MOTION HEARD: In Writing
REASONS RELEASED: 20220208
SUPERIOR COURT OF JUSTICE – ONTARIO
Court File No.: CV-20-74725
BETWEEN:
NING CHEN
Plaintiff
-and-
AMANDA ANDERSON, PAUL ARMSTRONG, O’DONNELL CATHERINE, ROB DAVIS, TOM FERNS, TIM FRICKER, DIANE HARRISON, TRISH LOOMIS, BRITTANY MADIGAN, RON MCKERLIE, MOHAWK COLLEGE OF APPLIED ARTS AND TECHNOLOGY, BRENT ROHRER, SECURITY AND EMERGENCY MANAGEMENT
Defendants
BEFORE: ASSOCIATE JUSTICE McGRAW
COUNSEL: D.S. Fisher Email: dfisher@pallettvalo.com
- for the Defendants
N. Chen, Plaintiff, Self-Represented Email: positiveeverytimeeee@gmail.com
REASONS RELEASED: February 8, 2022
Reasons For Endorsement
I. Introduction
[1] This motion in writing was referred by the Registrar pursuant to Rule 2.1.01(7). The Registrar received a request from Defendants’ counsel on January 11, 2021 under Rule 2.1.01(6) seeking to stay or dismiss this action in writing under Rule 2.1.01(1) on the basis that this action is frivolous or vexatious or otherwise an abuse of the process of the court.
[2] As set out in my Endorsement dated March 30, 2021 (the “March Endorsement”), I concluded that, on its face, there were legitimate concerns that this action is frivolous or vexatious or an abuse of the court’s process. Pursuant to Rule 2.1.01(3)(1), I directed the Registrar to give notice to the Plaintiff in Form 2.1A that the court was considering making an order under Rule 2.1.01 dismissing or staying this action. I also stayed this action pending the disposition of this motion or further order of the court pursuant to section 106 of the Courts of Justice Act (Ontario).
[3] Pursuant to Rule 2.1.01(3)(2), the Plaintiff filed written submissions on April 17, 2021, and under Rule 2.1.01(3)(5), the Defendants filed responding submissions on May 3, 2021. I accepted the Plaintiff’s reply submissions on May 22, 2021.
II. The Parties and the Actions
[4] The Plaintiff is a former student in the paralegal program at Mohawk College of Applied Arts and Technology (“MC”) in Hamilton. On August 20, 2018, the Plaintiff was suspended for one year due to multiple breaches of MC’s Charter of Expectations, Students Rights and Responsibilities Framework, Student Behaviour Policy and for failure to comply with a no contact order and behavior contract related to his conduct.
[5] MC alleges that from May 2018-August 2018 the Plaintiff persistently harassed, humiliated and offended 2 fellow students in person and online, disrupted lectures with outbursts against these 2 students in furtherance of his personal, political and social agendas and continued to do so notwithstanding repeated warnings. MC further claims that the Plaintiff failed to cooperate with MC security, circulated sensitive information about one of the 2 students to damage her reputation and continued to distribute and post comments and videos by email and social media while he was under interim suspensions then falsely accused MC of framing him.
[6] On October 2, 2018, the Plaintiff commenced a Small Claims Court action against MC in Court File No. SC-18-29574 (the “First Action”) in which he claims $25,000 for tuition and rent thrown away and lost wages as a paralegal given that he was unable to complete his second semester. The Plaintiff alleges that his suspension was unjustified and based on false and improper accusations. At a Settlement Conference on November 29, 2018, Deputy Judge Schime ordered the Plaintiff to pay costs of $100 (the “Costs Order”) with the First Action to proceed to trial 30 days after payment. Based on the record, it appears that the Costs Order remains unpaid.
[7] On August 8, 2020, the Plaintiff commenced a second Small Claims Court action in Court File No. SC-20-33296 (the “Second Action”) claiming $35,000 against Amanda Anderson, a Trainings & Investigations Officer at MC. The Plaintiff alleges that Ms. Anderson framed him, set him up and falsely accused him of swearing, threatening and injuring MC security officers which caused him to be suspended.
