Court of Appeal for Ontario

Date: 2023-09-07 Docket: COA-22-CV-0080

Judges: van Rensburg, Nordheimer and George JJ.A.

Parties

BETWEEN

Dr. V.I. Fabrikant Appellant

and

Commissioner A. Kelly Respondent

Counsel

Dr. V.I. Fabrikant, acting in person Calina Ritchie, for the respondent

Heard: August 31, 2023

On appeal from the judgment of Justice Sally A. Gomery of the Superior Court of Justice, Ottawa, dated July 5, 2022.

Reasons for Decision

[1] The appellant, an inmate at the Archambault penitentiary in Quebec, commenced an action in the Ontario Superior Court of Justice against the Commissioner of the Correctional Service of Canada, personally. In his statement of claim, the appellant alleges that electricity to his cell had been deliberately and maliciously cut off on 31 occasions. The appellant sought an order directing that he be provided a long extension cord when power to his cell is interrupted, and $100 for each hour he did not have electricity.

[2] On April 7, 2022, the respondent asked a judge of the Superior Court to dismiss the action under r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as it appeared on its face to be frivolous, vexatious, and an abuse of the court’s process. On July 5, 2022, that court dismissed the action on that basis, finding that it “cannot possibly succeed”, was “designed to sanction [the Commissioner] after she ignored [the appellant’s] messages to her”, and was intended to “circumvent the restrictions in the Quebec Superior Court and Federal Court of Canada”, where the appellant has been declared a vexatious litigant and cannot commence a proceeding without leave. In arriving at that conclusion, that court ruled the appellant could not file affidavit evidence given the summary nature of the proceeding. The court further noted that, as there was no connection between the appellant’s complaint and Ontario, the action was commenced in the wrong jurisdiction; that the statement of claim disclosed no cause of action; and that the claim’s deficiencies were so foundational that they could not be remedied by an amendment.

[3] A decision under r. 2.1.01 is discretionary, entitled to deference, and can only be set aside where “the motion judge misdirected themselves or where the decision was so clearly wrong as to amount to an injustice”: Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8. In our view, this action represents the type of claim that r. 2.1.01 was intended to address and, although dismissals pursuant to the rule should be limited to the clearest of cases, this is such a case. The judge in the court below followed the procedure mandated under r. 2.1.01, and she cited and applied the correct legal test.

[4] To the appellant’s complaint that the court should have received and considered his affidavit, we note that “[r]ule 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’”: Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, at para. 12. The appellant’s affidavit was not admissible.

[5] In short, the appellant has failed to establish that the decision to dismiss his action was clearly wrong, or that the judge below misdirected herself.

[6] The appeal is dismissed.

“K. van Rensburg J.A.”

“I.V.B. Nordheimer J.A.”

“J. George J.A.”