Judge Richard Posner: Let Fairness Prevail

A man walks into your law office. He asks: “what are my chances in winning this lawsuit?”

The answer?

Ask yourself, “how would a wise, moral man, with no legal training, decide this case?”

In Divergent Paths: The Academy and the Judiciary, famous American Judge Richard Posner explains that “most judges evaluate cases in a holistic, intuitive manner, reaching a tentative conclusion that they then subject to technical legal analysis.” This is because judges simply want to do what is fair.

Fairness is why the Courts have applied Rule 2.1 of the Ontario Rules of Civil Procedure so robustly. Sometimes litigants initiate outlandish lawsuits that have no right in clogging up the justice system. Recognizing this, the Courts have welcomed the careful application of Rule 2.1 to dispose of abusive claims.

Rule 2.1.01 (1) states that a court may dismiss an action if it looks to be frivolous, vexatious, or an abuse of process. An example of an abusive claim could be a case where a person sues another person for the fifth time over the same dispute. Or, maybe it’s a claim for $93.9 million in reference to “the illegal relationship between the defendant and the “Superior Court of Toronto; its judges and officers” (Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801)

In Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, the Court of Appeal of Ontario explains that:

[8]         … the court has recognized that the rule should 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. However, the use of the rule should be limited to 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.

Rule 2.1 is simply Judge Posner’s theory in motion. Judges really are just trying to do what’s fair.

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