Simon's Megalomaniacal Legal Resources

Civil Litigation - Frivolous and Vexatious (4)

. Hart v. Balice

In Hart v. Balice (Ont CA, 2024) the Ontario Court of Appeal notes that, for purposes of a CJA s.140 'frivolous and vexatious' order that bars the commencement of civil proceedings, 'proceedings' includes appeals:

[2] By order dated June 13, 2023, Ms. Hart was declared a vexatious litigant under s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43: Canada Mortgage and Housing Corporation v. Hart, 2023 ONSC 3544 at para. 41. The order prohibits Ms. Hart from commencing or continuing any proceedings in any court, except with leave of a judge of the Superior Court of Justice. The order also applies to appeals to this court: Kallaba v. Bylykbashi (2006), 2006 CanLII 3953 (ON CA), 265 D.L.R. (4th) 320, at para. 26, citing Varma v. Rozenberg, [1998] O.J. No. 4183 (C.A.), at para. 5.

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[5] In addition, as there is a vexatious litigant order in effect barring Ms. Hart from instituting or continuing any proceedings in any court without leave of a judge of the Superior Court of Justice, court staff are directed not to accept any further filings from Ms. Hart – in this proceeding or in any other civil proceeding – unless she has obtained leave from a judge of the Superior Court of Justice, or the June 13, 2023 order is set aside.

. Rebello v. Canada (Attorney General)

In Rebello v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal canvassed basic remedial provisions of RCP 2.1.01 ['Stay, Dismissal of Frivolous, Vexatious, Abusive Proceeding - Order to Stay, Dismiss Proceeding']:

[7] The appellant submits that the motion judge erred in ruling that the application be dismissed on r. 2.1.01 without a hearing. Further, she submits that she was denied procedural fairness, because she was not allowed to respond to the r. 2.1.01 request. We do not agree. Rule 2.1.01 provides:

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.

[8] The rule sets out a summary procedure, and the court has the power to proceed without submissions: see e.g., Ahmed v. Ontario (Attorney General), 2021 ONCA 427, at para. 7. Subrule 2.1.01(3) specifically states that an order shall be made on written submissions “unless the court orders otherwise.” Given the multiple cases referred to by the motion judge, she did not err in exercising her discretion to proceed without submissions. Her discretionary decision is entitled to deference.

[9] The appellant further submits that the motion judge erred in dismissing the application against Canada, because it did not request the dismissal or file a notice of appearance. We do not agree. Although a party may request an order, the court has the power “on its own initiative” to stay or dismiss the proceeding under the rule.

[10] The procedure authorized under r. 2.1.01 is clear, the motion judge followed it, and we see no error or reason to interfere with her discretion.

. Mehedi v. Tamlin

In Mehedi v. Tamlin (Div Court, 2023) the Divisional Court considers (and grants) it's own R2.1 frivolous dismissal, here in the novel circumstances of a motion for leave to appeal (of a case management procedural order):

[2] On November 14, 2023, I directed that the Registrar send out notice to the moving party advising that this Court was considering dismissing his motion for leave to appeal under r. 2.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), as frivolous, vexatious or an abuse of process because the motion for leave to appeal pertains to a procedural case management direction.

[3] On November 28, 2023, the moving party provided a written submission that mainly addresses the merits of his action, as opposed to the merits of his motion for leave to appeal, among other extraneous matters. I have reviewed Mr. Mehedi’s written submission and am satisfied that the motion for leave to appeal should be dismissed pursuant to Rule 2.1.02.

[4] Under Rule 2.1.01 of the Rules, this court may stay or dismiss an appeal if it appears to be frivolous, vexatious, or an abuse of process. In addition, Rule 2.1.02 provides that the court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. Under Rule 2.1.02(2), subrules 2.1.01(2) to (7) apply, with necessary modifications, to the making of an order under subrule (1).

[5] 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.

. Robson v. Law Society of Ontario

In Robson v. Law Society of Ontario (Ont CA, 2023) the Court of Appeal considered (and dismissed) an LSO-brought R2.1 frivolous and vexatious motion to dismiss a set aside motion of an earlier order to deny an extension of time to commence a leave to appeal motion. In these quotes the court addresses the material to be provided on such an R2.1 motion:

[3] It is well-established that r. 2.1 is not for close calls. Rather, it to be used robustly for the purpose of weeding out litigation that is frivolous, vexatious or abusive on its face and where there is a basis in the pleadings for resort to this rule: Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, at paras. 8-9.

[4] To assist with its task, the court should be provided with a bound volume of any relevant background documents, such as prior issued and entered orders and the reasons for such orders, as well as relevant pleadings or other related documents: Simpson v. Chartered Professional Accountants of Ontario, 2016 ONCA 806, at paras. 45 and 47.

