nov. 9. 2020

COURT OF APPEAL SUMMARIES (November 2 – November 6, 2020)

Visic v. Elia Associates Professional Corporation, 2020 ONCA 690 (CanLII)

[Hourigan, Trotter and Jamal JJ.A.]

COUNSEL:

C. Du Vernet and C. McGoogan, for the appellant

M. A. Willis, for the respondent University of Windsor

Keywords: Civil Procedure, Striking Pleadings, Vexatious Litigants, Frivolous, Vexatious, Abuse of Process, Res Judicata, Issue Estoppel, Rules of Civil Procedure, Rule 2.1.01, Ontario Human Rights Code, R.S.O. 1990, c. H.19, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Khan v. Law Society of Ontario, 2020 ONCA 320, Khan v. Krylov & Company LLP, 2017 ONCA 625, P.Y. v. Catholic Children’s Aid Society of Toronto, 2020 ONCA 98, Penner v. Niagara Regional Police Services Board, 2013 SCC 19, Jones v. Tsige, 2012 ONCA 32, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, Activa Trading Co. Ltd. v. Birchland Plywood-Veneer Limited, 2020 ONCA 93

FACTS:

The appellant sought an order requiring the University of Windsor to permanently delete all references to her “first” first year law school results and damages against the respondents of $500,000 for invasion of privacy, breach of fiduciary duty, breach of confidence, breach of contract, negligence, defamation, and infringement of the Ontario Human Rights Code. The respondents, Patricia Elia and Elia Associates Professional Corporation (the “Elia Respondents”), were the appellant’s articling principal and former employer, respectively.

The motion judge held that the appellant’s action against the University sought to re-litigate the same issues raised in an earlier action and in proceedings before the Human Rights Tribunal of Ontario (“HRTO”), both of which were dismissed. She noted that the HRTO declared the appellant to be a vexatious litigant and the Divisional Court dismissed appeals from these orders.

The motion judge dismissed the appellant’s action as against the University under Rule 2.1.01, but allowed the action to continue as against the Elia respondents because the appellant had never sued them in the Superior Court. The appellant appealed the motion judge’s order.

ISSUES:

1. Did the motion judge err in dismissing the appellant’s action as against the University under Rule 2.1.01?

HOLDING:

Appeal dismissed.

REASONING:

No. The Court first looked at principles governing the application of Rule 2.1.01. The Rule allows a court to stay or dismiss a proceeding if it appears on its face to be frivolous, vexatious or otherwise an abuse of process. The Court stated that the rule may only be used in the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process. The Court also emphasized that a motion under Rule 2.1.01 focuses on the pleadings and any submissions of the parties made under the rule. Additionally, the rule does not replace other rules to strike out actions or to deal with other procedural irregularities summarily. The Court also noted that a motion judge’s ruling under Rule 2.1.01 is a discretionary decision entitled to deference. Such a decision may be set aside only if the motion judge misdirected themselves or their decision was so clearly wrong as to amount to an injustice.

The Court held that the motion judge correctly identified the relevant legal principles under Rule 2.1.01 and that her discretionary decision to dismiss the action was entitled to appellate deference. The Court found that the appellant’s four grounds of appeal lacked merit.

First, the appellant asserted the statement of claim pled proper causes of action. The Court found that the motion judge, based on her review of the claim, was entitled to conclude that the action involved abusive re-litigation.

Second, the appellant asserted her claim did not seek to re-litigate the same factual circumstances that were dismissed in her court action in 2005 or in her application to the HRTO in 2008. The Court disagreed, finding that her action challenged the same conduct of the University that she had unsuccessfully challenged before.

Third, the appellant asserted that her claim for invasion of privacy rested on a new tort that the court first recognized in Jones v Tsige, after her previous proceedings were dismissed. In rejecting this argument, the motion judge noted that the Court in Jones did not recognize a new tort of invasion of privacy, rather it confirmed a cause of action that already existed at common law. She concluded that the appellant’s claim here was barred by the doctrine of cause of action estoppel. That doctrine prevents parties from re-litigating matters by advancing a point in subsequent proceedings which properly belonged to the subject of the previous litigation. The Court agreed with the motion judge’s reasoning and conclusion.

Fourth, the appellant asserted the motion judge erred in relying on abuse of process and cause of action estoppel under r. 2.1.01 because she said such a finding required evidence. The Court disagreed with this submission. The Court held that re-litigation of issues determined in a prior judicial proceeding is “a classic example of abuse of process” under Rule 2.1.01. In applying the rule, the motion judge was entitled to review reasons from other proceedings describing the appellant’s long history of litigation against the University involving the same issues. The Court saw no error in her approach or conclusion.

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