Rule 2.1.01:A “Blunt Instrument” Played Sparingly

September 18, 2024

By Eli Feldman

Introduction

On September 9, 2024, for reasons set out in Auguste v. Ottawa Police Services et al., 2024 ONSC 4956, the Ontario Superior Court of Justice dismissed the claims of Cheryl Auguste and her three children (collectively, the “plaintiffs”) pursuant to r. 2.1.01 of the Rules of Civil Procedure (the “Rules”), which permits the dismissal of an action deemed frivolous, vexatious, or otherwise an abuse of process of the court.

The Underlying Action

In January 2024, the plaintiffs commenced an action against His Majesty the King, the Law Enforcement Complaints Agency (collectively, the “provincial defendants”), the Ottawa Police Service (“OPS”), and two other defendants by way of a Statement of Claim (the “Claim”).

In the Claim, the plaintiffs sought extensive damages for various Charter breaches, acts of discrimination, criminal harassment, and other misconduct. In total, the plaintiffs claimed an eyepopping five hundred million dollars ($500,000,000) in damages, including four hundred million dollars ($400,000,000) in non-pecuniary damages for pain and suffering.

The plaintiffs’ Claim described an alleged incident where Ms. Auguste was detained and handcuffed in front of her children, forced into a police cruiser, and laughed at by members of the OPS while chained to a hospital bed. Apart from this incident, the plaintiffs claimed that, as “minorities and black newcomers” to Canada, they endured experiences of abuse, discrimination, and racial profiling by OPS members.

Rule 2.1.01

Before deciding on the provincial defendants’ request to dismiss the plaintiffs’ action against them pursuant to r. 2.1.01 of the Rules, the court reviewed the substantive legal test to grant relief under the rule.

Rule 2.1.01 provides, in part, that:

2.1.01 (1) The court may, on its own initiative, 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 court noted that the dismissal of an action under r. 2.1.01 is not commonplace; rather, it is a “blunt instrument, reserved for the clearest of cases”. The Court of Appeal for Ontario articulated this sentiment in Khan v. Krylov & Company LLP, 2017 ONCA 625:

We reiterate that judges should be cautious about allowing parties to have recourse to r. 2.1 except where it is plain and obvious on the face of the pleading that the action is frivolous, vexatious or an abuse of process. There are many other remedies provided for in the Rules of Civil Procedure by which parties can deal with cases that are not clear on the face of the pleading.

Notwithstanding the limited circumstances in which r. 2.1.01 may be relied upon, the court pointed out that the rule empowers Ontario’s courts to fulfill their collective role as “gatekeeper[s] of the justice system” by allowing the courts to screen out meritless claims and, in turn, ensure that parties with legitimate claims have their days in court.

Against this backdrop, the court outlined a non-exhaustive list of general principles to be applied by the court when considering a requisition under r. 2.1.01. Among such principles, the court noted that:

  • The statement of claim must be read generously. Drafting deficiencies may be overlooked and the plaintiff given the benefit of the doubt if it appears that the action might be viable;
  • “[R]ule 2.1 is not for close calls.  Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves”: Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801; and
  • An action should be dismissed under r. 2.1 only if “the frivolous, vexatious, or 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 of rule 2.1”.

The court concluded its analysis by emphasizing the need to discard baseless lawsuits while preserving the rights of litigants to seek relief for legitimate complaints, even if those litigants have “querulous” histories and/or difficulties communicating their claims.

Analysis

Turning to the plaintiffs’ Claim, the court ruled that it exhibited “many of the hallmarks of vexatious and frivolous litigation”, including, but not limited to: broad and sweeping violations of fundamental rights; repetitive and rambling allegations; and references to causes of action that did not assist the plaintiffs in advancing their claims against the provincial defendants (i.e., the defendants seeking relief under r. 2.1.01(1)).

Ultimately, the court dismissed the plaintiffs’ Claim as against the provincial defendants without costs.

Takeaways

Auguste serves as an illustrative example of the potential consequences of commencing an action that lacks a legal basis, merit, or purpose. Without a cause of action that is justiciable in law in relation to those from whom a litigant seeks relief, the litigant faces a decision: change keys or face the music courtesy of the court’s “blunt instrument”.