Court File and Parties
COURT FILE NO.: CV-16-553129 DATE: 20160728 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DARREN ROSS NODDLE, Plaintiff AND: THE DEPUTY ATTORNEY GENERAL OF CANADA WILLIAM F. PENTNEY, Defendant
BEFORE: Mr. Justice M.D. Faieta READ: July 28, 2016
Endorsement
1This 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 counsel for the Defendant under Rule 2.1.01(6) for an Order to dismiss this proceeding on the basis that it “is not in the interests of justice to allow the claim to proceed.” The Defendant sent a copy of this letter to the Plaintiff.
Background
2The Plaintiff brings this action against The Deputy Attorney General of Canada, William F. Pentney.
3The Plaintiff alleges that he was incarcerated for several months in 2014 and that the “Ministry of Justice, the Attorney General of British Columbia, the Ministry of Health, and the Attorney General of Ontario” were negligent in failing to inform the Plaintiff of the potential side effects of the prescription drug “Aldara.” It appears that the Plaintiff states that he is now disabled as a result of ingesting Aldara while incarcerated.
4The Plaintiff’s action appears to be based in defamation. It appears that the Plaintiff is alleging that the Defendant made defamatory statements about the Plaintiff in the course of defending a claim against certain government entities. The Plaintiff relies on sections 299, 301 and 305 of the Criminal Code. He alleges that:
The Deputy Attorney General of Canada, William F. Pentney, responded to the Plaintiff, that the Plaintiff, that the Plaintiff is nearly incoherent and has the capacity to represent himself in a court of law in his civil proceedings, of life-threatening injuries that altered the Plaintiff’s immune system, a the chemo therapy drug the was mis-prescribed to the Plaintiff by Dr. Todd Levy, that resulted in the Plaintiff being disabled in Ontario in December 2015.
The Deputy Attorney General of Canada, William F. Pentney, responded to the Plaintiff, biasing the Plaintiff’s intention to seek monetary compensation for the injuries that disabled the Plaintiff, as frivolous, vexatious, scandalous, to all the Defendants listed in the Plaintiff’s Claim, File #T-197-16, compromising the Plaintiff’s success in civil proceedings. This is grounds for defamatory liable against the Deputy Attorney General of Canada.
The Deputy Attorney General of Canada, William F. Pentney, responded to the Plaintiff’s Civil Action, that the Federal Government is not responsible for the actions of the Ministry of Justice in British Columbia in their procedures to enforce the Criminal Code, the Federal Canadian Act, governed by the administration of the Federal Government of Canada.
The Plaintiff has evidence from the Deputy Attorney General of Canada, William F. Pentney, that the Deputy Attorney General, William F. Pentney, was defamatory toward the Plaintiff, that has biased the Plaintiff’s civil action and proceedings (Exhibit “A” File T-197-16).
5Amongst other things, the Plaintiff claims “a) $500,000 Million Dollars Monetary Compensation; b) Punitive Damages; c) General Aggravated, and special damages; d) Punitive and Exemplary Damages”
Legal Context
6Rule 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.
7In 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. Borden Ladner Gervais LLP, 2015 ONSC 801; and Covenoho v. Ceridian Canada, 2015 ONSC 2468.
8Under 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.
9We 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.
8In 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
9Having reviewed the Statement of Claim, and having considered the lack of clarity of the pleading including the lack of particulars of the pleading to support a claim in defamation [1], as well as the doctrine of absolute privilege [2], 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. [3] 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 28, 2016
1Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24, at paras. 30 to 36; Lysko v. Braley, [2006] O.J. No. 1137, para. 91.
2Amato v. Walsh, 2013 ONCA 258, [2013] O.J. No. 1857, at para. 34.