Civil Litigation - Motions. Fehr v. Gribilas
In Fehr v. Gribilas (Ont CA, 2023) the Court of Appeal considered a 'no claims over' provision of a settlement contract. Such provisions are advanced by settlor (A) in an attempt to prohibit settlor (B) from making claims against third parties (C) that in turn might make third-party claims against A. A similar device is that of an 'indemnity', which acts to make B guarantee any judgment-debt which A might be subject to if C sues them. The vast majority of unrepresented parties facing settlements that contain such provisions sign them without knowledge of their effect.
In these quotes the court considers whether the lower court properly stayed a 'no claims over'-barred action absent a stay motion by the 'new' third party plaintiff:
C. ISSUES. Fockler v. Speigel
 The appellants raise the following issues in their appeal: (1) Did the motions judge err in imposing a stay of the main action in the absence of a motion for a stay by the defendant respondents or a specific claim for a stay under s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”)? ...
Issue One: There was no procedural defect that prevented the motions judge from staying the main action.
 The appellants contend that, in the absence of a motion by the defendant respondents for a stay of proceedings, the motions judge did not have the authority to stay the main action. The defendant respondents did not specifically rely on s. 106 of the CJA or otherwise seek a stay of the professional negligence action. Instead, they sought its dismissal. The appellants argue that there was an onus on the moving parties to provide proper notice of the relief they were seeking, and they failed to do so. It was not sufficient that there was a stay motion by the third party J+W Foods. They assert that the defendant respondents should have moved for a stay, and not to dismiss the main action in a summary judgment motion, and that because of this procedural defect, the order staying the main action should be set aside.
 This argument can be addressed briefly. The motions judge had the authority to determine whether the action was an abuse of process and to permanently stay or dismiss the action for that reason. An action can be dismissed as an abuse of process, under the inherent jurisdiction of the court, including to prevent re-litigation of the same issue: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63,  3 S.C.R. 77, at para. 37. Typically a motion will be brought under r. 21.01(3)(d), however a dismissal for abuse of process can be sought in a summary judgment motion: see e.g., Winter v. Sherman Estate, 2018 ONCA 703, 42 E.T.R. (4th) 181, leave to appeal refused,  S.C.C.A. No. 438, at paras. 7-8.
 The appellants were not taken by surprise by the procedure adopted in this case. The effect of the no-claims-over provision of the Release on the main action was raised squarely as an issue in all of the moving parties’ materials.
 The third party J+W Foods moved for an order staying or dismissing the main action, based on the no-claims-over provision in the Release, and filed a factum seeking such relief on the basis of Sinclair-Cockburn. And while the defendant respondents did not request a stay, there is no question that they were seeking to have the main action dismissed both on the basis of the merits of the action and in reliance on the no-claims-over provision in the Release. Paul pleaded the Release, and the appellants’ acknowledgment that they had no further interest in the shares of J+W Foods in his statement of defence. In their notices of motion both defendant respondents specifically referred to the no-claims-over clause in the Release, and in their factums in the court below they addressed the effect of the Release as barring any claim against them, and argued that the professional negligence action was an abuse of process.
 Finally, the appellants’ factum at first instance makes it clear that they understood and had the opportunity to fully respond to the submission that the no-claims-over provision in the Release justified a stay or dismissal of the main action. Indeed, most of their factum is devoted to this issue.
 As such, I would not give effect to this ground of appeal. Irrespective of the failure to plead s. 106 of the CJA specifically, and of the defendant respondents’ request for dismissal of the professional negligence action rather than a stay, whether the main action constituted an abuse of process and should not be permitted to proceed because of the terms of the Release was squarely and properly before the motions judge.
In Fockler v. Speigel (Ont CA, 2023) the Court of Appeal considered the merits element of a R37.14 set aside motion, where the mover has failed to participate in the prior proceedings (here, a summary judgment motion):
 ... When considering whether to exercise her discretion under r. 37.14(1) to set aside the summary judgment, the motion judge was required to consider whether the position the appellants would have advanced at the prior hearing had arguable merit: Waite v. Gershuny (2005), 194 O.A.C. 326 (Div. Ct.), at para. 11. In other words, the appellants were required to show that they had an arguable claim to avoid summary judgment dismissing their action. In our view, there is no reversible error in the motion judge’s finding that they did not have an arguable claim because the action was statute-barred.. Ontario Securities Commission v. Money Gate Mortgage Investment Corporation
In Ontario Securities Commission v. Money Gate Mortgage Investment Corporation (Ont CA, 2020) the Court of Appeal discusses the role of, and what may be ordered within, a motion for 'advice and directions' in a receivership proceeding:
 The motion below was for advice and directions, brought in a receivership proceeding. In my view, this gave the motion judge the power to decide the merits of the dispute about the validity of the 254 Mortgage, and the entitlement to the Sale Proceeds, in a summary way without a trial, following an approach modelled upon that used on motions for summary judgment. The context and purpose of the receivership support that conclusion.. Royal Bank of Canada v. Rastogi
 The Money Gate receiver was appointed under statutory authority that aims at the protection of the best interests of a company’s creditors and security holders. The receiver’s broad powers, to bring in Money Gate’s assets and to hold them for distribution, are in the service of that purpose.
