I wrote this article with the hope of providing a road map for counsel who practise in and outside of the province of Ontario and are looking for a quick summary on how to deal with claims that they consider frivolous and vexatious and an abuse of process.
In the most obvious of cases, the Ontario Rules of Civil Procedure allow a defendant to write to the court and request that such a proceeding be dismissed. Rule 2.1.01 of the rules allows the court, on its own initiative, to stay or dismiss a proceeding if the proceeding on its face can be found to be frivolous or vexatious or otherwise an abuse of process. If defence counsel wishes to use this rule they must write to the court to request that the matter be considered frivolous and vexatious and an abuse of process. The court may then review the pleading to determine whether to initiate the summary procedure under the rule. As per Rule 2.1.01.(3) the court will direct the registrar to inform the plaintiff that the court is considering making the order and invite the plaintiff to provide written submissions within 15 days. Submissions are to be no longer than 10 pages. In the event that the plaintiff provides written submissions, the court may direct the registrar to give a copy to the defendant. The defendant is then given ten days to provide responding submissions of no more than 10 pages.
The Court of Appeal provided guidance with respect to the application and interpretation of this rule in Scaduto v. Law Society of Upper Canada et al.Footnote1 In that case the plaintiff brought an unsuccessful claim for work-related injuries before the WSIB. The plaintiff then commenced an application against the Law Society and the Ministry of the Attorney General for their alleged failure to investigate his complaints about certain lawyers, including the Registrar for the Supreme Court of Canada. The Attorney General requested that Rule 2.1.01 be applied and the motion judge requested written submissions from the plaintiff. Following a review of case law considering this rule the Court of Appeal stated:
… the court has recognized that the rule should 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. However, the use of the rule should be 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 support the resort to the attenuated process.
The court also went on to confirm that the rule “is not for close calls,” as noted in the decision Raji v. Border Ladner Gervais LLP.Footnote2 The court’s authority to stay or dismiss proceedings is further enunciated under section 140 of the Courts of Justice Act.Footnote3
Defence counsel also have the option to proceed with a motion under Rule 21.01(3)(d) which reads as follows:
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
(d) Action Frivolous, Vexatious or an Abuse of Process – the action is frivolous, vexatious or is otherwise an abuse of process of the court and the judge may make an order or grant judgment accordingly.
In accordance with the rule 21.01(1)(b) a defendant can ask to have the pleading struck on the ground that it discloses no reasonable cause of action. The Supreme Court of Canada has stated that to succeed with such a motion the moving party must demonstrate that it is plain and obvious and beyond a reasonable doubt that the claim cannot proceed.Footnote4 No evidence is admissible for this type of motion and as such is somewhat similar to what is asked of counsel under Rule 2.1.01. Demonstrating that a claim is not sustainable requires counsel to look to the pleadings and articulate why the claim is patently ridiculous and incapable of proof.Footnote5 The court is not permitted to look beyond the pleadings when determining that the claim cannot succeed. Accordingly, claims which include drafting deficiencies are to be read generously.Footnote6
Claims that are fraught with deficiencies but have just enough – or that one paragraph which articulates a cause of action – often frustrate defendants as increased costs are incurred to defend the matter. In those circumstances defendants must file a defence but can avail themselves of Rule 20, which is the rule pertaining to summary judgment. In many cases it is prudent to proceed with examinations for discovery to flush out important facts or obtain admissions which may help the motion succeed. Much has been written about Rule 20 since changes to the rule were introduced on Jan. 1, 2010. The changes to the rule allow a judge to weigh evidence, evaluate credibility and draw a reasonable inference based on the evidence. It is beyond the scope of this article to go into any great detail about the rule. However, for counsel seeking to proceed with a motion under Rule 20, the seminal case to look to would be the Supreme Court of Canada decision in Combined Air Mechanical Services Inc. v. Flesch.Footnote7 Proceeding with a motion under Rule 20 can be a costly endeavour for a defendant especially if discoveries have taken place. While a successful defendant is able to secure a costs order, enforcing that order can often be another costly ordeal.
While it can be cost-prohibitive to try to satisfy a costs order, there are options available to counsel. Defendants can satisfy judgments and costs awards obtained through the assistance of a sheriff as required by the law. Section 141 of the Courts of Justice Act permits a defendant to call on the sheriff to enforce a judgement. Section 141 reads as follows:
141(1) Unless the Act provides otherwise, orders of a court arising out of a civil proceeding and enforceable in Ontario shall be directed to a sheriff for enforcement.
Rule 60 of the Rules of Civil Procedure outlines the options for parties seeking to enforce a judgment or an order. One option is to have a writ of seizure and sale enforced by the sheriff (Rule 60.07). This involves filing the writ with the sheriff, which permits the sheriff to seize personal property. The sale of any property seized cannot take place without notice to the creditor. Another option to obtain satisfaction of a judgment is by way of garnishment (Rule 60.08). The creditor must file with the registrar a requisition for garnishment and a copy of the judgement order as well as an affidavit stating:
- The date and amount of any payment received since the order was made
- The amount owing, including post-judgment interest
- Details of how the amount owing and the post-judgment interest are calculated
- The address of the debtor
- The name and address of each person to whom a notice of garnishment is to be directed
- That the creditor believes that those persons are or will become indebted to the debtor and the grounds for the belief
- Such particulars of the debts as are known to the creditor
- Where a person to whom a notice of garnishment is to be directed is not in Ontario, that the debtor is entitled to sue that person in Ontario to recover the debt, and the basis of entitlement to sue in Ontario
- Where a person to whom a notice of garnishment is to be directed is not then indebted but will become indebted to the debtor, such particulars of the date on and the circumstances under which the debt will arise as are known to the creditor
Once a notice of garnishment is issued the creditor files the notice with the sheriff’s office and serves the notice along with the affidavit filed in support of the garnishment on the debtor and the garnishee. There are limits to what a sheriff can seize or garnish and as such a creditor must be cognizant of these limitations as prescribed by the Execution Act.Footnote8
It can often be expensive to move forward with enforcement under Rule 60, as the full amount of costs incurred to recover on a judgment are difficult to secure on top of the actual judgment. It is for this reason careful consideration should be given to options available under Rule 2.1.01 and Rule 21 as they are the most cost-effective and expeditious ways to dispose of claims which you may believe are frivolous and vexatious and an abuse of process.
Christopher Martyr is a partner with Dutton Brock LLP and vice-chair of the Ontario Insurance Law Executive