[8] The Plaintiff commenced this third action on or about December 10, 2020. In his Fresh as Amended Statement of Claim dated December 21, 2020 (the “Third Claim”), he claims $100,000,000 from MC, Ms. Anderson, 10 additional individuals (together with Ms. Anderson, the “Individual Defendants”) and “Security and Emergency Management”. While the Plaintiff has provided no particulars regarding the 10 new Individual Defendants, it appears from their addresses in the Third Claim and the Defendants’ correspondence that they are employees and/or representatives of MC. The Plaintiff claims $10,000,000 for “intentional torts and negligence and harassment and discrimination and defamation and breach of contracts”; special damages in an amount yet to be determined for out-of-pocket costs; $70,000,000 in punitive and aggravated damages; $10,000,000 for negligent infliction of mental distress; general damages of $10,000,000; and damages for past and future care and loss of income and loss of competitive advantage to be particularized prior to trial.
III. The Law and Analysis
Generally
[9] Rule 2.1.01 states:
(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 the court.
(2) The court may make a determination under subrule (1) in a summary manner, subject to the procedures set out in this rule.
(3) Unless the court orders otherwise, an order under subrule (1) shall be made on the basis of written submissions, if any, in accordance with the following procedures:
The court shall direct the registrar to give notice (Form 2.1A) to the plaintiff or applicant, as the case may be, that the court is considering making the order.
The plaintiff or applicant may, within 15 days after receiving the notice, file with the court a written submission, no more than 10 pages in length, responding to the notice.
If the plaintiff or applicant does not file a written submission that complies with paragraph 2, the court may make the order without any further notice to the plaintiff or applicant or to any other party.
If the plaintiff or applicant files a written submission that complies with paragraph 2, the court may direct the registrar to give a copy of the submission to any other party.
A party who receives a copy of the plaintiff’s or applicant’s submission may, within 10 days after receiving the copy, file with the court a written submission, no more than 10 pages in length, responding to the plaintiff’s or applicant’s submission, and shall give a copy of the responding submission to the plaintiff or applicant and, on the request of any other party, to that party.
(4) A document required under subrule (3) to be given to a party shall be mailed in the manner described in subclause 16.01 (4) (b) (i), and is deemed to have been received on the fifth day after it is mailed.
(5) The registrar shall serve a copy of the order by mail on the plaintiff or applicant as soon as possible after the order is made.
(6) Any party to the proceeding may file with the registrar a written request for an order under subrule (1).
(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.
[10] Frivolous and vexatious proceedings can be defined as those lacking a legal basis or legal merit or commenced without reasonable grounds (Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497 (Gao 2) at para. 16). Myers J. summarized the purpose of Rule 2.1 in Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6100:
“6 Rule 2.1 is a statutory response to a significant and longstanding problem. Vexatious proceedings can cause very substantial costs to be incurred by responding parties. They also cause inefficient and inappropriate utilization of court resources. Knights Village Non-Profit Homes Inc. v. Chartier, 2006 37414 (ON SC), [2006] O.J. No. 4436 at para. 16.
7 The Supreme Court of Canada has recognized that ensuring access to justice is the greatest challenge to the rule of law in Canada today. Hryniak v. Mauldin, 2014 SCC 7, at para. 1. The Supreme Court determined that the goal of providing fair and just processes for resolving civil disputes efficiently, affordably and proportionately requires a "culture shift", i.e. new ways of thinking about handling civil matters. Rule 2.1 provides a new approach to managing potentially frivolous and vexatious proceedings.
9 Rule 2.1 is not meant to apply to close calls. It is not a short form of summary judgment. But that does not mean that it is not to be robustly interpreted and applied. Where a proceeding appears on its face to meet the standards of frivolous, vexatious or an abuse of process, the court should be prepared to rigorously enforce the rule to nip the proceeding in the bud. Rigorous enforcement of this rule will not only protect respondents from incurring unrecoverable costs, but should positively contribute to access to justice by freeing up judicial and administrative resources that are so acutely needed to implement the "culture shift" mandated by the Supreme Court of Canada. The new rule tailors appropriate procedural fairness for the category of cases involved and is an example of early resolution of civil cases that is very much in line with the goals set out in Hryniak.”
