November 11, 2015

Ontario officially added Rule 2.1 to its Rules of Civil Procedure on July 1, 2014. The rule gives the courts a general power to stay or dismiss proceedings if they are “frivolous or vexatious or otherwise an abuse of the process of the court.” The court may do so on its own initiative, although any party can file a request for a dismissal with the registrar. The process was intended to be a less expensive way of dismissing claims than bringing a motion under the older Rule 21.01 and 25.11. Under Rule 2.1, the procedure is done by written submissions, with no requirement for a formal hearing.

The recent decision of the Ontario Court of Appeal in Scaduto v. The Law Society of Upper Canada is one of the first times the Court of Appeal has considered the now frequently used rule, and its decision suggests that the rule’s scope will remain broad. In the case, Gioliano Scaduto was an employee at a restaurant from 1993 to 2004. He unsuccessfully brought a claim before the Workplace Safety and Insurance Board (WSIB) for work-related injuries. He subsequently appealed the WSIB’s decision all the way to the Supreme Court, which denied his application for leave to appeal in 2013.

In 2015, Mr. Scaduto brought an application against the Attorney General and the Law Society of Upper Canada. He sought damages based on his allegations that the Law Society failed to fulfil its duties in that it did not investigate his complaints against various lawyers, including the Registrar of the Supreme Court, who had refused Mr. Scaduto’s request  for reconsideration of the Court’s dismissal of his leave to appeal application. The Attorney General requested that the motion judge dismiss the application as being vexatious or frivolous under Rule 2.1.01(6). After the motion judge reviewed Mr. Scaduto’s written submissions, the judge concluded that the complaints were an attempt to re-litigate the issues in his failed WSIB claim and dismissed his application as frivolous and vexatious on its face.

On appeal, the Ontario Court of Appeal endorsed a series of decisions by the lower courts. The court recognized that Rule 2.1 should be “interpreted and applied robustly” in the interests of weeding out litigation that is clearly frivolous, vexation or an abuse of process. However, the court also took note that the use of the rule should be limited to the “clearest of case where the abusive nature of the proceeding is apparent on the face of the pleading.” The court adopted a two-step approach from an earlier case: first, the frivolous nature of the proceedings should be obvious, and second, there should be a basis in the pleading to support the use of Rule 2.1 over other, similar rules.

Mr. Scaduto’s specific allegation on the appeal was that the motion judge failed to consider evidence that he filed in a supplementary application record. The court rejected the claim. The court noted that Rule 2.1 is intended to be used in summary fashion. Therefore, it was appropriate for the motion judge to consider only Mr. Scaduto’s notice of application and written submissions, and it was not an error to ignore the supplementary application record.

The court awarded costs to the respondent Law Society and Attorney General, although at a lower rate than they requested. With this ruling now in hand, courts may feel increasingly confident in using Rule 2.1 and some proceedings may end quicker and less expensively for the defendant parties, although without greater cost awards being awarded, some vexatious litigants may not be fully deterred from being their claims in the first place.