Court File and Parties
COURT FILE NO.: 16-69767 DATE: 20170419 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Calvin Ramsarran, Gloria Ramsarran, Trisha Ramsarran, Tennelle Ramsarran and Renee Ramsarran, Plaintiffs -and- Assaly Asset Management Corporation a.k.a. 2225394 Ontario Limited, Thomas Assaly, Brent Timmons, BrazeauSeller LLP, Paul Howard, Howard Kelford & Dixon, The Toronto-Dominio Bank and TD Waterhouse Canada Inc., Defendants
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Richard J. Bosada, for the Plaintiffs Stephen Cavanaugh, for Brent Timmons and BrazeauSeller LLP, Defendants Andrew Matheson/Atrisha Lewis, for TD Bank and TD Waterhouse Canada Inc., Defendants Erin Durant, for Paul Howard and Howard Kelford & Dixon, Defendants
HEARD: By Requisition
Endorsement
[1] I have received a request directly from counsel for the Defendants, Brent Timmons and BrazeauSeller LLP for an order dismissing the claim as against these Defendants pursuant to rule 2.1.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. These Defendants also seek costs. All other counsel were copied with that request.
[2] Rule 2.1(6) requires a party seeking an order under rule 2.1(1) to first file with the registrar a written requisition for an order dismissing the claim. The pleading in issue is usually attached to the requisition. The registrar then directs that requisition to the court. In Ottawa, these requisitions are primarily directed to me.
[3] In this case, no copy of the Statement of Claim has been provided. Counsel has nevertheless provided a seven point argument and the case law in support of his view that the claim as against his clients is frivolous and vexatious.
[4] As Myers, J. concluded in Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801 at para. 10:
Given the need for the vexatiousness of the proceeding to be apparent on the face of the pleading and the obviousness of most cases, opening submissions from the defendant are of little use. Moreover, there is a question of fairness if evidence is adduced in the submissions with no affidavit and with the plaintiff having no real opportunity to test the evidence or respond in kind. The process set out in sub-rules 2.1.01(3)(4) and (5) does not anticipate submissions from the defendant unless or until the court has received submissions from the plaintiff and calls for responses.
[5] I have adopted this approach in Chapadeau v. Addelman, 2016 ONSC 6803 and the Court of Appeal has confirmed it in Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, as follows:
[5] 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.
[6] 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.
[7] We fully endorse that case law and the guidance that has been provided by the motion judge in the interpretation and operation of Rule 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.
[8] 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.
[6] I have reviewed the Statement of Claim contained in the court file wherein damages are sought against various defendants as a result of alleged breaches of a share purchase agreement. I am unable to determine that the proceeding is frivolous, vexatious or abusive from a simple review of the pleading. If an argument is to be made, it should be done by way of Notice of Motion on notice to the Plaintiff. Recourse to the attenuated process of Rule 2.1 is not appropriate in these circumstances.