Court File and Parties

COURT FILE NO.: CV-22-679551 DATE: 20221118

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: November 18, 2022

ENDORSEMENT

[1] By endorsement dated October 31, 2022, reported at 2022 ONSC 6162, I had the registrar send a notice to the plaintiff that the court was considering dismissing his motion to set aside my direction declining to schedule his proposed motion for default judgment. I declined to schedule the proposed motion for default judgment because the defendant is represented by counsel and has already brought a motion challenging the statement of claim before an associate justice.

[2] The plaintiff has responded to the notice sent to him by the registrar. He continues to assert that he should be entitled to default judgment because:

a. in his view, his statement of claim sets out a cause of action;

b. the defendant has delivered a pro forma statement of defence that is deficient on its face; and

c. he should be entitled to note the defendant in default and that would result in the defendant being deemed to admit the allegations in the statement of claim.

[3] The plaintiff also reminds the court of its obligations to him as a self-represented litigant:

The Plaintiff has previously indicated in his communications, and explicitly in the October 28th motion factum, the requirement under the Principles on Self-Represented Litigants and Accused Persons, Pintea v Johns (2017), and Girao v Cunningham (2020) to provide self-represented litigants fair access to justice and to ensure that rules should not be used to unjustly hinder their legal interests. Furthermore, Young v Noble, 2017, the court must take affirmative and non-prejudicial steps to address the inequality between an SRL and experienced counsel.

[4] It appears that the plaintiff has not understood my efforts to assist him. I will try again to make my meaning clear so as to assist the plaintiff with the concerns that I have raised.

[5] I have tried to explain to the plaintiff that he is trying to use default proceedings under Rule 19 of the Rules of Civil Procedure inappropriately. The rule deals with a situation where a defendant does not participate in a lawsuit. Default judgment is not to be used to express a disagreement with steps taken by a defendant who is participating in the lawsuit.

[6] The plaintiff says that the pro forma statement of defence delivered by the defendant is improper. He is correct. It is an improper pleading.

[7] What I have tried to explain to the plaintiff, however, is that the defendant should never have been required to deliver a statement of defence – pro forma or otherwise.

[8] The defendant has brought a motion to challenge some or all of the statement of claim under Rule 25.11. That motion may succeed or it may fail. But the defendant is entitled to have it heard. Until the motion is resolved, the final form and content of the statement of claim is not known. Until the statement of claim is finalized, it is premature to require the defendant to deliver a statement of defence.

[9] On bringing a motion to strike a statement of claim, whether under Rule 21.01 (1)(b) or Rule 25.11, the defendant’s obligation to deliver its statement of defence is deferred. This is not stated expressly anywhere in the Rules of Civil Procedure.[^1] But it is an almost invariable practice that is consistent with the dictates of Rule 1.04 and the desire to achieve justice on the merits. Explaining this unwritten practice is part of the assistance that the court is providing to the plaintiff.

[10] The only purpose of the defendant filing its pro forma statement of defence was to prevent the plaintiff from wrongly using default proceedings against it. By filing something in the court’s file, even an improper pro forma pleading, the defendant prevented the registrar from noting the defendant in default if the plaintiff wrongfully asked it to do so.

[11] The pro forma statement of defence does not pretend to be a proper pleading. Rather, it is a quick and cheap device used by an experienced lawyer to protect the parties from becoming immersed in the waste of time and cost of default proceedings brought by a plaintiff who is not fully conversant with the rules and practices of the court.

[12] The plaintiff does not accept the propriety of the defendant’s motion to challenge the statement of claim. In his response to the Rule 2.1 notice, he writes:

Thus, if the “case law” indicated in paragraph 6 is, in fact, meant to refer to Nobosoft Corporation v. No Borders, Inc., the Plaintiff states here that the precedent does not give a Defendant the right to a sort of first option to have an Associate Judge review the Statement of Claim for validity through the submission of a “Pro Forma” pleading in contradiction of Rule 25.11.This is, in actuality, highly improper and unduly biased in support of one party over the other through the one-sided provision of legal support, which would, as a result, be unfair to any Plaintiff that would be involved as well as an illegitimate action if

imposed on insufficient grounds. Under Rule 25 a Defendant must be able to review a Statement of Claim issued with the seal of the court with proper gravity, as is due, and be able to specifically affirm or deny the cause of action, either in whole or in part, and provide a properly contradictory statement of material fact in order to support any denial.

[13] In fact, the Rules do provide a defendant with a “sort of first option to have an Associate Judge review the Statement of Claim for validity”. The mere delivery of a statement of claim bearing the court’s seal is no assurance that the claim is fairly or properly stated. This is not the time to discuss the narrow grounds available to strike a statement of claim or the competing policy grounds for or against allowing defendants to challenge statements of claim before they deliver their statements of defence. The simple fact is that defendants are entitled to do so and it is not proper for a plaintiff to try to foreclose that right by an improper use of default proceedings under Rule 19.

[14] I do not ignore the possibility that a defendant could bring a motion to strike that is itself abusive - to stall or to run up costs or for other ill-designs. But default proceedings under Rule 19 are still not an answer to such tactical wrongdoing.

