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Civil Litigation - Frivolous and Vexatious
MORE CASES
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. Fuhgeh v. Stewart
In Fuhgeh v. Stewart (Div Ct, 2021) the Divisional Court considers principles applying to a R2.1 frivolous and vexatious motion, here on appeal:[23] Rule 2.1 has typically been invoked to dismiss proceedings where the opposing party has engaged in abusive litigation conduct; it 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”: Collins v. Ontario, 2017 ONCA 317, at para. 17; Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, at paras. 7-9.
[24] Absence of merit on its own is not sufficient to justify dismissal under rule 2.1. As the Court of Appeal for Ontario stated in Collins at para 19,Simpson, [Simpson v. Chartered Professional Accountants of Ontario, 2016 ONCA 806] 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 are on their face frivolous, vexatious or otherwise an abuse of process. [25] In Currie v. Halton Regional Police Services Board, 2003 CanLII 7815 (Ont. C.A.), 233 D.L.R. (4th) 657, the Court of Appeal reviewed what is meant by the terms frivolous, vexatious, and abuse of process. “Frivolous” is defined in Black’s Law Dictionary as “lacking a legal basis or legal merit; not serious; not reasonably purposeful”: Currie, at para. 14.
[26] The Court of Appeal discussed the term vexatious at para. 15 of Currie:In Foy v. Foy (No. 2) (1979), 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220 at 226, Howland, C.J.O. considered the meaning of “vexatious” under the Vexatious Proceedings Act, R.S.O. 1970, c. 481:The word “vexatious” has not been clearly defined. Under the Act, the legal proceedings must be vexatious and must also have been instituted without reasonable ground. In many of the reported decisions the legal proceedings have been held to be vexatious because they were instituted without any reasonable ground. As a result the proceedings were found to constitute an abuse of the process of the Court. An example of such proceedings is the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction: Stevenson v. Garnett, [1898] 1 Q.B. 677 at pp. 680-1; Re Langton, [1966] 3 All. E.R. 576. [27] Abuse of process has been described as an “intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy”: Currie, at para. 16, citing Finlayson J.A. for the majority in Canam Enterprises Inc. v. Coles, 2000 CanLII 8514 (Ont. C.A.), 51 O.R. (3d) 481, rev’d on other grounds, 2002 SCC 63, [2002] S.C.R. 307. Goudge J.A. for the minority in Canam wrote, at paras. 55-56:The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.
One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [28] The Court of Appeal in Currie concluded at para. 17 that, “any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process. The common example appears to be the situation where a plaintiff seeks to relitigate a cause which has already been decided by a court of competent jurisdiction.” . Ling v. Justice of the Peace Review Council
In Ling v. Justice of the Peace Review Council (Div Ct, 2021) the Divisional Court set out some principles on a R2.1 frivolous and vexatious notice:[11] Rule 2.1.01 of the Rules of Civil Procedure provides for a summary procedure that allows the court to dismiss a proceeding that appears on its face to be frivolous, vexatious, or an abuse of the process of the court.
[12] Recently, 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. [13] In addition, in Visic, at para. 8, the Court of Appeal emphasized that a Rule 2.1 motion “focuses on the pleadings and any submissions of the parties made under the rule. No evidence is submitted on a r. 2.1 motion…” . Wang v. Banton
In Wang v. Banton (Ont CA, 2021) the Court of Appeal considered whether over a motion to quash an appeal is preferred over a R2.1 frivolous and vexatious motion:[8] “Rule 2.1 is meant to provide a streamlined procedure for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process”: Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, 5 C.P.C. (8th) 280, at para. 43. However, as this court also observed in Simpson, at para 43, “the rule is not intended or designed to supplant the established procedural mechanism of bringing a motion to quash an appeal for want of jurisdiction or for want of merit”, and the court will consider whether a motion to quash is “the more appropriate procedural vehicle”. . Watt v. HPARB
In Watt v. HPARB (Div Ct, 2020) the Divisional Court considered law on when claims 'can't possibly succeed' in the context of R2.1 frivolous and vexatious proceeding:[7] Four complaints from the appellant are set out at pages 1-27 of the Record of Proceedings. These complaints are a series of bizarre and, at times, absurd allegations. Almost every allegation, on its face, could be explained as delusional. Taken together, they appear to provide an overwhelming basis for the conclusions reached below. Therefore, having read the appellant’s complaints, the court now requires the appellant to address why this case should not be dismissed as frivolous, vexatious and an abuse of process pursuant to R.2.1.01, essentially for the reasons given by the HPARB. In legal terms, the appellant needs to address the court’s concern that the issues he raises:(a) cannot possibly succeed: Peoples Trust Company v. Atas, 2018 ONSC 58, para. 42(ii)(a); Dyson v. AG, [1911] 1 KB 410 at 418; Beardmore v. City of Toronto; Smith v. City of London (1909), 19 OLR 139.
