Court File and Parties

Court File No.: CV-24-00732161-0000
Date: April 3, 2025
Court: Superior Court of Justice - Ontario

Plaintiff: Zhimin Qian
Defendants: Rafiah Qazi, Shehryar Khurshid, and Dixon Commercial Investigators (1982) Inc.

Before: Merritt J.

Counsel:

• Zhimin Qian, on his own behalf
• Dixon Commercial Investigators (1982) Inc., on its own behalf
• Marty Gobin, Counsel for the Defendants Rafiah Qazi and Shehryar Khurshid

Read: April 3, 2025

Endorsement

Overview

[1] The Defendants Rafiah Qazi and Shehryar Khurshid (the “Requesting Defendants”) request a stay or dismissal under r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 because the action is frivolous, vexatious or an abuse of the process of the court.

[2] In my endorsement dated January 10, 2025, I directed the registrar to give notice to the parties that the proceeding may be stayed or dismissed and called upon the parties to make written submissions.

[3] The parties made written submissions which I have reviewed.

Decision

[4] The Plaintiff’s action against the Requesting Defendants is dismissed because, on its face, it is an abuse of the court’s process. It is a collateral attack on the Oshawa Small Claims Court proceeding.

Background Facts

[5] The Plaintiff filed an order of the Landlord and Tenant Board (“LTB Order”) for enforcement in the Oshawa Small Claims Court against the Requesting Defendants.

[6] The Requesting Defendants brought a motion in the Oshawa Small Claims Court for an order to “terminate garnishment” and other relief. Ms. Qazi’s affidavit filed in support of the motion alleges that the Plaintiff gave authority to a collection agency, Dixon Commercial Investigators (1982) Inc. (“Dixon”), to resolve the debt arising from the LTB Order and that a settlement was reached and satisfied. The Requesting Defendants sought “enforcement of the settlement…entered into on behalf of Mr. Qian” and a finding that the settlement was satisfied, and termination of all enforcement proceedings.

[7] On October 3, 2024, O’Connor J. ordered those proceedings adjourned sine die to allow the Requesting Defendants to bring a motion contesting the alleged debt (the “Motion”).

[8] On November 2, 2024, the Plaintiff filed responding materials in relation to the Motion. In those responding materials, the Plaintiff denied that there had been any valid settlement entered into between the Requesting Defendants and the Plaintiff.

[9] On November 28, 2024, the Plaintiff issued the Statement of Claim in this action seeking, as against the Requesting Defendants, a declaration that the same alleged settlement agreement that is the subject of the Motion is not enforceable.

[10] The Motion was heard on February 25, 2025, in the Oshawa Small Claims Court.

Positions of the Parties

[11] The Requesting Defendants say the Plaintiff’s claim in this action was a pre-emptive collateral attack on the Motion.

[12] The Plaintiff says that action has different parties than those under the Oshawa Small Claims Court proceeding and contains different causes of action.

[13] In his submissions, the Plaintiff suggests that he has asked the Requesting Defendants to consent to a discontinuance of the action against them. The Requesting Defendants do not agree to a discontinuance. Rather, they seek a stay or dismissal so as to ensure that the Plaintiff cannot simply bring a new proceeding for the same relief against the Requesting Defendants in the future.

The Issue

[14] The issue is whether the proceeding should be dismissed under r. 2.1.01(1).

Analysis

Rule 2.1

[15] Rule 2.1.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, allows the court to dismiss a proceeding if it is frivolous, vexatious or an abuse of process.

[16] A stay or dismissal may be granted if any one of the adjectives found in the rule applies. More than one may be found, but any one is sufficient to dismiss the action: Khan v. Law Society of Ontario, 2019 ONSC 4974, para 3; Khan v. Law Society of Ontario, 2020 ONCA 320 appeal allowed in part (“Khan OCA”).

[17] The rule is not for close calls and should be limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading: Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, para 8.

[18] A motion under r. 2.1 focuses on the pleadings and any submissions by the parties under the rule. No evidence is submitted on a r. 2.1 motion: Scaduto at paras. 9 and 11012.

[19] I may take judicial notice of the motion record, endorsement and reasons for judgment in the Oshawa Small Claims Court file for the following reasons.

[20] The court may review reasons and pleadings from other proceedings to determine whether an action is abusive: Khan OCA at para 9. The court may also review its own records and take notice of their contents: R. v. Hunt, [1986] O.J. No. 1210 (C.A.), para 9.

