When it comes to the dismissal of a claim at a preliminary stage, defendants have plenty of tools to choose from. The problem is picking the right one.
Rules 2.1, 20, and 21 of the Rules of Civil Procedure each set out the circumstances under which a proceeding may be dismissed by the court without a full hearing on the merits.
In the recent case of Lahey v. Lahey, which involved a long-running family property dispute, Ontario Superior Court Justice Spencer Nicholson provided a valuable overview of these myriad options, including another underused mechanism that neither party raised.
The facts
The dispute in this case centred around a small house on a large rural lot in southwestern Ontario, bought in 2015 by a mother and father for their son and his wife.
According to the parents, the idea was for their son to live in the house and pay for its upkeep and maintenance until he was in a position to buy the property from them. However, within four years, the plan went off the rails and the son stopped making payments to his parents.
After finding an alternative buyer, the parents launched a court application for possession of the property, ultimately winning an uncontested trial after the son and his wife were barred from further participation for repeated non-compliance with court orders.
The current case was filed by the son and his wife, seeking damages from the defendants — his parents — over their eviction and an order that the property be sold to them instead.
In response, the parents moved to dismiss the plaintiff’s claim, citing Rule 2.1 — which allows a judge to stay or dismiss a frivolous or vexatious proceeding — and Rule 20, which governs summary judgment.
The results
In a comprehensive decision, the judge questioned the defendants’ decision to rely on Rule 20 to dismiss the claim, noting that, to succeed, the moving party must persuade the court that there is no genuine issue requiring a trial. In this case, the defendant had consented to the inclusion of an affidavit from their son, in which he laid claim to the home, thereby forcing the judge to make findings of fact on the basis of conflicting evidence.
The filing of evidence meant that relief under Rule 2.1 was similarly unavailable, the judge added, writing that the rule precludes the filing of evidence, requiring the court to reach its conclusion on the basis of the pleadings alone.
Although the defendants’ material made no explicit mention of Rule 21.01(3), which allows a defendant to move for the dismissal of an action on the basis that it is an abuse of the process, the judge wrote that the plaintiffs had sufficient notice to apply it.
Evidence is also admissible under Rule 21.01(3), the judge wrote, as he dismissed with prejudice all claims relating to the ownership of the property, finding that the plaintiffs were estopped from re-litigating these issues as they were decided in the parents’ favour during the earlier proceeding.
The judge then dismissed the son’s remaining claims concerning the retrieval of personal property under Rule 60.12, which permits dismissal of a proceeding when a party has failed to comply with an interlocutory order. Again, he did this despite the defendants’ failure to cite the rule specifically in their application, writing that it would be an inefficient use of scarce court resources to force them to file a fresh motion.
Instead, the judge dismissed the claims, but left the door open for the plaintiffs to bring them again, as long as they paid their outstanding cost awards.
The lessons
For defendants seeking early dismissal of the claims against them, this decision serves as a reminder of the importance of selecting the correct rule.
While many litigators turn automatically to a motion for summary judgment, this ruling demonstrates the high bar that must be met to succeed. The more key facts are in dispute, the greater the chance a judge will find a genuine issue for trial and dismiss the motion, wiping out any potential cost and time savings.
Although the defendants in this case will be satisfied with the result, the dismissal was ultimately made on the basis of rules they did not cite in their motion. Not every judge in the province may have treated their materials with such a high degree of latitude or exercised as much discretion as was shown here.
Hopefully, more parties will follow the judge’s lead here by citing Rule 60.12 in their applications for dismissal against parties with a history of non-compliance with court orders, as it is an underused tool in the litigator’s toolbox, in my opinion.