(b) are ones in which no reasonable person could possibly expect to obtain relief: Peoples Trust Company v. Atas, 2018 ONSC 58, para. 42(ii)(c); Lawrence v. Lord Norreys (1888), 39 Ch.D. 213, aff’d 15 App.Cas. 210. [8] Respondents shall not provide submissions unless this court subsequently directs otherwise. . Collins v Ontario
In Collins v Ontario (Ont CA, 2017) the Court of Appeal 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. . P.Y. v. Catholic Children’s Aid Society of Toronto
In P.Y. v. Catholic Children’s Aid Society of Toronto (Ont CA, 2020) the Court of Appeal states as follows on a R2.1 motion:[11] As this court stated in Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 12, the issue on a r. 2.1.01 review is whether the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading. Rule 2.1.01 is not designed to be an alternative to an evidence-based motion for summary judgment or a trial: see also Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, at paras. 11-13. As the statement of claim is the focus of a r. 2.1.01 review, we have considered the materials filed by the appellants for the limited purpose of understanding the scope of the allegations they are asserting. . Lochner v. Ontario Civilian Police Commission
In Lochner v. Ontario Civilian Police Commission (Ont CA, 2020) the Court of Appeal expounded at length on the crisis of frivolous and vexatious self-represented litigants in the courts:Rule 2.1
[15] Rule 2.1.01(1) provides that the court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. The determination may be made in a summary manner and on the basis of written materials.
[16] Rule 2.1 responds to an ever-increasing problem in the courts: vexatious and abusive litigants. Justice Yves-Marie Morissette of the Court of Appeal of Quebec addressed the challenges associated with vexatious litigants in his 2019 article entitled “Querulous and Vexatious Litigants as a Disorder of a Modern Legal System”, 24 Can. Crim. L. Rev. 265. He introduces his article, at pp. 265-66, by explaining the problem that such litigants pose to other parties and all stakeholders in the administration of justice:Some self-represented litigants never let go. Not only do they resist any reasonable attempt to settle a dispute consensually, but they also forever refuse to accept defeat in the courts. They continue to fight on, in any available forum, until they are forced to stop. Whatever the “initial dispute” that they had with an employer, a neighbour, an ex-spouse, a relative, a government agency, or any other person or institution, there is a strong probability that this dispute will have evolved and eventually degenerated into an all-out war fought on every front, at first in a tribunal or a court of law, against one or several parties, and later against those parties' lawyers, the lawyers' partners, their professional regulators or their insurers, the court personnel, judges in person, or even the judicial council if its decisions are subject to judicial review. Whenever possible, they will seek leave to appeal to the Supreme Court of Canada.
Among the many self-represented parties, these abnormally belligerent and obdurate litigants only account for a very small percentage of parties who go to court in person and without counsel. But they are a real and threatening burden for other parties and for all stakeholders in the administration of justice (be they the parties themselves or lawyers, judges, court administrators and court personnel). The situation of the parties targeted in the “initial dispute” is usually the worst. Apart from the often considerable legal and professional costs they may have to incur because of lengthy, repetitious and spurious proceedings, they may also develop a sense of despair at the ineffectiveness of the legal system. [17] In describing appellate experience, he writes, at p. 285, that appellate courts are not designed to cope with the burden imposed by vexatious litigants:[Appellate jurisdictions] seem to be designed and staffed (perhaps understandably so) on the assumption that they will only deal with serious disputes and appeals deserving to be heard. But vexatious litigants, who always exercise any de plano right of appeal they may have, and who always seek leave to appeal when such leave is required, are frequent flyers in these courts and are present in a higher proportion on appeal than in first instance. [Emphasis in original.] [18] Vexatious litigants are a drain on our system of justice. In addition to being a burden on the opposing parties, they are a burden on the judiciary and court personnel. At least the judiciary has mechanisms to attempt to address the conduct of vexatious litigants, but court personnel are ill-equipped to do anything when faced with a barrage of telephone calls, emails, and other communications frequently characterized by incendiary and rude remarks. The cost and time incurred by opposing parties is significant, and adverse costs awards frequently cannot be relied upon to discourage future comparable behaviour.