[11] The Court of Appeal summarized the development of the law under Rule 2.1 in Scaduto v. Law Society of Upper Canada, 2015 ONCA 733:
“7 Rule 2.1 is a relatively new rule that came into force on July 1, 2014. The motion judge has decided a number of cases which have helped to delineate both the procedure and the test to be applied under the rule: see Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6100, 37 C.L.R. (4th) 1 ("Gao No. 1"); Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7 ("Gao No. 2"); Raji v. Border Ladner Gervais LLP, 2015 ONSC 801; and, Covenoho v. Ceridian Canada, 2015 ONSC 2468.
8 Under this line of authority, the court has recognized that 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. However, the use of the 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.
9 We fully endorse that case law and the guidance that has been provided by the motion judge in the interpretation and operation of r. 2.1. This approach is summarized in Raji, at paras. 8-9, as follows:
[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. No evidence is submitted on the motion... [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... This second requirement is not in the rule and is not a fixed requirement. It strikes me as a guideline that reminds the court that there are other rules available for the same subject matter and that resort to the attenuated process in rule 2.1 should be justified in each case.
See also Gao (No. 2), at paras. 11-18; and Covenoho, at paras. 6-7. We also recognize that the case law will develop as the rule becomes more widely utilized.” (Scaduto at paras. 7-9).
[12] Certain factors or signs may assist the court in determining whether an action is a bona fide civil dispute or the product of vexatiousness. These characteristics include rambling discourse characterized by repetition and pedantic failure to clarify, multiple proceedings involving the same issues, inappropriately ingratiating statements, repeated misuse of legal and technical terms and ultimatums (Van Sluytman v. Canada (Department of Justice), 2017 ONSC 481 (“Van Sluytman-Canada”) at para. 6; Van Sluytman v. Orillia Soldiers’ Memorial Hospital, 2017 ONSC 692 (“Orillia”) at paras. 9-11), Van Sluytman-Canada and Orillia aff’d at Van Sluytman v. Orillia Soldiers’ Memorial Hospital, 2018 ONCA 32 (“Van Sluytman Appeal”); Van Sluytman v. Brewster, 2017 ONSC 1957 (“Brewster”) at paras. 9-12; Gao 2 at paras. 15-16; Khan v. Krylov & Co., 2017 ONCA 625 at para. 6).
[13] Grandiose claims, including claims for damages, usually in the millions, and relief that no reasonable person would expect to obtain are further evidence of frivolous and vexatious claims (Van Slutyman-Canada at para. 11; Van Sluytman Appeal at para. 9). Actions that have no possibility of proceeding to a successful conclusion or fail to advance any justiciable cause of action are also a hallmark of frivolous and vexatious proceedings and an abuse of the process of the court (Van Sluytman-Canada at para. 15; Orillia at para. 16; Van Sluytman Appeal at para. 8). It is not uncommon for a vexatious litigant’s case to contain a legitimate complaint and a real issue, however, the problem is often that the litigant either cannot properly communicate the concern or cannot accept that the law may not provide the remedy sought despite the unfairness felt by the litigant (Gao 2 at para. 18).
[14] In Van Sluytman Appeal, the Court of Appeal held:
“8 We do not accept the appellant's contention that the application judges erred in dismissing his actions due to deficiencies in his pleadings. Having considered the appellant's pleadings in the relevant proceedings, we agree with the application judges that they fall far short of meeting the pleadings requirements applicable to all litigants. Further, they fail to advance any justiciable cause of action.
9 Simply put, the proceedings in question are facially frivolous and vexatious. The appellant's pleadings fail to contain any coherent narrative or a concise statement of the material facts in support of the wrongs sought to be alleged. Instead, they contain rambling discourse, impermissible attachments, grandiose complaints of injury and damages claims, and bald assertions that repeat similar, if not identical, allegations detailed in multiple other proceedings commenced by the appellant. On this ground alone, it was open to the application judges to dismiss the appellant's actions under R. 2.1.01(1).
11 We also reject any suggestion that the deficiencies in the appellant's pleadings could be cured by appropriate amendments. The record indicates that, in cases where the court provided the appellant with an opportunity to amend his pleadings in an effort to remedy their clear deficiencies, he failed to do so.”
[15] In Khan, the Court of Appeal highlighted the caution which must be exercised when considering remedies under Rule 2.1.01:
“[7] Justice Myers provided an important caution, at para. 18 of Gao (No. 2): [page583]
It should be borne in mind however, that even a vexatious litigant can have a legitimate complaint. It is not uncommon for there to be a real issue at the heart of a vexatious litigant's case . . . 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.
