Court File and Parties
COURT FILE NO.: CV-16-548028 DATE: 20160729 SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E E N:
Charles Thomas Polanski, Plaintiff – and – Sharon Ruth Ann Scharfe, Defendant
BEFORE: F.L. Myers J. READ: July 29, 2016
Endorsement
[1] This application was referred to the court by the registrar upon receiving a written request from counsel for the defendant under Rule 2.1.01(6).
[2] By order dated June 10, 2016, Morgan J. struck out the plaintiff’s claim against the Law Society and his former articling principal relating to his dismissal from employment as an articling student a mere two weeks into his term. Morgan J. gave the plaintiff leave to amend his claim to try to plead material facts to support a cause of action against his articling principal. The plaintiff has now delivered an amended statement of claim. The defendant says that the revised pleading is so deficient that the action should be dismissed for being vexatious on its face. Rule 2.1 has been used to review amendments allowed after a claim has been struck out with leave to amend. See: Beatty v OCL, 2016 ONSC 3816 and Goralczyk v The Beer Store, 2016 ONSC 4416.
[3] The defendant concedes that the plaintiff has pleaded numerous factual events on which he relies. But, she argues, that the events do not amount to professional negligence as pleaded. In addition, she objects to a new claim added by the plaintiff for the infliction of psychological and emotional damage manifesting in loss of sleep and demoralization. That claim is supported by 14 heads of particulars.
[4] While I appreciate that where the court requires a defendant to bring a formal motion in face of a weak or odd claim, one might suspect that the infliction of added expense and inconvenience may be part of a vexatious design. This is especially the case with serial pleadings. Therefore it makes sense that when a pleading has already been struck out once, amendments can be scrutinized on their face under Rule 2.1. However, Rule 2.1 is a very powerful rule that stops litigation in its tracks. Under rule 2.1, a plaintiff’s day in court is limited to submitting only a 10 page written argument. While the rule is to be applied robustly to prevent apparent abuse, it is only applicable in the clearest of cases.
[5] On the facts as pleaded in the amended statement of claim, I cannot say that it is obvious on the face of the pleading that the claim is frivolous or vexatious. This is not to say that the claim has a good chance of being successful. Justice Morgan made the point that the plaintiff’s cause of action was theoretically possible. Similarly the facts pleaded by the plaintiff, or at least some of them, appear to allege conduct that logically relate to a theoretical cause of action for breach of an articling principal’s duties. While one might raise one’s eyebrows at that plaintiff’s legal and practical judgment in bringing this case for a number of obvious reasons, this is not a case in which either branch of the Rule 2.1 test is engaged in my view. Scaduto v Law Society of Upper Canada, 2015 ONCA 733. I therefore decline to direct the registrar to send a notice to the plaintiff in Form 2.1A. The defendants knows that allegations that she has to meet. She should defend. Nothing herein limits the defendant’s right to then move for summary judgment if she chooses to do so.