Court File and Parties

COURT FILE NO.: CV-22-679551

DATE: 20221031

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Ryan Gutierrez, Plaintiff

-and-

York University, Defendant

BEFORE: FL Myers J

COUNSEL: Ryan Gutierrez on his own behalf

READ: October 31, 2022

ENDORSEMENT

[1] On my on initiative, I am considering dismissing Mr. Gutierrez’s motion under Rule 2.1.02 of the Rules of Civil Procedure, RRO 1990, Reg 194.

[2] In a Requisition to Schedule a Short Motion before a Judge submitted on October 20, 2022, Mr. Gutierrez asked to book a hearing of a motion:

…for relief sought under Rule 21 to determine a question of law that should dispose of further necessary action beyond default judgment and, if this determination is found insufficient (on justifiable grounds) to note the defendant in default, to further strike out the Defendant’s pleading on the ground that it discloses no reasonable defence, to validate service of the statement of claim and for default judgment against the defendant.

[3] In essence, the plaintiff sought to validate service of the statement of claim and to obtain default judgment against the defendant.

[4] The defendant is represented by counsel. It has brought a motion to strike out some or all of the statement of claim. The defendant’s motion has already been scheduled to be heard by an Associate Justice on December 15, 2022. The defendant has delivered a pro forma statement of defence just to prevent the plaintiff from noting it in default.

[5] The plaintiff attacks the sufficiency of the pro forma statement of defence.

[6] By endorsement dated October 21, 2022, I declined to schedule the motion proposed by the plaintiff. It is not an appropriate use of default proceedings to pre-empt a motion that is already scheduled by a represented party. While the pro forma statement of defence is acknowledged to be deficient by the defendant, what the plaintiff does not understand is that despite the Rules technically allowing a plaintiff to note a defendant in default when a motion to strike is pending, the case law prohibits this as an abuse of the Rules.

[7] The plaintiff is quite correct that the pro forma statement of defence filed by the defendant is not a proper defence. But it should not have been required to take that step to preclude the plaintiff from noting it in default while its motion was pending. The pro forma statement of defence is just a placeholder to prevent the plaintiff from improperly taking default proceedings while his statement of claim is under review by an Associate Justice.

[8] The plaintiff is acting for himself in this litigation. Given the complexity of the Rules of Civil Procedure and accompanying common law, my endorsement was designed to assist the plaintiff to understand the process. I wrote:

The plaintiff seeks to move for default judgment. To get there, he is looking for determinations as to the validity of service of his claim and the insufficiency of the pro forma statement of defence delivered by counsel for the defendant just to prevent the plaintiff from noting his client in default.

The defendant also has a motion scheduled before an Associate Justice for December 15, 2022 in which it challenges the sufficiency of the statement of claim.

I have not seen the statement of claim. From the descriptions in the material filed, it appears that the plaintiff was found to have violated the defendant’s Academic Dishonesty Policy. He sues for fraud, conspiracy and other legal characterizations that he engrafts onto the underlying administrative law issue that he is not content with the decision made by the University.

As the plaintiff is self-represented, I thin[k] it is important for me to advise him that his highly technical approach to issues of service and default judgment are not likely to find favour in the court. First and foremost, the court is concerned with securing the just, most expeditious and least expensive determination of the case on its merits. See: Rule 1.04 of the Rules of Civil Procedure, RRO 1990, Reg194.

In referring the “merits” of a dispute, we are speaking [of] the facts and the legal rights and obligations that arise from the facts. The question is not so much whether the case can be squeezed into one or another legal characterization. Rather, the court will look at the events that happened to consider the essential characteristics of the factual dispute and try to help the parties reach an appropriate resolution of whatever disputes they may have as to the facts and the applicable law. If the essential character of the facts in dispute are an academic decision and an allegedly unlawful decision-making process, trying to sue for civil fraud or conspiracy may be difficult.

Similarly, whether the defendant received the statement of claim on a specific date, or missed its 20-day deadline, or filed a pro forma defence that needs to be replaced by a proper defence, is all noise obscuring the need to focus on the merits of the dispute. Even if default judgment might be technically available, it is not to be used where the defendant is represented and is participating in the lawsuit. See: Nobosoft Corporation v. No Borders, Inc., 2007 ONCA 444, at para. 7.

The defendant has counsel and has brought a motion to question the adequacy of the statement of claim. The service of the statement of claim is no longer an issue. Whenever the statement of claim was served, the defendant is here and is participating. Default judgment is not available in that case.

There is no doubting that the defendant’s statement of defence is inadequate. It filed a document “pro forma” or “as a formality”, just to have something in the Registrar’s file to stop the plaintiff from noting it in default. It agrees that it needs a proper defence on the merits of the plaintiff’s allegations. But, before that is due, the defendant is entitled to ask an Associate Justice to make rulings on the adequacy of the allegations in the statement of claim. That will be happening on December 15, 2022. If the claim is fine as it is, then the Associate Justice will probably set a deadline for the defendant to deliver its proper statement of defence. If the statement of claim is found to be improper, then the plaintiff will likely be given a deadline in which to amend or to try again. Sometimes, the impropriety cannot be cured by an amendment. That will be up to the Associate Justice to decide. The parties should be prepared to make submissions both on the adequacy of the statement of claim and on the issue of whether leave to amend should be granted to the plaintiff if any parts of the claim are struck out.

It is premature to consider the adequacy of the statement of defence at this time. Once the claim is determined to be finalized, then the full defence will be delivered. Any motions can be considered at that time.

