Appellant challenged handling of deposit he made into joint tax-free savings account
The Ontario Court of Appeal recently dismissed the appeal of a man who attempted to commence a new action every time he failed in his previous action.
In 2018, the appellant initiated an action in the Small Claims Court. He challenged the way that the respondent, National Bank Transit 0371-1, handled a $9,500 deposit that he made into a tax-free savings account in 2012. He alleged that the amount did not appear in his account.
In August 2019, the Small Claims Court dismissed the action. It found that the appellant’s account was a joint account, that the joint holder removed the $9,500, and that the action was statute-barred since the appellant commenced it beyond the two-year limitation period.
In September 2019, the appellant brought a second action in the Small Claims Court. He did not challenge the finding that his claim was statute-barred but said that he found new evidence. This action appeared to be outstanding.
The appellant, raising the same issues, filed a third action in the Ontario Superior Court of Justice in Brampton. In July 2022, the Brampton court dismissed this action under r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
The appellant, again raising the same issues, commenced a fourth action in the Superior Court in Toronto. In November 2022, Justice Markus Koehnen of the Toronto court struck out his statement of claim and dismissed the action under r. 2.1.
The appellant appealed. The respondent’s counsel asked for the appeal’s dismissal under r. 2.1. The appellate court reviewed the matter and told the registrar to notify the appellant that it was considering the r. 2.1 request.
In Hibbert v. National Bank of Canada, 2023 ONCA 84, the Ontario Court of Appeal dismissed the appeal and made no order about costs.
The appellate court noted that the appellant had a right of appeal if he was dissatisfied with the result of his original claim. However, the appellant failed to exercise this right relating to his first action with the Small Claims Court, the appellate court said.
The appellate court chose not to comment on why the second action with the Small Claims Court action remained outstanding even though the Brampton and Toronto courts struck out actions that the appellant filed for being vexatious.
In the circumstances, the appellate court concluded that the appeal from the Toronto court’s order amounted to a proceeding that appeared on its face to be frivolous, vexatious, or otherwise abusive of the court’s process under r. 2.1.
The appellant’s submissions did not undermine this conclusion and essentially recognized his fourth action’s duplicate nature, the appellate court added.
