



COURT OF APPEAL FOR ONTARIO

CITATION: Liu v. Longo, 2019 ONCA 892

DATE: 20191112

DOCKET: C66354

Simmons, Pardu and Nordheimer JJ.A.

BETWEEN

Xiuying Liu

Plaintiff (Appellant)

and

Angelo Fabrizio Longo,
    Arron Lang, Certas Direct Insurance Company and the Law Society of Upper Canada

Defendants (Respondents)

Xiuying Liu, acting in person

Michael McChesney, for the respondent, Certas Direct
    Insurance Company

Gerry Antman, for the respondent, Angelo Fabrizio Longo

Heard and released orally: November 7, 2019

On appeal from the judgment of Justice Andra Pollak of
    the Superior Court of Justice, dated December 13, 2018, with reasons reported
    at 2018 ONSC 7364.

REASONS FOR DECISION

[1]

Ms. Liu appeals from the order granted by the motion judge that dismissed
    her claim pursuant to r. 2.1 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194.

[2]

The appellant did not file submissions in response to the Notice sent to
    her by the court that a r. 2.1 motion was under consideration. The appellant
    says that this is because she did not receive the Notice. The appellant says
    that she had moved from the address set out in her statement of claim prior to
    the time when the Notice was sent out.

[3]

We are prepared to accept the appellants explanation for not filing
    submissions in response to the Notice. We note that when the appellant received
    the endorsement of the motion judge, she moved quickly to bring this appeal. There
    is no suggestion in the appellants conduct that she was ignoring the r. 2.1
    process.

[4]

The appellant has now had the opportunity to make submissions regarding her
    claim through this appeal. We do not view the contents of the statement of
    claim as being incomprehensible as found by the motion judge. While the
    statement of claim is far from perfect, it is reasonably clear that the
    appellant is complaining that the two lawyers, who were retained by her fiancé
    arising out of a motor vehicle accident, failed to act appropriately in
    representing him. The claim against Certas, who was the automobile insurer for
    her fiancé, is that it failed to pay amounts to him that were due under the
    policy. The claim against the Law Society is linked to the claim against the
    lawyers, although it is unclear what the cause of action is in that particular aspect.

[5]

The motion judge dismissed the claim on the basis that the claim does
    not comply with Rule 25.06 of the
Rules of Civil Procedure
and this
    significant defect cannot be remedied with an amendment. In our view, the
    motion judge erred in doing so. Rule 2.1 is not a substitute procedure for addressing
    defects in pleadings:
Khan v. Krylov & Co
., 2017 ONCA 625, 138 O.R.
    (3d) 581, at para. 12. Rule 2.1 is a particular remedy that is to be invoked to
    dismiss a claim that appears on its face to be frivolous or vexatious or
    otherwise an abuse of the process of the court.

[6]

While we could allow the appeal on that basis and remit the matter to
    the Superior Court, the fact remains that the claim being advanced by the
    appellant is not one that she has the right to advance in her personal capacity.
    Only her fiancé could advance a claim respecting errors made by his lawyers or
    for payments not made by his insurer. When the appellants fiancé passed away
    in 2015, any such right devolved to his estate who is not the plaintiff in this
    proceeding. Although the appellant asserts that there is a will, and that she
    is the executor thereunder, there is no evidence that any such will exists.

[7]

We do not see that any purpose would be served by referring this matter
    back to the Superior Court on that technical ground when it is evident that the
    underlying claim is not properly advanced by the appellant. It is for that
    reason that we dismiss the appeal.

[8]

The appeal is dismissed.  The respondents do not seek costs and we do
    not make any order as to costs.

Janet Simmons J.A.

G. Pardu J.A.

I.V.B. Nordheimer J.A.


