Court of Appeal for Ontario

Citation: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733

Date: 20151102

Docket: C60487

Blair, Hourigan and Brown JJ.A.

Between

Giuliano Scaduto

Applicant (Appellant)

and

Law Society of Upper Canada and Attorney General of Ontario

Respondents (Respondents)

Counsel

Giuliano Scaduto, acting in person

Antonios T. Antoniou and Frank Caruso, for the respondent Law Society of Upper Canada

Jeremy Glick and Heather Burnett, for the respondent Attorney General for Ontario

Heard: October 28, 2015

On appeal from the order of Justice Fred L. Myers of the Superior Court of Justice, dated May 5, 2015.

Endorsement

[1] Giuliano Scaduto appeals the order of Justice Myers dismissing his application against the Law Society of Upper Canada and the Attorney General of Ontario as being frivolous and vexatious pursuant to r. 2.1.01(1) of the Rules of Civil Procedure.

[2] Mr. Scaduto was an employee at a Swiss Chalet restaurant between 1993 and 2004. He brought a claim before the Workplace Safety and Insurance Board (the “WSIB”) for work-related injuries. He was unsuccessful in this claim all the way up to the Supreme Court of Canada, which denied his application for leave to appeal in 2013.

[3] In 2015, Mr. Scaduto commenced an application against the Attorney General and the Law Society. He sought damages based on the Law Society’s alleged failure to fulfil its statutory duties insofar as it did not investigate his complaints about various lawyers, including the Registrar of the Supreme Court of Canada, who had refused Mr. Scaduto’s request for reconsideration of the Court’s dismissal of his leave to appeal application. He also sought an order compelling the Law Society to bar a convicted criminal from lecturing before the Ontario Bar.

[4] The Attorney General requested that the motion judge dismiss the application as being frivolous or vexatious under r. 2.1.01(6). The motion judge requested written submissions from Mr. Scaduto on this issue.

[5] After reviewing Mr. Scaduto’s submissions, the motion judge dismissed his application as being frivolous and vexatious on its face. He found that a lawyer’s mistake concerning a time limit for seeking leave to appeal was not an ethics issue for the Law Society complaints process, nor was the Law Society’s handling of a complaint a matter for an originating motion in the Superior Court. He also stated that Mr. Scaduto had conceded that the relief he sought with respect to a certain convicted criminal was irrelevant to the gravamen of his complaints. The motion judge found that Mr. Scaduto’s complaints were an attempt to re-litigate the issues at play in his failed WSIB claim.

[6] Mr. Scaduto submits that the motion judge erred in law by not reviewing the large volume of evidence filed in his amended application record before striking his application.

[7] Rule 2.1 is a relatively new rule that came into force on July 1, 2014. The motion judge has decided a number of cases which have helped to delineate both the procedure and the test to be applied under the rule: see Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6100, 37 C.L.R. (4th) 1 (“Gao No. 1”); Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7 (“Gao No. 2”); Raji v. Border Ladner Gervais LLP, 2015 ONSC 801; and, Covenoho v. Ceridian Canada, 2015 ONSC 2468.

[8] Under this line of authority, 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.

[9] We fully endorse that case law and the guidance that has been provided by the motion judge in the interpretation and operation of r. 2.1. This approach is summarized in Raji, at paras. 8-9, as follows:

[R]ule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves. No evidence is submitted on the motion…. [T]here are two conditions generally required for rule 2.1 to be applied. First, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading as required by the rule. Second, there should generally be a basis in the pleadings to support the resort to the attenuated process of rule 2.1…. This second requirement is not in the rule and is not a fixed requirement. It strikes me as a guideline that reminds the court that there are other rules available for the same subject matter and that resort to the attenuated process in rule 2.1 should be justified in each case.

See also Gao (No. 2), at paras. 11-18; and Covenoho, at paras. 6-7. We also recognize that the case law will develop as the rule becomes more widely utilized.

[10] We turn now to the specific error alleged by the appellant. He says that the motion judge erred in law by failing to have regard to the evidence he filed in his supplementary application record. We disagree.

[11] The focus under r. 2.1 is on the pleadings and any submissions of the parties made pursuant to the rule. The role of the motion judge is to determine whether on its face, and in light of any submissions, the proceeding is frivolous, vexatious, or an abuse of process. Rule 2.1.01(3) makes this clear when it states that an order “shall be made on the basis of written submissions, if any”, filed in accordance with the procedure outlined therein.

[12] Rule 2.1 is designed to permit the court to dismiss frivolous or vexatious proceedings in a summary manner. Resort to evidence defeats the purpose of the rule and leads to the danger that the r. 2.1 process will itself become “a vehicle for a party who might be inclined to inflict the harms of frivolous proceedings on the opposing parties and the civil justice system”: Gao No. 1, at para. 8.

[13] The application judge did not err in restricting his analysis to a review of the notice of application and Mr. Scaduto’s written submissions. Based on this material, he was able to conclude that the pleading was, on its face, frivolous and vexatious, and incapable of success. In our view, the application judge did not err in law or fact in the approach he took or in the conclusion he reached.

[14] The appeal is dismissed. The respondents, as the successful parties on the appeal, are entitled to their costs on a partial indemnity basis. On that scale, the Law Society sought costs of $5,400 and the Attorney General sought costs of $2,750. In all of the circumstances, including that r. 2.1 is a relatively new rule and the case law has not completely developed, we believe that a lower amount is justified and order that the appellant pay the Law Society costs of the appeal fixed at $2,000 and pay the Attorney General costs of the appeal fixed at $1,500. Both sums are inclusive of all fees, disbursements, and applicable taxes.

“R. A. Blair J.A.”

“C.W. Hourigan J.A.”

“David Brown J.A.”