Superior Court of Justice - Ontario

RE: Keith Alexander, Plaintiff

AND:

Longo Brothers Fruit Market Inc. and Anthony Longo and Human Rights Tribunal of Ontario, Defendants

BEFORE: Sanfilippo J.

COUNSEL: Keith Alexander, Plaintiff acting in person Trevor Guy, for the Defendant Human Rights Tribunal of Ontario

HEARD: In writing, December 18, 2019

ENDORSEMENT

I. Overview

[1] This matter was referred to me by the Registrar further to a written request of the Defendant, Human Rights Tribunal of Ontario (“HRTO”) pursuant to Rules 2.1.01(1), 2.1.01(6), and 2.1.01(7) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provide as follows:

Order to Stay, Dismiss Proceeding

2.1.01 (1) The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of this court.

2.1.01(6) Any party to the proceeding may file with the registrar a written request for an order under subrule (1).

2.1.01(7) If the registrar becomes aware that a proceeding could be the subject of an order under subrule (1), the registrar shall notify the court.

[2] The HRTO provided a copy of its request to the Plaintiff, Keith Alexander, and to its co-Defendants, Longo Brothers Fruit Market Inc. and Anthony Longo (collectively the “Longo Respondents”).

II. Applicable Principles

[3] Rule 2.1 was enacted on July 1, 2014 to allow a Judge to exercise his or her gatekeeping function to determine, in a summary manner, whether, on its face, a proceeding should be dismissed as frivolous or vexatious or otherwise an abuse of the process. The Courts have provided guidance on the principles by which this Rule is to be applied, including as follows:

(a) The Court must read the pleading generously and identify the core complaint pleaded: Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, at para. 18; Covenoho v. Ceridian Canada, 2015 ONSC 2468. The Court must then assess whether there is a basis for application of the attenuated process under Rule 2.1.01 or whether another rule is available for the same subject matter: Raji v. Ladner, 2015 ONSC 801, at paras. 8-9.

(b) 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”: Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, at para. 8.

(c) The application of this 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”: Scaduto, at para. 8.

(d) The focus is on the pleadings to assess whether the proceeding is frivolous, vexatious, or an abuse of process: Scaduto, at para. 11; Covenoho, at para. 6. The parties shall not deliver submissions with their request and do not deliver written submissions unless requested to do so by the Court under Rule 2.1.01(3)(4) and (5): Raji v. Borden Ladner Gervais LLP, 2015 ONSC 1355, at para. 12; Covenoho, at paras. 4-5.

(e) A “frivolous” action is a proceeding that lacks a legal basis or legal merit: Currie v. Halton Regional Police Services Board, 2003 CanLII 7815 (Ont. C.A.), at para. 14.

(f) A “vexatious” action is a proceeding that was instituted without reasonable ground: Currie, at para. 15, relying on Foy v. Foy (No. 2) (1979), 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220, at p. 226 (C.A.); or brought where it is obvious that the action cannot succeed; or brought for an improper purpose, including through duplicative proceedings: Currie, at para. 11.

(g) A proceeding is an abuse of process when it is inconsistent with the objectives of public policy: Currie, at paras. 16, relying on Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), rev’d on other grounds 2002 SCC 63, 3 SCR 307, at para. 31. “The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute”: Canam Enterprises (C.A.), at para. 55.

(h) There is overlap between the meaning of the terms “frivolous, vexatious and abuse of process”, but they apply to “any action for which there is clearly no merit”: Currie, at para. 17.

[4] In Scaduto, at para. 9, the Court of Appeal endorsed the interpretation and application of Rule 2.1 set out by Myers J. in Raji, at paras. 8-9:

[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. …. [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.

[5] I will apply these principles to the Notice of Application issued by Mr. Alexander.

III. Analysis

[6] Mr. Alexander claims the amount of $500,000 from the Longo Respondents: Notice of Application, paras. 1-2. He claims that he made an Application to the HRTO on July 30, 2014 against the Longo Defendants, and that these parties have not filed a response: Notice of Application, paras. 3, 5, and 7.

[7] Mr. Alexander claims that on January 12, 2015, the HRTO made an interim decision in his complaint against the Longo Respondents, and that he wrote to the HRTO on April 18, 2019 requesting disclosure: Notice of Application, paras. 4 and 6. The Notice of Application does not plead a remedy against the HRTO.

[8] This Notice of Application lacks clarity and lacks particularity. Read most broadly, Mr. Alexander seeks monetary damages against the Longo Respondents for their alleged failure to respond to an Application before the HRTO. Read generously and liberally, the Notice of Application does not plead a cause of action against either the HRTO or against the Longo Respondents. At its highest, Mr. Alexander is purporting to seek in this Court a remedy that flows from a matter pending before the HRTO.

[9] On the face of this Notice of Application, it is not a viable originating process. I have determined that this Application is frivolous, in that it lacks a legal basis or legal merit, and it is vexatious, in that it was initiated without reasonable ground and because it is obvious that it cannot succeed. Accordingly, I have concluded that this is an appropriate case for the dismissal of this Application pursuant to Rule 2.1.01.

IV. Disposition

[10] I order that this Application is dismissed.

Sanfilippo J.

Date: December 18, 2019