Court File and Parties
CITATION: Ye v. Zhang et al., 2024 ONSC 2646 NEWMARKET COURT FILE NO.: CV-22-2029-00 DATE: 20240507
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
XIAO HONG YE Plaintiff – and – CLYDE ZHANG and CITY OF VAUGHAN Defendants
Counsel: Self-Represented (for Xiao Hong Ye) Shane Marston for the Defendant, Clyde Zhang Roderick Winsor for the Defendant, City of Vaughan
Heard: April 30, 2024 In Writing
Ruling on Rule 2.1.01(6) of the Rules of Civil Procedure
Sutherland J.:
Introduction
[1] By letter, the Defendant, Clyde Zhang (“Zhang”) requested per Rule 2.1.01(6) of the Rules of Civil Procedure (the “Rules”) an order dismissing the proceeding “as it appears on its face to be frivolous, vexatious or otherwise an abuse of process.”
[2] On January 15, 2024, pursuant to Rule 2.2.01(3)(1), I directed the registrar to provide notice to the parties that the Court is considering granting the relief requested and that written submissions may be provided.
[3] I have received written submissions from the Defendants and the Plaintiff.
[4] For the following reasons, I do not grant the relief requested by the Defendants.
The Statement of Claim and Amended Statement of Claim
[5] The Plaintiff issued his Statement of Claim on June 27, 2022, and was amended on December 21, 2022 (the “Claim”).
[6] Both Defendants filed their Statement of Defences.
[7] The Claim is for relief from “ongoing nuisance generated from the outdoor side discharge condenser unit owned by” Zhang. The Claim requests general and punitive damages along with special damages and costs plus injunctive relief for the cease of operation of the condenser or a mandamus order to demolish the condenser. Against the City of Vaughan, the Plaintiff claims general and aggravated damages due to staff’s misrepresentation of various by-laws, failure to inspect and breach of standard of care. In the Claim, the Plaintiff claims that Zhang purchased the home in 2018 with the condenser in the present location after a “huge renovation inside and outside in 2017.”
[8] The Defendants argue that the Claim is frivolous, vexatious and an abuse of process. The City of Vaughan argues that the Claim is statute barred and the duty of cared owed lies “narrower than any duty Zhang may have.” Further, the City of Vaughan investigated the numerous complaints of the Plaintiff and found them not worthy of any action by the City. The City of Vaughan suggests that it advised the Plaintiff to conduct a noise test and to date the Plaintiff has failed to do so.
[9] Zhang argues on its face the Amended Statement of Claim is frivolous and has no chance of success. The pleading is “patently non-justiciable.” Paragraphs of the Claim devolves into odd and irrelevant discourse. The Claim are claims for judicial review and violations of the Canadian Charter of Rights and Freedom.
Legal Principles
[10] In Visic v. Elia Associates Professions Corporation, 2020 ONCA 690 the Ontario Court of Appeal enunciated, at paragraph 8, principles that govern r. 2.1. The Court stated:
[8] The following principles govern the application of r. 2.1:
Rule 2.1 must 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. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488. The Rule is not for close calls — it may be used only in “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. 8-9; Khan v. Law Society of Ontario, 2020 ONCA 320 (“Khan”), at para. 6, leave to appeal to S.C.C. requested, 39321.
A motion under r. 2.1 focuses on the pleadings and any submissions of the parties made under the rule. No evidence is submitted on a r. 2.1 motion: Scaduto, at paras. 9, 11-12. A court may, however, review reasons and pleadings from other proceedings to determine whether the case is abusive: Khan, at para. 9.
Rule 2.1 does not replace other rules in the Rules of Civil Procedure to strike out actions or to deal with other procedural irregularities summarily: Khan, at para. 7. The rule is “not meant to be an easily accessible alternative to a pleadings motion, a motion for summary judgment, or a trial”: Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 12; P.Y. v. Catholic Children’s Aid Society of Toronto, 2020 ONCA 98, at para. 11. The Rules provide many other remedies to address cases that are not clear on the face of the pleading: Khan, at para. 15.
[11] Further in Alexander v. Longo Brothers Fruit Market Inc., 2019 ONSC 7399 aff’d 2020 ONCA 590 at paragraph 3, Justice Sanfilippo reviewed the pertinent case law and described frivolous, vexatious and abuse of process as:
(e) A “frivolous” action is a proceeding that lacks a legal basis or legal merit: Currie v. Halton Regional Police Services Board, at para. 14.
(f) A “vexatious” action is a proceeding that was instituted without reasonable ground: Currie, at para. 15, relying on Foy v. Foy (No. 2) (1979), 26 O.R. (2d) 220, at p. 226 (C.A.); or brought where it is obvious that the action cannot succeed; or brought for an improper purpose, including through duplicative proceedings: Currie, at para. 11.
(g) A proceeding is an abuse of process when it is inconsistent with the objectives of public policy: Currie, at paras. 16, relying on Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), rev’d on other grounds 2002 SCC 63, 3 SCR 307, at para. 31. “The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute”: Canam Enterprises (C.A.), at para. 55.
[12] Accordingly, it is for this Court to carefully review the Claim and submissions of the Plaintiff and the Defendants. The Court then is to determine if this is one of those cases where it is clear that the Claim is vexatious, frivolous or an abuse of process and that the request is not being used as a pathway to dismiss an action where the motion should be a pleadings motion or a motion for summary judgment.
Analysis
[13] Interpreting the rule robustly, I find that there is a possible action put forth by the Plaintiff against the Defendants. The Plaintiff clearly indicates her claim is that the City of Vaughan has refused to enforce the by-laws cited, acted negligently or acted in breach of a duty of care owed. The Plaintiff further alleges that the location of the condenser violates by-laws and the enjoyment of the Plaintiff of her property. It should be noted that the condenser in question is not the same condenser or location at the time the Plaintiff and Zhang’s home were constructed. It was part of a renovation in 2017.
[14] Though I agree with the Defendants that much of the Claim’s narrative with paragraphs on their face could be struck but that is not the purpose of this request made. This is a request to have the entirety of the Claim dismissed.
[15] Moreover, there may be a limitation issue or that there may not be any duty of care owed by the City of Vaughan but again that is not the purpose of this request. The Defendants have other remedies available to them to ascertain if there is a legitimate claim against them or whether the claim is statutorily barred.
[16] Thus, this Court cannot conclude that the action of the Plaintiff is one of “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.”
[17] On the Claim itself, the Plaintiff maybe able to prove with evidence, be it with an expert opinion or otherwise, that the condenser is in violation of a by-law, violates her peaceful enjoyment of her property or that a duty of care is owed to her by the City of Vaughan and the City has breached that duty of care.
[18] I suggest that the Plaintiff obtain legal advice and assistance in the prosecution of her action.
[19] Accordingly, I refuse to grant the relief requested by the Defendants.
Justice P.W. Sutherland
Released: May 7, 2024