COURT OF APPEAL FOR ONTARIO

CITATION: Visic v. Elia Associates Professional Corporation, 2020 ONCA 690

DATE: 20201102

DOCKET: C67881

Hourigan, Trotter and Jamal JJ.A.

BETWEEN

Anica Visic

Plaintiff (Appellant)

and

Elia Associates Professional Corporation, Patricia Elia, and University of Windsor

Defendants (Respondents)

Christopher Du Vernet and Carlin McGoogan, for the appellant

Antoni Casalinuovo, for the respondents Elia Associates Professional Corporation and Patricia Elia

Michael A. Wills, for the respondent University of Windsor

Heard: In writing

On appeal from the order of Justice Sandra Nishikawa of the Superior Court of Justice, dated December 12, 2019, with reasons at 2019 ONSC 7238.

REASONS FOR DECISION

[1] This is an appeal from the motion judge’s order dismissing the appellant’s action as against the respondent University of Windsor under r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, because the action against the University is on its face frivolous, vexatious, and an abuse of the court’s process.

[2] For the reasons that follow, the appeal is dismissed.

Background

[3] The appellant’s action against the respondents seeks, among other relief, an order requiring the University to permanently delete all references to her “first” first year law school results and damages against the respondents of $500,000 for invasion of privacy, breach of fiduciary duty, breach of confidence, breach of contract, negligence, defamation, and infringement of the Ontario Human Rights Code, R.S.O. 1990, c. H.19. The respondents Patricia Elia and Elia Associates Professional Corporation (“Elia respondents”) were the appellant’s articling principal and former employer, respectively.

[4] The motion judge held that the appellant’s action against the University seeks to relitigate the same issues the appellant raised in an earlier action and in proceedings before the Human Rights Tribunal of Ontario (“HRTO”), both of which were dismissed. She noted that the HRTO declared the appellant to be a vexatious litigant and the Divisional Court dismissed appeals from these orders: Visic v. HRTO and Law Society of Upper Canada, 2015 ONSC 7161; Visic v. HRTO and University of Windsor, 2015 ONSC 7162; and Visic v. HRTO and Elia Associates Professional Corporation, 2015 ONSC 7163.

[5] The motion judge dismissed the appellant’s action as against the University under r. 2.1.01, but allowed the action to continue as against the Elia respondents because the appellant had never sued the Elia respondents in the Ontario Superior Court, even though she had pursued them before the HRTO. The motion judge held:

It is clear that this action is yet another attempt to relitigate the same issues raised in Ms. Visic’s previous action in this court and the proceedings before the HRTO. Ms. Visic alleged that the University breached the Human Rights Code in her application to the HRTO. She alleged breach of contract, negligence and breach of fiduciary duty in her previous civil action against the University. Having failed to prosecute her previous action, Ms. Visic is not entitled to relitigate the same claims in a new proceeding before this court.

[6] The appellant now appeals the motion judge’s order. Her four grounds of appeal are addressed below.

Legal Framework

[7] Rule 2.1.01 allows a court to “stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of process of the court.”

[8] The following principles govern the application of r. 2.1:

1. Rule 2.1 must 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”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488. The Rule is not for close calls — it may be used only in “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”: Scaduto, at paras. 8-9; Khan v. Law Society of Ontario, 2020 ONCA 320 (“Khan”), at para. 6, leave to appeal to S.C.C. requested, 39321.
2. A motion under r. 2.1 focuses on the pleadings and any submissions of the parties made under the rule. No evidence is submitted on a r. 2.1 motion: Scaduto, at paras. 9, 11-12. A court may, however, review reasons and pleadings from other proceedings to determine whether the case is abusive: Khan, at para. 9.
3. Rule 2.1 does not replace other rules in the Rules of Civil Procedure to strike out actions or to deal with other procedural irregularities summarily: Khan, at para. 7. The rule is “not meant to be an easily accessible alternative to a pleadings motion, a motion for summary judgment, or a trial”: Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 12; P.Y. v. Catholic Children’s Aid Society of Toronto, 2020 ONCA 98, at para. 11. The Rules provide many other remedies to address cases that are not clear on the face of the pleading: Khan, at para. 15.
4. The case law under r. 2.1 will continue to develop as the rule is used more widely: Scaduto, at para. 9.
5. A motion judge’s ruling under r. 2.1 is a discretionary decision entitled to appellate deference. Such a decision may be set aside only if the motion judge misdirected themselves or their decision was so clearly wrong as to amount to an injustice: Khan, at para. 10; Penner v. Niagara Regional Police Services Board, 2013 SCC 19, [2013] S.C.R. 125, at para. 27.

