



COURT OF APPEAL FOR ONTARIO

CITATION: Visic v. Elia Associates
    Professional Corporation, 2020 ONCA 690

DATE: 20201102

DOCKET: C67881

Hourigan, Trotter and Jamal
    JJ.A.

BETWEEN

Anica Visic

Plaintiff (Appellant)

and

Elia Associates Professional Corporation, Patricia Elia, and

University
    of Windsor

Defendants (Respondents)

Christopher
    Du Vernet and Carlin McGoogan, for the appellant

Antoni Casalinuovo, for the respondents
    Elia Associates Professional Corporation and Patricia Elia

Michael A. Wills, for the
    respondent University of Windsor

Heard: In writing

On appeal
    from the order of Justice Sandra Nishikawa of the Superior Court of Justice,
    dated December 12, 2019, with reasons at 2019 ONSC 7238.

REASONS FOR DECISION

[1]

This is an appeal from the motion judges order dismissing
    the appellants action as against the respondent University of Windsor under r.
    2.1.01 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, because
    the action against the University is
on its face
frivolous,
    vexatious, and an abuse of the courts process.

[2]

For the reasons that follow, the appeal is
    dismissed.

Background

[3]

The appellants action against the respondents
    seeks, among other relief, an order requiring the University 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
, R.S.O. 1990, c. H.19. The respondents
    Patricia Elia and Elia Associates Professional Corporation (Elia respondents)
    were the appellants articling principal and former employer, respectively.

[4]

The motion judge held that the appellants action
    against the University seeks to relitigate the same issues the appellant 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:
Visic v. HRTO and Law Society of Upper
    Canada
, 2015 ONSC 7161;
Visic v. HRTO and University of Windsor
, 2015 ONSC 7162; and
Visic v. HRTO and Elia Associates Professional Corporation
, 2015 ONSC 7163.

[5]

The motion judge dismissed the appellants
    action as against the University under r. 2.1.01, but allowed the action to
    continue as against the Elia respondents because the appellant had never sued the
    Elia respondents in the Ontario Superior Court, even though she had pursued them
    before the HRTO. The motion judge held:

It is clear that this
action is yet another attempt to relitigate the same issues raised
    in Ms. Visics previous action in this court and the proceedings before the
    HRTO. Ms. Visic alleged that the University breached the
Human Rights Code
in her application to the HRTO. She alleged breach of contract, negligence and
    breach of fiduciary duty in her previous civil action against the University.
    Having failed to prosecute her previous action, Ms. Visic is not entitled to
    relitigate the same claims in a new proceeding before this court.

[6]

The appellant now appeals the motion judges
    order. Her four grounds of appeal are addressed below.

Legal Framework

[7]

Rule 2.1.01 allows a court to stay or dismiss a
    proceeding if the proceeding appears on its face to be frivolous or vexatious
    or otherwise an abuse of process of the court.

[8]

The following principles govern the application
    of r. 2.1:

1.

Rule 2.1 must be interpreted and applied robustly so that a motion
    judge can effectively exercise his or her gatekeeping function to weed out
    litigation that is clearly frivolous, vexatious, or an abuse of process:

Scaduto
    v. The Law Society of Upper Canada
, 2015 ONCA 733, at para. 8, leave
    to appeal refused, [2015] S.C.C.A. No. 488. The Rule is not for close calls 
    it may be used only 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:
Scaduto
,
    at paras. 8-9;
Khan v. Law Society of Ontario
, 2020 ONCA 320 (
Khan
),
    at para. 6, leave to appeal to S.C.C. requested, 39321.

2.

A motion under r. 2.1 focuses on the pleadings and
    any submissions of the parties made under the rule. No evidence is submitted on
    a r. 2.1 motion:
Scaduto
, at paras. 9, 11-12. A court may, however, review
    reasons and pleadings from other proceedings to determine whether the case is
    abusive:
Khan
, at para. 9.

3.

Rule 2.1 does not replace other rules in the
Rules
    of Civil Procedure
to strike out actions or to deal with other procedural
    irregularities summarily:
Khan
, at para. 7. The rule is not meant to
    be an easily accessible alternative to a pleadings motion, a motion for summary
    judgment, or a trial:
Khan v. Krylov & Company LLP
, 2017 ONCA
    625, 138 O.R. (3d) 581, at para. 12;
P.Y. v. Catholic Childrens Aid
    Society of Toronto
, 2020 ONCA 98, at para. 11. The Rules provide many
    other remedies to address cases that are not clear on the face of the pleading:
Khan
, at para. 15.

