Court File and Parties
COURT FILE NO.: CV-16-553664 DATE: 20160727 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SAJJAD ASGHAR, Plaintiff AND: TORONTO POLICE SERVICES BOARD, TORONTO POLICE CHIEF, CONSTABLE BRAD VERSPEETEN #9278 41 DIVISION, TORONTO TRANSIT COMMISSION (TTC), EDWIN COLLINS (TTC DRIVER), Defendants
BEFORE: Mr. Justice M.D. Faieta READ: July 27, 2016
Endorsement
[1] This motion was referred to me by the Registrar’s office pursuant to Rule 2.1.01(7) of the Rules of Civil Procedure, following receipt of a written request of the lawyers for the Defendants under Rule 2.1.01(6). Their very short letter dated July 18, 2016 requests “… an Order to dismiss this proceeding, which is on its face frivolous, vexatious and/or an abuse of process.” The Plaintiff was sent a copy of this letter.
BACKGROUND
[2] The Statement of Claim makes the following allegations. The Plaintiff owned and operated a motor vehicle that was involved in a collision on May 31, 2014 in the City of Toronto. This collision led to the Plaintiff being charged by the Defendant Verspeeten with careless driving. The Plaintiff alleges that statements of several witnesses and the Defendant Police Officers contained intentionally falsified information. The Plaintiff alleges that the charge of careless driving was withdrawn on May 16, 2016.
[3] The Plaintiff alleges:
This action is being brought against the malicious design crafted by the Police with an assist from the false witnesses. Plaintiff asserts that this accident was staged and shady helpers were pre and postmeditated. …
The predominant objective of the defendant Constable and the fellow police officers including the false witnesses was to harm the plaintiff by spoiling his driving record and by causing him mental and long term financial injury. This accident stopped [the] plaintiff’s possible business deal to which he was headed and the gain from that transaction was roughly $120,000.00. …
[4] The Statement of Claim also states:
For the purposes of this action other Police officers involved with the defendant officer and present on the scene including other fraudulent witnesses besides the defendant TTC Driver have been ignored but will be considered under the criminal code if desired by my counsel. All police officers and witnesses acted in combination and fabricated to hurt the plaintiff. Aerial view is a jigsaw with all pieces playing their part all in bad faith. Courtesy umbrella organized crime gang.
[5] The Plaintiff claims $50,000.00 in damages from each of the Toronto Police Defendants (Verspeeten, Toronto Police Chief, Toronto Police Services Board) and the TTC Defendants (Collins, Toronto Transit Commission). The Plaintiff asserts an action in negligence against all Defendants. He asserts an action for breach of the Police Services Act against the Toronto Police Defendants. He asserts an action for breach of the City of Toronto Act against the Defendant Toronto Transit Commission. He alleges a claim in conspiracy and malicious falsehood against Verspeeten and Collins. The Plaintiff also alleges a claim in negligent investigation and breach of the Ontario Human Rights Code against Verspeeten. Finally he claims damages pursuant to sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms against all Defendants other than the Toronto Transit Commission and Collins.
LEGAL CONTEXT
[6] Rule 2.1.01 of the Rules of Civil Procedure states:
Order to Stay, Dismiss Proceeding
2.1.01 (1) The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.
Summary Procedure
(2) The court may make a determination under subrule (1) in a summary manner, subject to the procedures set out in this rule.
(3) Unless the court orders otherwise, an order under subrule (1) shall be made on the basis of written submissions, if any, in accordance with the following procedures:
The court shall direct the registrar to give notice (Form 2.1A) to the plaintiff or applicant, as the case may be, that the court is considering making the order.
The plaintiff or applicant may, within 15 days after receiving the notice, file with the court a written submission, no more than 10 pages in length, responding to the notice.
If the plaintiff or applicant does not file a written submission that complies with paragraph 2, the court may make the order without any further notice to the plaintiff or applicant or to any other party.
If the plaintiff or applicant files a written submission that complies with paragraph 2, the court may direct the registrar to give a copy of the submission to any other party.
A party who receives a copy of the plaintiff’s or applicant’s submission may, within 10 days after receiving the copy, file with the court a written submission, no more than 10 pages in length, responding to the plaintiff’s or applicant’s submission, and shall give a copy of the responding submission to the plaintiff or applicant and, on the request of any other party, to that party.
