Procedure When Court Inadvertently Does Not Consider Written Submissions

In Derenzis v. Ontario et al., 2021 ONSC 5355, the defendant sought a dismissal of the action under rule 2.1.01 of the Rules of Civil Procedure, which indicates that the court may stay or 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.

The motion was heard in writing. The motion judge received the plaintiff’s motion materials. However, despite the defendant’s motion materials being filed with the court, they were not brought to the judge’s attention due to inadvertence by the court.

After the judge released a decision dismissing the request for a dismissal, the defendant requested a reconsideration of the decision, but the judge refused this request.

On appeal, Justice Corbett stated that it was not reasonable for the motion judge to require the defendant to appeal or to bring a formal motion to set aside the decision when it was clear that, as a result of an error by the court, the defendant had not been accorded basic procedural fairness.

Justice Corbett said that the motion judge should have set aside her decision and either: (1) directed that the issue be decided by another judge on the basis of all the materials filed, or (2) reconsidered the matter herself anew, if she concluded that she could give the matter fair and impartial consideration in all the circumstances. 

The order of the motion judge was set aside by Justice Corbett and the matter was remitted for an expedited hearing before a different motion judge.