Simon's Megalomaniacal Legal Resources

JR - Frivolous and Vexatious [RCP R2.1]

. Elguindy v. Deputy Judge Aird

In Elguindy v. Deputy Judge Aird (Ont Div Ct, 2026) the Ontario Divisional Court considered an R2.1 'vexatious, frivolous, and an abuse of process' motion to dismisses the proceeding (which was granted):

[11] Rule 2.1 does not require the moving party to file a Statement of Defence in an Action or file a Notice of Appearance in an Application before seeking relief under Rule 2.1. Had the Rules Committee or Legislature intended this to be the case, they would have made it a prerequisite to bringing the motion as they did in Rule 20.01(3). As indicated below, Rule 2.1 is designed to provide an efficient summary process to weed out claims that are obviously frivolous, vexatious, or an abusive process. To require a moving party to have filed a notice of defence or a notice of Appearance would be contrary to that philosophy. The same philosophy suggests that where a number of motions are brought, one of which is brought under Rule 2.1, the Rule 2.1 motion should be determined first.

Rule 2.01.1 Motion

The Law

[12] Rule 2.1 governs proceedings brought in the Superior Court of Justice, and by extension, the Divisional Court. This Rule provides a procedural means by which the court may screen out proceedings at their commencement which, on their face, are clearly frivolous, vexatious or abusive. Rule 2.1.01(3) provides its own procedure where the court calls on the plaintiff or applicant to provide their position in writing to oppose the notice, and if invited, for any responding party to file responding submissions. The process laid out in Rule 2.1.01, applies equally to motions (see: Rule 2.1.02).

[13] The Rule provides for a process that is expeditious, while allowing all parties to be heard. At the same time, the process preserves the overarching discretion of the judge to deal summarily with a proceeding, particularly when considering matters of law.

[14] The court may stay or dismiss a proceeding if it is found to be frivolous, vexatious, or an abuse of process. The Rule is designed for the court to detect and dispose of cases that have no basis to engage the machinery of the judicial process of that court in the first place.

[15] The standard for applying this summary procedure under Rule 2.1 was addressed by the Court of Appeal in Scaduto v. Law Society of Upper Canada, 2015 ONCA 733 in the following way:

“Rule 2.1 is a relatively new Rule that came into force on July 1, 2014. The motion judge has decided a number of cases which have helped to delineate both the procedure and the test to be applied under the Rule: see Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6100, 37 C.L.R. (4th) 1 (“Gao No. 1”); Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7 (“Gao No. 2”); Raji v. Border Ladner Gervais LLP, 2015 ONSC 801 (CanLII); and, Covenoho v. Ceridian Canada, 2015 ONSC 2468 (CanLII).

[16] Under this line of authority, the court recognized that the Rule should 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. However, the use of the Rule should be limited to 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.

[17] This approach is summarized in Raji, at paras. 8-9, as follows:

[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. No evidence is submitted on the motion…. [T]here are two conditions generally required for Rule 2.1 to be applied. First, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading as required by the Rule. Second, there should generally be a basis in the pleadings to support the resort to the attenuated process of Rule 2.1…. This second requirement is not in the Rule and is not a fixed requirement. It strikes me as a guideline that reminds the court that there are other Rules available for the same subject matter and that resort to the attenuated process in Rule 2.1 should be justified in each case.

See also Gao (No. 2), at paras. 11-18; and Covenoho, at paras. 6-7. We also recognize that the case law will develop as the Rule becomes more widely utilized.

[18] Under Rule 2.1.01, the court is called to exercise a “gatekeeper” function to “weed out” proceedings that are clearly frivolous, vexatious or an abuse of process. This determination can be made only if two requirements are met. First, the proceeding must appear to qualify under those grounds on its face. Second, there should be some reference in the originating pleading to support the decision to resort to the process under sub Rule (3). It is then for the gatekeeper to determine by the pleadings and the written submissions of the parties whether the proceeding is frivolous, vexatious or an abuse of the civil justice system.

[19] No evidence may be adduced under Rule 2.1.01(2) although the Court may review the reasons in the underlying proceeding, or the pleadings and reasons in the underlying or another proceeding (see: Visic v Elia Assoc., 2020 ONCA 690).

[20] A judge cannot dismiss part of a pleading. S/he may only dismiss the proceeding or decline to do so (see: Alampur v Avenel Non-Profit Housing Corp, 2018 ONSC 3022).

. Ashar v. Ontario Labour Relations Board

In Ashar v. Ontario Labour Relations Board (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a labour OLRB JR, this on a R2.1 'frivolous and vexatious' motion where the underlying grounds alleged "unlawful reprisal under the Occupational Health and Safety Act".

The court applies the doctrine of JR 'prematurity', here in a R2.1 frivolous and vexatious dismissal:

[10] I accept that Mr. Ashar has not brought his application in bad faith. However, his application is patently premature. The decision he seeks to have reviewed is an interim decision of the Board. The Board dismissed Mr. Ashar’s request that he be granted default judgment. In its May 26, 2025 directions, it had said that a “Consultation hearing” would be scheduled to deal with the remaining allegations that had not been dismissed. The Board therefore will proceed to deal with the allegations it has permitted Mr. Ashar to pursue. If Mr. Ashar ultimately is dissatisfied with the decision of the Board at the conclusion of its proceedings, he can seek to judicially review the Board’s final decision, which can include the procedural steps leading to that decision.

[11] Absent exceptional circumstances, courts should not interfere in ongoing administrative proceedings until after they are completed or until effective remedies are exhausted. This is a principle “scrupulously” followed in this court to avoid the fragmentation of proceedings: Awada, at paras. 7-9.

[12] Mr. Ashar believes the court should intervene because the Board should not have allowed the responding party to continue to participate in his application since it did not respond to Board directions. But the Board found the responding party had already submitted a response to the application, so there was no basis for default judgment. In any event, the Board’s decision to allow an application to proceed to a decision on the merits in the face of a request for default judgment does not on its own constitute exceptional circumstances.

[13] Mr. Ashar has raised a concern about access to judicial oversight. As I have said, that will be available to him at the completion of the Board process. The court will not intervene at this stage of the Board’s proceeding. The application is doomed to fail and therefore is dismissed pursuant to r. 2.1.01.