 It is clearly foreseeable that, in seeking to collect the company’s assets with a view to maximizing what will be available to creditors and security holders, the receiver’s efforts may come into collision with positions taken by third parties who dispute the company’s ownership or entitlement, and assert their own. Resolving such disputes in a timely way can be key to the effective fulfillment of the object of the receivership.
 I see no reason in principle why the receiver’s right to apply to the court for advice and directions, a right specifically provided for in the receivership order, cannot be used to resolve a dispute of the type presented here. The asset in question, the 254 Mortgage, was ostensibly an asset of Money Gate, as it was given in its favour. The Sale Proceeds had been paid over to the Money Gate receiver. The question as to entitlement was being raised by the appellant, who was otherwise an outsider to the receivership. The Money Gate receiver was entitled to advice and directions of the court as to whether the asset—the Sale Proceeds representing a recovery under the 254 Mortgage—was properly available for distribution in light of the appellant’s claim.
 In support of its position that there are severe limits on what can be done under a motion for advice and directions, the appellant relies on Re Urbancorp Cumberland 2 GP Inc., 2017 ONSC 7649, 56 C.B.R. (6th) 86, a case in which a motion for advice and directions by a company’s Monitor, appointed under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (“CCAA”), was dismissed. Myers J. held that the Monitor was not truly seeking advice and directions, but was seeking under that guise to assert a claim of the CCAA debtor against a third party for monetary relief: at para. 19.
 In Urbancorp, however, the Monitor had not been given the power to bring proceedings on behalf of the CCAA debtor. The issue in Urbancorp was therefore not about whether a summary determination of rights between a third party and the debtor’s estate could ever be accomplished by a motion for advice and directions. It was about whether the Monitor actually had the power to assert the type of claim it was advancing. Myers J. observed that if the Monitor had the power to bring proceedings, “they can be brought summarily”: at paras. 18-22.
 Here, the Money Gate receiver was expressly given the power, in the receivership order, to initiate, prosecute and defend proceedings with respect to Money Gate or its assets. The Money Gate receiver is not simply attempting, under the guise of a motion for advice and directions, to exercise a power it does not have.
 Accordingly, Urbancorp does not support the appellant’s position.
In Royal Bank of Canada v. Rastogi (Ont CA, 2020) the Court of Appeal converted a CJA 104(1) motion ["recovery of possession of personal property"] to a R20 summary judgment motion, using CJA 134(1)(a) [powers on appeal]:
Should the Motion be Treated as a Motion for Summary Judgment Under Rule 20?. Huang v. Braga
 Rule 37.13(2)(a) states:
A judge who hears a motion may, The motion judge was not asked to, and did not exercise the power under rule 37.13(2)(a). This court can, however, make the same order: s. 134(1)(a) of the Courts of Justice Act.
(a) in a proper case, order that the motion be converted into a motion for judgment;
 An order in the terms contemplated by rule 37.13(2)(a) is discretionary and is clearly not one that will be easily or routinely granted. In CMLQ Investors Company v. CIBC Trust Corporation (1996), 3 C.P.C. (4th) 62 (Ont. C.A.), this court affirmed a motion judge’s exercise of the rule 37.13(2)(a) discretion to grant judgment on a motion for a trial of an issue. The motion judge granted a declaratory judgment and directed a trial on the question of damages. In upholding that decision, this court said at para. 8:
[W]here all of the necessary evidence is before the judge on the motion, and where the parties have had full opportunity of arguing their positions, as was the case here, there is nothing to be gained by either party by adding further proceedings to those already taken. Counsel for the appellants does not suggest that the record before the motion judge did not contain all of the evidence necessary to determine whether Rastogi was entitled to summary judgment on the issue of his entitlement to the release of the funds held by RBC Direct and TD. The record was extensive. Detailed facta were also filed. 
