Court of Appeal for Ontario

Date: 2019-11-07 Docket: C66354

Judges: Simmons, Pardu and Nordheimer JJ.A.

Between

Xiuying Liu Plaintiff (Appellant)

and

Angelo Fabrizio Longo, Arron Lang, Certas Direct Insurance Company and the Law Society of Upper Canada Defendants (Respondents)

Counsel

Xiuying Liu, acting in person

Michael McChesney, for the respondent, Certas Direct Insurance Company

Gerry Antman, for the respondent, Angelo Fabrizio Longo

Heard and released orally: November 7, 2019

On appeal from: the judgment of Justice Andra Pollak of the Superior Court of Justice, dated December 13, 2018, with reasons reported at 2018 ONSC 7364.

Reasons for Decision

[1] Ms. Liu appeals from the order granted by the motion judge that dismissed her claim pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The appellant did not file submissions in response to the Notice sent to her by the court that a r. 2.1 motion was under consideration. The appellant says that this is because she did not receive the Notice. The appellant says that she had moved from the address set out in her statement of claim prior to the time when the Notice was sent out.

[3] We are prepared to accept the appellant's explanation for not filing submissions in response to the Notice. We note that when the appellant received the endorsement of the motion judge, she moved quickly to bring this appeal. There is no suggestion in the appellant's conduct that she was ignoring the r. 2.1 process.

[4] The appellant has now had the opportunity to make submissions regarding her claim through this appeal. We do not view the contents of the statement of claim as being "incomprehensible" as found by the motion judge. While the statement of claim is far from perfect, it is reasonably clear that the appellant is complaining that the two lawyers, who were retained by her fiancé arising out of a motor vehicle accident, failed to act appropriately in representing him. The claim against Certas, who was the automobile insurer for her fiancé, is that it failed to pay amounts to him that were due under the policy. The claim against the Law Society is linked to the claim against the lawyers, although it is unclear what the cause of action is in that particular aspect.

[5] The motion judge dismissed the claim on the basis that the claim "does not comply with Rule 25.06 of the Rules of Civil Procedure and this significant defect cannot be remedied with an amendment". In our view, the motion judge erred in doing so. Rule 2.1 is not a substitute procedure for addressing defects in pleadings: Khan v. Krylov & Co., 2017 ONCA 625, 138 O.R. (3d) 581, at para. 12. Rule 2.1 is a particular remedy that is to be invoked to dismiss a claim that "appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court".

[6] While we could allow the appeal on that basis and remit the matter to the Superior Court, the fact remains that the claim being advanced by the appellant is not one that she has the right to advance in her personal capacity. Only her fiancé could advance a claim respecting errors made by his lawyers or for payments not made by his insurer. When the appellant's fiancé passed away in 2015, any such right devolved to his estate who is not the plaintiff in this proceeding. Although the appellant asserts that there is a will, and that she is the executor thereunder, there is no evidence that any such will exists.

[7] We do not see that any purpose would be served by referring this matter back to the Superior Court on that technical ground when it is evident that the underlying claim is not properly advanced by the appellant. It is for that reason that we dismiss the appeal.

[8] The appeal is dismissed. The respondents do not seek costs and we do not make any order as to costs.

Janet Simmons J.A.

G. Pardu J.A.

I.V.B. Nordheimer J.A.