|
Civil Litigation Dicta - Frivolous and Vexatious (6). Rowe v. College of Nurses of Ontario
In Rowe v. College of Nurses of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court granted a R2.1 frivolous and vexatious motion:The Substantive Test Under r. 2.1.01
[22] Rule 2.1 establishes streamlined procedures that permit the court to fairly, and in a just manner, resolve a particular category of disputes in a timely, proportionate, and affordable way.
[23] The Court of Appeal for Ontario has highlighted on numerous occasions that dismissal of an action under r. 2.1.01 is reserved for the clearest of cases: Khan v. Law Society of Ontario, 2020 ONCA 320.
[24] At para. 15 of Khan v. Law Society, the court cautions judges regarding reliance on Rule 2.1.01: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. [25] In a decision released in early 2025, the Court of Appeal for Ontario again emphasizes that Rule 2.1 applies in limited circumstances: Kokic v. Johnson, 2025 ONCA 4, at para. 6. In the same paragraph, the Court of Appeal highlights that Rule 2.1 “serves an important role in screening out meritless claims that drain the limited resources of the justice system.”
[26] In Auguste v. Ottawa Police Service et al., 2025 ONSC 894, Corthorn J. set out certain principles to be applied by a judge considering a request under Rule 2.1:. The statement of claim must be read generously. Drafting deficiencies may be overlooked and the plaintiff given the benefit of the doubt if it appears that the action might be viable;
. “Rule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves”: Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at para. 9;
. An action should be dismissed under r. 2.1 only if “the frivolous, vexatious, or 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 of rule 2.1” : Raji, at para. 9;
. The procedure under r. 2.1.01 should not be used as a substitute for a pleadings motion; and
. The procedure is intended to serve the purpose of “nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources”: Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664, at para. 3. [27] In Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 21, Pepall J.A. stated, “Abusive litigants should be screened out of the system so that parties with true justiciable disputes may have them adjudicated by the courts.”
[28] To determine whether a proceeding may be characterized as “vexatious, frivolous or an abuse of the court”, Myers J. reviewed these notions in Gao v. Ontario WSIB, 2014 ONSC 6497, 37 C.L.R. (4th) 7, at para. 15. At para. 9, Myers J. refers to the definition in Black’s Law Dictionary of “frivolous”: "Lacking a legal basis or legal merit; not serious; not reasonably purposeful".
[29] Care is to be taken, however, not to dismiss an action out of hand simply because the plaintiff has either difficulty communicating their claim or has previously engaged in unsuccessful litigation. See Gao, at para. 18, wherein Myers J. says the following:It should be borne in mind … that even a vexatious litigant can have a legitimate complaint. It is not uncommon for there to be a real issue at the heart of a vexatious litigant’s case. The problem is often that the litigant either cannot properly communicate the concern or, more typically, cannot accept that the law may not provide the remedy sought despite the unfairness felt by the litigant. While rule 2.1 should be applied robustly to bring an early end to vexatious proceedings, the matters should not be considered lightly or dismissively. Analysis
[30] Judges determining a request under Rule 2.1 must “allow generously for drafting deficiencies and recognize that there may be a core complaint which is quite properly recognized as legitimate even if the proceeding itself is frivolously brought or carried out and ought to be dismissed”: Gao, at para. 18.
....
[44] Being out of time for his motion to set aside was not fatal on its own. It is compounded by the fact that, the Applicant did not seek leave to extend the time to bring the motion to set aside given his non-compliance with the Rules.
[45] This is another hallmark of a frivolous and vexatious proceeding. The pleading that cannot remain focused on the legal issues and raises irrelevant or scandalous issues in an attempt to direct the focus away from the true substantive issues. This is precisely what the Applicant has sought to do in response to this Rule 2.1 Notice. The Applicant has sought to tarnish the reputation of the opposing counsel and also to challenge the Motion Judge with scandalous accusations. Once again, trying to deflect the attention away from the lack of merit in his motion to set aside and his failure to respect the Rules. Of note, I have re-read the Applicant’s Rule 2.1 submissions and once again, he did not address the substantive issue of when he first formed an intention to commence this application.
[46] A further hallmark of a frivolous and vexatious proceeding is a tendency to seek relief to which a party is not entitled. In this motion to set aside, the Applicant has also gone beyond the substantive issues of the Motion Judge’s decision and has sought an order for a protective cost order which has nothing to do with the motion to extend time that was heard by the Motion Judge.
