Charles Villers Hofley

The defendants moved to set aside a noting in default in a wrongful dismissal action brought by a former employee of the South African High Commission in Ottawa.

They also sought to strike the statement of claim under Rule 21.01(1)(b) for disclosing no reasonable cause of action and alternatively to dismiss or stay the action for lack of jurisdiction under the State Immunity Act.

Applying the factors for setting aside default from Nobosoft Corp. v No Borders Inc., the court found a continuing intention by the foreign state to defend on issues of party capacity and sovereign immunity, and determined the delay was not inordinate given the complexity of the issues and the value of the claim.

The court further held that it was not plain and obvious that the defendants lacked capacity to be sued or that the commercial activity exception under the State Immunity Act could not apply to the plaintiff’s employment relationship.

Accordingly, the default was set aside but the motions to strike the claim and dismiss the action for lack of jurisdiction were refused.

The defendant brought a motion to strike the plaintiff’s statement of claim for disclosing no reasonable cause of action, alternatively to dismiss it as vexatious and abusive, or for lack of jurisdiction.

The plaintiff sought to relitigate issues arising from the termination of his employment as a teacher in British Columbia in 1985 and had initiated numerous proceedings over several decades in multiple courts and tribunals.

The court found the pleading did not disclose any recognizable cause of action and consisted primarily of criticism of British Columbia courts and tribunals.

The court also held that the claim was frivolous, vexatious, and an abuse of process, and that an Ontario court lacked jurisdiction over a dispute intertwined with British Columbia law.

The action was struck and dismissed.

The court determined costs following a motion concerning whether a proceeding could continue as a representative action under Rule 12.08 of the Rules of Civil Procedure.

Success on the underlying motion was divided: the moving party succeeded on the central issue that the action could proceed as a representative proceeding meeting the test analogous to certification under the Class Proceedings Act, but the responding parties succeeded on issues including that only individual union members, not the union itself, could act as representative plaintiffs and that particulars were required for a negligent misrepresentation claim.

Applying the factors in Rule 57, including relative success, complexity, and conduct of the parties, the court concluded that the moving party was overall more successful.

The court awarded reduced partial indemnity costs reflecting divided success and certain pleading deficiencies.