(4) A document required under subrule (3) to be given to a party shall be mailed in the manner described in subclause 16.01 (4) (b) (i), and is deemed to have been received on the fifth day after it is mailed.
Copy of Order
(5) The registrar shall serve a copy of the order by mail on the plaintiff or applicant as soon as possible after the order is made.
Request for Order
(6) Any party to the proceeding may file with the registrar a written request for an order under subrule (1).
Notification of Court by Registrar
(7) If the registrar becomes aware that a proceeding could be the subject of an order under subrule (1), the registrar shall notify the court.
[7] In Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, at paras. 7-12, the Ontario Court of Appeal provided the following guidance:
7 Rule 2.1 is a relatively new rule that came into force on July 1, 2014. The motion judge has decided a number of cases which have helped to delineate both the procedure and the test to be applied under the rule: see Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6100, 37 C.L.R. (4th) 1 ("Gao No. 1"); Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7 ("Gao No. 2"); Raji v. Border Ladner Gervais LLP, 2015 ONSC 801; and Covenoho v. Ceridian Canada, 2015 ONSC 2468.
8 Under this line of authority, the court has recognized that the rule should 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. However, the use of the rule should be limited to 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.
9 We fully endorse that case law and the guidance that has been provided by the motion judge in the interpretation and operation of r. 2.1. This approach is summarized in Raji, at paras. 8-9, as follows:
[R]ule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves. No evidence is submitted on the motion... [T]here are two conditions generally required for rule 2.1 to be applied. First, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading as required by the rule. Second, there should generally be a basis in the pleadings to support the resort to the attenuated process of rule 2.1... This second requirement is not in the rule and is not a fixed requirement. It strikes me as a guideline that reminds the court that there are other rules available for the same subject matter and that re-sort to the attenuated process in rule 2.1 should be justified in each case.
See also Gao (No. 2), at paras. 11-18; and Covenoho, at paras. 6-7. We also recognize that the case law will develop as the rule becomes more widely utilized. …
11 The focus under r. 2.1 is on the pleadings and any submissions of the parties made pursuant to the rule. The role of the motion judge is to determine whether on its face, and in light of any submissions, the proceeding is frivolous, vexatious, or an abuse of process. Rule 2.1.01(3) makes this clear when it states that an order "shall be made on the basis of written submissions, if any", filed in accordance with the procedure outlined therein.
12 Rule 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": Gao No. 1, at para. 8.
[8] In Currie v. Halton (Region) Police Services Board, [2003] O.J. No. 4516, at paras. 14-17, the Ontario Court of Appeal considered the meaning of the phrase “frivolous or vexatious or is otherwise an abuse of the process of the court” found in Rule 21.01(3)(d). This phrase is also used in Rule 2.1.01(1). A “frivolous” action lacks legal merit. A “vexatious” action is an action instituted without any reasonable ground such as an action that seeks to determine an issue which has already been determined by a court of competent jurisdiction. The doctrine of abuse of process “… engages the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute”. The Ontario Court of Appeal concluded:
It is apparent that there is a degree of overlap in the meaning of the terms frivolous, vexatious and abuse of process. What I take from the authorities is that any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process. The common example appears to be the situation where a plaintiff seeks to relitigate a cause which has already been decided by a court of competent jurisdiction. [Emphasis added.]
CONCLUSION
[9] Having reviewed the Statement of Claim, it is my view that it is in the interests of justice to make the following order:
a. Pursuant to Rule 2.1.01(3)(1), the Registrar is directed to give notice to the Plaintiff in Form 2.1A that the court is considering making an order under Rule 2.1.01 dismissing the motion;
b. Pending the outcome of the written hearing under Rule 2.1 or further order of the court, the motion is stayed pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43. [1] The Registrar is to release any time booked for the hearing of the motion pending the outcome of this review;
c. The Registrar shall accept no further filings in this motion excepting only the Plaintiff’s written submissions if delivered in accordance with Rule 2.1.01(3);
d. In addition to the service by mail required by Rule 2.1.01(4), the Registrar is to serve a copy of this endorsement and a Form 2.1A notice on the Plaintiff and counsel for the Defendants by email if it has their email addresses.
Mr. Justice M. D. Faieta
Date: July 27, 2016