A New Tool For The Litigator’s Toolkit – Staying Abusive Actions Without a Motion – By Alan Melamud

Rule 2.1 Stay, Dismissal of Frivolous, Vexatious, Abusive Proceedings

Rule 2.1 of the Rules of Civil Procedure provides a new tool for litigators facing claims that are patently frivolous, vexatious, or otherwise an abuse of process. Rule 2.1.01(1) gives the Court the authority to stay such actions on its own initiative,

2.1.01(1) 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.

Importantly, any party to the litigation can bring such frivolous actions to the Court’s attention. Instead of having to bring and schedule more involved motions under Rules 21.01(3)(d) or 25.11(b) and (c), defendants can now file a request with the Registrar under Rule 2.1.01(6) to have a claim reviewed by the Court. If the Court is satisfied that the claim appears to fall under Rule 2.1, a notice is sent to the plaintiff permitting brief written submissions.[1] After receipt of those submissions, the Court can direct that a copy be sent to the defendant to permit a response. The Court can then decide whether to dismiss the action without any formal hearing.

Defendants can further request in the notice that the Court order an interim stay under s. 106 of the Courts of Justice Act, R.S.O. 1990, c.C.43, while the Court considers striking the action.

Application of the Rule

In Raji v. Borden Ladner Gervais LLP, 2014 ONSC 559, Justice Myers considered a notice sent to the Registrar under Rule 2.1.01(6) and discussed how Rule 2.1 is to be applied. The Rule “is not for close calls.” It should only be used where (1) the vexatious, frivolous, or abusive nature of the proceeding is apparent on the face of the pleadings, and (2) the basis for invoking the rule arises from the pleadings alone.

The second requirement, however, is not fixed. The Court acknowledged that there will be circumstances where the abusiveness of an action, such as an attempt at relitigation, will require the Court to go outside the particular pleadings in the action at issue. Accordingly, while no evidence is admissible when submitting a notice under Rule 2.1.01(6), the Court can consider prior decisions of the Court which are in the public record. In addition, while the Court recognized that pleadings in other actions would technically have to be proven by affidavit, Justice Myers’ characterization of the rule as “highly technical”, suggests it may be relaxed in appropriate, albeit what should be unusual, circumstances.[2]

Ultimately, the Court held that requests from parties under Rule 2.1.01(6) should ordinarily be limited to one or two lines. If more is required, the party should consider bringing a motion under another rule, or alternatively waiting to see if the Court will invite submissions.

The Facts of the Case

In Raji, the notice was prompted by Plaintiff’s claim against Borden Ladner Gervais LLP, which represented a hospital in an action against the Plaintiff for unpaid services. The Plaintiff alleged that the results of several motions in that litigation established that BLG was working with the Government of Canada to fabricate terrorist allegations against the Plaintiff and in conducting a human experimentation operation.

From the statement of claim, the Court noted that it appeared the Plaintiff was attempting to re-litigate or collaterally attack the decisions made in the hospital litigation, which the Court noted is a recognized sign of vexatiousness. Moreover, the pleading of government plots and conspiracy theories further indicated that the claim may be frivolous, vexatious, or otherwise an abuse of process.

Accordingly, the Court ordered that the Registrar send a notice to the Plaintiff that the Court was considering staying the Action, and that the Plaintiff could file written submission, no more than 10 pages in length within 15 days after receiving the notice. The Action was stayed in the interim.

[1]              It is of note that the process of allowing the plaintiff to make submissions is not required. The Court may “order otherwise”. See Okiel v. Misheal, 2014 ONCA 699.

[2]              See, for example, Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664.

 

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