Simon's Megalomaniacal Legal Resources

Appeal - Frivolous and Vexatious [RCP R2.1]

. Rajaghatta v. Niranjan [frivolous and vexatious]

In Rajaghatta v. Niranjan (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a CJA s.21(5) motion order panel review, here brought against related orders to dismiss an appeal for "failure to perfect".

Here the court summarizes typical appeal practice and process, including the role of appeal case management in a R2.1 frivolous and vexatious context:

[3] Civil appeals in the Divisional Court generally follow a straightforward process. An appellant is required to perfect the appeal by filing the appeal record and factum. Responding parties file responding factums. Then the appeal may be heard.

[4] The appeal record is generally limited to the record that was before the trial court in respect to the order under appeal. With some exceptions, none of which apply in this case, the appeal is heard and decided by a panel of three judges of the Divisional Court.

[5] Case management in the Divisional Court aims to assist the parties to complete the process described above in order to schedule the hearing of the appeal. In a relatively straightforward appeal, such as the one in this case, case management should not require more than two or three simple email directions from the case management judge specifying the deadline for the appellant to deliver his appeal record, factum and required transcripts, and the deadline for the responding materials.

....

(b) R. 2.1, Case Management and Review Motions Pursuant to CJA, s.21(5)

[62] Prior to 2020, case management was the rare exception, rather than the rule, in the Divisional Court. The parties drive their own processes, with the Rules of Civil Procedure providing the structure for the process. Only if a party sought assistance from a judge by way of a motion would the court ordinarily intervene prior to a matter coming before a panel of the court.

[63] This all change when the COVID-19 pandemic required the court to take a hands-on approach to pre-hearing processes to adjust to conducting hearings virtually. This was borne of necessity at the time, but it also showed that case management led to a more efficient and effective process, with faster disposition of cases, and fewer expensive and time-wasting motions.

[64] Thus, now, judges are involved in Divisional Court cases shortly after those cases are initiated up to the time that they are scheduled for hearing before a panel. The task of the case management judge is to assist the parties to complete their pre-hearing preparation so that their matters are ready for a hearing on the merits. Where parties cooperate in this process, schedules may often be established and hearing dates identified within a few weeks of the matter commencing.

[65] Where parties do not cooperate, and particularly, where one party will not follow the court’s directions, and instead argues relentlessly with the court’s case management directions, a particular set of problems can develop that leads to cases being mired in pointless procedural conflict. Such a situation is not in the interests of the parties or the administration of justice, and so the court has developed two ways of dealing with the issue:

1. Directing that objections to case management directions may be raised with the panel hearing the appeal or application; and

2. Where appropriate, disposing of procedural objections by recourse to r. 2.1.

[66] The primary reason for these two approaches to addressing pointless and endless procedural conflicts during case management is s. 21(5) of the Courts of Justice Act.

[67] Subsection 21(5) provides:

A panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion.

[68] Case management directions are treated as analogous to decisions on a motion – they have the same effect as decisions on motions – they result in orders – usually (but not always) interlocutory – and their effect can range from incidental (such as most orders directing particular deadlines) to significant (striking out impermissible materials, striking out grounds of appeal, or dismissing proceedings) – all things a motion judge could do on a motion. The operating principle here is that case management directions can be made where there is a sufficient basis in the information provided to the case management judge by the parties, and the issue is not one that should be left for the panel to decide at the hearing, or it is one that a reasonable litigant could not oppose.

. Delic v. Henley Group Ltd.

In Delic v. Henley Group Ltd. (Ont Divisional Ct, 2025) the Divisional Court allowed an RTA appellate motion for "an order dismissing the Tenant's appeal as frivolous, vexatious, and an abuse of the court process, under r. 2.1.01 of the Rules of Civil Procedure":

Analysis:

[13] Rule 2.1.01(1) of the Rules of Civil Procedure gives this Court the authority to dismiss an appeal if it appears on its face to be frivolous, vexatious, or an abuse of process.

[14] The purpose of r. 2.1 is "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": see Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664, at para. 3 and Gao v. Ontario WSIB, 2014 ONSC 6100, at para. 9.

[15] Rule 2.1.01 is a blunt instrument, reserved for the clearest of cases. 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, 81 C.P.C. (7th) 258, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 36753; Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 12.

[16] The judge must focus on the pleadings and read the statement of claim generously and assume that the assertions of fact are true unless they are obviously implausible or ridiculous: Sumner v. Ottawa (Police Services), 2023 ONCA 140, at para. 9 and Scaduto, at paras. 9, 11-12.

[17] There are two conditions generally required: first, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleadings, and second, there should generally be a basis in the pleadings to support the resort to the attenuated process of r. 2.1: Scaduto, at paras. 8 and 9, citing Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at para. 9.

. Elsimali v. Pinedale Properties

In Elsimali v. Pinedale Properties (Div Court, 2024) the Divisional Court granted a landlord-initiated R2.1 ['frivolous and vexatious'] request to dismiss an RTA s.210 appeal, here where the landlord was successful on an LTB reconsideration (aka 'review') which was the reason for the appeal. As the recon decision was interlocutory, an appeal would require leave - thus the court lacked jurisdiction:

[5] The appellants have made submissions in response to the notice under r. 2.1. They submit that the same policy reasons that support no appeals from interlocutory decisions support this appeal in the particular circumstances of this case. This does not assist the appellants. It is often the case that one side or the other submits that an interlocutory appeal would efficiently end the matter. The issue is jurisdiction.

[6] Further, the appellants assume that there will be a problem arising from the interpretation of Hassan. That remains to be seen. The reviewing Member did not purport to definitively interpret that case, quite the contrary. The Member found there “may” be a conflict with that case and that the hearing decision failed to “distinguish or address” that case. It is insufficient to say that there might be a problem with the final LTB decision, before it is rendered.

[7] The appellants also rely on decisions of this Court that permitted some discretion in the context of proposed interlocutory appeals from the Licence Appeal Tribunal, specifically The Personal Insurance Company v. Jia, 2020 ONSC 6361 and Security National Insurance Company v. Kumar, 2018 ONSC 3556. However, those decisions have been expressly not followed in what is now the leading case on the issue, finding no right of appeal from an interlocutory order: Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874. There is no right of appeal from an interlocutory order of the LTB: Ainsley v. Proulx, 2023 ONSC 6308. There is no jurisdiction to hear this proposed appeal.

[8] Subrule 2.1.01(1) authorizes the Court to dismiss a proceeding as frivolous or vexatious or otherwise an abuse of the process of the court. However, r. 2.1 should only be used for “the clearest of cases”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8. This is such a case.

[9] In the alternative, appellants ask that this proceedings be changed into an application for judicial review. This proposal raises the issue of prematurity – the application would be premature and the appellants would have to show exceptional circumstances before the Court would exercise its discretion to hear the application. I am not persuaded to convert this appeal in this r. 2.1 process, in which the respondent has not been given a right to make submissions.

[10] This proceeding is therefore dismissed under r. 2.1 of the Rules of Civil Procedure.