SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mr. Terry Mester, Plaintiff
AND Mr. Howard Wah / Lee Wah Laundry and
Enbridge Gas Distribution Inc., Defendants
E N D O R S E M E N T
The Honourable Justice T. Maddalena:
1On November 19, 2015, the defendant Howard Ott (wrongly named as Howard Wah) requested that the Statement of Claim in this matter be referred to a justice of the Superior Court pursuant to Rule 2.1.01 of the Rules of Civil Procedure on the basis that the claim is a frivolous, vexatious and abusive proceeding.
2On December 17, 2015, the Registrar issued a “Notice that the Proceeding may be Stayed or Dismissed” to the plaintiff and requested submissions. The plaintiff provided submissions on January 11, 2016. The defendant Howard Ott provided submissions dated April 13, 2016. The defendant Enbridge Gas Distribution Inc. provided no submissions, but did file a Notice of Intent to Defend filed April 19, 2016.
3The Statement of Claim in this matter is a detailed, single-spaced claim which recites the significant history of interactions between the plaintiff and the defendant Howard Wah. The plaintiff claims damages which are set out and specifically calculated on the basis of alleged facts. The allegations against Enbridge Gas Distribution Inc. focus on alleged nuisance with respect to gas meters. The damages claimed are specifically calculated on the basis of alleged facts.
4Rule 2.1.01 is designed to provide a summary process for dealing with certain claims. In Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, the Court of Appeal held at paras. 8 and 9:
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 resort 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.
5In this case, the pleading content is very detailed. I agree with the comments of F.L. Myers J. in Cheng v. Lee et al, 2015 ONSC 5148, that “when read generously” on the face of it, the “rhetorical excesses are not of the type to raise in mind issues that suggest that the attenuated process of Rule 2.1 is appropriate”. It is not apparent on the face of the claim that there is a significant risk that the plaintiff will abuse the process of the court if faced with a regular motion procedure.
6In the circumstances, I decline to make an order under Rule 2.1.01.
7Nothing herein should be taken to affect in any way the likely outcome of a proper motion to strike or dismiss a claim that may be brought under Rules 20, 21.01 and/or 25.11 as appropriate.
8The defendants have been awaiting the outcome of this ruling. The defendants shall have until September 6, 2016 to file their statements of defence.
9There is no order as to costs.
Maddalena J.
DATE: July 29, 2016
CITATION: Mester v. Wah, 2016 ONSC 4887
COURT FILE NO.: SR-10725/15
DATE: 2016/07/29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mr. Terry Mester, Plaintiff
AND: Mr. Howard Wah / Lee Wah Laundry and Enbridge Gas Distribution Inc., Defendants
ENDORSEMENT
Maddalena J.
DATE: July 29, 2016