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Civil Litigation

Judge's use of new Rule 2.1 was 'quite careful'

A recent Superior Court ruling, where the judge drew upon Rule 2.1 to dismiss a motion by a litigant who “already had his day in court," showed careful consideration in observing the plaintiff's track record, Toronto civil litigator Patricia Virc tells Legal Feeds.

The article on Legal Feeds – the blog of Canadian Lawyer and Law Times – discusses Gao v. Ontario WSIB, where Justice Fred Myers directed the registrar to send a notice under Rule 2.1, part of the Superior Court of Justice Rules of Civil Procedure, to the plaintiff indicating his motion was dismissed.

Rule 2.1, introduced July 1, "provides a summary process for a hearing in writing to determine if an individual proceeding or a motion ought to be dismissed where it appears to be 'frivolous, vexatious, or an abuse of process,'" the article reports. Myers only considered written submissions, "which is the big difference from other proceedings that can be time consuming for the court and parties involved," it continues.

Virc, a lawyer with Steinberg Title Hope & Israel LLP, tells Legal Feeds, “It looks to me like Justice Myers was looking at a pleading and saying ‘I can’t make heads or tails of this.’ That is a situation where it should be stopped in its tracks,” she says.

“He does point out there are situations where you just have an unrepresented person but there is a thread or a notion of an underlying complaint that may be legitimate but the person just doesn’t know how to put it forward," she says in the article.

“Normally the relief a court would give if they just see a litigant having trouble putting something together would be to give leave to amend,” Virc tells Legal Feeds. “But when a pleading is just incomprehensible then there is no point in allowing an amendment.”

While there may be instances where a litigant is just having difficulty getting their point across, she notes that wasn't the case here.

“There are situations where something legitimate is just buried in a mountain of nonsense and those are the difficult cases,” she tells Legal Feeds.

In this case, the judge is trying to avoid putting a litigant who has already been put through numerous vexatious 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, she says in the article.

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