Rarotonga, 2010

simonshields@isthatlegal.ca

Online Lawyer

Most Popular
Contracts / Torts / Evidence / Limitations / Tenant Plus / welfare (ontario works) / odsp / human rights / employment / consumer / COVID Litigation
ADMINISTRATIVE LAW | SPPA / SMALL CLAIMS / SUPERIOR COURT / APPEALS / JUDICIAL REVIEW

home / about / Little Friends Lefkada (Greece) / testimonials / E-Colleagues / Conditions of Use

Civil and
Administrative
Litigation
Intake

Affiliates
Canadian Animal Law

Frivolous and Vexatious II

. Sabijan v. Sabijan

In Sabijan v. Sabijan (Div Ct, 2021) the Divisional Court considered R2.1 (court-initiated frivolous and vexatious dismissal):
Principles applicable to Rule 2.1

[9] 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.

[10] 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.
[11] 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…”
. Rassouli-Rashti v. Tayefi

In Rassouli-Rashti v. Tayefi (Div Ct, 2021) the Divisional Court comments interestingly the relatively new R2.1 'frivolous and vexatious' provisions, and their role in COVID times:
[8] This court applies R.2.1.01 to a range of issues that can arise in respect to a proceeding in this court, including jurisdictional issues. This is not to disparage litigants who are trying bring an appeal, but to promote efficient operation of the justice system, to the benefit of the litigants and the courts. Since the onset of COVID-19, the court has been conducting triage and case management of all cases in Divisional Court. During triage, the court tries to identify cases that are doomed to fail in this court for assessment through the lens of R.2.1.01. This case provides a good example of why this is a worthwhile exercise.

[9] Pre-COVID, it is unlikely that the court would have identified this case as raising a jurisdictional concern at intake. If the responding parties had requested the court to review the appeal pursuant to R.2.1.01, then this process could have been initiated. More likely, responding parties would have moved to quash the appeal for want of jurisdiction. The parties would have expended time and resources to exchange materials and argue that motion. The respondents would have won that motion – many weeks after commencement of the motion for leave to appeal – and an award of costs would likely have been made against the moving party – not as a punishment but as an indemnity for the expense incurred by the responding parties to bring their successful motion.

[10] Following the motion decision, Mr Tayefi would have been entitled to review the motion decision before a panel of this court. If he invoked that process, it could take many months before the panel review was completed, all at additional cost to the parties.

[11] Under the R.2.1.01 process, the parties get a quick disposition of the issue, at little cost and little delay. The order is a final disposition of the issue in this court and is subject to appeal to the Court of Appeal, with leave from that court.

[12] A motion for leave to appeal (or other proceeding) is “frivolous, vexatious and/or an abuse of process” if, among other things, it cannot possibly succeed or can serve no useful purpose. An appeal that is beyond the jurisdiction of this court, and which can have no effect other than a collateral attack on a final order that is not within the jurisdiction of this court, fits within this category. Proceedings that are “frivolous, vexatious and/or an abuse of process” includes, but is by no means limited, to intentional abuse of the justice system. Bringing an appeal to a court that lacks jurisdiction or to attack a final order beyond the appellate jurisdiction of the court, may well be done in good faith, without any intention to abuse the court’s process, but it nevertheless fits within R.2.1.01.

[13] I agree with Mr Tayefi that R.2.1.01 should only be applied to dismiss a proceeding “in the clearest of cases”. If there was any argument available that this motion for leave to appeal could succeed, then recourse to R.2.1.01 would not be appropriate.

[14] This is, however, a clear case. This case is indistinguishable from CAMPP Windsor Essex Residents Assn. v. City of Windsor, 2021 ONSC 3456. In CAMPP Windsor, the moving party brought a motion to adduce fresh evidence on the motion for leave to appeal before Verbeem J. Motion materials were delivered in advance of the hearing. The motion could have been heard in advance of the motion for leave to appeal but was heard during the course of the leave motion. Indeed, the argument in CAMPP Windsor was stronger than it is in the case at bar because no further appeal proceedings were possible from the final decision denying leave to appeal. In this case, the moving party has appeal rights from the decision of Sharma J. in the Court of Appeal, and those appeal rights include every basis on which he asserts that the decision of Sharma J. should not stand, including trial rulings that are, in themselves, interlocutory.

[15] Where a litigant has brought appeal proceedings in this court that should be pursued in the Court of Appeal, this court may transfer the proceedings or provide some dicta that may assist the litigant in pursuing his appeal rights in the higher court. That is not necessary in this instance. Mr Tayefi has commenced an appeal in the Court of Appeal and can pursue before that court any and all reasons that he says the final decision of Sharma J. should not stand – including Sharma J.’s decision not to grant Mr Tayefi’s dismissal motion at the start of the trial.

[16] Finally, Mr Tayefi raises a concern that the court might have already reached a firm conclusion on the R.2.1.01 issue, without first considering Mr Tayefi’s submissions. The court’s practice respecting R.2.1.01 has evolved to take account of the interests of the party required to respond to the R.2.1.01 notice. The Rule requires no more than notice that the court is considering dismissing the proceeding as “frivolous, vexatious and/or an abuse of process”. Giving a litigant notice under R.2.1.01, with no explanation of the issues causing the court concern, leaves many litigants not understanding the issues that need to be addressed to respond to the notice. Litigants may also be concerned that the court is trivializing or dismissing serious issues they are seeking to raise by calling them “frivolous” and “vexatious” and “abusive”. To give proper guidance to litigants, and to try to make it clear that their issues are not being trivialized or overlooked by the court, this court tries to give guidance of the issue(s) that are of concern to the court and may lead to summary dismissal of the proceeding.

[17] This said, Mr Tayefi makes a good point that the court’s guidance could be framed in less emphatic terms. As will be clear from these reasons, the court provided the guidance to solicit and then consider any response before coming to a firm conclusion on the R.2.1.01 issue. The court’s practice has been consistent since the onset of COVID-19, and where litigants have established a meritorious response to the R.2.1.01 notice, the court has declined to dismiss pursuant to the notice. In this case, Mr Tayefi has not been able to answer the court’s concerns and so the motion for leave to appeal is dismissed pursuant to R.2.1.01, without costs, and without prejudice to the issues sought to be raised on the motion for leave to appeal being pursued in the appeal from the final order of Sharma J. initiated at the Court of Appeal.
. Taylor v Pivotal

In Taylor v Pivotal (Div Ct, 2021) the Divisional Court sets out the basics of RCP 2.1 'frivolous and vexatious' proceedings:
Principles applicable to Rule 2.1

[9] Rule 2.1 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.

[10] 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.
[11] 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…”.


CC0

The author has waived all copyright and related or neighboring rights to this Isthatlegal.ca webpage.