SPECIAL DOUBLE ISSUE: Dismissal Of Abusive Proceeding Upheld; Home Buyer Who Got More Land Than He Bargained For Not Entitled To Damages For Lost Secondary Transactions

Dismissal under r. 2.1.01 upheld

In the first case, Nikou v. Karageorgos1, Gavin Tighe, partner and certified specialist in civil litigation, and Jonathan Nehmetallah, litigation associate, succeeded in upholding a lower court ruling which dismissed actions against, among others, lawyers on the grounds that the actions were frivolous or vexatious or an abuse of process under r. 2.1.01(1) of the Rules of Civil Procedure.

(i) Facts

The plaintiff in this case had commenced actions in 2012 and 2015 in connection with a family dispute that had seen the plaintiff and his siblings cut out of his grandfather's Will. The 2012 and 2015 actions were ultimately dismissed and discontinued respectively.

In 2017, the plaintiff started three new actions against family members and a number of lawyers who acted in the 2012 and 2015 actions and who were involved in transactions related to his grandfather's and grandmother's estates. In the three new actions, the plaintiff claimed damages for harassment and defamation. Those actions were dismissed by a judge last spring under r. 2.1.01. In dismissing the actions, the judge refused to permit the plaintiff to amend his pleadings.

The plaintiff appealed the dismissals on the grounds that the judge failed to find that the proceedings were frivolous or vexatious or an abuse of process, failed to give reasons why the pleadings could not be amended, and erred in dismissing the actions because the harassment and defamation claims were supported by the pleadings.

(ii) Findings of the Court

The appellate court found that while the motion judge did not describe the actions as frivolous or vexatious or an abuse of process, it was evident that the actions had been dismissed for this reason. The judge had notified the plaintiff that the court was considering a dismissal of the actions on the grounds that they were frivolous or vexatious or an abuse of process, and found that the pleadings did not support the cause of actions identified therein.

A claim that lacks legal basis or legal merit is frivolous. A claim instituted without a reasonable ground is vexatious.

Similarly, the decision to dismiss the claims without giving the plaintiff an opportunity to amend his pleadings was justified because it would be pointless to permit amendments to pleadings that did not have legal merit or that could not sustain a cognizable cause of action.

Even read generously, the Court of Appeal noted that the pleadings did not sufficiently...