Discussion

[9] The motion judge correctly identified the relevant legal principles under r. 2.1, and her discretionary decision to dismiss the action is entitled to appellate deference.

[10] In our view, the appellant’s four grounds of appeal lack merit.

[11] First, the appellant asserts the statement of claim pleads proper causes of action lacking the evident hallmarks of frivolous, vexatious, or abusive litigation. We disagree. The motion judge reviewed the claim and the many decisions detailing the appellant’s litigation history against the University about her law school transcript. Based on that review, she was entitled to conclude that the action involves abusive relitigation. We see no basis to intervene.

[12] Second, the appellant asserts her claim does not seek to relitigate the same factual circumstances that were dismissed in her court action in 2005 or in her application to the HRTO in 2008. We disagree. Her action impugns the same conduct of the University that she has unsuccessfully impugned before — the University’s policy of including her “first” first year results on her official transcript. This is apparent on the face of the statement of claim, paragraph 7 of which asserts:

The [University] continuously, carelessly or deliberately and in any event wrongfully created, maintained, published, and disclosed academic transcripts relating to the Plaintiff which had the effect of obliging the Plaintiff to reveal to those to whom it was disclosed that she suffered from a physical disability, the nature and existence of which she was entitled by virtue of the Ontario Human Rights Code to keep confidential, and which she in fact wished to keep confidential; and which, when disclosed, has tended and will in future tend, to cause potential employers to think poorly of her professional acumen and intellectual abilities.

[13] Third, the appellant asserts that her claim for invasion of privacy rests on a new tort that this court first recognized in Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241, after the appellant’s previous proceedings were dismissed.

[14] The motion judge rejected this argument. She noted that this court in Jones v. Tsige confirmed a cause of action that already existed at common law, and thus concluded that the appellant’s claim here was barred by the doctrine of cause of action estoppel:

Contrary to Ms. Visic’s submissions, the Court of Appeal did not recognize a new tort of invasion of privacy in Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241 [Jones]. The Court of Appeal made clear that it was recognizing a cause of action that existed at common law: Jones, at para. 65. The doctrine of cause of action estoppel is applicable here. That doctrine prevents “parties from re-litigating matters by advancing a point in subsequent proceedings which properly belonged to the subject of the [previous] litigation:” The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, 145 O.R. (3d) 759, at para. 49 (internal quotations omitted).

[15] We agree with the motion judge’s reasoning and conclusion.

[16] Fourth, the appellant asserts the motion judge erred in relying on abuse of process and cause of action estoppel under r. 2.1.01 because she says such a finding requires evidence. We disagree with this submission in the context of this case. Relitigation of issues determined in a prior judicial proceeding is “a classic example of abuse of process” under r. 2.1: Activa Trading Co. Ltd. v. Birchland Plywood-Veneer Limited, 2020 ONCA 93, at para. 9. In applying r. 2.1.01, the motion judge was entitled to review reasons from other proceedings describing the appellant’s long history of litigation against the University involving the same issues. We see no error in her approach or conclusion.

Disposition

[17] The appeal is dismissed.

[18] If the parties cannot resolve the issue of costs, the respondents may file a bill of costs and written submissions of no more than two pages within 10 days of this decision, and the appellant may file a bill of costs and written submission of no more than two pages within 20 days of this decision.

“C.W. Hourigan J.A.”

“Gary Trotter J.A.”

“M. Jamal J.A.”