns and filed written submissions, satisfying the procedural requirements of r. 2.1.01.
The constitutional challenge to s. 17 of the Crown Liability and Proceedings Act, 2019 was dismissed on multiple independent grounds: this court had previously upheld that provision’s constitutionality in Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172; the provision was not invoked by Ontario in this proceeding and so was not engaged; no Notice of Constitutional Question had been served as required by s. 109 of the Courts of Justice Act; and there was no evidentiary record to support constitutional adjudication. No costs were awarded.
Key Takeaways
- A litigant’s assertion of Charter rights does not place a proceeding beyond the reach of r. 2.1.01’s summary dismissal mechanism; courts retain authority to control abuse of process regardless of the constitutional framing of a claim.
- A motion judge conducting a r. 2.1.01 review is not required to grant leave to amend where the pleading is so fundamentally deficient that it cannot be transformed into a sustainable claim, provided the litigant received notice and an opportunity to make submissions.
- Constitutional challenges to legislation raised for the first time on appeal, without a Notice of Constitutional Question under s. 109 of the Courts of Justice Act and without an adequate evidentiary record, will not be entertained.
- The constitutionality of s. 17 of the Crown Liability and Proceedings Act, 2019 was reaffirmed as previously settled by 2023 ONCA 172, leave to appeal to the Supreme Court of Canada refused.
Why It Matters
This decision reinforces the courts’ willingness to use r. 2.1.01 to dispose of plainly untenable litigation stemming from COVID-19 pandemic measures, a category of claims that has generated significant docket pressure since the lifting of public-health restrictions. The ruling makes clear that dressing an incoherent or unsupported claim in constitutional language will not shield it from summary dismissal, nor will self-represented status alone justify appellate intervention where no legal error is identified below.
The decision also provides a useful consolidation of the procedural prerequisites for constitutional challenges in Ontario — particularly the mandatory Notice of Constitutional Question requirement — and serves as a reminder that novel constitutional arguments require both proper notice and an adequate factual foundation before they can be entertained by a reviewing court.