[19] In his article, Morrisette J.A., at pp. 274-76, lists the signs of “a querulous disposition” as follows:• the litigant is virtually always self-represented
• the litigant’s attitude is characterized by marked obduracy
• persistent reiteration and amplification
• arguments are often unintelligible or highly confused
• written submissions contain much that is not legally relevant to the dispute
• the style of written submissions is quite distinctive (opaque and long written materials, faulty terminology and syntax, emphatic tone reinforced by different fonts and styles, multiple appendices and supporting documents, and the expression of a keen desire for moral vindication)
• marked lack of due diligence in the advancement of claims
• exhaustion of all rights of review, appeal, or revocation any time there is an adverse judgment
• unsustainable allegations and gratuitous complaints against members of the legal profession, and
• a cessation of proceedings only when the litigant cannot pay legal fees and costs. [20] Similarly, in Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7, at paras. 14-15, Myers J. described the characteristics typically found in vexatious litigants:• bringing multiple proceedings to try to re-determine already determined issues
• rolling forward grounds and issues from prior proceedings
• persistent pursuit of unsuccessful appeals
• failure to pay costs awards
• bringing proceedings for a purpose other than the assertion of legitimate rights
• bringing proceedings where no reasonable person would expect to obtain the relief sought, and
• inappropriate submissions in both form (curious formatting, many pages, odd or irrelevant attachments, multiple methods of emphasis, numerous foot and marginal notes) and content (rambling discourse, rhetorical questions, repeated misuse of technical terms, references to self in the third person, inappropriately ingratiating statements, ultimatums, and threats). Gao was approved by this court in Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, at para. 9, leave to appeal refused, [2015] S.C.C.A. No. 488; Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 13; and Rallis v. Myers, 2019 ONCA 437, at para. 5.
[21] It is important for the courts to be gatekeepers of our system of justice. Abusive litigants should be screened out of the system so that parties with true justiciable disputes may have them adjudicated by the courts.
[22] That said, two points merit special emphasis. First, not all self-represented parties are vexatious litigants. Second, even a vexatious litigant may raise a legitimate issue that justifies consideration by a court. It is in part for this reason that r. 2.1.01 is intended for the clearest of cases.
Mr. Lochner’s Case
[23] Mr. Lochner’s is the clearest of cases. On its face, Mr. Lochner’s proceeding and the appeal of Corbett J.’s order are frivolous, vexatious, and an abuse of process. They reflect re-litigation, the rehashing of the same complaints, and spurious inflammatory allegations. And, they have no prospect of success.
[24] Mr. Lochner exhibits many of the features of vexatious litigants, as described by Morrisette J.A. and Myers J. Significantly, he has repeated substantially similar allegations in multiple, unsuccessful proceedings and makes wide-ranging but unsustainable allegations against a wide range of individuals.
[25] I would conclude that a r. 2.1 order is appropriate in the circumstances, and I would further dismiss his appeal as frivolous, vexatious, and an abuse of process.
[26] The question then becomes what terms, if any, should be added to this order to ensure that, on the one hand, Mr. Lochner is not forever barred from accessing the courts, but on the other, the people who work in the court system, be they judges, opposing counsel, or court personnel, are not subjected to abusive conduct, regular and sometimes daily communications, and frivolous motions. Terms of such orders often include a provision that the party be prohibited from making any further motions relating to the appeal unless leave of a judge or panel of this court is obtained. (See: Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806 at para. 49 and Midland Resources Holding Limited v. Shtaif, 2018 ONCA 743, at para. 14). As we have seen, however, a term requiring leave has not served to discourage Mr. Lochner.
[27] Although a statutory court, this court has implicit powers that derive from its power to control its own process: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19; Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695, 87 O.R. (3d) 660, at para 24; and R. v. Church of Scientology (1986), 1986 CanLII 4633 (ON CA), 25 C.C.C. (3d) 149 (Ont. C.A.), at pp. 150-151. The court’s powers extend to “all powers that are reasonably necessary to accomplish its mandate” or, stated differently, “the powers necessary to perform its intended functions”: R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 70. Thus, clearly this court may control its own process. The question here is the extent of this power.
