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Frivolous and Vexatious II

. Isaac v. Law Society of Ontario

In Isaac v. Law Society of Ontario (Div Ct, 2021) the Divisional Court explains the role of the court in case management [and R2.1 frivolous and vexatious proceedings] during times of COVID:
Rule 2.1.01

[13] Rule 2.1.01 should be invoked to dismiss a case only in the “clearest of cases”. If there was a tenable argument that this case fits into the category of “exceptional circumstances” sufficient to avoid the principle of prematurity, then this court should leave the issue to be addressed either on a motion to quash brought by the respondent or by the panel deciding the application itself. However, if the application is doomed to fail because it is premature, then the parties and the court should be spared the expense, time and potential delay involved of the application process. The authorities cited by Mr Isaac respecting R.2.1.01, including my own decisions in Humphries v. AG Ontario, 2020 ONSC 4460 and Simpson v. Chartered Professional Accountants of Ontario, 2016 ONSC 806, state these principles clearly. The recent case of Awad restates these principles and applies them in the context of a consideration of prematurity.

Triage and Case Management in Divisional Court

[14] Mr Isaac sees something suspicious in the alacrity with which the R.2.1.01 process has unfolded in this court. It has unfolded as it should.

[15] Since the onset of COVID-19, Divisional Court has been undertaking triage and case management of all cases and steps in cases in Divisional Court. The process is set out in detail in the court’s Notice to Profession, found on the court’s web site:
Notice to Profession – Divisional Court | Superior Court of Justice (ontariocourts.ca)
Mr Isaac followed that process to commence this application.[16] Cases in which parties obtain or seek a stay pending the hearing are given priority in the triage process. So, given that Mr Isaac identified in his materials that he seeks a stay of proceedings before the Law Society, Divisional Court staff forwarded this case to an administrative judge for triage on a priority basis. It came to me and I was able to review it immediately. I formed the opinion that the case raises concerns under R.2.1.01 and directed that a notice be sent out. R.2.1.01(1) provides that the court may stay or dismiss a proceeding “on its own initiative”, and in Divisional Court, the court issues such notices in the ordinary course where, in the opinion of an administrative judge, that step is warranted. The respondent did not request that a R.2.1.01 notice be issued; had it done so, the respondent’s communication with the court would have to have been copied to Mr Isaac.

[17] Notice pursuant to R.2.1.01 is given by the Registrar using Form 2.1A. That form does not contain particulars or explanations of the concern(s) that have led the court to initiate the R.2.1.01 process. While the Rules do not require that an explanation be provided, it facilitates the R.2.1.01 process if the court provides an explanation. This was done in this case in the usual way: by email, as a direction from a judge. Mr Isaac provides no authority for his suggestion that this process is not proper, and no argument that the particulars were insufficient to enable him to respond to the court’s concerns.

[18] None of the concerns set out in the court’s explanation have been adjudged on a final basis. The purpose of the notice is to give the litigant an opportunity to explain why the case is not frivolous, vexatious and/or an abuse of process. The particulars – which Mr Isaac argues are necessary, and which this court considers desirable – inherently express the court’s concerns. All of this is in the context of the test to be met under R.2.1.01: only in the clearest of cases will the proceeding be dismissed.
. Philbert v. Graham

In Philbert v. Graham (Ont CA, 2022) the Court of Appeal set out indicia of frivolous and vexatious proceedings:
[17] I agree with Steele J. of the Superior Court that the appellant’s conduct is frivolous, vexatious, or an abuse of proceedings. The appellant’s conduct in this proceeding fits squarely within the indicia of vexatious litigation articulated by Pepall J.A. in Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 20, citing Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7, at paras. 14-15 which include:
i. bringing multiple proceedings to try to re-determine issues that have already been decided;

ii. advancing grounds and issues raised in prior proceedings;

iii. persistent pursuit of unsuccessful appeals;

iv. bringing proceedings for a purpose other than the assertion of legitimate rights;

v. bringing proceedings where a reasonable person would understand that they would not expect to obtain the relief sought;

vi. failing to pay costs awards; and

vii. inappropriate submissions in form and content.
. Pafco Insurance Company v. Sahadeo

In Pafco Insurance Company v. Sahadeo (Div Ct, 2021) the Divisional Court issued a R2.1 'frivolous' order against an insurance company in a LAT case on the basis of prematurity. The insurance company had filed both an appeal and a judicial review against a interlocutory evidence ruling at the tribunal level. I found the case refreshing for using R2.1 orders against someone other than self-reppers. This follows up on clarifications that the court (Corbett J, the Div Ct administrative judge) had been trying to make for a while with respect to R2.1 [see Rassouli-Rashti v. Tayefi (Div Ct, 2021)]:
[11] The appeal and the application for judicial review are dismissed pursuant to R.2.1.01 as frivolous, vexatious and an abuse of process. Both proceedings are premature. Both would have the effect of derailing the proceedings below or, if proceedings below are not stayed, would be rendered moot by the time they can be heard in this court. Both raise issues that may be raised on an appeal or review from the final decision of LAT. Neither fall within the category of “exceptional circumstances” justifying intervention by this court in respect to an interlocutory ruling of the LAT.

