COURT FILE NO.: CV-21-87109
DATE: 2021/12/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL TARDIF
Plaintiff
CITY OF OTTAWA
Defendants
Self-Represented
Nazgol Namazi
HEARD: In writing
ENDORSEMENT
Justice S. Gomery
[1] On October 15, 2021, counsel for the defendant wrote a letter to the Court requesting the dismissal of this action under r. 2.1.01 of the Rules of Civil Procedure. The City contends that, on its face, the lawsuit is frivolous, vexatious, or otherwise an abuse of the process of the court.
[2] Having read the statement of claim, I am not prepared to dismiss the action pursuant to r. 2.1.01.
[3] In the statement of claim, the plaintiff seeks a declaration that two sections of the City of Ottawa’s Property Maintenance By-Law (By-Law 2005-208) violate section 7 of the Canadian Charter of Rights and Freedoms. He alleges that, on July 28, 2021, he was served with a By-Law violation notice because his front lawn is overgrown and there is a dead tree trunk in his backyard. He claims that the By-Law infringes on his right to life, liberty and security of the person because it irrationally requires the elimination of shrubs, plants and trees that are good for the environment, even though such vegetation presents no risk or harm to anyone. Mr. Tardif claims standing based on his support for environmental causes and, I infer, the fact that he has received a notice from the City that he must remove offending vegetation in his front yard and the dead tree in his backyard.
[4] The statement of claim does not fully comply with the Rules. Although the plaintiff used Form 14A to prepare it, no parties are identified in the title of proceedings, as required in r. 14.06. I assume (as did the City’s lawyer) that the plaintiff is Michael Tardif, because he is identified at the bottom of the statement of claim, and that the defendant is the City, because its By-Law is the target of the claim. The nature of the relief sought is also not specified, as required in subr. 25.06(9).
[5] The allegations in the statement of claim are also somewhat hard to make out. I have read it generously. The pleading also does not contain some of the allegations that would traditionally be found in a lawsuit challenging the constitutionality of a by-law.
[6] Finally, Mr. Tardif has recently filed lawsuits that have been struck under r. 2.1.01; see Michael Tardif v. City of Ottawa, 2021 ONSC 3269.
[7] As the Court of Appeal has repeatedly held, however, dismissal under r. 2.1.01 is a blunt instrument, reserved for the clearest of cases: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733; Khan v. Krylov & Company LLP, 2017 ONCA 625; and Khan v. Law Society of Ontario, 2020 ONCA 320. The procedure under r. 2.1.01 is not a substitute for a pleadings motion or a summary judgment motion. An action should be dismissed under r. 2.1 only if there is “a basis in the pleadings to support the resort to the attenuated process”: Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at para. 9.
[8] It is accordingly important not to let the defects in the statement of claim obscure at a possibly meritorious claim, particularly where the plaintiff is self-represented. As observed by Myers, J. in Gao v. Ontario WISB, 2014 ONSC 6497, at para. 18:
It is not uncommon for there to be a real issue at the heart of a vexatious litigant’s case. The problem is often that the litigant either cannot properly communicate the concern or, more typically, cannot accept that the law may not provide the remedy sought despite the unfairness felt by the litigant. While rule 2.1 should be applied robustly to bring to an early end to vexatious proceedings, the matters should not be considered lightly or dismissively. Care should be taken to allow generously for drafting deficiencies and recognizing that there may be a core complaint which is quite properly recognized as legitimate even if the proceeding itself is frivolously brought or carried out and ought to be dismissed.
[9] There is a core complaint in this action that could be legitimate. Mr. Tardif has pleaded material facts which, if proved, could provide a basis to challenge the By-Law. I have emphatically not concluded that Mr. Tardif’s Charter rights have been infringed or that his action will succeed. The action may very well fail if it is pursued to trial. The City could also challenge it through a motion under rules 20 or 21. The action is not, however, so obviously frivolous, vexatious or abusive as to merit a dismissal under r. 2.1.01.
[10] The City’s request is therefore denied.
Justice Sally Gomery
Released: December 20, 2021
COURT FILE NO.: CV-21-87109
DATE: 2021/12/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL TARDIF
Plaintiff
– and –
CITY OF OTTAWA
Defendants
ENDORSEMENT
Madam Justice S. Gomery
Released: December 20, 2021