[5] Other than the submissions in its letters of October 25 and November 21, 2023, and a copy of the motion judge’s October 24, 2023 decision, the LSO has not provided any other documents, such as the appellant’s motion materials before the motion judge or even his proposed notice of motion for leave to appeal.

[6] We are therefore unable to determine, on the basis of the submissions filed and the motion judge’s reasons, that the appellant’s motion to review the motion judge’s order is, on its face, frivolous, vexatious or an abuse of process and, therefore, whether r. 2.1 should be invoked in this case.

. South Junction Triangle Grows Neighbourhood Association v. 1423 Bloor Street West Inc. et al.

In South Junction Triangle Grows Neighbourhood Association v. 1423 Bloor Street West Inc. et al. (Div Court, 2023) the Divisional Court considers the R2.1 'frivolous and vexatious' provision:

[5] Rule 2.1 is an “extremely blunt instrument”: Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 12. It should only be used in the clearest of cases: Mohammad v. McMaster University, 2023 ONCA 598, at para. 6; Hart v. Balice, 2022 ONCA 787, at para. 7, citing Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488. A decision made under r. 2.1 is a discretionary decision: Sumner v. Ottawa (Police Services), 2023 ONCA 140, at para. 6, and its use should be limited to 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 para. 8.

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[8] I agree that the statute’s appeal mechanism does not foreclose judicial review in rare cases. But there is no prospect that this is one of those cases. This court will dismiss cases under r. 2.1 where the proceeding seeks to litigate issues that have already been decided: Segura Mosquera v. Child and Family Services Review Board, 2023 ONSC 3277, at para. 15. Here, the grounds for the application for judicial review are almost identical to grounds found in the notice of motion for leave to appeal. This is an attempt to relitigate the same issues.

. Deokaran v. Law Society Tribunal and Law Society of Ontario

In Deokaran v. Law Society Tribunal and Law Society of Ontario (Div Court, 2023) the Divisional Court considered the test for a court's R2.1.01 frivolous and vexatious motion:

[10] Rule 2.1.01 allows the court, on its own initiative, to stay or dismiss a proceeding where it appears on its face to be frivolous, vexatious, or otherwise an abuse of the process of the court. The application of r. 2.1 is “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 resort to the attenuated process”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, [2015] O.J. No. 5692, at para. 8; Mohammad v. McMaster University, 2023 ONCA 598, [2023] O.J. No. 3997, at para. 6.

. 9383859 Canada Ltd. v. The Court of Appeal for Ontario

In 9383859 Canada Ltd. v. The Court of Appeal for Ontario (Div Court, 2023) the Divisional Court considered a R2.1 frivolous and vexatious issue, here where the applicant sought to JR "a decision by the Executive Legal Officer (“ELO”) of the Court of Appeal delisting the applicant’s appeal":

[7] The dismissal of a proceeding under Rule 2.1.01 is a blunt instrument, which should not be used lightly. It is reserved for the “clearest of cases, where the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading”: Khan v. Krylov & Company LLP, 2017 ONCA 625 at para. 12. A “frivolous” proceeding is one “lacking a legal basis or legal merit; not serious; not reasonably purposeful”: Currie v. Halton Regional Police Services Board, 2003 CanLII 7815 (ON CA) at para. 14.

. Mohammad v. McMaster University

In Mohammad v. McMaster University (Ont CA, 2023) the Court of Appeal revoked fee waivers
where a finding of frivolous and vexatious behaviour was upheld on appeal:

[2] On June 29, 2023, the court issued notices to the appellant that the court is considering staying or dismissing two of his motions and one of his appeals pursuant to r. 2.1.02 and r. 2.1.01 respectively. The court also issued a notice to the appellant that is it considering making an order revoking the appellant’s fee waivers in all three proceedings pursuant to s. 4.10 of the Administration of Justice Act, R.S.O. 1990, c. A.6.

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[14] The appellant’s submissions in response to the notices given under r. 2.1 of the Rules of Civil Procedure and s. 4.10 of the Administration of Justice Act are also disjointed and non-responsive. The bulk of the submissions are bald and allege conspiracies between the various respondents and multiple other individuals. The submissions contain over 100 pages of irrelevant attachments and multiple video and audio clips.

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[17] For the same reasons, it is also appropriate for the court to revoke the appellant’s fee waivers for the three proceedings and to order that the appellant not make any further requests for a fee waiver under the Administration of Justice Act with respect to these proceedings or any related proceedings, without permission from a judge.

