Dealing with those nuisance claims

Dealing with those nuisance claims
We’ve all had them. The claim that lands on your desk and, from the very first read through, promises to live up to its colloquial name: a nuisance.

I recently dealt with one that had me laughing aloud in my office, so ridiculous was the claim.  Although ostensibly an action for medical malpractice against a single physician, it included allegations of false arrest and narcotics trafficking (by the prime minister). I’m fairly sure most people would have found this claim to be absurd on its face. Nonetheless, it took me several months of jumping through procedural hoops before I finally succeeded in having it dismissed.

So-called nuisance claims are a headache for many reasons. Despite their dubious legal merits, they frequently require a fair amount of time and energy to resolve.

Although counsel can bring various motions in an attempt to get the claim dismissed at an early stage — including, in Ontario, a motion to have an action dismissed on the grounds that it is “frivolous or vexatious or is otherwise an abuse of process” — the motion process is often time consuming and expensive. In the interim, you may have to deal with a client who is unhappy at having to invest time and money in order to make something that is clearly without merit go away.

This situation changed in Ontario on July 1, 2014, when the new Rule 2.1 came into force. Created as a companion power to the vexatious litigant provisions found in s. 140 of the Courts of Justice Act (which empowers the court to declare a person to be a “vexatious litigant” when they have “persistently and without reasonable grounds” pursued vexatious claims or litigated in a vexatious manner), Rule 2.1 allows the court to stay or dismiss any proceeding — action, application, motion, or even appeal — that appears on its face to be “frivolous or vexatious or an abuse of the process of the court.”

Focused on the litigation rather than the litigant, the rule empowers the court to summarily throw out certain proceedings via a three-step process. Unlike dismissal motions under Rule 21.01(3)(d), which involve a full hearing, with evidence, before a judge, no evidence is filed and the parties never attend in court.

First, the allegedly vexatious proceeding is to be brought to the attention of the court, either by the registrar or by one of the parties. The rule requires that requests be made in writing and recent caselaw has made it clear that they are to  be submitted without argument. As the vexatious nature of the proceeding should be “patently obvious” to the court, the requesting party should move under another rule if they feel submissions are necessary to make their case.

Notably, there is no requirement at this stage that the subject party be copied on the request, although the court has observed this to be good practice, and no parameters around when such a request can be made. Thus, although it would make the most sense to seek recourse to this rule at the outset of the proceeding, there is nothing to prevent counsel from making a request at a later stage.

Second, the court will review the pleading and decide whether to initiate the summary procedure set out in the rule. In essence, this requires the court to make a preliminary determination that the pleading is, in fact, vexatious or an abuse of process.

Third, if the court is satisfied that the pleading is prima facie vexatious, the party that filed it is invited to file written submissions (of no more than 10 pages) to make their case for why it should not be summarily dismissed. The onus has effectively shifted to that party to convince the court that their proceeding should not be thrown out.

There is no opportunity for them to file any evidence. Whether or not the other parties are provided with a copy of these submissions and given an opportunity to respond is entirely within the court’s discretion. Given the requirement that the proceeding be prima facie vexatious, one wonders whether the full exchange of written materials could ever be necessary and/or justified.

Once this process is complete, the court can issue an order dismissing the proceeding. If successfully invoked at the outset, the responding party may have rid themselves of a nuisance proceeding without having filed a single pleading or spent a single day in court.

The intent of the rule is sound: to minimize the burden of ostensibly vexatious litigation on the responding parties and the justice system while still affording the plaintiff/applicant/moving party a modicum of procedural fairness. However, it is easy to envision a scenario in which an aggrieved party without legal representation runs afoul of this rule simply by filing an overly angry or emotional pleading (as we have all seen self-represented litigants do). Concerns in this vein prompted Watson and McGowan to critique the rule as “flawed” and call for its repeal in the 2015 edition of Ontario Civil Practice.

The small body of caselaw that has already developed under the rule makes it clear the court is keen to prevent such abuses and to ensure fairness of process.  Recognizing the rule as a “powerful weapon”, the court has repeatedly said that it is not to be used in “close calls” or as a short form of summary judgment.

Among the roughly 25 proceedings that have been considered via this process to date, at least seven have survived and been allowed to proceed. .So if you have a real nuisance pleading on your hands, you might want to take a look. As the party requesting the review, you have nothing to lose.

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