COURT OF APPEAL FOR ONTARIO

DATE: 20260123

DOCKET: COA-25-CV-0550

Roberts, Copeland and Dawe JJ.A.

BETWEEN

Yuhua Dong

Plaintiff (Appellant)

and

Charles Boone

Defendant (Respondent)

Robert H. Waddell, for the appellant

Shalisa Khan, for the respondent

Heard: January 8, 2026

On appeal from the order of Justice Jennifer Penman of the Superior Court of Justice, dated April 24, 2025.

REASONS FOR DECISION

[ 1 ] Yuhua Dong appeals from an order made under r. 2.1.01 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, dismissing her action against Charles Boone as frivolous and vexatious.

[ 2 ] On August 19, 2024, Ms. Dong, representing herself, commenced an action against Mr. Boone, a professor at the University of Toronto, alleging he had connections with a laboratory where Ms. Dong previously worked. In her statement of claim she alleges various forms of harassment, some of which she attributes to Mr. Boone. For instance, she alleges that Mr. Boone made a “derogatory rumour” about her that affected her ability to find a job and caused her psychological distress. She also alleges that he was somehow responsible for an unknown person putting a piece of asbestos in her oven in 2023.

[ 3 ] In March 2025, Mr. Boone’s counsel filed a notice of motion seeking to have Ms. Dong’s claim struck as frivolous, vexatious or otherwise an abuse of process under rr. 21.01(1)(b), 21.01(3)(d), 25.11(b) and 25.11(c) of the Rules. This motion was made returnable in January 2026. Counsel also made a separate request that the court consider making an order staying or dismissing Ms. Dong’s action under r. 2.1.01 .

[ 4 ] On April 7, 2025, the motion judge made an endorsement directing the registrar of the Superior Court of Justice to give notice to Ms. Dong that the court was considering making an order dismissing her action under r. 2.1.01 . That afternoon, the registrar sent the notice and the motion judge’s endorsement to Ms. Dong by email and by letter mail. The notice stated that written submissions were to be filed “within 15 days of receiving this notice”.

[ 5 ] Ms. Dong maintains that she did not receive the registrar’s email because it went to her email account’s junk mail folder. She also denies receiving the copy of the notice sent to her by letter mail.

[ 6 ] On April 24, 2025, the motion judge made an order dismissing Ms. Dong’s action under r. 2.1.01 . In her accompanying endorsement explaining her reasons for finding the action frivolous and vexatious, the motion judge noted:

If the plaintiff had provided submissions, [s]he may have been able to persuade me otherwise, but [s]he did not do so.

[ 7 ] Ms. Dong deposes that the registrar’s email was brought to her attention on April 25, 2025, when she learned her action had been dismissed, and she found the email in her junk mail folder. On April 28, 2025, Ms. Dong attempted to file her response to the r. 2.1.01 request for dismissal, but the court refused to accept the filing because her action had already been dismissed.

[ 8 ] Ms. Dong, who is now represented by counsel, argues on appeal that the dismissal order should be set aside because she did not have a fair opportunity to make submissions. Counsel acknowledges that some parts of Ms. Dong’s statement of claim do not present any viable causes of action against Mr. Boone, but argues that there are other parts that could potentially be reworked and expanded to make claims against him that would not be frivolous and vexatious on their face.

[ 9 ] As this court noted in P.Y. v. Catholic Children’s Aid Society of Toronto , 2020 ONCA 98 , at para. 21 :

Although the blunt instrument of r. 2.1.01 should be applied robustly to weed out litigation that is clearly frivolous, vexatious or an abuse of process, the bluntness of the rule and the significant consequences of its application mandate its fair application. Fairness is especially important where the plaintiff is self-represented. [Citations omitted.]

[ 10 ] In that case, the appellants’ claim had been dismissed against certain defendants without the court first giving notice to the appellants that it was considering taking this step. In contrast, in this case, notice was sent to Ms. Dong by the court both by email and by letter mail. However, there is some evidence supporting Ms. Dong’s claim that she did not see the registrar’s email because it went to her junk mail folder. Although we agree with the respondent that she should have been more diligent about monitoring her junk mail folder, the respondent does not challenge the veracity of her claim that she was not aware of the registrar’s email nor that she did not receive the letter mail. Moreover, Ms. Dong’s counsel advised that her email settings have been adjusted so that future court emails will not go to her junk mail folder.

[ 11 ] We are persuaded that the r. 2.1.01 dismissal order should be set aside and the matter remitted to the Superior Court of Justice for a fresh consideration that includes Ms. Dong’s submissions.

[ 12 ] First, there is Ms. Dong’s uncontested evidence that she did not see the registrar’s email because it went to her junk mail folder, nor the letter mail. The motion judge rendered her decision on April 24, 2025. If Ms. Dong did not see the registrar’s email because it was in her junk mail folder, nor the letter mail, she would not have known that the court was expecting her submissions to be filed before that date.

[ 13 ] Second, it is undisputed that Ms. Dong attempted to file responding submissions on April 28, 2025, within a few days of being notified on April 25, 2025 that her action had been dismissed.

[ 14 ] Third, the motion judge expressly noted in her endorsement that she might have reached a different conclusion if Ms. Dong had filed responding submissions.

[ 15 ] In these circumstances, we conclude that the interests of justice would be best served by setting aside the dismissal order and remitting the issue of whether Ms. Dong’s action should be stayed or dismissed under r. 2.1.01 to be decided afresh by another judge of the Superior Court of Justice.

[ 16 ] The appeal is accordingly allowed, without costs.

“L.B. Roberts J.A.”

“J. Copeland J.A.”

“J. Dawe J.A.”