. Guillaume v Chief Animal Welfare Inspector

In Guillaume v Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considered an R2.1.01 frivolous and vexatious motion, here to quash a JR:

[14] The Court of Appeal for Ontario has repeatedly highlighted that the dismissal of a proceeding as abusive under r. 2.1.01 is a blunt instrument, reserved for the “clearest of cases”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8; Khan v. Law Society of Ontario, 2020 ONCA 320, 446 D.L.R. (4th) 575, at para. 6; Hart v. Balice, 2022 ONCA 787, at para. 7.

[15] An application for judicial review should be dismissed as frivolous, vexatious and/or an abuse of process if it cannot possibly succeed or be of any benefit to the applicant: Awada v. Allstate, 2021 ONSC 8108 (Div. Ct.), at para. 6.

. Williams v. Tuck

In Williams v. Tuck (Ont CA, 2023) the Court of Appeal considered the law that no common law 'frivolous and vexatious' jurisdiction existed, here where a judge initiated CJA s.140 [vexatious proceedings] without jurisdiction. That is, only a party could initiate s.140 - as opposed to R2.1.01 where the court and parties could initiate such proceedings, but R2.1.01 wasn't used:

[14] Any interested person, pursuant to s. 140(1) of the CJA, can bring an application for an order that no further proceeding be instituted by a person without leave of a judge of the Superior Court: Balanyk v. Dutton Brock LLP, 2014 ONCA 122. As this court has held, the process is not optional. It must be by way of application, meaning an originating process as defined in the statute: Lukezic v. Royal Bank of Canada, 2012 ONCA 350, 350 D.L.R. (4th) 111. This provides the subject of the proceeding with procedural fairness: the subject is provided with written notice that the order will be sought, the facts thought to justify the order, an opportunity to make written submissions, notice of an oral hearing, and an opportunity to make oral submissions at the hearing.

[15] In this case, there was no such application, although the defendants could have brought one. The application judge approximated the process under s. 140, providing the appellant with all of the procedural protections he would have received had the matter proceeded by a third-party application. The application judge referred to both s. 140 and the court’s inherent jurisdiction for the authority to do so.

[16] The problem is this. There is longstanding, binding authority from this court that there is no inherent, common law authority to make a vexatious litigant order, and s. 140 does not authorize the judge-initiated process employed here: see Foy v. Foy (No. 2) (1979), 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220 (C.A.), leave to appeal refused (1979), 102 D.L.R. (3d) 342n; Kallaba v. Bylykbashi (2006), 2006 CanLII 3953 (ON CA), 207 O.A.C. 60, leave to appeal refused, [2006] S.C.C.A. No. 144; Lukezic. This can be contrasted with r. 2.1.01, which clearly provides the court with the authority to stay or dismiss a frivolous or vexatious proceeding “on its own initiative”.

[17] Section 140(5), which specifically provides that nothing in s. 140 “limits the authority of a court to stay or dismiss a proceeding as an abuse of process or on any other ground” does not assist. The order appealed from is not from the stay or dismissal of a proceeding. The order under appeal is both a declaration of a status – “vexatious litigant” – and a restriction on that litigant’s civil right of access to the courts for all proceedings. It is “aimed at the litigant and not at the litigation”: Kallaba, at para. 122 (per Lang J.A., dissenting, but not on this point). Nor is this a question of the scope of the court’s broad jurisdiction to make appropriate orders in the context of a proper s. 140 application, as discussed in Peoples Trust Company v. Atas, 2019 ONCA 359, leave to appeal refused, [2019] S.C.C.A. No. 427.

[18] Where no third party steps up to bring the requisite application, the actions can only be dealt with on a case-by-case basis under r. 2.1.01. There may well be good reason for this given the extraordinarily broad nature of the s. 140 remedy: see the discussion of the competing considerations at play in Gerrard J. Kennedy, “Rule 2.1 of Ontario’s Rules of Civil Procedure: Responding to Vexatious Litigation While Advancing Access to Justice?” (2018) 35 Windsor YB Access Just 243, at p. 248. In any event, there is currently no means for a judge to combine a r. 2.1.01 order with a vexatious litigant order on the judge’s own motion and have that order filed in every registry in Ontario. As Lang J.A. noted in Kallaba, at para. 116 – nearly two decades ago – a vexatious litigant order is a creature of statute. Any gaps in the legislation are for the legislature to fill.

[19] It is with reluctance that we allow the appeal and vacate the vexatious litigant order. For greater clarity, nothing in these reasons disturbs the orders made by the application judge under rule 2.1.01 dismissing the underlying action. Nor should anything in these reasons be read as an endorsement of the appellant’s conduct of this litigation, or an impediment to any future application under s. 140 of the CJA.