Court File and Parties

COURT FILE NO.: CV-23-00692955-0000 DATE: 20230413

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ahmad Mohammad, Plaintiff AND: Spring Nature, Defendant

BEFORE: Justice Papageorgiou

COUNSEL: Eric Leinveer for the Defendant

READ: April 6, 2023

Endorsement

Background

[1] The defendant made a request pursuant to r. 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”) seeking an Order for a dismissal of this proceeding on the basis that it appears on its face to be frivolous, vexatious or an abuse of process. The Registrar referred this request to me pursuant to r. 2.1.01(7).

[2] In this action, the Plaintiff sues an entity known as ‘Spring Nature’ claiming that it has published an article entitled “Sound Alters Visual Motion Perception” (“the Article”) which contains fatal errors. He pleads that he contacted the author and the journal who published it to obtain details of the methodology used; but they did not provide anything. He further pleads that this article has been cited by 780 scientific research articles to date.

[3] The Plaintiff claims that this results in the violation of something known as the “Tri-Agency Framework.” It is unknown to me what this is, and in my view, this is also not common knowledge.

[4] The Plaintiff requests the retraction of the article and compensation.

[5] On February 27, 2023, I directed the registrar to give notice to the Plaintiff in Form 2.1A that the court is considering making an order under r. 2.1.01(2).

[6] The Plaintiff had already provided a response dated February 17, 2023 to the Defendant’s request. This February 17, 2023 response sets out the Plaintiff’s position, consistent with the Statement of Claim, that he discovered errors in the Article and has corresponded with the Defendant regarding his views.

[7] The February 17, 2023 response provided the additional information that the Defendant agreed to provide him the full details of the methodology used for the article in question, but that the underlying data has been lost. The Plaintiff did not submit any additional response after the release of my endorsement dated February 27, 2023.

The Law and Analysis

[8] Rule 2.1.01(1) provides as follows:

The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

[9] Rule 2.1.01(6) provides that a party to a proceeding may file with the registrar a written request for an order under subrule (1).

[10] As set out in Myers, J.’s decision in Gao v. Ontario WSIB and Ontario Ombudsman, 2014 ONSC 6100, 37 C.L.R. (4th) 1, at para. 9, r. 2.1.01(1) are not meant for close calls and decisions pursuant to this rule must be based upon whether the Statement of Claim, on its face is frivolous, vexatious or an abuse of process.

Decision

[11] On reviewing the Statement of Claim and the Plaintiff’s February 17, 2023 response, I am not satisfied that it should be dismissed using the attenuated process of r. 2.1.01 on the basis that it is frivolous, vexatious or an abuse of process.

Analysis

[12] The Statement of Claim does not seek to re-litigate an issue which has previously been determined and as such, it is not an abuse of process in the usual understanding of that term.

[13] The Statement of Claim does not contain any of the hallmarks of vexatious litigation set out by Myers J. in additional reasons noted at Gao v. Ontario WSIB, 2014 ONSC 6497, 37 C.L.R. (4th) 7 (Gao, additional reasons), at para. 15, such as, “curious formatting, many, many pages, odd or irrelevant attachments, multiple methods of emphasis, rambling discourse, rhetorical questions, etc.”

[14] While there may be an issue as to whether there is a recognized cause of action expressed, the Plaintiff’s concern about alleged disinformation is not frivolous or vexatious nor is the manner of the Plaintiff’s expression of his concerns. The Statement of Claim is one page long and sets out the Plaintiff’s concise and clearly worded complaint. The February 17, 2023 further submission is similar. This Statement of Claim is actually the opposite of what the usual vexatious litigant does; it provides too few details to enable the Court to properly consider all relevant aspects.

[15] It must be kept in mind that the Plaintiff is self-represented and may not understand and/or may not have expressed as yet all of the facts which may be relevant. It is unclear at this stage whether he may have rights pursuant to the Tri-Agency Framework he references, which he says the publication violates. He may be a signatory to this and/or his relationship with the Defendant through this Framework may ground a duty of care or give him some contractual rights. It is also unclear how serious these alleged errors are in terms of any possible impact they could have on the public interest if they are relied upon broadly as he says.

[16] Rule 21.01(1)(b) remains the primary route for motions to dismiss claims on the basis that they do not disclose a cause of action. Rule 2.1.01 is not meant to displace r. 21.

