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Civil Procedure - Dismissal under Rule 2.1 - Frivolous and Vexatious

Civil Procedure - Dismissal under Rule 2.1 - Abuse of Process

Collins v Ontario (Ont CA, 2017)

In this case the Court of Appeal usefully elaborates on the grounds on which a lawsuit may be dismissed under Rule 2.1 for being an abuse of process or frivolous and vexatious:
[17] Rule 2.1 has typically been invoked to dismiss proceedings where the opposite party has engaged in abusive litigation conduct. The rule “is not for close calls” and its availability “is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 (CanLII), 343 O.A.C. 87, at paras. 7–9, endorsing Raji v. Myers, 2015 ONSC 4066 (CanLII), [2015] O.J. No. 3436, at paras. 8–9.

[18] For example, in Raji the pleadings made unfounded allegations of misconduct against a judicial officer and counsel. Likewise, in Simpson, the appeal came from an order declaring the appellant a vexatious litigant who was “clearly using the court system as a way to inflict damage on people with whom he is upset”: para. 22.

[19] Ontario and Canada clearly take the view that Ms. Collins’ appeals lack merit. Absence of merit on its own, even assuming such absence, is not sufficient to justify dismissal under r. 2.1. Simpson, at para. 43, makes it clear that a r. 2.1 request is not a substitute for a motion to quash and filing the appropriate materials. The rule does not replace the bringing of a motion to quash an appeal for want of jurisdiction or for lack of merit. However, it does allow for a speedy process for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process.

[20] Here, Ms. Collins’ appeal is clearly without merit. However, it is also abusive. She has been provided with guidance on how to proceed but has neglected to pay for the transcript so she can compare it with the compact disc to address any concerns she has. As a result, she has not perfected her appeal in spite of having been given an extension of time to do so.

[21] Our system of justice is designed to provide fair, just and timely decisions. Abuse of the process of the courts detracts from the ability of the system to achieve those objectives. This is unfair to the opposing parties, others in the system who wish to have their cases adjudicated and to the administration.

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