Court File and Parties

Court File No.: CV-18-596357 Date: 20180926 Superior Court of Justice - Ontario

Re: Yong Wang, Plaintiff And: Unifund Assurance Company, Dr. Henry Rosenblat, Dr. Michael Hanna, Kenneth Wace, Defendants/Moving Parties under Rule 2.1 Aviva Canada Inc. and Wendy Sokoloff, Defendants

Before: H. McArthur J.

Counsel: J. Tatebe, counsel for the Defendant Unifund Assurance Company S. Roman, counsel for the Defendants Dr. Rosenblat and Dr. Hanna K. Springstead, counsel for Kenneth Wace

Heard: In writing

Endorsement

[1] This action was referred to me by the registrar’s office, following receipt of a written request under Rule 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 by the defendants Unifund Assurance Company, Dr. Henry Rosenblat, Dr. Michael Hanna and Kenneth Wace. The defendants seek an order pursuant to Rule 2.1.01 dismissing the proceeding arguing that on its face, it is frivolous, vexatious and an abuse of process.

[2] Recently, in Khan v. Krylov & Co., 2017 ONCA 625, at para. 6 the Court of Appeal confirmed that Rule 2.1 should be limited to the clearest of cases: see also Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8. The Court explained that:

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.

[3] I have carefully reviewed the Statement of Claim in this matter. While the plaintiff does resort to rhetorical questions in paras. 29 and 30, the pleadings are not generally marred by the hallmarks of a vexatious pleading as set out in Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, at paras. 14-15: see also Khan, at para. 13.

[4] It is fair to say that the claim does have some drafting deficiencies. It is somewhat difficult to follow and understand. That said, “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”: Alsabbagh v. Rothmans, Benson & Hedges, 2017 ONSC 5120, at para. 4; Khan, at paras. 6-7.

[5] Here, the plaintiff seems to allege that the defendants conspired to deprive him of statutory accident benefits. Specifically, he alleges that Unifund altered an insurance form by forging the plaintiff’s signature. The plaintiff further alleges that Dr. Rosenblat completed a medical report in support of an insurance claim in the plaintiff’s name, even though the plaintiff’s signature (indicating consent) was missing from the claim form. The plaintiff further alleges that Dr. Hanna completed an assessment of the claim for Unifund, even though the signature was missing. As it relates to Mr. Wace, the plaintiff alleges that he assisted in covering up the conspiracy.

[6] The claims made by the plaintiff of a conspiracy to deprive him of benefits seems far-fetched. On the other hand, as noted in Khan, a “cautious approach must be taken, as Myers J. noted in Husain v. Craig, 2015 ONSC 1754, at para 10, when he asked: “what if the plaintiff’s allegations are true?”

[7] I am unable to conclude that the plaintiff’s Statement of Claim, on its face, is frivolous, vexatious or an abuse of the court’s process, measured by the criteria set out in Khan. This does not mean that the plaintiff will win his lawsuit against these defendants. Indeed, he may well lose and is risking significant costs consequences if he is unsuccessful. In addition, these defendants may still bring motions seeking the early dismissal of the claims against them.

[8] Recourse to the attenuated process in Rule 2.1, however, is not appropriate in these circumstances. I therefore decline to make an order under Rule 2.1.01 as requested by the defendants.

Justice Heather McArthur Date: September 26, 2018