CITATION: Mehedi v. Tamlin, 2024 ONSC 275
DIVISIONAL COURT FILE NO.: DC-639/23
DATE: 20240112
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Golam Sarwar Mehedi, Appellant/Moving Party
AND:
Elaine Tamlin, Christine Eddy, Stephen Danso, and Centennial College, Respondents
BEFORE: Nishikawa J.
COUNSEL: Golam Sarwar Mehedi, in person
HEARD at Toronto: In writing
RULE 2.1 ENDORSEMENT
Overview
[1] The moving party/appellant, Golam Sarwar Mehedi, brings a motion for leave to appeal the order of Koehnen J. (the “case conference judge”) dated September 29, 2023 and entered on October 26, 2023 (the “Order”). In the Order, the case conference judge dismissed the moving party’s request to adjourn the hearing of the defendant’s motion to strike, which is currently scheduled for August 8, 2024. In addition, the case conference judge granted the defendants’ request that no further case conferences, motions or other appearances be permitted to be scheduled by the Mr. Mehedi before the August 8, 2024 motion date.
[2] On November 14, 2023, I directed that the Registrar send out notice to the moving party advising that this Court was considering dismissing his motion for leave to appeal under r. 2.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), as frivolous, vexatious or an abuse of process because the motion for leave to appeal pertains to a procedural case management direction.
[3] On November 28, 2023, the moving party provided a written submission that mainly addresses the merits of his action, as opposed to the merits of his motion for leave to appeal, among other extraneous matters. I have reviewed Mr. Mehedi’s written submission and am satisfied that the motion for leave to appeal should be dismissed pursuant to Rule 2.1.02.
Analysis
The Applicable Principles
[4] Under Rule 2.1.01 of the Rules, this court may stay or dismiss an appeal if it appears to be frivolous, vexatious, or an abuse of process. In addition, Rule 2.1.02 provides that the court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. Under Rule 2.1.02(2), subrules 2.1.01(2) to (7) apply, with necessary modifications, to the making of an order under subrule (1).
[5] In Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8, the Court of Appeal for Ontario indicated that one of the principles to be applied by the courts in considering whether to dismiss a proceeding pursuant to Rule 2.1 is as follows:
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.
Application of the Principles
[6] I am satisfied that the motion for leave to appeal is frivolous, vexatious and an abuse of process.
[7] The notice of motion for leave to appeal does not state any basis for challenging the Order and does not address the test for leave to appeal to this court under Rule 62.02(4) of the Rules. The moving party states that it was “judicial error and judicial harassment” for the case conference judge to deny the adjournment and to fail to order him costs. The moving party also takes issue with the case conference judge not granting his motion for summary judgment against the defendants, however, the Order does not address any request or motion for summary judgment. The endorsement reflects that the case conference judge dismissed the moving party’s request for cross-examinations and for a pretrial, and that he explained that neither cross-examinations nor a pretrial were available on a motion to strike because such a motion is based on the trial judge’s review of the statement of claim and the applicable legal principles.
[8] Further, it appears that the moving party continues to misunderstand the acceptance of his Fresh Fresh Amended Statement of Claim for filing as the court’s approval of his pleading. In addition, the moving party takes exception to comments made by the case conference judge at a previous case management conference. As the case conference judge explained in his endorsement, acceptance for filing does not preclude a defendant from bringing a motion to strike. In addition, as the case conference judge further explained in his endorsement, the motion to strike will be decided by the judge hearing the motion. As a result, any comments made by the case conference judge regarding the merits of the claim, which were made in relation to an earlier version of the statement of claim, are not relevant.
[9] In essence, the moving party submits that because his claim is meritorious, the case conference judge erred or showed bias in allowing the defendant’s motion to strike to proceed. This is an untenable position because the Rules permit a defendant to bring a motion to strike: Rules 21.01(1) and 25.11. The case conference judge’s refusal to adjourn the motion was a procedural, case management direction that does not presuppose the outcome of the motion.
Conclusion
[10] Accordingly, the motion for leave to appeal is dismissed pursuant to r. 2.1.02. Given that the responding parties were not required to make any submissions in response to the Court’s Rule 2.1 notice, no costs are ordered.
“Nishikawa J.”
Date: January 12, 2024