SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E E N:
SAJJAD ASGHAR
Plaintiff
-AND-
JOALLORE ALON
Defendant
BEFORE: F.L. Myers J.
READ: December 14, 2015
endorsement
[1]
Background
By endorsement dated June 15, 2015, reported as 2015 ONSC 3835, I declined to direct the registrar to issue a notice under Rule 2.1 to the plaintiff in this action as requested by the defendant. I found that the statement of claim raised an issue of defamation but that the pleading contained so much surplusage as to sound frivolous and vexatious. Rather than invoking Rule 2.1, I stayed the action briefly for the plaintiff to obtain legal advice and amend his statement of claim. He did so. The defendant again asks the court to dismiss it under Rule 2.1. (The court received the defendant’s letter by email on December 3, 2015. The letter is dated September 9, 2015 and was apparently sent by mail. The court did not receive the letter.)
2In its first 14 paragraphs, the amended statement of claim seems to try to plead defamation. I leave to another motion to determine whether it meets all of the technical requirements for pleading the tort. The remaining paragraphs of the pleading are difficult to follow and are infused with facts and issues that once again give pause to one considering the nature of this proceeding.
[3]
Analysis
In my view, this is not a case for Rule 2.1. It may be that the plaintiff has difficulty communicating his claim in the language of the law. Gao v Ontario WSIB, 2014 ONSC 6497 at para. 18. However, the nub of his complaint is that he was publicly ridiculed after being induced into a vulnerable position by the defendant. If properly pleaded the claim may sound in defamation. Although the plaintiff is having difficulty understanding the proper contents of a statement of claim, I am not convinced that the claim has no chance of success or is frivolous and vexatious on its face.
4In Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 9, the Court of Appeal approved the two-pronged approach to Rule 2.1 cases. First, for Rule 2.1 to apply, the case must be frivolous and vexatious on its face even after generously allowing for pleading deficiencies. Then, there should also be reason to resort to the attenuated process of Rule 2.1 in the case. This is usually satisfied by finding reason in the proceeding to fear that the ordinary process of the court will be subject to abuse by the plaintiff behaving as a vexatious or querulent litigant. Frankly, these cases are usually obvious.
5In most Rule 2.1 cases the frivolous nature of the claim is clear and the real question is whether a motion to strike or to dismiss should be heard in court in the usual way or whether the motion should be dealt with under the attenuated process of Rule 2.1. Here, the issues are reversed. There is reason to fear that the plaintiff may have difficulty following the process of the court and his pleading does bear some hallmarks of a querulent litigant. However, in my view, as he may well have a cause of action, the defendant should have his day in court. The court will just have to be wary of the process as the case unfolds.
6The plaintiff has delivered (prematurely) a submission in which he advises that he wants to note the defendant in default. That would be an improper step given that the defendant is represented and is participating in the action.
[7]
Disposition
I decline to direct the registrar to send notice to the plaintiff under Rule 2.1. The plaintiff may not note the defendant in default unless the defendant fails to serve and file his statement of defence or a notice of motion to strike or to dismiss the claim on or before the close of business on January 29, 2016. If the defendant does not deliver his pleading or a motion by January 29, 2016, the plaintiff may note him in default on February 1, 2016. Nothing in this endorsement is intended to impact at all on the merits of any motion that the defendant may bring, if any.
________________________________ F.L. Myers J.
Date: December 14, 2015