Law Times

Law Times • November 24, 2014 Page 5 www.lawtimesnews.com Court uses new summary proceeding to toss frivolous case By Jennifer Brown Law Times n Ontario Supe- rior Court judge has drawn upon a new provision in the Rules of Civil Procedure to dismiss a motion by a litigant who had "already had his day in court." In Gao v. Ontario WSIB, Jus- tice Fred Myers directed the reg- istrar to send a notice under Rule 2.1, part of the Superior Court of Justice Rules of Civil Procedure, to Tieguang Gao indicating the dismissal of his motion. In the action, the plaintiff sued the Ontario Workplace Safety & Insurance Board and the ombudsman. The plain- tiff claimed relief as a result of alleged unlawful acts by the WSIB that led to the limiting of his benefits under the Work- place Safety and Insurance Act. The plaintiff also alleged unlawful acts by the ombuds- man after he filed a complaint concerning the conduct of the WSIB. Another judge had already dismissed the action in August. In his decision, Myers stated: "The motion is supported by three volumes of motion record and a factum, none of which is written so as to be readily un- derstandable. "Mr. Gao has had his day in court and must now move on." The court introduced Rule 2.1 on July 1 to bring resolutions to "a particular category of dis- putes in a proportionate, timely, and affordable way." It provides a summary pro- cess for a hearing in writing to determine whether the court should dismiss an individual proceeding or motion where it appears to be "frivolous, vexa- tious, or an abuse of process." The judge only considered written submissions, which is the big difference from other proceedings that can be time- consuming for the court and the parties involved. "It certainly strikes me as the kind of motion that this rule is designed to put a very quick end to," says Kevin Toyne, a partner with Brauti Thorning Zibarras LLP. "The proceeding had already been dismissed, but the person was trying to have someone noted in default. Justice Myers does a good job of identifying the different indicia that shows it's a frivolous or vexatious proceeding that should be dis- missed with this new summary procedure." Toyne says there are two ways to apply the procedure. In , the judge drew attention to it, but there's also a provision for litigants to write in and ask the court to trigger the process. Both sides have an opportunity to make submissions and then it's up to the court to decide whether to toss the proceeding or allow it to proceed. "Before this rule came in, if you were served with a state- ment of claim at 100 pages long full of nonsense, it was difficult to make it go away quickly and efficiently and in a cost-effective manner," says Toyne. "Now all I have to do is write a letter to the registrar asking the registrar to trigger this sum- mary procedure and there's a lot less time used up, far fewer ju- dicial resources, and less cost to the affected litigants," he adds. The f lip side, however, is it could also be open to abuse. Instead of the preliminary play by a defendant to strike, a party can write a letter to the registrar asking the court to dismiss the matter. "In a case like the one before Justice Myers, it seems it was pretty clear the motion should be dismissed, but what you may start to see as people become more familiar with the rule is . . . more people writing to the registrar asking for motions or lawsuits to be dismissed," says Toyne. The judge's decision was "quite careful" in observing the track record of the plaintiff, says Patricia Virc of Steinberg Title Hope & Israel LLP. "There are situations where some- thing legitimate is just buried in a mountain of nonsense and those are the difficult cases," she says. "In this case, what the judge is trying to avoid is putting a litigant who has already been put through numerous vexa- tious proceedings to the trouble of bringing their own motion again and give further platform for the litigant to do damage to someone who has already been unjustly victimized." 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For more information or to register, please contact Lexpert® Events at 1-877-298-5868 or e-mail: register@lexpert.ca Untitled-3 1 2014-10-30 10:42 AM Designed for those who deal with matters involving access to government information or safeguarding personal information in the hands of government, this portable work contains: • The full text of the Ontario and Municipal Freedom of Information and Protection of Privacy Acts and regulations with detailed, section-by-section commentary • Commissioner's Practices and Procedures relating to the particular section have been promulgated • Summaries of significant interpretations or applications of the section, or its counterpart in the municipal Act, are collected under the heading Commissioner's Orders and Court Decisions New in this edition Noteworthy Privacy Commissioner Orders and other court/ tribunal decisions included in this edition: • Ontario (Community Safety & Correctional Services) v. Ontario (Information & Privacy Commissioner) (2014 S.C.C.) upholding Order PO-2811 (Re Ministry of Community Safety and Correctional Services, August 7, 2009) • Order PO-3189 (Re Ministry of Health and Long-Term Care; April 24, 2013) New Edition The 2014-2015 Annotated Ontario Freedom of Information and Protection of Privacy Acts David Goodis Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # 986425-65203 $119 Softcover November 2014 approx. 500 pages Annual volumes available on standing order subscription 978-0-7798-6425-6 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00223RY-A46713 Define the line between available and protected information A 'It certainly strikes me as the kind of motion that this rule is designed to put a very quick end to,' says Kevin Toyne.

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