[11] As distasteful as this allegation might be, it is not entirely implausible. A cautious approach must be taken, as Myers J. noted in Husain v. Craig, [2015] O.J. No. 1300, 2015 ONSC 1754 (S.C.J.), at para. 10, when he asked: "what if the plaintiff's allegations are true"?
[12] Rule 2.1 is an extremely blunt instrument. It is reserved for the clearest of cases, where the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading. Rule 2.1 is not meant to be an easily accessible alternative to a pleadings motion, a motion for summary judgment or a trial.”
[16] In considering this motion, I adopt the standard with respect to self-represented litigants set out by J. DiLuca J. in Orillia and Brewster:
“…I am not holding his statement of claim and motion material to the standard regularly expected with material prepared by counsel. More importantly, I have attempted to read past the bad drafting to assess whether the claim reveals anything that could possibly be a genuine cause of action.” (Orillia at para. 12)
[17] In my view, this is consistent with the Supreme Court of Canada’s endorsement of the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council (Pintea v. Johns, 2017 SCC 23 at para. 4). I am also mindful of the court’s duty to accommodate a self-represented litigant’s unfamiliarity with the litigation process in a reasonable and practical manner to enable them to present their case to the best of their ability subject to the requirement that all litigants must comply with the Rules of Civil Procedure including with respect to the permissible contents of pleadings (Sanzone v. Schechter, 2016 ONCA 566 at paras. 35 and 37; Van Sluytman Appeal at para. 10).
[18] For the reasons that follow, I conclude that, on its face, the Third Claim demonstrates characteristics of a frivolous and vexatious claim which supports the Defendants’ request for relief under Rule 2.1.01.
Multiple Proceedings
[19] The Plaintiff has commenced three separate actions arising from the same incidents and allegations involving substantially the same disputed issues. The First Action was ready to proceed to trial pending payment of the Costs Order. The Plaintiff did not pay the Costs Order then commenced the Second Action against Ms. Anderson 2 years later. Approximately 4 months later, the Plaintiff commenced this third action arising out of the same facts and involving the same issues as the first two actions, naming MC and Ms. Anderson and 11 additional Defendants including 10 new Individual Defendants and “Security and Emergency Management”.
[20] The Plaintiff claims in his submissions that the First Action and the Second Action “have been cancelled, so the case in superior court has no link and overlapped to the cases in small claims court”. The Plaintiff has not provided any documentation confirming that the First Action and the Second Action have been discontinued or dismissed or that he has paid the Costs Order.
Unreasonable and Excessive Damages Claim
[21] The Plaintiff claims $100,000,000 in damages in the Third Claim. On any assessment, this is excessive and beyond reasonable expectations. By contrast, the Plaintiff claimed a combined total of $60,000 in the First Action and the Second Action increasing his claim by over $99,900,000 in the present action. Though he claims $100,000,000, the Plaintiff particularizes his losses in the Third Claim as $15,310.86 for tuition; $5,400 for rent; $140 for applications to other colleges; and $150,000 for 3 years of lost paralegal wages.
Overstatement, Grandiose Claims, Hyperbole and Ultimatums
[22] The Third Claim is largely a rambling dialogue of overstatement, grandiose claims, hyperbole and ultimatums which runs on for 33 paragraphs until it begins to set out the facts underlying the Plaintiff’s claim and the prayer for relief over the remaining 22 paragraphs. The following is a sample of the many assertions made by the Plaintiff:
i.) “The defendants are humiliating the law and justice of our whole society, and they are making the public consider that law and justice are cheaper than a bauble on a Christmas tree.” (para. 1);
ii.) “The defendants are standing there, staring at you. What do you think the defendants are going to do next? They look dismissive and disdainful, saying: We can do everything we want, frame up others, ruin others’ dignity and lives, break the law, and before you know it clearly, we will have destroyed more innocent people and made our profits more and more, gain more money can be used wastefully, more power can be abused to frame up others and higher social status to look down to others, and then you’ll hear us laughing and laughing while you’re still reading the laborious papers and the plaintiff is suffering more from the damages” (para. 2);
iii.) “…Maybe if anyone else who is weaker than me would have already cried for justice in their graves” (para. 9);
iv.) “The evidence clearly showed the defendants also intentionally and maliciously sacrificed my whole life (the plaintiff) and my future to gain their own selfish, endless benefits, greedy interests, more power, and vanity.” (para. 24).
