Rule 2.1 of the Ontario Rules of Civil Procedure is a powerful provision that allows a court to stay or a dismiss a proceeding if the proceeding “appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court”.

In Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801 (CanLLI), Justice Myers gave direction with respect to what should be contained in the request for a stay. The court suggested that a one or two line letter making the request for the referral of the matter to a judge is all that is required. No narrative or background facts or information should be provided. This is because:

1. The abusive nature of the proceedings should be apparent on the face of the pleading itself;
2. No evidence is admissible on the motion;
3. Submissions of the requestor (defendant) are of little use;
4. There will be less likelihood for the plaintiff to “see conspiracies”. The process will be more efficient and fairer in fact and in appearance.

If the defendant wishes to put in evidence or background information, then the preferred procedure might be to move for summary judgment under Rule 20, or to strike out a pleading under Rule 25.11.

However, in The Estate of Lois Jean Davey v. Craig, 2018 ONSC 7367 (CanLII), the Rule was applied to an application where a claim of constructive trust was brought by the Estate Trustee against the Estate Trustee and his former spouse related to an addition paid for by the Deceased. (The Estate Trustee, who was the Deceased’s son, and the former spouse were involved in family law litigation.) The Deceased’s will was filed as part of the application record. The will specifically provided that the addition shall be the sole property of the son, and that “the estate shall have no claim on said addition”. The court also appeared to rely on submissions suggesting that the issue was previously raised by the son, unsuccessfully, in the family law proceedings. The court found that the estate was estopped from making the claim in light of the express wording of the will. Further, the court held that the claim had no basis in fact or law. “One cannot give the gift, make clear evidence of that gift, and then recover the property using the law of unjust enrichment.” The application was dismissed with costs.

The decision demonstrates the powerful nature of the Rule. The application was dismissed with no formal motion being brought by the respondent, no apparent reply materials, no cross-examinations and no attendance by the parties.

Thank you for reading.
Paul Trudelle