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Appeal - Leave to Appeal - Frivolous and Vexatious [RCP R2.1]. Mehedi v. Tamlin
In Mehedi v. Tamlin (Div Court, 2023) the Divisional Court considers (and grants) it's own R2.1 frivolous dismissal, here in the novel circumstances of a motion for leave to appeal (of a case management procedural order):[2] On November 14, 2023, I directed that the Registrar send out notice to the moving party advising that this Court was considering dismissing his motion for leave to appeal under r. 2.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), as frivolous, vexatious or an abuse of process because the motion for leave to appeal pertains to a procedural case management direction.
[3] On November 28, 2023, the moving party provided a written submission that mainly addresses the merits of his action, as opposed to the merits of his motion for leave to appeal, among other extraneous matters. I have reviewed Mr. Mehedi’s written submission and am satisfied that the motion for leave to appeal should be dismissed pursuant to Rule 2.1.02.
[4] Under Rule 2.1.01 of the Rules, this court may stay or dismiss an appeal if it appears to be frivolous, vexatious, or an abuse of process. In addition, Rule 2.1.02 provides that the court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. Under Rule 2.1.02(2), subrules 2.1.01(2) to (7) apply, with necessary modifications, to the making of an order under subrule (1).
[5] In Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8, the Court of Appeal for Ontario indicated that one of the principles to be applied by the courts in considering whether to dismiss a proceeding pursuant to Rule 2.1 is as follows:Rule 2.1 must be “interpreted and applied 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 v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488. The Rule is not for close calls — it may be used only in “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 support the resort to the attenuated process”: Scaduto, at paras. 8-9; Khan v. Law Society of Ontario, 2020 ONCA 320 (“Khan”), at para. 6, leave to appeal to S.C.C. requested, 39321.
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