[9] Mr. Gutierrez was not content with my decision to defer the scheduling of his motion. On October 24, 2022, Mr. Gutierrez delivered a motion record with a further request to schedule a motion. The motion seeks to set aside my order declining to schedule his motion to note the defendant in default prior to the hearing of the defendant’s motion to strike the statement of claim. He recited that his motion was brought under Rules 21 and 37.14.

[10] The grounds for relief cited by Mr. Gutierrez are difficult for me to follow. But, as best as I can tell, he says that the validity of his claims is established in his statement of claim already. He asserts that it would be unfair to allow the defendant’s motion to proceed in the circumstances. I paraphrase some of the grounds asserted by Mr. Gutierrez in his scheduling form:

THE MOTION IS FOR relief seeking, under Rule 21 and subrule 37.14 (4), to partially set aside the previous endorsement made by the Honourable Judge Myers, on October 21st, 2022, that ruled on a previous motion under Rule 21, submitted on October 20th, 2022. The motion will also acknowledge and leverage the endorsement, in part, as it does contain significant resolution and validation of legal arguments presented in the prior motion by explicitly indicating the current and proper issue of law (validating the merits of the case as per the cause of action and indicated rights and obligations of the parties under the law).

… As such, the previous endorsement’s failure to account for the Defendant not specifically responding with a proper pleading and specific grounds regarding the cause of action and overall claim’s viability in writing before any requested oral argument would, in effect, be a denial of justice and undue advantage allowed, to the detriment of the Plaintiff.

… the specific and proper cause of action, as per Rule 25.06, and the supporting argument satisfying its validity has, in fact, already been specifically and appropriately argued by the Plaintiff in both his Statement of Claim, Notice of Motion and Factum, while the Defendant’s pleading and Motion to Strike the Claim have not. It is, as such, properly in the interest of justice to address the cause of action and merits of the claim through the Plaintiff’s motion instead, as it intrinsically satisfies both Rule 21 and Rule 25, and will properly require the Defendant to submit an appropriate written Motion Record response with Factum prior to the hearing. It will also allow the Justice to review the Statement of Claim and both party’s Factums as required.

[11] It appears that the plaintiff is proposing to support the validity of his statement of claim on his motion for default judgment. He continues to put the cart before the horse. The defendant is entitled to have an Associate Justice rule on the adequacy of the statement of claim before the defendant delivers its statement of defence. Default judgment is not appropriate when a defendant has counsel and is engaged in the case.

[12] In addition, the Rules do not provide for re-litigating the same point when one disagrees with a judge’s decision. Neither Rule 21 nor Rule 37.14 authorizes the plaintiff to bring a further motion for the same issue. Therefore, on October 26, 2022, I directed the Registrar:

Please reject this request to schedule a motion. Rule 37.14 allows for a motion to vary an order made without notice. The plaintiff had notice as he was the party who requested the scheduling of a motion that I deferred. If the plaintiff feels aggrieved by my decision to defer scheduling his proposed motion, then he should seek leave to appeal to the Divisional Court.

[13] In response, on October 28, 2022, the plaintiff has re-cast his motion to set aside my deferral of the scheduling of his proposed motion for default judgment. The plaintiff now recites Rules 21 and 59.06 (2)(b).

[14] Rule 59.06 (2)(b) says that a party may move to suspend the operation of an order. But it is not available for a simple re-argument of the same question that has already been decided.

[15] The plaintiff should take a step back and consider the efficacy and affordability of a motion to discuss whether to set aside a judge’s direction concerning the order in which proposed motions will be heard in the court. He is allowing his technical reading of the Rules to overwhelm the search for justice in his case. He wants and needs to advance his claims that York University treated him unlawfully. Getting bogged down in whether a judge should hear a motion for default judgment before an Associate Justice hears a motion about the adequacy of the statement of claim does nothing to advance the case. Really, it just exposes the plaintiff to a serious risk of being required to pay the defendant’s costs for conducting an unnecessary hearing.

[16] The plaintiff makes mention in each communication with the court that he acts under a Fee Waiver. He should understand that a Fee Waiver means that he does not have to pay fees to file material with the court. It does not protect him from the usual rule that a party who is unsuccessful in a step in a lawsuit is required to pay a significant portion of the other party’s legal fees incurred in connection with that step.

[17] Rule 2.1.02 provides:

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

[18] I am concerned that the plaintiff’s motion to set aside my direction to defer the scheduling of his proposed motion for default judgment may be frivolous or an abuse of process. A “frivolous” proceeding is one that cannot succeed no matter what is pleaded or proved. An “abuse of process” includes a number of types of misconduct, including specifically, trying to re-litigate an issue that has already been decided.

[19] It seems to me that the plaintiff’s motion under Rule 59.06 (2)(b) and Rule 21, to set aside my scheduling direction cannot succeed and may be a re-litigation of the initial request to schedule the motion for default judgment. I therefore invite Mr. Gutierrez to deliver up to ten pages of submissions as to why the court should not dismiss the motion for being frivolous or an abuse of process.

[20] On reviewing the material forwarded by the registrar, the court makes the following order:

a. Pursuant to Rules 2.1.02 (2) and 2.1.01(3)(1), the registrar is directed to give notice to the plaintiff in Form 2.1A that the court is considering making an order under Rule 2.1.02 (1);

b. The plaintiff’s motion to set aside or vary my order dated October 21, 2022 deferring the scheduling of his proposed motion for default judgment is stayed pending the outcome of the written hearing under Rule 2.1 or further order of the court;

c. In addition to the service by mail required by 2.1.01(4) rule, the registrar is to serve a copy of this endorsement and a Form 2.1A notice on the plaintiff and counsel for the defendants by email if it has their email addresses.

FL Myers J

Date: October 31, 2022