[28] The challenge presented by this exceptional case is how to strike an effective balance between protecting our system of justice and its stakeholders from abuse and frivolous proceedings and allowing access to Mr. Lochner for any future arguable proceedings.
[29] One possible solution would be to require that Mr. Lochner access this court only through a lawyer.
[30] In Jonsson v. Lymer, 2020 ABCA 167, 7 Alta. L.R. (7th) 146, the Alberta Court of Appeal wrote that if the superior court’s power to control its own process authorizes requiring a litigant to access the courts only through a lawyer, it should exercise this power sparingly. Slatter J.A. concluded that the superior court had the power to prevent abuse of its processes but it should be used sparingly and only when statutory authority is inadequate: at paras. 29 – 33, and 42. In that case, the court concluded that a vexatious litigant order ought not to have been granted.
[31] Recently, in Uber Technologies Inc. v. Heller, 2020 SCC 16, 447 D.L.R. (4th) 179, albeit in a different context, Brown J. (concurring) cited Jonsson stating, at para. 111, that the rule of law requires that citizens have access to a venue where they can hold one another to account. He wrote: “Access to civil justice is paramount to the public legitimacy of the law and the legitimacy of the judiciary as the institution of the state that expounds and applies the law.”
[32] The ability to access justice is a foundational common law tradition. In recent decades, the mantra of “access to justice” has gained considerable traction as the costs associated with litigation have skyrocketed making litigation an unrealistic means of dispute resolution for many if not most Ontarians. This has evolved into a do-it-yourself litigation regime where guidance and instructions for self-represented parties have frequently been emphasized over the provision of legal advice and counsel for the self-represented party. Has the justice system placed too much emphasis on helping parties represent themselves rather than ensuring that parties are represented by counsel? Do-it-yourself manuals may give an impression of access to justice, but this guidance is an inadequate replacement for proper legal representation. In his 2020 Opening of the Courts speech, Strathy C.J.O. stated:In order to be fair, and to avoid unreasonable delay, particularly but not exclusively where the state is a litigant, both parties must have competent legal representation. This speaks to the urgent need for a significant re-investment in legal aid, including duty counsel and legal clinics and support for pro bono services. It is, quite frankly, a false economy to think that cutting these vital services saves money. When litigants are unrepresented and unsupported, the justice system slows to a crawl, valuable resources are drained, and other cases are held back. More important, the most vulnerable members of our society, those whom our justice system purports to protect, are further victimized because their playing field is uneven: “Opening of the Courts of Ontario for 2020”.[3] [Emphasis added.] [33] This vexing issue does not need to be resolved for the purposes of this case. However, requiring a litigant to be represented by a lawyer in a case such as this ensures real and effective access to the courts. It also serves to enhance the justice experience for other stakeholders, most notably opposing parties. Lastly, it is not without parallel. For example, although for different reasons, the Rules of Civil Procedure require that a corporation be represented by counsel, absent leave of the court: r.15.01(2).
[34] Mr. Lochner is what I would describe as a lifestyle litigator; in other words, litigating has become his way of life. As this court observed, he has pursued an “unyielding course of harassment extending for more than a decade”. This calls for exceptional relief. Accordingly, in these extraordinary circumstances, I would order that Mr. Lochner be prohibited from making any further motions in this court in relation to this proceeding unless he is represented by a lawyer, his materials have been prepared and filed by a lawyer, and leave of a judge of this court has been obtained by a lawyer acting on his behalf. The counter staff may communicate with a lawyer acting for Mr. Lochner but should refuse to accept materials from, or communicate with, Mr. Lochner himself.
[35] Requiring Mr. Lochner to access this court through a lawyer is within this court’s power to control its own process. Doing so is justified and the only meaningful solution to the challenges presented by Mr. Lochner. These are exceptional circumstances. . Visic v. Elia Associates Professional Corporation
In Visic v. Elia Associates Professional Corporation (Ont CA, 2020) the Court of Appeal canvassed principles that apply to frivolous and vexatious proceedings under R2.1:[7] Rule 2.1.01 allows a court to “stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of process of the court.”
[8] The following principles govern the application of r. 2.1:1. 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.
2. A motion under r. 2.1 focuses on the pleadings and any submissions of the parties made under the rule. No evidence is submitted on a r. 2.1 motion: Scaduto, at paras. 9, 11-12. A court may, however, review reasons and pleadings from other proceedings to determine whether the case is abusive: Khan, at para. 9.