[12] The appellant has misconceived the principle of prematurity and the limited “exceptional circumstances” that could lead this court to intervene in respect to an interlocutory evidentiary ruling made in the course of administrative proceedings. Administrative proceedings, like court proceedings, are not supposed to be reiterative processes. It is corrosive of a timely and cost-effective administrative process to permit appeals or reviews of interlocutory rulings. This case illustrates the point. If this appeal is permitted to proceed, the underlying proceeding will be delayed a long time – many months at least, and likely more than a year. And that presumes that the parties are content with the appeal disposition made by this court. The very same arguments would be available to the losing party in this court in proceedings at the Court of Appeal – which could entail a further delay in the underlying hearing of many months or more. The Supreme Court of Canada is not a court of error, and the prospect of leave to appeal being granted from a disposition of this evidentiary issue by the Court of Appeal are remote – but they are not nil. That could entail further substantial delay – and the underlying hearing would still not have taken place.

[13] The analysis does not stop with an assessment of the potential affect on the administrative proceedings if this appeal is allowed to proceed and the proceedings below are stayed in the meantime. Administrative tribunals make evidentiary rulings in the ordinary course of their work. The impact of those rulings is often potentially material. If this case does not offend the principle of prematurity, then appeals would be permitted in the ordinary course from interlocutory rulings – all a party would have to establish to interrupt the proceedings below is that the effect of the impugned ruling could matter to it in the final result, and that there is an arguable basis for the appeal. Permitting interlocutory appeals in this manner could render the underlying proceedings interminable.

[14] The appellant’s submissions focus on the merits of its appeal. They do not address the jurisprudence as to what constitutes “exceptional circumstances” to overcome the prematurity principle. Having an arguable, even a strong, appeal is not sufficient to establish exceptional circumstances. There is nothing about the circumstances of this case to lead this court to conclude that the issues now raised by the appellant cannot be addressed appropriately in an appeal from LAT’s final disposition of the case. There is nothing about the circumstances to suggest that some collateral injustice will result from the operation of the impugned order. There are no exceptional circumstances here.

[15] R.2.1.01 should be invoked to dismiss a proceeding only in the clearest of cases. This is such a case: it is not a close call. Pafco has received an evidentiary ruling with which it disagrees. It will have to live with that ruling for the purpose of the proceedings below, and it may raise that ruling as a ground of appeal or review, if it is dissatisfied with the final result below.

[16] In respect to the application for judicial review: the prematurity principle applies equally to it. There is no point in engaging in a further round of R.2.1.01 submissions in respect to it, and the hearing below should be well underway by the time even that could take place.
. Sabijan v. Sabijan

In Sabijan v. Sabijan (Div Ct, 2021) the Divisional Court considered R2.1 (court-initiated frivolous and vexatious dismissal):
Principles applicable to Rule 2.1

[9] Rule 2.1.01 of the Rules of Civil Procedure provides for a summary procedure that allows the court to dismiss a proceeding that appears on its face to be frivolous, vexatious, or an abuse of the process of the court.

[10] 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.
[11] In addition, in Visic, at para. 8, the Court of Appeal emphasized that a Rule 2.1 motion “focuses on the pleadings and any submissions of the parties made under the rule. No evidence is submitted on a r. 2.1 motion…”
. Rassouli-Rashti v. Tayefi

In Rassouli-Rashti v. Tayefi (Div Ct, 2021) the Divisional Court comments interestingly the relatively new R2.1 'frivolous and vexatious' provisions, and their role in COVID times:
[8] This court applies R.2.1.01 to a range of issues that can arise in respect to a proceeding in this court, including jurisdictional issues. This is not to disparage litigants who are trying bring an appeal, but to promote efficient operation of the justice system, to the benefit of the litigants and the courts. Since the onset of COVID-19, the court has been conducting triage and case management of all cases in Divisional Court. During triage, the court tries to identify cases that are doomed to fail in this court for assessment through the lens of R.2.1.01. This case provides a good example of why this is a worthwhile exercise.

[9] Pre-COVID, it is unlikely that the court would have identified this case as raising a jurisdictional concern at intake. If the responding parties had requested the court to review the appeal pursuant to R.2.1.01, then this process could have been initiated. More likely, responding parties would have moved to quash the appeal for want of jurisdiction. The parties would have expended time and resources to exchange materials and argue that motion. The respondents would have won that motion – many weeks after commencement of the motion for leave to appeal – and an award of costs would likely have been made against the moving party – not as a punishment but as an indemnity for the expense incurred by the responding parties to bring their successful motion.

