Every week, Bell Temple LLP selects and reports on interesting and relevant decisions from the Ontario Superior Court of Justice, Ontario Court of Appeal, and Supreme Court of Canada.
This week’s case reports are written by Brett Webster.
Rule 2.1.01 Can Be a Helpful Tool for Counsel for Frivolous Proceedings.
The decision of Tardif v. City of Ottawa 2023 ONSC 4739 is the epitome of a case where counsel can
requisition the court to dismiss an action, pursuant to Rule 2.1.01 of the Rules of Civil Procedure, R.R.O.
1990, Reg. 194 (“Rules”).
The Plaintiff filed suit against the City of Ottawa to attempt to repeal a new garbage by law, limiting
residents to three garbage bags per 14-day cycle. He claims this law is unconstitutional. The Plaintiff did
not seek any damages against the City of Ottawa. The Plaintiff had brought four lawsuits previously
against the City of Ottawa for various remedies. The City of Ottawa requisitioned an Order under Rule
2.1.01 of the Rules to dismiss the action.
In his decision, Justice Smith cited a previous case brought by the same Plaintiff, which analyses the test
to dismiss a claim under Rule 2.1.01. It is noted that “Rule 2.1.01 is a blunt instrument, reserved for the
clearest of cases”; cases where it should be plain and obvious on the face of the pleading that the action
is frivolous, vexatious or an abuse of process. Regarding the substantive test under this Rule, Justice
Smith quoted Tardif v. Ottawa (City) 2021 ONSC 3269, regarding the principles to take into
consideration:
- The statement of claim must be read generously. Drafting deficiencies may
be overlooked and the plaintiff given the benefit of the doubt if it appears
that the action might be viable; - “[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": Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801 (CanLII), at
para. 8; - An action should be dismissed under r. 2.1 only if there is "a basis in the
pleadings to support the resort to the attenuated process" resulting from
the use of the rule: Raji, at para. 9; - The procedure under r. 2.1.01 should not be used as a substitute for a
pleadings motion; and - The procedure is intended to serve the purpose of "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": Markowa v. Adamson Cosmetic Facial
Surgery Inc., 2014 ONSC 6664 (CanLII), at para. 3.
Justice Smith dismissed the Plaintiff’s lawsuit for several reasons. It was noted that under the Municipal
Act, 2001 S.O. 2001, c.25 and the Rules, this proceeding must be brought by way of application. It was
also observed that the Statement of Claim contained hallmarks of vexatious litigant behavior, including
unintelligible allegations, drafting deficiencies, rambling, and overall, no cause of action. The Plaintiff
had also previously sued the City of Ottawa on four occasions with respect to waste bylaws. All previous
claims were dismissed pursuant to Rule 2.1.01. Finally, Justice Smith indicates that several allegations
are copied verbatim from the previous lawsuits. This established closeness to claims which have already
been found to be frivolous.
Rule 2.1.01 provides remedy to dismiss an action in clear cases where on the face of pleadings, the claim
is frivolous, vexatious or an abuse of the courts process. Examples of this include claims where no
damages are pled, claims brought by a vexatious litigant, or claims where the Plaintiff is attempting to
reopen a claim previously litigated. This is of course not a catch all, and counsel should understand that
judges will express caution in granting this extreme remedy and should requisition an Order under Rule
2.1.01 in only the clearest of cases.
This decision serves as a reminder that this Rule is a helpful and effective tool to dismiss a frivolous or
vexatious lawsuit with little cost to the client.