3. Rule 2.1 does not replace other rules in the Rules of Civil Procedure to strike out actions or to deal with other procedural irregularities summarily: Khan, at para. 7. The rule is “not meant to be an easily accessible alternative to a pleadings motion, a motion for summary judgment, or a trial”: Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 12; P.Y. v. Catholic Children’s Aid Society of Toronto, 2020 ONCA 98, at para. 11. The Rules provide many other remedies to address cases that are not clear on the face of the pleading: Khan, at para. 15.
4. The case law under r. 2.1 will continue to develop as the rule is used more widely: Scaduto, at para. 9.
5. A motion judge’s ruling under r. 2.1 is a discretionary decision entitled to appellate deference. Such a decision may be set aside only if the motion judge misdirected themselves or their decision was so clearly wrong as to amount to an injustice: Khan, at para. 10; Penner v. Niagara Regional Police Services Board, 2013 SCC 19, [2013] S.C.R. 125, at para. 27. . Atkinson v. College of Physicians and Surgeons for Ontario
In Atkinson v. College of Physicians and Surgeons for Ontario (Div Ct, 2020) the Divisional Court considered a R2.1 frivolous and vexatious motion:Rule 2.1
[8] Ms. Atkinson should be provided with an opportunity to explain why her motion for review of the order of Favreau J. should not be dismissed as being frivolous and vexatious. In this context, a “frivolous” motion is one that cannot succeed. A “vexatious” motion is one brought for an ulterior or wrongful purpose, Currie v. Halton Regional Police Services Board, 2003 CanLII 7815 (ON CA). . Hicks v. Ontario Ombudsman
In Hicks v. Ontario Ombudsman (Div Ct, 2020) the Divisional Court treats violation of a R2.1 frivolous and vexatious order as a contempt of court matter:[4] The order of Corthorn J. is a court order and is mandatory. Whether Mr Hicks agrees with that order or not, he must obey it.
[5] Mr Hicks is ordered to appear before me by Zoom videoconference on October 9, 2020, at 2 pm, to show cause why he should not be held in contempt of court for breach of paragraph 2 of the order of Corthorn J.
[6] The “show cause” hearing on October 9th is a first appearance in respect to this matter. Mr Hicks will be entitled to seek an adjournment on October 9th in order to retain counsel and to assemble any evidence upon which he may wish to rely in order to show cause why he should not be found in contempt of the order of Corthorn J.
[7] Mr Hicks is cautioned that an allegation of contempt of court for breaching a court order is quasi-criminal in nature. If found guilty he is at jeopardy of sanctions including, potentially, fines, imprisonment, or both. Mr Hicks is entitled to and would be well advised to seek advise from a lawyer in advance of the hearing on October 9, 2020. . Khan v. Law Society of Ontario
In Khan v. Law Society of Ontario (Ont CA, 2020) the Court of Appeal granted an appeal against dismissals based on R2.1 (frivolous and vexatious) where the defendants had relied too heavily on that ground (where evidence is not admitted) and not on other RCP grounds that allowed dismissal:[6] We begin our analysis by focussing on the proper application of r. 2.1. Its use is restricted to “the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 at para. 8.
[7] In particular, r. 2.1 is not intended to replace other Rules in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 by which actions can be struck out, or other procedural irregularities dealt with, summarily: Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806 at para. 43. These include motions to dismiss an action for failure to disclose a cause of action or because the action is an abuse of process. For example, Rule 21 provides a procedure for dealing with actions that are defective in a number of different respects.
[8] Further, r. 2.1 is intended to be a streamlined process for dealing with cases where the frivolous or abusive nature of the proceeding is clear on the face of the pleading. We suggest that if, after requesting submissions from the plaintiff as to why the action should not be dismissed under r. 2.1, the court feels it necessary to seek submissions from the defendants (who are seeking the dismissal), the fact that these additional submissions are needed ought to be a good indication that the situation is not one of those clearest of cases where the Rule should be invoked.
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[15] We reiterate that judges should be cautious about allowing parties to have recourse to r. 2.1 except where it is plain and obvious on the face of the pleading that the action is frivolous, vexatious or an abuse of process. There are many other remedies provided for in the Rules of Civil Procedure by which parties can deal with cases that are not clear on the face of the pleading.
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