[15] A plaintiff who believes that he or she has a basis to object to a motion to strike can use the objection as a response to the motion and seek costs. Alternatively, parties are always free to convene a case conference before a judge or an associate justice under Rule 50.13 (1) to raise with the court the procedural progress of the action and the alleged abuse. A judge or an associate justice can give directions and make orders under Rule 50.13 (6) if she or he finds it appropriate to do so concerning the orderly flow of the proceeding. If the judge or associate justice agrees that a motion to strike appears to be abusive, he or she has a full quiver of relief available such as resolving the motion summarily or otherwise remedying the perceived abuse.

[16] This is all the background, but it is not the current issue before the court.

[17] After I declined to schedule the plaintiff’s proposed motion for default judgment pending the outcome of the defendant’s motion to strike the statement of claim, Mr. Gutierrez delivered a motion record with a further request to schedule a motion. The motion sought an order to set aside my direction 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. The motion relied on Rules 21 and 37.14.

[18] On October 27, 2022, I directed the registrar as follows:

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.

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

[20] In my endorsement dated October 31, 2022 I directed the registrar to give notice to the plaintiff that the court was considering dismissing the proposed motion under Rule 2.1. Again, I tried to assist the plaintiff to understand that he was not using the Rules of Civil Procedure appropriately or in a helpful or useful manner. I wrote:

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.

[21] In responding to the notice under Rule 2.1, the plaintiff reasserts his view as to the impropriety of the defendant moving to strike his claim and filing a pro forma statement of defence to prevent him from seeking default judgment. He advises:

14. Again, the combined procedural impact of the October 21st and 31st endorsements would be to arbitrarily subvert fair proceedings on grounds found to be insufficient along their critical juncture of argument and justification. That a tacit and undue act of intimidation would be made where it would be confirmed if Rule 2.1.01 was not stated by the Registrar in error, the undue approach to the issue of law imposed with insufficient justification would be wholly indicative of an apparently deliberate act of negligence and deceptive action where allowed to persist uncorrected. As such, the Plaintiff must take the due diligence and care to prepare and serve an application for Judicial Review where it is completely unknown if this level of insufficient argument and undue imposition would persist. The 30-day response requirement for the decision-maker subject to Judicial Review should allow for sufficient time for corrective action as per the correct and reasonable baseline for fair proceedings. At that point of response, the full scope of any Judicial Complaint would be known and treated accordingly. [Emphasis in original.]

[22] In all, while I am very cognizant of and share the court’s desire to be helpful to self-represented litigants, I cannot compel the plaintiff to accept the information and experience proffered.

[23] Without confirming that scheduling directions are subject to appeal, I have already advised the plaintiff that if he wishes to try to challenge my directions, the route is to seek leave to appeal to the Divisional Court. He will find that a proceeding for judicial review is not available to challenge a decision of a judge of the Superior Court of Justice.

[24] The plaintiff continues to assert a desire to move under Rules 59.06 and 21 to re-visit my scheduling direction declining to schedule a motion for default judgment pending the hearing of the defendant’s motion to strike the statement of claim.

[25] Rule 2.1.02 lies to preclude a motion under Rule 59.06 to re-open a matter already decided absent fraud or the discovery of critical new evidence. See: Hart v. Balice, 2022 ONCA 787, at para. 8.

[26] The motion proposed under Rule 59.06 and Rule 21 is the plaintiff’s third attempt at the same outcome and, as explained above, it is one that cannot succeed. it is rightly dismissed as frivolous and an abuse of process under Rule 2.1.02 (1).

[27] All that is dismissed is the motion to set aside my scheduling direction. The plaintiff’s action continues in the ordinary course.

[28] That means that, subject to any successful appeals of this order or any of the directions that I have made to date, the plaintiff’s proposed motion for default judgment will not be scheduled to be heard before the resolution of the defendant’s motion to strike. Whether the plaintiff wishes to bring the same motion or something different at that time remains to be seen and to be dealt with then.

[29] I am also concerned about the number of proceedings brought by the plaintiff with the assistance of a fee waiver under the Administration of Justice Act, RSO 1990, c A.6. The plaintiff should be aware that under s. 4.10 of that statute, a judge or an associate justice may revoke a fee waiver if it is used in proceedings that are found to be frivolous, vexatious, or an abuse of the process of the court. I have already found that the proposed motion to re-open my scheduling direction under Rule 59.06 was both frivolous and an abuse of process.

[30] I am not considering revoking the plaintiff’s fee waiver at this time because the proposed frivolous and abusive motion is concluded. It is also the court’s fervent hope that the plaintiff can accept the guidance provided to see his action move forward efficiently and affordably for himself and the defendant. The plaintiff should not be surprised however, if a judge or associate justice does consider revoking his fee waiver if the plaintiff continues to bring inappropriate proceedings in this action.

[31] The plaintiff’s motion to set aside the court’s October 21, 2022 direction deferring the scheduling of a proposed motion for default judgment is dismissed without costs.

FL Myers J

Date: November 18, 2022

[^1]: Perhaps this outcome may be inferred from Rule 2.02 (b) that precludes a party from attacking a pleading or other irregularity if it has taken a further or fresh step in the proceeding after learning of the alleged irregularity. If a defendant delivers a statement of defence to a statement of claim that it seeks to strike, the defendant arguably could be precluded from moving to strike the claim by this rule. Therefore, defendants are entitled to move to strike before taking the fresh step of delivering their own pleadings. I do not want to state this too forcefully however as this rule too has exceptions and is subject to an overall discretion to allow attacks despite a fresh step where it is in the interest of justice to do so.