Court File and Parties

COURT FILE NO.: CV24-1421 DATE: 09/09/24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CANADIAN HOME IMPROVEMENT CREDIT CORPORATION, Plaintiff AND: JOSE RODRIGUES AND SUSAN RODRIGUES, Defendants

BEFORE: Justice A. K. Mitchell, Local Administrative Judge - London

COUNSEL: C. Murphy, for the plaintiff M. Gobin, for the defendants

HEARD: In writing.

Endorsement

[1] This matter comes before me on an ex parte basis. By requisition and correspondence dated June 23, 2024, the defendants requisitioned/requested (via lengthy written submissions) that the court, pursuant to its authority under Rule 2.1.01(1), dismiss this action on the basis the proceeding appears, on its face, frivolous or vexatious or otherwise an abuse of the process of the court. Specifically, the defendants submit the plaintiff’s claim is statute-barred.

[2] Pursuant to the process prescribed by subrule 2.1.01(3)1. and on my direction, the Registrar gave notice to the plaintiff in Form 2.1A dated June 28, 2024 advising that the court was considering making an order under rule 2.1.01 dismissing the action (the “Notice”).

[3] The plaintiff was invited to file written submissions within fifteen (15) days of the date of the Notice. The plaintiff did not file submissions or a response of any kind to the Notice.

[4] Out of an abundance of caution, by endorsement dated August 19, 2024, I directed the registrar to send a copy of the defendants’ requisition and correspondence dated June 23, 2024 together with fresh notice in Form 2.1A to the plaintiff with a copy to their counsel of record as noted in the Statement of Claim.

[5] On August 20, 2024, the registrar sent further notice and the originating documents as required. Once again, neither the plaintiff nor their counsel of record filed submissions or a response of any kind.

[6] Rule 2.1 is limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and where there is a basis in the pleadings to support resorting to the summary process mandated by Rule 2.1: Scaduto v. Law Society of Upper Canada, 2015 ONCA 733 at para. 8.

[7] The Rule 2.1 process does not permit the court to assess the merits of the claims/allegations of the plaintiff. Rather, the process under rule 2.1 permits only a review of the pleading in the context of the submissions received from the parties, if any.

[8] In this action, the plaintiff sues the defendants for damages for breach of contract totaling $19,909.62. The statement of claim was issued April 26, 2024. The history of the parties’ dealings as pleaded is brief:

(a) On January 20, 2019, the defendants executed a lease agreement with the plaintiff for the installation of a furnace and filter in the defendants’ home; (b) Lease payments in the amount of $189.99 monthly were due on the 15th day of each month; (c) The lease term was 10 years; (d) In the event of default, interest accrued on the unpaid lease payments at the rate of 34.489% per annum; (e) The equipment was delivered and installed on February 12, 2019; (f) On February 13, 2019 a notice of security interest was registered against title to the property on which the equipment was installed; and (g) On March 15, 2020, the defendants defaulted in payment of the monthly lease amount.

[9] On a plain reading of the pleading, no ambiguity arises as to the date the plaintiff discovered its claim (i.e., the date the cause of action arose). The plaintiff discovered their loss/claim on March 15, 2020 when the defendants failed to make payment of the monthly lease payment. This date is expressly pleaded in paragraph 13 of the Statement of Claim.

[10] On its face, this claim was commenced far beyond the applicable (2 year) limitation period and is, therefore, barred by s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24 Sched. B. Being statute-barred, this action has no chance of success and falls within the rubric of cases appropriately dealt with under r. 2.1.01 as being frivolous, vexatious and/or an abuse of process: See Van Sluytman v. Brewster, 2017 ONSC 1957; Van Sluytman v. Orillia Soldiers’ Memorial Hospital, 2017 ONSC 692; Gallion v. Ontario Mortgage Corporation, 2015 ONSC 5320; Lin v. Griether et al., 2015 ONSC 1541; and Hicks v. Goodlife Fitness Centres Inc., 2018 ONSC 3858.

[11] Action dismissed.

“Justice A.K. Mitchell” Justice A. K. Mitchell Date: September 9, 2024