[21] The Small Claims Court is a branch of the Superior Court of Justice: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 22(1).

Collateral Attack

[22] In his decision on the Motion, Deputy Judge S. O’Connor held that:

1. The Settlement Agreement entered into September 24, 2025, is an enforceable contract.
2. The Settlement Agreement is binding against Qian and Rafiah Qazi and Shehryar Khurshid (the “Defendants”).
3. Any enforcement proceedings as against the Defendants are to be stayed and set aside.
4. No further enforcement of the LTB Order is permitted.
5. Any overpayment made into Court standing to the credit of this action on the enforcement measures initiated by Qian are to be returned to the Defendants.
6. This is without prejudice to any steps Qian may take against Pacific Rim Group.

[23] In the present action, as against the Requesting Defendants, the Plaintiff seeks:

1. A declaration that there is no settlement agreement or release in respect of, and subsequent to, the Landlord and Tenant Board Order, bearing file number LTB-L-024772-23, dated August 14, 2023;
2. In the alternative, a declaration that such settlement agreement is not enforceable, and the release is not legally binding; and,
3. Costs.

[24] The doctrine of abuse of process may prevent re-litigation of issues previously decided and is used to enhance the integrity of the adjudicative process, prevent the waste of judicial resources and inconsistent results and achieve finality: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, para 51.

[25] In Power Tax v. Millar, DioGuardi, 2013 ONSC 13510, Goldstein J. found that a pre-emptive collateral attack was an abuse of process where there was no reason to bring the second proceeding other than as a response to the first and the action unfairly forced the defendant to fight a “two-front war”: at para. 26.

[26] In the present case, there was no reason for the Plaintiff to seek declaratory relief against the Requesting Defendants other than as a response to the Motion.

[27] Allowing this action to proceed would amount to forcing the Requesting Defendants to fight a two-front war and would approve an end-run around the Oshawa Small Claims Court process.

[28] The Plaintiff’s request for declaratory relief is, on its face, an abuse of process. Specifically, at the time this action was commenced it was an impermissible pre-emptive collateral attack on a potential order of the Oshawa Small Claims Court on the very same issue.

[29] The Oshawa Small Claims Court has now decided the Motion.

[30] There is no evidence that the Oshawa Small Claims Court proceeding was tainted by fraud or dishonesty, there is no submission that there is fresh, new evidence previously unavailable and no reason why the decision of the Oshawa Small Claims Court should not be binding: C.U.P.E. at para. 53.

[31] The Plaintiff submits that the action should not be dismissed because this action and the Oshawa Small Claims Court proceeding involve different parties. Dixon is a party in the present action but is not a party in the Oshawa Small Claims Court proceeding. As a result, there is also a cause of action (that against Dixon) not present in the Oshawa Small Claims Court proceeding, which is an enforcement proceeding.

[32] The court may stay or dismiss a proceeding under r. 2.1 against some but not all defendants: see Khan, Granville De Caries v. State Farm et al., 2024 ONSC 2676; Classic POS Inc. v. Parkdale Community Legal Services, 2021 ONSC 4487; Greenland v. United Steelworkers et al., 2021 ONSC 6702.

[33] When this action was commenced it was a pre-emptive collateral attack on the Oshawa Small Claims Court proceeding. Now that the Oshawa Small Claims Court has issued a decision, this action is an abuse of process because it is a collateral attack on that decision.

The Action Against Dixon

[34] Aside from the declaratory relief sought against the Requesting Defendants, the remainder of the Plaintiff’s claim is for damages against Dixon in the amount of $3,938.61, which amount is within the jurisdiction of the Oshawa Small Claims Court.

[35] The Plaintiff alleges in his written submissions that, after receiving notice of the summary r. 2.1 process, the Plaintiff discontinued his action against Dixon. He alleges that Dixon entered into a settlement agreement with him permitting him to do so.

[36] The Plaintiff did not file any evidence to support his allegation that the action against Dixon was settled and there is no Notice of Discontinuance in the court file. In any event, it would have been improper for the Plaintiff to discontinue the action against Dixon given that r. 2.1.01(7) provides: “Once the registrar gives notice to the parties…no party may take any step in the proceeding other than the steps in this rule, unless the court orders otherwise.” My endorsement of January 10, 2025 specifically refers to this rule.

[37] Now that the action against the Requesting Defendants is dismissed, the Plaintiff may discontinue the action against Dixon if he chooses to do so.

Merritt J.
Date: April 3, 2025