Simon's Megalomaniacal Legal Resources

Civil Litigation Cases - Frivolous and Vexatious (7)

. Dong v. Boone

In Dong v. Boone (Ont CA, 2026) the Ontario Court of Appeal considered R2.1 frivolous and vexatious motion and self-presenters:

[9] As this court noted in P.Y. v. Catholic Children’s Aid Society of Toronto, 2020 ONCA 98, at para. 21:

Although the blunt instrument of r. 2.1.01 should be applied robustly to weed out litigation that is clearly frivolous, vexatious or an abuse of process, the bluntness of the rule and the significant consequences of its application mandate its fair application. Fairness is especially important where the plaintiff is self-represented. [Citations omitted.]

. Seferovic v. 285 Spadina SPV Inc.

In Seferovic v. 285 Spadina SPV Inc. (Ont CA, 2026) the Ontario Court of Appeal considers frivolous and vexatious doctrine, including it's 'hallmarks' and the need to obtain leave to bring proceedings after a frivolous and vexatious motion succeeds against the applicant/plaintiff/mover:

[8] I pause to note that this motion bears many of the hallmarks of vexatious and frivolous litigation. Most of the relief sought is not available through the appeal process or from an appeal court, let alone from a single judge on a motion. Most of the relief he seeks is grandiose and manifestly frivolous. The grounds for the motion are rife with scandalous conspiratorial claims made against multiple judges of the Superior Court of Justice and other “state actors”, including unsupportable claims of malice, malicious discrimination, defamation and allegations of bad faith. In aid of the motions, he invokes numerous manifestly inapplicable provisions of the Charter of Rights and Freedoms, the Ontario Human Rights Code, the Criminal Code, and international covenants. The motions even contain unspecified claims for habeas corpus relief. This would have been an appropriate case for providing notice of dismissal pursuant to r. 2.1.02. But it is not necessary to pursue this route because Mr. Hitti has brought these motions without leave, contrary to the Vexatious Litigant Order.

[9] Mr. Hitti claims that he does not require leave to bring these motions because Osborne J.’s Vexatious Litigant Order is void, ultra vires, and of no effect based on multiple objections he makes to its correctness. This is not correct. Regardless of whether any of the objections he takes to the order have merit, which I need not address, a vexatious litigant order made under s. 140 of the CJA, “stands until such time as it is reversed or stayed”: Varma v. Rozenberg, 1998 CanLII 4334 (Ont. C.A.), at para. 5.

[10] It is of course settled that a vexatious litigant order is a final order appealable as of right to the Court of Appeal, without requiring leave: CJA, s. 140(2.3); see also Kallaba v. Bylykbashi (2006), 2006 CanLII 3953 (ON CA), 207 O.A.C. 60 (C.A.), at paras. 23-29. However, it is also settled that where the terms of the order are broad enough to include proceedings in the Court of Appeal, as they are in this case, “apart from the argument of the appeal of [the] vexatious litigant order itself, any motions in that [appeal] proceeding require leave of a Superior Court judge”: Son v. Khan, 2018 ONCA 984, at para. 6; College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario v. Yan, 2025 ONCA 380, at para. 3, motion to review dismissed, 2025 ONCA 520; and Ontario (Attorney General) v. Reyes, 2017 ONCA 613.

[11] It follows that Mr. Hitti required leave to bring each of the motions now before me in COA-25-CV-1552. Neither the declaration that he is a vexatious litigant nor Osborne J.’s order pursuant to s. 140(1) of the CJA that he is prohibited from instituting any proceedings in any court except by leave of a judge of the Superior Court of Justice have been reversed or stayed. They are still operative and must be observed. The motions must therefore be dismissed because Mr. Hitti did not obtain leave to bring them, pursuant to the terms of the Vexatious Litigant Order and s. 140(3) of the Courts of Justice Act.

. Tong v. Duong

In Tong v. Duong (Ont Div Ct, 2026) the Ontario Divisional Court considered an R2.1.01(3) ['Stay or Dismissal of Proceedings - Court May Stay, Dismiss - On Own Initiative or On Request'] frivolous and vexatious issue, here in a landlord's RTA s.210 appeal:

[5] Rule 2.1.01 outlines a process that permits the court to bring fair and just resolutions to a particular category of disputes in a proportionate, timely and affordable way. Under Rule 2.1.01(1) and 2.1.01(3), 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 court’s process.

