Court File and Parties

COURT FILE NO.: CV-16-547411 DATE: 20160422

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hemchand Ramlall, Applicant AND: Jahir Ullah Pharmacy Inc. #1333, Respondent

BEFORE: F.L. Myers J.

COUNSEL: M.J. Miles, for the Respondent

READ: April 21, 2016

Endorsement

[1] This matter was referred to me by the registrar upon the request of counsel for the respondent under Rule 2.1.01(6).

[2] The applicant has brought a summary application under Rule 14.05 seeking $30,000 in damages against a Shoppers Drug Mart store. The applicant swears that he complained that the store had failed to honour the sale prices on a few small items that he purchased. On complaining, he was ordered to leave the store and was escorted out by security. He sues for damages for nervous shock, violation of his presumption of innocence under the Charter of Rights and Freedoms, punitive, and aggravated damages.

[3] The respondent has sent to the registrar a multi-page letter asking for relief under Rule 2.1. It seeks to have the court consider whether the application should be dismissed for being frivolous, vexatious, or an abuse of process under the attenuated process of Rule 2.1. The letter describes the defendant’s defences on the merits. It describes a prior proceeding in the Small Claims Court in which the plaintiff was apparently unsuccessful in seeking relief for the same causes of action. The letter describes the procedural history of the Small Claims Court matter. The author describes several appearances in court and appends a number of documentary exhibits to explain the procedural issues that apparently led to the dismissal of the applicant’s prior proceeding. The author also encloses an email exchange between counsel and the applicant concerning this application.

[4] The letter consists of unsworn factual submissions and unsworn exhibits. It was also copied to the applicant.

[5] In Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, the Court of Appeal confirmed that no evidence is admissible in a Rule 2.1 proceeding. The process is confined to reviewing the face of the impugned proceedings. The Court of Appeal also made reference to Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, which provides:

[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). Accordingly, while I have read the defendant’s letter, I have not read the pleadings from the other action enclosed in the letter. I will consider them if and when appropriate in the process.

[6] In Scaduto, the Court of Appeal also made reference to Covenoho v Ceridian Canada, 2015 ONSC 2468. In that case, like this one, counsel for the defendant sent unsworn submissions to the registrar and copied the allegedly vexatious plaintiff. The plaintiff delivered a written response prior to the matter reaching the court for review under Rule 2.1(6). I wrote:

[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.

[7] In Watson and McGowan, Ontario Civil Practice, 2016, (Thomson Canada Limited, Toronto, 2016), the authors state at page 306:

Although not expressly stated, it is expected that the written request be brief and without argument. This is in keeping with both the requirement of patent obviousness, and the fact that the subrule contemplates that a party supporting summary stay or dismissal will only be given an opportunity to make submissions at the discretion of the court: subrules 2.1.01(3) 4 and 5. If the vexatious nature of the pleading or motion is not apparent without the aid of submissions, the pleading or motion is not a proper candidate for scrutiny under the subrule.

[8] By proceeding as it did, the respondent has put the applicant in the invidious position of having to face unsworn evidence that he cannot test and to which he cannot respond within the law as set out in Scaduto. The respondent has also effectively undermined the court’s ability to make a fair assessment of the face of the pleadings. Even if the court could conduct the assessment without considering the respondent’s unsworn evidence and submissions, doing so without providing the applicant an opportunity to test and respond would not provide an appearance of fairness. The issue under Rule 2.1 is whether a final order ought to be made terminating a proceeding. The applicant’s submissions under subrule 2.1.01(3) 2 may be his only opportunity to state his case in the entire proceeding. While fairness and notice are always important, this is not just one of many interlocutory motions in which the parties may be asserting their respective rights. Given the attenuated process under Rule 2.1 and the finality of the outcome, the court must zealously protect and ensure both a fair process and the appearance of fairness.

[9] The respondent ought to have known the rules applicable to Rule 2.1 requests. The applicable law as discussed above is readily available to those who would bother to look for it. Here, the respondent may well have had available a proceeding under Rule 2.1 that might have led to a very quick and inexpensive resolution of this application. By bringing the proceeding as it did, it has prejudiced the process and incurred unnecessary legal costs. It will now find itself in much more significant proceedings to try to strike or defend the application on the merits incurring delay and yet further avoidable costs.

[10] I decline to direct the registrar to send notice to the applicant under Rule 2.1.01(3) 1 as requested. If the applicant has incurred any assessable costs or disbursements in this process, it is entitled to be paid its costs forthwith by the respondent on a partial indemnity basis in an amount to be agreed or after the assessment thereof by an assessment officer.

[11] I direct that counsel for the respondent provide a copy of this endorsement to the respondent.

F.L. Myers Date: April 22, 2016