[47] On the face of the motion to set aside the order of the Motion Judge, the Applicant raises issues which seem justiciable. However, when read in conjunction with the decision of the Motion Judge, those issues are clearly frivolous and fail to demonstrate potential error. They simply restate the submission before the Motion Judge and do not demonstrate any error which could allow a panel of this court to set aside the decision. Specifically, at para. 38 of his submission on the 2.1 Notice, the Applicant alleges that the Motion Judge failed to address the issue of inordinate delay, a theme he repeats often in his submission. However, para. 47 of the Motion Judge’s decision clearly addresses the issue of investigative delay. The Applicant ignores this.
[48] There is simply no reasonable prospect of success in the Motion to set aside and it is clearly doomed to fail.
[49] Accordingly, those grounds raised that seek to challenge the integrity of opposing counsel and of the court are clearly vexatious as the unsustainable allegations are clearly vexatious: Mukwa v. Farm Credit of Canada, 2022 ONCA 320 at para 9.
[50] In addition, the motion to set aside is frivolous because it lacks a proper legal basis or legal merit to suggest that there is any error in the Motion Judge’s exercise of her discretion. The suggestion that she would have needed to address each and every point raised by the Applicant is without merit. The motion is frivolous because it does not raise any issues upon which it could be granted. The court will only interfere if the Motion Judge made an error of law or palpable and overriding error of fact: see Guillaume v. Barney Rivers Investments Inc., 2022 ONSC 1123 at para. 4.
....
[52] Accordingly, the motion to set aside is frivolous, vexatious and brought out of time. Pursuant to rule 2.1, the motion to set aside is dismissed. . Maguire v. Canada et al.
In Maguire v. Canada et al. (Ont Div Ct, 2025) the Ontario Divisional Court allowed the defendants' appeal, here where the trial judge "dismissed the claim as against all of the defendants with the exception of the appellants".
Here the court considers the 'hallmarks' of frivolous and vexatious proceedings:[27] In Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 19, the Court of Appeal sets out the signs of a vexatious litigant. Similar hallmarks are listed in Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 61 C.P.C. (7th) 153. The motion judge identified some of those hallmarks relevant to this case at para. 12 of her endorsement, as follows:. the litigant is virtually always self-represented
. the litigant’s attitude is characterized by marked obduracy
. persistent reiteration and amplification
. submissions contain much that is not legally relevant to the dispute;
. exhaustion of all rights of review, appeal, or revocation any time there is an adverse judgment;
. bringing proceedings for a purpose other than the assertion of legitimate rights; and
. bringing proceedings where no reasonable person would expect to obtain the relief sought. ....
[29] For all of these defendants, the motion judge concluded that the claims were frivolous, vexatious, and an abuse of the process of the court for the following reasons:a. The issues were raised in the Federal Court; while the claim was dismissed for want of jurisdiction, the court did opine that the claim lacked merit; despite this, it appears that the plaintiff simply tried again in this court;
b. The claim contained persistent reiteration and amplification; the plaintiff relies repeatedly on her own self-published study and claims it is proof of her claims and provides legitimacy to her beliefs;
c. The plaintiff’s claim contains much that is not legally relevant to the dispute and is a collateral attack on her family law proceedings;
d. As indicated, her motivation appears to be to force government funding and acceptance of her research and treatment plan, which is not the role of this court; and
e. Bringing proceedings where no reasonable person would expect to obtain the relief sought, including that these particular defendants would fund her residential facility and fecal transplant programme. ....
Additional Hallmarks
[37] The claim itself is 1540 paragraphs and 387 pages long. It has attached to it three schedules. Schedule A is a paper written by the plaintiff called “The Cause of Autism, Mental Illness and Chronic Disease States: From Misunderstanding to Treatment, Recovery and Prevention”. Schedule B is a paper written by the plaintiff called “Hamilton Neuro-Immune Treatment Centre of Excellence Business Plan Funding Proposal”. Schedule C is a document called “Emergency Provisional Government and the Indigenous Path to Healing”, the author of which is not identified. With the schedules, the claim is 468 pages long.
[38] Many of the hallmarks of a querulous litigant identified by Myers J. in Gao, at paras. 14, 15, are present in the Statement of Claim. It is many, many pages long. It has odd attachments. It claims relief that no reasonable person could expect to obtain. Moreover, the plaintiff has brought the litigation for a purpose other than the assertion of legitimate rights, that purpose being the funding of her desired research. . Maguire v. Canada et al. [partial stay/dismissal allowed]
In Maguire v. Canada et al. (Ont Div Ct, 2025) the Ontario Divisional Court allowed the defendants' appeal, here where the trial judge "dismissed the claim as against all of the defendants with the exception of the appellants".