[23] This pattern continues in the Plaintiff’s submissions on this motion. Among other things, he characterizes the defendants as “extremely outrageous and villainous”; alleges they have committed “vicious and outrageous deeds”, “malicious and shameless deeds” and “one of the most vicious injuries against a poor and weak plaintiff in human beings’ history”. The Plaintiff also submits that if his claim is dismissed “all of the arrogant defendants are laughing at the court system and court staffs and the defendants are getting bolder to fool and destroy the dignity and the justice of the court” and “Canada will be an autocratic country, and all law and law people and laypeople will be the victims that are injured by the malicious defendants”.
No Claims Pleaded Against Individual Defendants and Security and Emergency Management
[24] The Plaintiff has named the 11 Individual Defendants in the style of cause, however, there are no references to them in the Third Claim. Their names do not appear and there are no facts, particulars or specifics as to the allegations against them. Only MC is referred to individually.
[25] Similar to the Individual Defendants, the Plaintiff has named “Security and Emergency Management” in the style of cause without any reference, particulars or explanation as to the nature of this entity in the body of the claim or the allegations against it. It appears that it may not be a proper party.
IV. Disposition and Costs
[26] Having considered all of the relevant factors and circumstances, I am satisfied that the frivolous and vexatious nature of the Third Claim is apparent on its face and these are circumstances which call for resort to the procedure in Rule 2.1.01. However, I have also concluded that different remedies should result.
[27] In my view, it is appropriate in the circumstances to dismiss this action as against the Individual Defendants and “Security and Emergency Management”. The Plaintiff has simply added their names to an overstated and hyperbolic claim for $100,000,000 in damages without any reference to them individually, factual basis, explanation or particulars in the body of the Third Claim. These Defendants have no notice of the allegations and claims being advanced against them or the cases they must meet. Dismissing the Plaintiff’s claims against these Defendants where no attempt has been made to articulate proper claims is appropriate and consistent with the purpose of Rule 2.1.01.
[28] MC is in a different position than the other Defendants. Starting at paragraph 34 of the Third Claim, the Plaintiff has set out the bare, albeit insufficient, basics of a claim against MC, the institution where the alleged cause of action arose and the only Defendant specifically mentioned in the body of the Third Claim. This does not change my conclusions above that there are many characteristics of a frivolous and vexatious claim and that relief under Rule 2.1.01 is justified. However, there is a core complaint about the discipline imposed by MC which has not been properly articulated. In this context, I am not prepared to exercise the court’s discretion to dismiss the Plaintiff’s claim against MC without first providing him with a limited opportunity to amend his claim to address the significant issues set out above. While Rule 2.1.01 should be applied robustly, it is a blunt tool and caution must be exercised while according allowances for drafting deficiencies particularly to a self-represented litigant. In my view, the Plaintiff is entitled to a limited indulgence on terms to amend his Statement of Claim.
[29] Accordingly, it is reasonable and appropriate in the circumstances and consistent with Rule 2.1.01 and the case law that the action as against MC remain stayed on terms. The Plaintiff shall have 120 days to deliver an Amended Third Claim and to bring a motion to lift the stay, if he chooses to do so. Given that the Plaintiff indicates that he is not pursuing the First Action and the Second Action, the Plaintiff shall also ensure that these claims are discontinued or dismissed and pay the outstanding Costs Award, also within 120 days.
[30] Order to go as follows:
i.) this action is dismissed as against the Individual Defendants and “Security and Emergency Management”;
ii.) this action shall remain stayed as against MC subject to further order of the court;
iii.) the Plaintiff may bring a motion to lift the stay on condition that he delivers an Amended Statement of Claim, pays the Costs Order, discontinues or dismisses the First Action and the Second Action and brings the motion all within 120 days.
[31] If the parties cannot agree on the costs of this motion, they may file written costs submissions not to exceed 3 pages (excluding Costs Outlines) with me through the Hamilton Trial Co-Ordinator. The Defendants shall serve and file any costs submissions within 30 days and the Plaintiff any responding submissions within 90 days.
Released: February 8, 2022
Associate Justice McGraw