Court File and Parties

COURT FILE NO.: CV-20-00647517-0000

DATE: 20210916

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ESTATE OF VINCENT GREENLAND BY ITS EXECUTRIX, GUSSETO GREENLAND and GUSSETO GREENLAND, Plaintiffs

– AND –

ASSA ABLOY OF CANADA LTD. and UNITED STEELWORKERS, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Joseph LoGreco, for the Plaintiffs

Charles Sinclair, for the Defendant, United Steelworkers of America

HEARD: In writing

ENDORSEMENT UNDER RULE 2.1.01

[1] The Court has received a letter from counsel for the Defendant, United Steelworkers (“USW”), asking for the claim against USW to be dismissed under Rule 2.1 for being on its face frivolous, vexatious, and an abuse of power. The letter attached the Statement of Claim.

[2] The claim alleges that the now deceased Plaintiff was an employee of the Defendant, Assa Abloy of Canada Ltd. (“Assa”), and that he was denied various employment benefits, including disability insurance, that was owed to him by his employer. I have not heard from counsel for Assa.

[3] The causes of action are generally under the rubric of breach of the employment contract, with a number of heads of relief and categories of damages. These are generally pleaded as against Assa. There appears to be no cause of action pleaded against USW.

[4] The pleading sets out that the Plaintiff was a member of USW and that he paid union dues. In paragraph 10 of the Statement of Claim, it is stated that USW failed to provide the Plaintiff executor with information about how the deceased died and that USW was uncooperative in this respect.

[5] No further facts, and no legal basis for a claim, are pleaded as against USW. Indeed, there is no claim against USW mentioned at all except that its name is on the front page of the pleading as one of the two Defendants. The entire claim, with the exception of the statement in paragraph 10 about USW being uncooperative, is directed toward and contains facts and allegations relevant to Assa alone.

[6] The Court has the authority under Rule 2.1.01 to dismiss a claim on its own motion if it is frivolous, vexatious, or an abuse of process. As the Statement of Claim presently stands, it fits that description with respect to USW. There is literally nothing in it to which the USW could respond and no legally cognizable claim to defend.

[7] Plaintiff’s counsel has corresponded with me in response to USW counsel’s request, indicating that they are in the process of amending the Statement of Claim to include causes of action in negligence and breach of contract against USW. They have sent me a draft of an amended pleading, but since it is only a draft not formally before me I will not comment on whether it cures the defect that exists in the version of the claim that is issued and before me. It is not the court’s role to legal give advice to counsel in advance of a party taking a proposed step in an action.

[8] It is this court’s practice to require that any amendment of a claim be in place prior to a defendant’s motion to strike under Rule 21, and not be brought after the defendant’s motion has been served and is before the court: see Riopelle v. Trucash Rewards Inc., 2014 ONSC 3414; Preiano v. Cirillo, 2015 ONSC 7181. As my colleague Myers J. explained in Riopelle, at para 5, this practice is based on the need for judicial economy and the overall requirement that litigation be conducted in a fair and efficient manner.

[9] The drive for judicial economy may take a back seat to other principles such as access to justice where a court considers a sua sponte motion under Rule 2.1.01 in respect of a claim issued by a self-represented Plaintiff. However, that is not the case here, where the Plaintiff is represented by counsel and has been since the inception of the action. In this case, the need for efficiency in litigation is as relevant under Rule 2.1.01 as it would be if a defendant had brought a motion to strike under Rule 21.01.

[10] The claim is dismissed as against USW.

[11] Without making any ruling on the draft Amended Statement of Claim that Plaintiff’s counsel has sent me, the Plaintiff is at liberty to take whatever steps are necessary under the Rules of Civil Procedure to amend the Statement of Claim to include a cause of action against USW. If and when that occurs, counsel for USW will then be in a position to assess the new claim and defend it or seek any remedy that may be available.

Date: October 7, 2021 Morgan J.