Court File and Parties
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
TORONTO STADARD CONDOMINIUM CORPORATION NO. 1466, Applicant
– and –
STUART WEINSTEIN, Respondent
BEFORE: F.L. Myers J.
READ: September 2, 2020
Endorsement
Endorsement
1This application was referred to me by the registrar’s office pursuant to rule 2.1.01(7) of the Rules of Civil Procedure, RRO 1990, Reg. 194, following receipt of a written request by Mr. Weinstein under rule 2.1.01(6).
2TSCC No. 1466 has applied to enforce an arbitration award it obtained against Mr. Weinstein on October 10, 2019. Mr. Weinstein chose not to participate in the arbitration after his challenge to the arbitrator’s independence and requests to summarily dismiss the proceeding were denied by the arbitrator.
3The arbitrator’s award requires Mr. Weinstein to comply with his legal obligations to allow the condominium corporation’s repair people into his unit to replace defective plumbing that was installed when the building was first built. The award also required Mr. Weinstein to pay costs to the condominium corporation of $60,559.53 within 30 days of October 10, 2019.
4Mr. Weinstein opposes the enforcement of the arbitration. He says it was illegal and unfair. In addition, he objects to a lien that the condominium corporation has registered against his unit for approximately $62,000 in relation to the unpaid costs award.
5Schabas J. has held two case conferences to case manage the proceeding. On August 31, 2020, Schabas J. implemented a schedule for the hearing of the application to enforce the arbitration award. Schabas J. told Mr. Weinstein that if he objects to the condominium corporation’s lien, Mr. Weinstein needs to bring a counter application. Schabas J. scheduled a hearing on December 17, 2020 for the application and any counter application that Mr. Weinstein may bring.
6On August 31, 2020 Mr. Weinstein sent an email to the chambers of numerous judges advising that “Self represented people need to be taken seriously by the Court”. He attached a decision of the Divisional Court in Amlani v. York Condominium Corporation No. 473, 2020 ONSC 194 and submits that as a result of that decision, the condominium corporation’s lien claim is frivolous under Rule 2.1. He concludes, “[a]s this case has taken a substantial toll on me due to stress, request the case be dismissed immediately.”
7Mr. Weinstein’s request ought to have been sent to the registrar rather than to judges’ chambers. Litigants may not communicate directly with judges about their cases except under the limited provisions of Rule 1.09 of the Rules of Civil Procedure. This rule applies to litigants with lawyers as much as to self-represented litigants.
8In any event, Mr. Weinstein’s request was brought to the registrar’s office who forwarded it to me as a co-lead of the Civil Team. This is how Rule 2.1 requests are handled in the ordinary course.
Rule 2.1 Analysis
9Rule 2.1.01 provides that the court may dismiss a proceeding that appears on its face to be frivolous, vexatious, or an abuse of process. In Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, the Court of Appeal held that Rule 2.1 only applies where it is obvious on the face of the pleading document that the proceeding is improper. In addition, the process under Rule 2.1 is very abbreviated. There are other rules that allow for formal motions to be brought to question the propriety of a party’s pleading documents. The summary process under Rule 2.1 is only used where there is a reason disclosed in the documents to fear that the regular process may be abused by the party whose pleading is under review.
10Mr. Weinstein does not raise Rule 2.1 against the condominium corporation’s application to enforce the arbitration award. There is nothing on the face of the notice of application that makes it appear frivolous, vexatious, or an abuse of process. Moreover, there is nothing on the face of the notice of application to justify resort to Rule 2.1. The notice of application appears to be a straightforward proceeding to enforce an arbitral award. I know nothing of the merits and do not consider at all whether Mr. Weinstein has good grounds to prevent enforcement of the award. But there is nothing on the face of the documents to lead me to conclude that the proceeding is frivolous, vexatious, or an abuse of process. I therefore decline to direct the registrar to give notice to the condominium corporation under Rule 2.1.
11What I take to be Mr. Weinstein’s greater concern is that he wants the lien taken off title to his unit. That is or will be the subject of his counter application. Rule 2.1 does not apply to that proceeding either. He is essentially arguing that the condominium corporation has no proper defence to his claim that the lien is invalid. Rule 2.1 does not allow for the striking of a defence. It only applies to strike frivolous and vexatious claims. Rule 2.1 does not allow the court to pronounce on the validity of a claim based on a pleading that has yet to be responded to or heard.
The Proposed Counter Application
12As to the proposed counter application, Mr. Weinstein filed a document with the court on June 2, 2020 that particularizes his objections. He titled the document “Notice of Application/Notice of Motion/Statement of Claim” and he asked the registrar to accept it for filing. Technically, under Rule 38.03 of the Rules of Civil Procedure, a counter application is a separate proceeding that is heard together with the initial application. Justice Schabas’s August 31, 2020 endorsement provides for Mr. Weinstein to deliver all of his written materials in support of a motion or application to remove the lien by October 19, 2020. As Mr. Weinstein is representing himself, I want to make sure that he understands that this means that if he wants to challenge the legality of the lien, he must have a notice of application issued by the registrar. There are forms to be completed and a fee to be paid to have the registrar issue the notice of application. Then, by October 19, 2020, Mr. Weinstein must serve on the condominium corporation’s lawyers and file with the court both his issued notice of application and all affidavit or other evidence on which he relies to oppose the lien.
The Amlani Case
13I also want to be sure that Mr. Weinstein understands the law upon which he is basing his complaint. I am not his lawyer and I am not hearing his case. But I do not understand his assertion that the Amlani case makes the condominium corporation’s lien illegal. In Amlani, the Divisional Court limited the entitlement of a condominium corporation to obtain a lien for legal costs under s. 85 of the Condominium Act, 1998 to the amount of a costs award in a compliance proceeding under s. 134 of the statute. The costs in this case were awarded by an arbitral tribunal. Such costs are added to an owner’s common area expenses under s. 1.45 (a) of the statute for the purposes of a lien under s. 85. I am not making a ruling or an analysis at this stage. I have made Mr. Weinstein aware of a different section of the statute and I respectfully suggest that he should retain a lawyer to review his legal arguments to help him ensure that they are sound.
14I appreciate that Mr. Weinstein says that the existence of a lien on his unit in relation to the costs that he has been ordered to pay is very stressful for him. Schabas J. made mention of this as well. Civil litigation is indeed stressful. Costs, delay, and the foreboding of legal jeopardy all cause distress for most people. That is among the reasons that parties are routinely urged to try to resolve their civil disputes consensually. Civil litigants always make cost/benefit analyses in continuing to litigate. Stress is a very important factor on the costs side of that equation. If the costs of continuing the litigation exceed the benefit, it is simple self-interest to find a way to end the case consensually.
Conclusion
15Mr. Weinstein’s request for a dismissal of the proceeding under Rule 2.1 is dismissed.
F.L. Myers J.
Date: September 2, 2020