 Counsel for the appellants also does not suggest that RBC did not have a full opportunity to put forward its case on the issue of Rastogi’s entitlement to the funds in the accounts. As I read counsel’s factum, he invites the court to treat this as if it were a motion for summary judgment. Counsel forcefully argues that on the motion record, Rastogi failed to establish that there were no genuine issues requiring a trial in respect of his entitlement to those funds. While counsel for RBC has no difficulty treating this as a motion for summary judgment, counsel for Rastogi contends that it would be unfair to do so as that would put the onus on Rastogi to show that there is no triable issue with respect to his entitlement to the funds.
 I agree with counsel for the appellants that Rastogi’s claim to an entitlement to the funds in his RBC Direct and TD accounts can be properly and fairly resolved on this motion. There is no need for further proceedings to make a proper determination on that issue. Nor, given my assessment of the merits, is there any prejudice to Rastogi.
In Huang v. Braga (Ont CA, 2020) the Court of Appeal established the test for R37.16 motions for leave to appeal (where the party is under a frivolous and vexatious order re motions):
 There is no established test to be applied to motions for leave when the party seeking leave is subject to an order under r. 37.16. Rule 37.16 provides:. Baradaran v. Alexanian
37.16 On motion by any party, a judge or master may by order prohibit another party from making further motions in the proceeding without leave, where the judge or master on the hearing of the motion is satisfied that the other party is attempting to delay or add to the costs of the proceeding or otherwise abuse the process of the court by a multiplicity of frivolous or vexatious motions. Accordingly, r. 37.16 enables a judge to order that for the purposes of a particular proceeding, a party may only make further motions with leave.
 Guidance on an appropriate test may be sought from analogous, though not identical, provisions, such as r. 2.1.02(1) and, s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Rule 2.1.02(1) permits a court, on its own initiative, to stay or dismiss a proceeding if it appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. Rule 2.03 permits a court to dispense with compliance with a rule in the interest of justice. However, no leave requirement is incorporated into the Rule and as such, no assistance may be found in its language.
 Section 140(1) of the Courts of Justice Act provides that where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,
(a) instituted vexatious proceedings in any court; or
(b) conducted a proceeding in any court in a vexatious manner, the judge may order that,
(c) no further proceeding be instituted by the person in any court; or
(d) a proceeding previously instituted by the person in any court not be continued,
except by leave of a judge of the Superior Court of Justice.
 Section 140(3) states that leave may be provided to a vexatious litigant so declared if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and there are reasonable grounds for the proceeding.
 This provision helps inform an appropriate test for leave required under an order granted under r. 37.16. Consideration should first be given to the strength of the grounds advanced by the moving party. Put differently, are there reasonable grounds of appeal that merit granting the leave requested? Second, the context of the r. 37.16 order itself should be considered. Is the substance of the leave request a continuation of the frivolous and vexatious or abusive process that had generated the r. 37.16 order in the first place? The r. 37.16 order is of course not a bar, but as stated in Evans v. Snieg, 2019 ONSC 7270, at para. 30, “such an order should not be lightly disregarded or blithely treated”. Lastly, the overriding consideration is whether the granting or refusal of leave is in the interests of justice.
 It may be that sometimes these three prongs overlap. ...
In Baradaran v. Alexanian (Ont CA, 2016) the Court of Appeal clarified practice in motions to strike and in converting motions made of one nature to another nature (here a motion to strike into a summary judgment motion). The court below had granted a defendant's motion to strike brought under rules 21.01(3)(d) [stay or dismissal as frivolous and vexatious] and 25.11 [to strike pleadings as frivolous and vexatious, or as an abuse of process]. The motions court relied in part on an extensive affidavit of the defendant, which addressed the merits of the case, to strike key paragraphs of the pleadings. The Court of Appeal however allowed an appeal on the basis that the motions court had effectively converted what was originally a motion to strike into a motion for summary judgment, with the following comments:
 First, the motion judge erred in approaching the motion, which was a motion to strike pleadings under rules 21.01(3)(d) and 25.11, as though he were determining a motion for summary judgment under rule 20. While the motion judge could consider evidence on such a motion, the evidence on which he based his decision went to the merits of the claims. The motion judge accepted the solicitor’s evidence, that the appellant had been advised that two of the actions the respondent had been retained to litigate were ill-conceived and he accepted the solicitor’s account of what transpired in his handling of all of the actions. In doing so, the motion judge did not address obvious inconsistencies in the evidence, including the appellant’s assertion in his own affidavit that Mr. Alexanian said he had “a great chance to win [the] claims”. From comments in the transcript it is apparent that the motion judge considered the solicitor’s evidence to be uncontradicted.. Misir v Misir
 The propriety of the use of rules 21 and 25 was not addressed by the motion judge in the court below.
