Offices in Ottawa and Perth
(613) 722-1500

CONTACT US (613) 722-1500

Frivolous, Vexatious or Abusive Claims: The Ontario Court of Appeal Addresses Notice Requirements Under Rule 2.1.01 of the Rules of Civil Procedure

Frivolous, Vexatious or Abusive Claims: The Ontario Court of Appeal Addresses Notice Requirements Under Rule 2.1.01 of the Rules of Civil Procedure

Mann Lawyers

Posted January 24, 2019

The Ontario Rules of Civil Procedure provide a mechanism for addressing occasions where a litigant advances a claim that is frivolous, vexatious or otherwise an abuse of process.  Pursuant to Rule 2.1.01(1), “the court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of process of the court.”

In the case of Van Sluytman v Muskoka (District Municipality) (Van Sluytman v Muskoka (District Municipality), 2018 ONCA 32), the Ontario Court of Appeal addressed eight appeals. Seven of the appeals related to orders dismissing actions brought by the appellant, Mr. Van Sluytman, on the basis that the actions were frivolous or vexatious, pursuant to Rule 2.1.01(1).  The eighth was an appeal of an order declaring Mr. Van Sluytman a vexatious litigant.

One of the grounds for appeal asserted by the appellant was that the application judge erred in dismissing his actions in light of the absence of any notice as required by Rule 2.1.01(3).  Rule 2.1.01(3) sets out the procedure by which the court may make a determination under Rule 2.1.01(1). Rule 2.1.01(3) requires that, unless the court orders otherwise, the court shall direct the registrar to give notice that the court is considering making the order under Rule 2.1.01(1). The plaintiff or applicant may file a written submission to the court within 15 days after receiving the notice.

The court ultimately dismissed the appeal. While acknowledging that it was “not entirely clear that notice was given in all seven actions” the court found that the notice requirement under Rule 2.1.01(3) was satisfied on the basis that the actions were being managed together and that “notice was directed to be given and was given in at least some of the actions.” Further, the appellant appeared in person and provided written submissions. The court went on to note that “even if the appellant did not receive notice under R. 2.1.01 to make submissions, no prejudice or injustice arose as the outcome would be unaffected. It is apparent on the face of each statement of claim that the actions are frivolous and vexatious and an abuse of process.”

The court’s decision is interesting because it recognizes that the notice requirement in Rule 2.1.01(3) can be dispensed with if a claim is so clearly frivolous and vexatious that there is no argument available to the plaintiff that could persuade the court not to dismiss the action.  Was that the court’s intention? Is it now open for a requesting party to seek the application of Rule 2.1.01 on an ex parte basis in the clearest of cases? Perhaps yes, as the Rule itself anticipates instances where the court may determine it appropriate to dispense with the procedure set out in Rule 2.1.01(3) (“unless the court orders otherwise…”).  Ultimately, time will tell as this relatively new Rule continues to be applied.

Shauna Cant is a member of the Commercial Litigation team. She can be reached at 613-369-0359 or at shauna.cant@mannlawyers.com.

 

More Resources

Blog |
Family Law

By: 

Posted January 26, 2023

You have made the decision to separate from your partner. Now what? You have a house, a pension, maybe you have children, debts, and an[...]
Blog |
Environmental Law

By: 

Posted January 24, 2023

The Ontario government has moved ahead with changes to the Ontario Wetland Evaluation System in support of Bill 23, More Homes Built Faster Act, 2022. [...]
Blog |
Employment, Labour, and Human Rights

By: 

Posted January 17, 2023

While each of these cases could have its own blog post, we have decided to create a list of important cases for employers to be[...]
Blog |
Employment, Labour, and Human Rights

By: 

Posted January 10, 2023

Constructive Dismissal is an incredibly important protection for Ontario employees – one that is often used successfully to enforce employment rights. If you ask members[...]
Blog |
Estate Litigation, Wills, Trusts and Estates

By: 

Posted January 4, 2023

Executing powers of attorney is an important component of estate planning and allows individuals to decide who will manage their affairs should they become incapable[...]
Blog |
Estate Litigation, Wills, Trusts and Estates

By: 

Posted December 20, 2022

Acting as an estate trustee can be a burdensome task, and it can become particularly difficult in circumstances where beneficiaries cannot be so easily found[...]

Subscribe to Our Newsletter

"*" indicates required fields

Name*
Consent*
This field is for validation purposes and should be left unchanged.