COURT FILE NO.: CV-23-5761 DATE: 20240531 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Aynoush Biniaz-Sarabi, Plaintiffs AND: Himelfarb Proszanski Personal Injury Lawyers et al. , Defendants
BEFORE: The Hon. Justice S.E. Fraser
COUNSEL: A. Biniaz-Sarabi, Self-Represented K. Springstead, Counsel for the Defendant, Himelfarb Proszanski (incorrectly named as Himelfarb Proszanski Personal Injury Lawyers)
HEARD: In Writing
Endorsement
I. Nature of the Motion
[1] The Defendant requested an Order that this action be dismissed under Rule 2.1.01 on the basis that on its face it is frivolous, vexatious and an abuse of process.
[2] On January 12, 2024, I ordered that the matter would be determined on the basis of written submissions and directed that the Registrar give notice that the Court was considering making an order and setting out a timeline and directions for submissions.
[3] The Plaintiff made submissions and the Defendant responded to those submissions. The matter was placed before me again on May 17, 2024.
II. Rule 2.1.01
[4] Under Rule 2.1.01, I may stay or dismiss a proceeding if on its face it appears to be frivolous or otherwise an abuse of the process of the Court. In Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, the Court of Appeal for Ontario, fully endorsed Justice Myers’ approach to the Rule which he set out in Gao v. Ontario WSIB, 2014 ONSC 6100 at para. 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.
[5] The frivolous and vexatious nature must be clear from the proceeding.
[6] In Gao v. Ontario WSIB, 2014 ONSC 6497 (Gao #2), this Court reviewed the meaning and attributes of a frivolous and vexatious claim under s. 140 of the Courts of Justice Act and found those attributes to be applicable under Rule 2.1.01. These would include bringing multiple proceedings, rolling forward grounds from prior proceedings to repeat and supplement them, and bringing proceedings where no reasonable person would expect to obtain the relief sought.
III. Positions of the Parties
[7] The Defendant states that the frivolous and vexatious nature of the proceeding is clear. In support, it points to the fact that the claim references numerous allegations against unnamed parties including an insurance company, another lawyer and various healthcare professionals.
[8] The Defendant also argues that the bulk of the claim relates to claims for accident benefits which are decided at the License Appeal Tribunal and outside of the Court’s jurisdiction. Finally, the Defendant points to five other proceedings brought by the Plaintiff including another action involving the Defendant.
[9] The Plaintiff’s submissions focus on the injuries that she sustained because of a motor vehicle accident, that she was unable to care for her child and that she has been deprived of accident benefits, social care and social assistance that she required following the accident.
IV. Analysis
[10] The Statement of Claim names as a defendant the Defendant and “others”. The claim alleges misconduct on the part of others against whom she has commenced proceedings including Gore Insurance and health care practitioners. The heart of the claim centres around the denial of accident benefits, a claim for which was denied by the LAT. A subsequent request for reconsideration was also denied and the Divisional Court dismissed an appeal of the Adjudicator’s decision on September 25, 2023.
[11] The Defendant claims that the Plaintiff has now commenced seven different causes of action, litigating the same cause of action, including Court File No.: CV-23-00005710-0000, commenced in Newmarket on December 6, 2023, against the Defendant “and others”. The other actions also reference to the Defendant’s conduct although he is not a party.
[12] The Plaintiff seeks damages in the amount of $10 million for losses that she and her child have allegedly suffered due to the Defendants’ (plural) negligence. It is not clear what she alleges that the negligence is. On the face of the claim, the Defendant Himelfarb informed her that he would not bring a tort claim because she was at fault. On the face of the pleadings, he declined that retainer informing her that she was at fault in the motor vehicle accident. He also declined to take legal action against health care providers.
[13] After a robust review of the claim, I am able to conclude that the action is frivolous, vexatious and an abuse of the Court’s process for the following reasons.
[14] First, the Statement of Claim does not provide any basis for liability against the Defendant. While there are many complaints, they do not in my view give rise to a cause of action, even generously interpreted.
[15] Next, the complaints substantially relate to the lack of success before the LAT and, for that reason, they seem to be a collateral attack on that decision which is impermissible.
[16] Last, the Plaintiff has commenced seven actions. One of those actions is the Newmarket action Aynoush Biniaz-sarabi v. Himelfarb Prozansky’s Personal Injury Lawyers and others, Court File No. CV-23-0005710-000, referenced above, commenced they day before this action.
[17] In considering the argument that the Plaintiff is litigating the same cause of action, I asked that the court staff provide me with a copy of the CV-23-0005710-000 claim as the parties were the same and it was alleged to the be same. The pleading is a matter of public record. That claim is virtually identical. This statement of claim contains one additional paragraph at paragraph 7. Paragraph 7 contains no allegations against the defendant. In all other respects, this Statement of Claim appears to be virtually identical to Aynoush Biniaz-sarabi v. Himelfarb Prozansky’s Personal Injury Lawyers, Court File No. CV-23-0005710-000.
[18] In my view, this claim is an abuse of the process of the Court as it is a virtually identical claim to that commenced one day before. That is not permissible.
[19] For these reasons, I find that this claim is frivolous, vexatious and represents of an abuse of the process of the court such that it should be dismissed under Rule 2.1.01.
V. Conclusion
[20] This action is dismissed without costs under Rule 2.1.01.
Justice S.E. Fraser Date: May 31, 2024