Court File and Parties

CITATION: Alsabbagh v. Rothmans, Benson & Hedges, 2017 ONSC 5120

COURT FILE NO.: CV-17-578695

DATE: 20170828

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ABDUL-KADER ALSABBAGH, Plaintiff

AND:

ROTHMANS, BENSON & HEDGES, Defendant

BEFORE: Mr. Justice Cavanagh

READ: August 28, 2017

ENDORSEMENT

[1] This action was referred to me by the registrar’s office pursuant to Rule 2.1.01(7) following receipt of a written request under Rule 2.1.01(6) submitted by the lawyers for the defendant, Rothmans Benson & Hedges Inc.

[2] A review of the Statement of Claim discloses that, in the portion of the pleading that includes the allegations of material facts to substantiate the claim, the Plaintiff’s Statement of Claim reads: “I bough (sic) Canadian Classic smokes that poisned (sic) me and caused severe chest pain.”

[3] The prescribed form for a statement of claim (general), Form 14A, includes a paragraph that applies where the claim made is for money only, and there is a space for a plaintiff to complete to specify the amount for costs that a defendant may pay, in addition to payment of the plaintiff’s claim, in order for the defendant to move to have the proceeding dismissed by the court. The Plaintiff inserted “$5,000,000” in the issued Statement of Claim as the amount to be paid for costs.

[4] The use of rule 2.1 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. Care should be taken to allow generously for drafting deficiencies and recognizing that there may be a core complaint which is legitimate even if the proceeding itself is frivolously brought or carried out and ought to be dismissed: Khan v. Krylov & Company LLP, 2017 ONCA 625, at paras. 6 and 7, citing Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8, and Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497 (“Gao (No. 2)”), at para. 18. The hallmarks of a vexatious pleading amenable to being struck out under rule 2.1 are listed in paras. 14-15 of Gao No. 2.

[5] The Statement of Claim, on its face, suffers from drafting deficiencies and lacks particularity of the alleged wrongful conduct by the defendant and the injuries allegedly caused to the Plaintiff by the Defendant’s conduct. However, drafting deficiencies alone are not sufficient for an action to be dismissed under rule 2.1. In Khan, the Court of Appeal wrote, at para. 12:

Rule 2.1 is an extremely blunt instrument. It is reserved for the clearest of cases, where the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading. Rule 2.1 is not meant to be an easily accessible alternative to a pleadings motion, a motion for summary judgment, or a trial.

[6] I am unable to conclude that the Plaintiff’s Statement of Claim asserts a claim that, on its face, is frivolous, vexatious or an abuse of the court’s process, measured by the criteria in the cases cited by the Court of Appeal in Khan. Resort to rule 2.1 is not, in my view, appropriate as a means for bringing the Plaintiff’s action to an early end.

[7] I therefore decline to make an order under rule 2.1.01 as requested by the Defendant.

Mr. Justice Cavanagh

Date: August 28, 2017