Court File and Parties

COURT FILE NO.: CV-20-00646553-0000

DATE: 2021-02-05

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: NATHALIE XIAN YI YAN, Plaintiff

AND:

PETER PI XING ZHANG, Defendant

BEFORE: A.A. Sanfilippo J.

COUNSEL: Nathalie Xian Yi Yan, Plaintiff acting in person

Henry Ngan, for the Defendant, Peter Pi Xing Zhang

HEARD

In Writing: February 5, 2021

ENDORSEMENT

[1] Rule 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that the Court may 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 the Court, 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] By letter dated January 22, 2021, the lawyer for the defendant, Peter Pi Xing Zhang, filed a written request with the registrar for an order dismissing this action under subrule 2.2.01(1). The defendant made this request on the basis of subrule 2.2.01(6), which states as follows:

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

[3] The defendant provided a copy of his request to the plaintiff, Nathalie Xian Yi Yan.

[4] The registrar notified the court of this request, in accordance with 2.1.01(7), which states as follows:

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.

[5] Rule 2.1.01(4) provides a process for the plaintiff to make a written submission responding to the written request for a dismissal order made by the defendant, upon receiving a notice from the registrar that the court is considering making the order: Rule 2.1.01(3)(1) and (2). However, without the court issuing any such notice, the plaintiff delivered a written submission by letter dated January 23, 2021.

[6] I have considered the defendant’s request and the plaintiff’s written submission and I decline to dismiss this action for the reasons that follow.

[7] Rule 2.1 was enacted on July 1, 2014 to allow a Judge to exercise her or his 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 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.

[8] 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. 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 paras. 8 and 11.

[9] In Scaduto, at para. 9, the Court of Appeal endorsed the interpretation and application of Rule 2.1 set out by Justice Myers 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.

[10] On a generous reading of the statement of claim, I do not find that the requirements set out by the case authorities for dismissal under Rule 2.1 are met. I am not satisfied that it is apparent, on the face of the pleading, that this action is frivolous, vexatious or abusive, for the purposes of analysis under Rule 2.1.

[11] The defendant provided, in his letter of request, a list of 21 other legal proceedings said to have been initiated by the plaintiff in this Court in Lindsay and Hamilton, and the defendant filed along with this request another in court file number CV-20-646557 (Toronto Region). The reference to another proceeding, or proceedings would be relevant on a Rule 2.1 motion if it were to show that this action is an attempt to re-litigate an issue that has already been determined, but this is not apparent. A multiplicity of proceedings is not a basis, in and of itself, for dismissal under Rule 2.1, barring abuse on the face of pleading that is the subject of the requested dismissal or a basis in the pleading to support the dismissal, such as a demonstrated attempt to re-litigate an issue already determined.

[12] Rule 2.1 is not a summary substitute for relief that is provided for by other Rules. As the Court of Appeal stated in Khan v. Krylov & Company LLP, 2017 ONCA 625, at para. 12: “Rule 2.1 is not meant to be an easily accessible alternative to a pleadings motion, a motion for summary judgment or a trial.” There must be a basis in the statement of claim to resort to the attenuated process under Rule 2.1, and it must not be a “close call”: it must be apparent.

[13] I deny the defendant’s request to dismiss this action under Rule 2.1.01 on the basis that this is not one of those “clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading”.

[14] The defendant is granted 30 days from the date of this Endorsement to respond to this action. The plaintiff shall not take any step to note the defendant in default within this time period.

A.A. Sanfilippo J.

Date: February 5, 2021