Executive Summary: Key Legal and Evidentiary Issues

• The Court of Appeal considered whether Rule 2.1.01 of the Rules of Civil Procedure can be used to dismiss a proceeding that raises constitutional claims.

• Justice Clyde Smith's original order dismissed the appellant's action as frivolous, vexatious, and an abuse of process.

• Appellant Michelle Lorainne Berentschot argued that dismissal without leave to amend breached procedural fairness and her remedy under section 24(1) of the Charter.
• A constitutional challenge to section 17 of the Crown Liability and Proceedings Act, 2019 was raised but found not properly before the court.
• No Notice of Constitutional Question was served under section 109 of the Courts of Justice Act, precluding constitutional relief.
• Ultimately, the panel identified no reviewable error and dismissed the appeal without costs.

Facts of the case

Michelle Lorainne Berentschot appealed the dismissal of her Superior Court of Justice action, an order made by Justice Clyde Smith on May 22, 2025. Her claim arose from federal COVID-19 public-health measures. She alleged that upon returning to Canada on August 5, 2022, she was subjected to mandatory border requirements, including PCR testing and use of the ArriveCan application. After refusing to comply, she was charged under the Contraventions Act, though the charge was later withdrawn. She then pursued complaints through various administrative and political channels before commencing this action in November 2024. Her statement of claim alleged violations of the Canadian Charter of Rights and Freedoms and principles of international law, and sought declaratory relief along with damages of $366,000,000. The motion judge dismissed the action under Rule 2.1.01, concluding the pleading was incoherent, failed to plead material facts supporting a recognized cause of action, and disclosed no viable claim against Ontario.

Statutory provisions at issue

No insurance policy or contract was at issue in this case. The appeal instead turned on Rule 2.1.01, which permits summary dismissal of proceedings that are frivolous, vexatious, or an abuse of process on their face. The appellant also challenged the constitutionality of section 17 of the Crown Liability and Proceedings Act, 2019, arguing it improperly restricts access to constitutional remedies against the Crown. Section 109 of the Courts of Justice Act, which requires notice before a court may grant constitutional relief, and Rule 61.08(3), governing relief not identified in a Notice of Appeal, were also relevant to the panel's analysis.

The court's reasoning and analysis

Decisions under Rule 2.1.01 are discretionary and attract appellate deference; intervention is warranted only where the motion judge erred in principle, misapprehended the legal framework, or reached a clearly wrong result, per Fabrikant v. Kelly, 2023 ONCA 579. The panel found the appellant had not shown such an error. Her argument that raising Charter claims removes a proceeding from the reach of Rule 2.1.01 was unsupported by the jurisprudence, citing Ahmed v. Ontario (Attorney General), 2021 ONCA 427, and Joshi v. Ontario, 2019 ONSC 2444. The motion judge's conclusion flowed directly from his review of the pleading itself — which failed to set out coherent material facts or identify a legally recognizable cause of action — rather than from any improper conversion of the process into a Rule 20 or 21 analysis. On the amendment issue, the panel noted the appellant had already received notice of the court's concerns and an opportunity to make written submissions, which she used; leave to amend is not required where a proceeding cannot be transformed into a sustainable claim. As for the constitutional challenge to section 17 of the CLPA, the panel noted this court had already upheld that provision's constitutionality in Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172, with leave to appeal to the Supreme Court refused. The panel also found the provision was never invoked by Ontario in this case, no Notice of Constitutional Question was served as required by section 109 of the Courts of Justice Act, and there was no evidentiary record capable of supporting constitutional adjudication, citing Guindon v. Canada, 2015 SCC 41. Finally, the additional declaratory and systemic relief the appellant sought had not been identified in her Notice of Appeal and was not properly before the court absent leave under Rule 61.08(3). The panel acknowledged the difficulties self-represented litigants face but held that these difficulties could not justify appellate intervention absent a legal error.

Ruling and outcome

The panel concluded that the motion judge committed no reviewable error and that his finding — that the action was frivolous, vexatious, and an abuse of process — was fully supported by the record and within the proper scope of Rule 2.1.01. The appeal was dismissed, meaning the respondents (the Crown in right of Ontario, the Attorney General of Canada, the Attorney General of Ontario, and the Ontario Human Rights Commission) were the successful parties. The respondents sought no costs, and none were awarded — so no monetary amount was ordered in this decision.