Court File and Parties

Court File No.: CV-23-00701416-0000 Date: 20240913 Superior Court of Justice - Ontario

Re: Haytham El Zayat And: Region of York (ON), CMHA (Canada Mental health association)

Before: J.T. Akbarali J.

Counsel: Haytham El Zayat, in person Hilary Chung, for the defendant Canadian Mental Health Association York Region Branch (improperly identified in the claim as CMHA (Canada Mental Health Association) No one appearing, for the defendant Region of York (ON)

Heard: In writing

Endorsement

[1] The defendant, Canadian Mental Health Association, York Region Branch (improperly identified as CMHA (Canadian Mental Health Association), has written to the court to request that the court dismiss this action under r. 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that it appears on its face to be frivolous, vexatious, and an abuse of process.

[2] In Khan v. Law Society of Ontario, 2020 ONCA 320, at paras. 6-7, the Court of Appeal cautioned that the use of r. 2.1 is restricted to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading. Rule 2.1 is not intended to replace other rules by which actions can be struck out, or other procedural irregularities dealt with, summarily, such as motions to dismiss an action for failure to disclose a cause of action.

[3] In Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, at para. 9, the court held that r. 2.1 is not for close calls. At the same time, the rule must be applied robustly so a motion judge can exercise her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process: Scaduto, at para. 8.

[4] The plaintiff’s pleading is brief, and the facts pleaded in it are scant. He alleges that he has been experiencing homeless since 2017. He alleges that he has been treated in a discriminatory fashion by the defendants and appears to relate the alleged discrimination to mental health challenges he is facing.

[5] He alleges breach of housing contracts, although it is not clear what contracts he is referring to. He alleges breaches of rules and regulations, but he does not identify which ones. He claims to have been treated in bad faith by the Canadian Mental Health Association, York Region Branch, and alleges that he suffered damages as a result. He also alleges that his personal information was shared by the defendants for an improper purpose.

[6] The plaintiff is self-represented. It is apparent from the pleading that he is experiencing homeless and perhaps mental illness. Those factors may make it difficult for him to express himself in a pleading in the manner in which a lawyer would be expected to do so.

[7] However, reading the pleading generously, it appears to me that the plaintiff is alleging causes of action in breach of contract and privacy torts. He may also be alleging negligence. It appears he is alleging discrimination.

[8] There may be problems with some or all of these causes of action, but this pleading does not fall into the category of a claim that is clearly frivolous, vexatious, or otherwise an abuse of process on its face. As a result, I decline to dismiss the proceeding on the basis of r. 2.1.

[9] I do so without prejudice to the defendants’ right to move to dismiss the action on another basis, for example, under r. 21, 20, or 25.11 with a more complete record.

J.T. Akbarali J. Date: September 13, 2024