4.

The case law under r. 2.1 will continue to develop
    as the rule is used more widely:
Scaduto
, at para. 9.

5.

A motion judges ruling under r. 2.1 is a
    discretionary decision entitled to appellate 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:
Khan
, at para. 10;
Penner
    v. Niagara Regional Police Services Board
, 2013 SCC 19, [2013] S.C.R. 125,
    at para. 27.

Discussion

[9]

The motion judge correctly identified the
    relevant legal principles under r. 2.1, and her discretionary decision to dismiss
    the action
is entitled to appellate deference
.

[10]

In our view, the appellants four grounds of
    appeal lack merit.

[11]

First, the appellant asserts the statement of
    claim pleads proper causes of action lacking the evident hallmarks of
    frivolous, vexatious, or abusive litigation. We disagree. The motion judge reviewed
    the claim and the many decisions detailing the appellants litigation history against
    the University about her law school transcript. Based on that review, she was
    entitled to conclude that the action involves abusive relitigation. We see no
    basis to intervene.

[12]

Second, the appellant asserts her claim does not
    seek to relitigate the same factual circumstances that were dismissed in her court
    action in 2005 or in her application to the HRTO in 2008. We disagree. Her action
    impugns the same conduct of the University that she has unsuccessfully impugned
    before  the Universitys policy of including her first first year results on
    her official transcript. This is apparent on the face of the statement of
    claim, paragraph 7 of which asserts:

The [University] continuously, carelessly or
    deliberately and in any event wrongfully created, maintained, published, and
    disclosed academic transcripts relating to the Plaintiff which had the effect
    of obliging the Plaintiff to reveal to those to whom it was disclosed that she
    suffered from a physical disability, the nature and existence of which she was
    entitled by virtue of the Ontario Human Rights Code to keep confidential, and
    which she in fact wished to keep confidential; and which, when disclosed, has
    tended and will in future tend, to cause potential employers to think poorly of
    her professional acumen and intellectual abilities.

[13]

Third, the appellant asserts that her claim for
    invasion of privacy rests on a new tort that this court first recognized in
Jones
    v. Tsige
, 2012 ONCA 32, 108 O.R. (3d) 241, after the appellants previous
    proceedings were dismissed.

[14]

The motion judge rejected this argument. She
    noted that this court in
Jones v. Tsige
confirmed a cause of action
    that already existed at common law, and thus concluded that the appellants claim
    here was barred by the doctrine of cause of action estoppel:

Contrary to Ms. Visics submissions, the Court
    of Appeal did not recognize a new tort of invasion of privacy in
Jones v.
    Tsige
, 2012 ONCA 32, 108 O.R. (3d) 241 [
Jones
]. The Court of Appeal
made clear that
it was recognizing a cause of
    action that existed at common law:
Jones
, at para. 65. The doctrine of
    cause of action estoppel is applicable here. 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 Catalyst
    Capital Group Inc. v. VimpelCom Ltd.
, 2019 ONCA 354, 145 O.R. (3d) 759, at
    para. 49 (internal quotations omitted).

[15]

We agree with the motion judges reasoning and
    conclusion.

[16]

Fourth, the appellant asserts the motion judge
    erred in relying on abuse of process and cause of action estoppel under r.
    2.1.01 because she says such a finding requires evidence. We disagree with this
    submission in the context of this case. Relitigation of issues determined in a prior
    judicial proceeding is a classic example of abuse of process under r. 2.1:
Activa
    Trading Co. Ltd. v. Birchland Plywood-Veneer Limited
, 2020 ONCA 93, at
    para. 9. In applying r. 2.1.01, the motion judge was entitled to review reasons
    from other proceedings describing the appellants long history of litigation
    against the University involving the same issues. We see no error in her
    approach or conclusion.

Disposition

[17]

The appeal is dismissed.

[18]

If the parties cannot resolve
the issue of
costs, the respondents may file a bill
    of costs and written submissions of no more than two pages within 10 days of
    this decision, and the appellant may file a bill of costs and written
    submission of no more than two pages within 20 days of this decision.

C.W. Hourigan
    J.A.

Gary
    Trotter J.A.

M.
    Jamal J.A.