 In this court, the respondents sought to justify the decision of the motion judge as being properly made under rule 25.11. First, the respondents asserted that, since rule 25.11 permitted evidence to be filed on such a motion, the judge did not err in considering such evidence in making his decision, even if the evidence he considered went to the merits. Second, the respondents argued that the motion judge could have converted the pleadings motion into a motion for summary judgment and that no prejudice resulted to the appellant because he knew the issues he had to meet.
 We reject these arguments.
 The purpose of a motion to strike paragraphs in a statement of claim is to weed out claims that have no possibility of success. Pleadings motions are brought early in the litigation and before the opposing party has pleaded in response. When a pleading is struck, the court must consider whether to grant leave to amend. A summary judgment motion, by contrast, can only be brought after pleadings are exchanged: rule 20.01(3). This is for good reason. Summary judgment disposes of the merits of a claim or defence.
 The court will only strike out a claim on the basis that it is frivolous or vexatious or an abuse of the process of the court, in the clearest of cases and where it is plain and obvious that the case cannot succeed. One must guard against converting such motions into summary judgment motions: Miguna v. Toronto Police Services Board, 2008 ONCA 799 (CanLII), 243 O.A.C. 62, at paras. 16 and 21. In that case, Blair J.A. addressed the very point made by the respondents – that the motion judge was entitled to evaluate the merits of the appellants’ claims because affidavit evidence was admissible on the motion. He stated, at para. 34:
Evidence is admissible in relation to a rule 25.11 motion or in relation to the "frivolous and vexatious" aspect of a motion under rule 21.01(3)(d). It does not follow, however, that such a motion may be turned into an evidentiary disposition. The test remains: is it plain and obvious that the claim cannot succeed? The test is not whether it is unlikely the claim will succeed. Nor is the process one of weighing and assessing the evidence against the allegations as if the motion were a trial or a request for summary judgment. This means that, while evidence is admissible in a motion under rules 25.11 and 21.01(3)(d), the evidence must be relevant to, and considered for the purposes of, the motion that is before the court. In other words, the ability to file evidence in a pleadings motion does not change the character of the motion, which is not to determine the merits, but to decide whether the pleading should be struck, as having no chance of success because it is frivolous and vexatious or an abuse of process. For these reasons, we reject the respondents’ contention that the motion judge was acting within the proper scope of rules 21.01(3)(d) and 25.11 in striking the relevant paragraphs of the statement of claim based on Mr. Alexanian’s affidavit evidence.
 We also reject the respondents’ alternative argument that the motion judge was entitled to convert the motion to a summary judgment motion, where the appellant had the opportunity to tender evidence and to respond to the motion judge’s questions about the merits of his claim. Rule 20 permits a summary judgment motion to be brought only after pleadings have been exchanged: in this case no statement of defence had been delivered. Further, the appellant was entitled to rely on the notice of motion, and the relief sought by the respondents, which was to strike certain paragraphs in his pleading, and not for summary judgment. Finally, certain interchanges in the transcript show that the appellant was taken by surprise at the motion judge’s approach, when he was challenged on the merits of the claim. And, to the extent that the motion judge considered the merits, he was wrong to state that there was no evidence to contradict that of Mr. Alexanian.
 It is clear from both the endorsement and the transcript of the hearing before the motion judge, that he approached this case as a summary judgment motion. While he used the term “vexatious” liberally in both his endorsement and his comments in court, and labeled the paragraphs in the pleading as well as the entire action as vexatious and an abuse of process, the motion judge conducted a merits-based analysis of the evidence. Indeed, he commented at the end of his endorsement that the appellant’s claim was “entirely without merit”. Further, the fact that the motion judge struck the paragraphs without leave to amend, without giving proper or any consideration to whether the claims were capable of being amended, reinforces the conclusion that he approached the motion as a summary judgment motion and not as a motion respecting pleadings.
In Misir v Misir (Ont CA, 2017) the Court of Appeal comments on the duty of moving parties to disclose in ex parte proceedings:
 A party who seeks relief from the court in proceedings without notice is obliged to make full and fair disclosure of all material facts. This is a common law rule that is enshrined in rule 39.01(6). See also Sangster v. Sangster, 2003 CanLII 48248 (ON CA),  O.J. No. 69 (C.A.), at para. 7. It is unnecessary to find that the court was deliberately misled before a court will set aside such an order. The basis of the rule is fairness. As the rule confirms, the failure to make such disclosure is a reason, in itself, to set aside the order made: Mariani v. Mariani,  O.J. No. 1464 (S.C.); Balanyk v. Greater Niagara General Hospital,  O.J. No. 4867 (C.A.).