Case information

Civil procedure — Abuse of process — Judgments and orders — Summary judgments — Default judgment — Contracts — Commercial contracts — Respondents bringing claim against applicants in respect of allegedly faulty woodworking equipment, and obtaining default judgment — Applicants alleging improper service of claim and unsuccessfully attempting to appeal or dismiss original decision — Applicants bringing new claim against respondents for damages arising out of default judgment and alleging fraud — Courts below dismissing applicants’ claim as abuse of process — Whether self represented litigants are unjustly treated by the Courts, lawyers or administrative staff — Whether summary judgment procedures are being used unfairly and inappropriately against self represented litigants, thereby limiting access to justice and depriving them of rights — Whether applicants’ case is of public interest because it transcends interests of those most directly affected by challenged law or action — Whether a claim with respect to contractual dispute may be summarily dismissed where terms of contract never read or considered by courts below — Whether administration of justice brought into disrepute if default judgment deceitfully obtained — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 2.1.01.

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The respondent Birchland brought a claim against the applicants, Activa and MLS, and obtained default judgment. Activa and MLS alleged that service of the original claim never occurred, and moved to set aside the default judgment. The motion was dismissed. Activa and MLS then attempted, unsuccessfully, to appeal the dismissal of the motion, and to bring a new motion.

Activa and MLS and their principals then brought a new claim against Birchland, as well as against Birchland’s law firm and lawyer, and against the process server from the original claim. Activa and MLS alleged that fraud had occurred with respect to the service of the original claim, and claimed $15 million in damages arising from the default judgment. Birchland and the other respondents moved to strike the action under Rule 2.1.01 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

A motion judge at the Ontario Superior Court of Justice granted Birchland’s motion, and dismissed Activa’s and MLS’ new proposed claim pursuant to Rule 2.1.01, finding it to be frivolous, vexatious and an abuse of the process of the court. The Court of Appeal dismissed an appeal by Activa and MLS and their principals, finding no error in the motion judge’s analysis and in his decision to dismiss the claim.