Court File and Parties

CITATION: Covenoho v. Ceridian Canada, 2015 ONSC 2468

COURT FILE NO.: CV-15-522157

DATE: 20150416

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOSS COVENOHO, Plaintiff

AND:

CERIDIAN CANADA AND PENDYLUM INC., Defendants

BEFORE: F.L. Myers J.

READ: April 14, 2015

ENDORSEMENT

[1] This matter was referred to me by the registrar’s office pursuant to rule 2.1.01(7) following receipt of a written request of counsel for the defendants under rule 2.1.01(6). This endorsement applies as well to a similar request brought by the defendant Pendylum Inc. in Court File No. CV-15-522160.

[2] In asking the registrar to refer the two claims to the court under Rule 2.1.01(6), counsel for the defendants delivered six pages of factual and legal submissions. These include copies of decisions of this court, the Ontario Court of Appeal, and an Employment Standards Officer. The letter thoroughly reviews the case law that is developing under Rule 2.1 and seeks to apply various elements of that law to unsworn facts concerning these cases.

[3] The defendants’ letter was served on the self-represented plaintiff. She has responded with several pages of submissions of her own including unsworn factual allegations and a copy of a “without prejudice” email that she says she received from opposing counsel in a prior action.

[4] At para 12 of Raji v. Borden Ladner Gervais LLP, 2015 ONSC 1355, a case cited in the defendants’ letter to the registrar, I discussed requests under Rule 2.1.01(6) as follows:

[12] By limiting requests from parties under sub-rule 2.1.01(6) to simply being one or two line requests for the making of a referral by the registrar to a judge, mischief is avoided. The motion’s focus on the face of the pleading is maintained. There will be less opportunity for querulous litigants to see conspiracies. In all, the process will be more efficient and fairer in fact and in appearance. Where parties believe that there is reason do more, they should consider whether they ought to be moving under another rule or waiting to see if submissions are called for under sub-rules 2.1.01(3)(4) and (5).

[5] In this case I have received submissions from the plaintiff before even deciding whether to require the registrar to serve her with a notice under Rule 2.1. I have received submissions from the defendants which are not supposed to be made unless or until requested by the court after it has reviewed the plaintiff’s submissions. The court may or may not call for submissions from the defendants as it considers appropriate.

[6] My review at this stage is supposed to be limited to the face of the statements of claim to assess whether they appear to be frivolous, vexatious or an abuse of the process of the court. As noted elsewhere, these are not generally close calls. Instead I am reading detailed arguments with charges and counter-charges as if I were reading facta with no supporting evidence.

[7] This motion highlights the concerns that I expressed in Raji. The focus cannot now be on the face of the allegedly offending pleadings. The parties have joined issue on a number of matters. If the defendants were not content to submit the pleadings to the court for review on their faces and felt it necessary to make factual and legal arguments, they ought to have brought motions to strike the statements of claim under other rules. A request under Rule 2.1.01(6) should be a one or two line request and nothing more. It may include or refer to a reported case between the parties. But if the judge is required to work his or her way through six cases to discern whether the plaintiff can be said to be re-litigating then the pleadings are not frivolous, vexatious, or an abuse of process on their faces and Rule 2.1 ought not to be invoked.

[8] As also discussed in Raji, there are process and fairness issues with counsel for the defendants being permitted to make submissions at the outset of these motions or proceedings. The authors Watson and McGowan, Ontario Civil Practice, 2015, (Thomson Canada Limited, Toronto) call Rule 2.1.01(6) “flawed” for reasons set out at pages 300 – 301 of their text. The court is keen to ensure the fairness of the process. While the court expresses no opinion on the validity of Rule 2.1.01(6), I note that the majority of cases under Rule 2.1 in Toronto are commenced with requests from defendants’ counsel. The contents of such requests should be limited as set out above.

[9] The requests to direct the registrar to deliver notices under Rule 2.1 to the plaintiff are dismissed. The plaintiff is entitled to one set of assessable costs of the motions. The defendants are to pay the plaintiff’s costs on a partial indemnity basis forthwith if she is found to have incurred any assessable costs in this process by an assessment officer.

F.L. Myers J.

Date: April 16, 2015