[10] Following the motion decision, Mr Tayefi would have been entitled to review the motion decision before a panel of this court. If he invoked that process, it could take many months before the panel review was completed, all at additional cost to the parties.

[11] Under the R.2.1.01 process, the parties get a quick disposition of the issue, at little cost and little delay. The order is a final disposition of the issue in this court and is subject to appeal to the Court of Appeal, with leave from that court.

[12] A motion for leave to appeal (or other proceeding) is “frivolous, vexatious and/or an abuse of process” if, among other things, it cannot possibly succeed or can serve no useful purpose. An appeal that is beyond the jurisdiction of this court, and which can have no effect other than a collateral attack on a final order that is not within the jurisdiction of this court, fits within this category. Proceedings that are “frivolous, vexatious and/or an abuse of process” includes, but is by no means limited, to intentional abuse of the justice system. Bringing an appeal to a court that lacks jurisdiction or to attack a final order beyond the appellate jurisdiction of the court, may well be done in good faith, without any intention to abuse the court’s process, but it nevertheless fits within R.2.1.01.

[13] I agree with Mr Tayefi that R.2.1.01 should only be applied to dismiss a proceeding “in the clearest of cases”. If there was any argument available that this motion for leave to appeal could succeed, then recourse to R.2.1.01 would not be appropriate.

[14] This is, however, a clear case. This case is indistinguishable from CAMPP Windsor Essex Residents Assn. v. City of Windsor, 2021 ONSC 3456. In CAMPP Windsor, the moving party brought a motion to adduce fresh evidence on the motion for leave to appeal before Verbeem J. Motion materials were delivered in advance of the hearing. The motion could have been heard in advance of the motion for leave to appeal but was heard during the course of the leave motion. Indeed, the argument in CAMPP Windsor was stronger than it is in the case at bar because no further appeal proceedings were possible from the final decision denying leave to appeal. In this case, the moving party has appeal rights from the decision of Sharma J. in the Court of Appeal, and those appeal rights include every basis on which he asserts that the decision of Sharma J. should not stand, including trial rulings that are, in themselves, interlocutory.

[15] Where a litigant has brought appeal proceedings in this court that should be pursued in the Court of Appeal, this court may transfer the proceedings or provide some dicta that may assist the litigant in pursuing his appeal rights in the higher court. That is not necessary in this instance. Mr Tayefi has commenced an appeal in the Court of Appeal and can pursue before that court any and all reasons that he says the final decision of Sharma J. should not stand – including Sharma J.’s decision not to grant Mr Tayefi’s dismissal motion at the start of the trial.

[16] Finally, Mr Tayefi raises a concern that the court might have already reached a firm conclusion on the R.2.1.01 issue, without first considering Mr Tayefi’s submissions. The court’s practice respecting R.2.1.01 has evolved to take account of the interests of the party required to respond to the R.2.1.01 notice. The Rule requires no more than notice that the court is considering dismissing the proceeding as “frivolous, vexatious and/or an abuse of process”. Giving a litigant notice under R.2.1.01, with no explanation of the issues causing the court concern, leaves many litigants not understanding the issues that need to be addressed to respond to the notice. Litigants may also be concerned that the court is trivializing or dismissing serious issues they are seeking to raise by calling them “frivolous” and “vexatious” and “abusive”. To give proper guidance to litigants, and to try to make it clear that their issues are not being trivialized or overlooked by the court, this court tries to give guidance of the issue(s) that are of concern to the court and may lead to summary dismissal of the proceeding.

[17] This said, Mr Tayefi makes a good point that the court’s guidance could be framed in less emphatic terms. As will be clear from these reasons, the court provided the guidance to solicit and then consider any response before coming to a firm conclusion on the R.2.1.01 issue. The court’s practice has been consistent since the onset of COVID-19, and where litigants have established a meritorious response to the R.2.1.01 notice, the court has declined to dismiss pursuant to the notice. In this case, Mr Tayefi has not been able to answer the court’s concerns and so the motion for leave to appeal is dismissed pursuant to R.2.1.01, without costs, and without prejudice to the issues sought to be raised on the motion for leave to appeal being pursued in the appeal from the final order of Sharma J. initiated at the Court of Appeal.
. Taylor v Pivotal

In Taylor v Pivotal (Div Ct, 2021) the Divisional Court sets out the basics of RCP 2.1 'frivolous and vexatious' proceedings:
Principles applicable to Rule 2.1

[9] Rule 2.1 of the Rules of Civil Procedure provides for a summary procedure that allows the court to dismiss a proceeding that appears on its face to be frivolous, vexatious, or an abuse of the process of the court.

[10] 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.
[11] In addition, in Visic, at para. 8, the Court of Appeal emphasized that a Rule 2.1 motion “focuses on the pleadings and any submissions of the parties made under the rule. No evidence is submitted on a r. 2.1 motion…”.


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