Here the court considers a R2.1.01 frivolous and vexatious issue, specifically whether the rule allows partial stay or dismissal (ie. wrt only some parties and claims):[3] A number of the defendants filed a request under r. 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. That rule allows any party to a proceeding to file with the registrar a request for an order staying or dismissing a proceeding on the grounds that it “appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court”.
....
[15] Rule 2.1.01 reads:(1) The court may make an order staying or dismissing a proceeding that appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. [16] The appellants assert that the rule allows a court to stay or dismiss an entire proceeding and that the rule does not allow a court to stay or dismiss a proceeding against some but not all of the defendants. I disagree.
[17] The appellants’ argument is grounded in the wording of the rule. The rule specifies that the court may stay or dismiss “a proceeding”.
[18] The appellants rely on this court’s decision in Elguindy v. St. Joseph’s Health Care London, 2017 ONSC 4247, at para. 41:However, it is clear from language used in rule 2.1.01 that the court has two options when faced with a request to dismiss a proceeding under this rule. It can grant the request and dismiss the proceeding or decline to do so. [19] In Jenkins v. City of Toronto, 2020 ONSC 1315, a case with multiple defendants, O’Brien J. considered dismissing the action against all of the defendants save one, CUPE Local 79. She concluded that the claim ought to be dismissed against all the defendants, including the union, not because of the wording of the rule but rather because it was the appropriate order on a reading of the statement of claim as a whole.
[20] In Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664, at para. 3, Myers J. said the “rule 2.1 is to be approached robustly with the goal of nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources.”
[21] In Catholic Children’s Aid Society of Toronto v. A.M.Y., 2020 ONCA 98, the appellants had commenced an action against individuals and organizations that had played a role in child protection proceedings, the result of which was a finding that the appellants’ four children were in need of protection. The children were made Crown wards. The defendants to the action were individuals or organizations that had played a role in the child protection proceedings, either as counsel, parties, witnesses, experts, or entities that had provided information that was used in the proceedings. The matter came before Wilson J. (as she then was) by way of a request from two of the defendants for a dismissal of the proceedings under r. 2.1.01. Wilson J. originally dismissed the proceedings against the two requesting defendants only. She later, on her own initiative, amended her reasons to dismiss the action against all the defendants. The appeal was allowed only on the amended reasons. The result was that the action was dismissed as against the two requesting defendants but not as against the remaining defendants.
[22] A similar result was had in Brown v. Lloyd’s of London Insurance Market, 2015 ONCA 235. In that case the motion judge, Myers J. dismissed the appellant’s action under r. 2.1 as against all of the defendants except one, A. Esden-Tempski, the appellant’s former landlord. The appeal was dismissed. At para. 6, the Court of Appeal said the following:We agree with the motion judge’s characterization of the appellant’s action and with his assessment of the appellant’s pleading. With the possible exception of the claims sought to be advanced against Mr. Esden-Tempski, the allegations in the appellant’s pleading, to the extent that they are discernable, and the associated relief claimed are either non-justiciable or fail to disclose a reasonable cause of action within the meaning of the Rules. [23] The result was that the action was dismissed as against all of the defendants save one.
[24] I take from all of these authorities that a court reviewing a proceeding under r. 2.1 is entitled to consider the proceeding against each defendant in turn. The court may decide to dismiss a proceeding against one or more defendants but not the others. If a court does decide to dismiss a proceeding as against one or more defendants, it must dismiss the entire proceeding against those defendants.
[25] This conclusion is consistent with the clear message from the Court of Appeal in A.M.Y. and Brown that a claim may be dismissed as vexatious as against some but not all of the defendants. It is also consistent with this court’s jurisprudence in Elguindy and Jenkins. More importantly, it is consistent with the purpose of the rule stated in Markowa. If a claim is frivolous and vexatious as against some but not all of many defendants, then a dismissal against those defendants would save those defendants from inappropriate costs and simplify the litigation.
[26] For these reasons, I would not give effect to this argument. . College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario v. Yan
In College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario v. Yan (Ont CA, 2025) the Ontario Court of Appeal dismissed a motion, here where the moving party had an order against them declaring them "to be a vexatious litigant, pursuant to s. 140 of the Courts of Justice Act":[4] The review motion must be dismissed because the appellant did not obtain leave to bring the motion, pursuant to the terms of the vexatious litigant order and s. 140(3) of the Courts of Justice Act. This court has repeatedly held that, although a person declared a vexatious litigant may file a notice of appeal of that order without leave, they require leave of a judge of the Superior Court for any motions in the appeal: Son v. Khan, 2018 ONCA 984, at para. 6; Ontario (Attorney General) v. Reyes, 2017 ONCA 613.
|
