Court File and Parties
Court File No.: 18-76518 Date: 2018-11-30 Superior Court of Justice - Ontario
Re: Maya Zakhour, Plaintiff And: Nelly Nayel Nohra, Defendant
Before: Mr. Justice Robert N. Beaudoin
Counsel: Maya Zakhour, for the Plaintiff Richard J. Bosada, for the Defendant
Heard: By requisition
Endorsement
1A requisition was referred to me by the Registrar’s Office pursuant to rule 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, following receipt of a written request from the Defendant’s Counsel. The plaintiff was not copied with this request.
2In addition, the Defendant’s counsel has provided written submissions with respect to the merits of the claim. In that letter, the Defendant’s counsel sates that the within action arises out of statements the Defendant is alleged to have made in affidavits filed in an unrelated family law proceeding to which the Plaintiff and the Defendant’s brother are parties. The Defendant claims that these statements enjoy absolute privilege. It does not appear that the Plaintiff was copied with these materials.
3I reviewed the Statement of Claim in this matter and it appears to be poorly a drafted claim of defamation. Nevertheless, the Defendant delivered a Statement of Defence and a demand for particulars to which the Plaintiff has responded.
4This is not an appropriate use of Rule 2.1 which contemplates a review of a pleading on its face to determine if it is frivolous, vexatious or otherwise an abuse of process of the court. No additional submissions should be received. As Justice Myers noted in Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801 at para. 10:
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.
5Having defended the claim and having raised the possibility that some of the defamatory statements might have been made outside of the court proceedings, the proper course of action is for the Defendant to bring a motion under rule 25.11 or a motion for summary judgment.
Released: November 30, 2018 Beaudoin J.