[17] Under Rule 21.01(1)(b), a party may move to strike out a pleading on the ground that it does not disclose a cause of action. On such a motion, the following principles apply:

All allegations of fact, unless plainly ridiculous or incapable of proof, must be accepted as proven;

The Defendant, in order to succeed, must show that it is plain and obvious and beyond doubt that the Plaintiff could not succeed in the claim;

The novelty of the action will not militate against the Plaintiff;

The Statement of Claim must be read as generously as possible with a view to accommodating any inadequacies in the allegations due to drafting deficiencies. Jacobson v. Skurka, 2015 ONSC 1699, 125 O.R. (3d) 279, at para. 73; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at pp. 972-973; Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 9.

A claim will be found legally insufficient when its allegations “do not give rise to a recognized cause of action or it fails to plead the necessary elements of an otherwise recognized cause of action…[A] Plaintiff must, at minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. Vague allegations that make it impossible for [the Defendant] to reply should be struck”: Aristocrat Restaurants Ltd. v. Ontario, 2003 CarswellOnt 5574, at paras. 18-19.

[18] Leave to amend will only be denied in the clearest of cases when it is plain and obvious that no tenable cause of action is possible on the facts as alleged and there is no reason to suppose that the party could improve his or her case by any amendment: Mitchell v. Lewis, 2016 ONCA 903, 134 O.R. (3d) 524, at para. 21; Conway v. Law Society of Upper Canada, 2016 ONCA 72, 395 D.L.R. (4th) 100, at para. 16; South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6.

[19] As noted by Myers J. in Gao, additional reasons, at paras. 14 and 15, r. 2.1.01(7) is not meant to have the same meaning as r 21:

There should be some reason why attenuated process of r. 2.1 is invoked such as “reason to fear that a normal motion process would be misused by the target or, in many cases, the substance may be so clearly frivolous as to make proceeding on a regular notice an utter waste for time, money, and resources for all involved.

[20] Given how concise the Statement of Claim is, there is no reason to conclude that the normal motion process would be misused in this case or that it would be an unduly complicated task.

[21] With respect to whether a regular motion would be a complete waste of time, I had to conduct research to consider whether a cause of action might be disclosed by the facts asserted; therefore, it was not obvious, at least not to me. While I suspect that there can be no cause of action simply on the basis that published material (which is not defamatory) is inaccurate, I did not find any caselaw which specifically addressed the issue after a short period of research. I do not think it is an appropriate use of judicial resources for a Judge considering these requests to spend endless hours doing research.

[22] Thus, the more appropriate route in this case is a r. 21 motion where the Defendant must provide a legal basis for their position that no recognized cause of action exists or can exist, giving the Plaintiff the opportunity to potentially provide additional facts that cure the defect in light of the specific objections or arguments made by the Defendant.

[23] Since the Plaintiff is self-represented, in accordance with the National Judicial Institute’s Principles regarding Self-Represented Litigants, I wish to provide some explanation and information and provide some referrals.

[24] First, not every concern can be addressed by the Courts. Courts can only make determinations where there is something called a “cause of action” which has previously been recognized. In exceptional cases, new ones can be created. A “cause of action” can be defined as a set of facts sufficient to justify the right to sue to obtain money, property, or the enforcement of a right against another. Typically, this involves a claim about something personally experienced by a person which has caused them losses. It does not typically involve claims that relate to general concerns which citizens may have about what others may have done or may be doing.

[25] The Plaintiff should seek legal advice and I am attaching a list of resources he can consult to obtain this.

[26] He should be aware that pursuing litigation which is unsuccessful may result in a significant costs award against him. Costs awards for Claims dismissed pursuant to r. 21 can be in the range of $10,000 to $20,000.

[27] He should be aware that had this been a motion brought pursuant to r. 21, I would have likely found this Statement of Claim does not disclose a recognized cause of action. He should think carefully about whether he wishes to proceed with this case.

[28] Nevertheless, I do not think it is appropriate or correct to dismiss the case at this time on the basis that it is frivolous, vexatious or an abuse of process using the attenuated process in r. 2.1.01.

[29] It is one thing for a citizen to have their case dismissed on the basis that there is no recognized cause of action. It is quite another to dismiss a case outright through the attenuated process of r. 2.1.01 advising the citizen that their concerns are frivolous, vexatious and an abuse of process, which likely have quite a negative meaning for the litigant. The justice system is here for everyone; people who are right; people who are wrong; people with good arguments; people with bad arguments; people with lawyers and people without lawyers. We risk creating vexatious litigants when we attach the label to people who are simply wrong.

[30] If the Plaintiff wishes to take the risks that I have outlined here, he should be allowed.

[31] Therefore, the case is not dismissed pursuant to r. 2.1.01.

Justice Papageorgiou Date: April 13, 2023