[6] The principles to be applied by a judge considering a requisition under Rule 2.1.01 include, but are not limited to, the following:

(a) 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;

(b) “[R]ule 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;

(c) An action should be dismissed under Rule 2.1 only if there is “a basis in the pleadings to support the resort to the attenuated process” resulting from the use of the rule: Raji, at para. 9;

(d) The procedure under Rule 2.1 should not be used as a substitute for a pleadings motion; and

(e) 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

[7] At para. 9 in Gao v. Ontario WSIB, 2014 ONSC 6497, 61 C.P.C. (7th) 153, Myers J. referred to the definition in Black’s Law Dictionary of “frivolous”: "Lacking a legal basis or legal merit; not serious; not reasonably purposeful": quoting from Currie v. Halton Regional Police Services Board, (2003) 2003 CanLII 7815 (ON CA), 233 D.L.R. (4th) 657, (ON CA), at para. 14.

[8] In considering whether there is a legal basis or legal merit to an appeal, the focus under r. 2.1 is on the pleadings (or notice of appeal) and any submissions of the parties made pursuant to the rule. The role of the judge is to determine whether on its face, and in light of any submissions, the proceeding is frivolous, vexatious, or an abuse of process.

. M.E. v. Children’s Aid Society of Toronto [considering R2.1-ordered leave to file appeal]

In M.E. v. Children’s Aid Society of Toronto (Ont CA, 2025) the Ontario Court of Appeal dismissed a motion for leave to appeal (leave being required from an R2.1.01 frivolous and vexatious order), here brought against an "order allowing the Children’s Aid Society of Toronto’s (“CAST”) motion to dismiss M.E.’s action for delay".

Here the court considers these R2.1.01 'leave' requirements, here where the order read: "the appellant will not be permitted to file any further materials in this court without leave of a judge of the court.”":

[3] The overarching issue on this motion is whether it is in the interests of justice that M.E. be permitted to file a notice of appeal. In Huang v. Braga, 2020 ONCA 645, 75 C.P.C. (8th) 281, Pepall J.A. presented a test for leave in the context of a r. 37.16 order prohibiting a party from filing further documents, which is the substance of the order made here. At para. 16, Pepall J.A. suggested the following helpful factors that I agree should inform the analysis:

Consideration should first be given to the strength of the grounds advanced by the moving party. Put differently, are there reasonable grounds of appeal that merit granting the leave requested? Second, the context of the r. 37.16 order itself should be considered. Is the substance of the leave request a continuation of the frivolous and vexatious or abusive process that had generated the r. 37.16 order in the first place? The r. 37.16 order is of course not a bar, but as stated in Evans v. Snieg, 2019 ONSC 7270, at para. 30, “such an order should not be lightly disregarded or blithely treated”. Lastly, the overriding consideration is whether the granting or refusal of leave is in the interests of justice.

[4] See also: Hoang v. Mann Engineering Ltd., 2022 ONCA 82, at para. 10, where Tulloch C.J.O. referenced with approval and applied the same factors.

....

[9] To be clear, this is not a motion for leave to appeal; it is a motion for leave to file a notice of appeal. This court imposed the leave requirement because M.E. had instigated in these proceedings myriad unsuccessful frivolous and vexatious motions and other steps, including serving and filing voluminous and incoherent documents, and making unfounded and serious allegations against counsel and others. Having regard to the impetus for and purpose of the leave requirement, including the history of these proceedings, it is therefore necessary to examine M.E.’s proposed notice of appeal to determine whether it contains the same deficiencies and is of the same vexatious and frivolous nature that led to the imposition of the leave requirement.

[10] M.E.’s proposed notice of appeal contains the same fatal flaws as her previous pleadings. Her stated grounds of appeal are references to various provisions of the Young Offender’s Act, Youth Criminal Justice Act, the Mental Health Act, “Child and Family Services Act (repealed)” and Child, Youth and Family Services Act, 2017. She also asks to “set aside” the dismissal order, claiming that “the Justice was acting ultra vires of her jurisdiction”, citing Toronto (Police Service) v. L.D., 2018 ONCA 17, 357 C.C.C. (3d) 1, a decision dealing with the proper route of appeal from a youth court judge’s decision. None of these statutory provisions nor the requested order are tenable grounds of appeal in relation to the dismissal order. M.E.’s materials on this motion do not provide any clarification. Her challenge to the dismissal order is unknowable. As such, the proposed appeal is frivolous and vexatious and does not meet the leave requirement. For these reasons, I do not grant M.E. leave to file the proposed notice of appeal.