Rule 2.1, Section 137.1 of the Courts of Justice Act, and the Administrative Reverse Onus: The Limits of Delegated Authority Under s. 66

Under fundamental principles of administrative law and statutory interpretation, subordinate legislation—such as the Rules of Civil Procedure—cannot create a substantive reverse onus unless the parent statute expressly authorizes it.

The current operational framework of Rule 2.1 functions as a "show cause" mechanism, forcing the litigant to prove their proceeding is not an abuse of process. This administrative inversion of the burden of proof lacks statutory authorization and conflicts directly with the explicit legislative scheme of the Courts of Justice Act (CJA).

Rule 2.1 was officially introduced into the Rules of Civil Procedure in 2014 (O. Reg. 43/14) and subsequently reformatted in 2024 (O. Reg. 322/24) as an administrative mechanism intended to curtail vexatious or abusive proceedings. Both iterations followed the prescribed sub-legislative track, requiring the formal regulatory approval of the Attorney General. However, while executive approval operationalizes a procedural regulation, it cannot supply the primary legislative authority that only the Legislative Assembly possesses to enact a substantive burden shift.

What the Civil Rules Committee accomplished with Rule 2.1 represents a significant institutional shift from the standard adversarial model:

• A party can obtain access to the summary screening process without bringing an ordinary motion.
• The court can initiate the process independently.
• The respondent faces an automatic stay of the proceeding upon issuance of Form 2.1B.
• The respondent must address the court’s preliminary concerns within a prescribed 10-page limit.
• The court may proceed to dismissal without further notice if no compliant response is filed.

The defense of this mechanism often relies on the court’s pre-existing inherent jurisdiction to prevent abuse of its process (Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63). However, the existence of inherent jurisdiction to dismiss an abusive proceeding must be strictly distinguished from the statutory authority to establish a compulsory procedural mechanism that imposes a new burden on a litigant, suspends proceedings automatically, and permits dismissal following non-response. The authority to dismiss an abusive proceeding is not equivalent to the authority to require a litigant to disprove abuse through a delegated procedural framework.

The Legislature’s enactment of section 137.1 of the CJA (the Anti-SLAPP provision) illustrates its deliberate treatment of burden allocation in a statutory summary-dismissal framework. In 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, the Supreme Court of Canada explained that the responding party assumes the statutory burden only after the moving party establishes the prescribed threshold. The Legislature has demonstrated how to expressly prescribe the conditions under which a litigant must assume the burden of satisfying a court that a proceeding should continue.

The Impermissible Delegation of Substantive Burden-Shifting Authority

The legal or ultimate burden of proof is determined by substantive law. In Snell v. Farrell, [1990] 2 S.C.R. 311, at p. 321, the Supreme Court of Canada distinguished the ultimate burden of proof from an evidentiary obligation to respond to an inference arising from the evidence. The distinction is material because a procedural obligation to respond is not necessarily equivalent to a transfer of the ultimate legal burden.

Rule 2.1, however, raises a question that goes beyond the imposition of an ordinary procedural obligation. Under Rule 2.1.01, the court may initiate a summary dismissal process on its own initiative or following a party’s request. Upon the court’s preliminary determination that an order may be appropriate, the registrar issues Form 2.1B. The issuance of that notice automatically stays the proceeding and requires the plaintiff or applicant to respond within 15 days, subject to a strict 10-page limit.

Under Rule 2.1.01(8)(2), failure to provide a compliant response permits the court to make an order without further notice. The default-outcome test is relevant because it identifies which party bears the risk of an adverse determination in the absence of further submissions. Where the proceeding is stayed and the litigant must respond to a preliminary judicial assessment to avoid the possibility of dismissal, the mechanism places the practical burden of preserving the proceeding on that litigant. The question is whether that procedural burden has also become an unauthorized transfer of the ultimate legal burden.

Section 66(1) of the Courts of Justice Act delegates authority over civil practice and procedure. Section 66(2) permits the Civil Rules Committee to alter or conform to substantive law within the enumerated subject matters. Section 66(3) expressly prohibits rules that conflict with an Act of the Legislature.

The Legislature’s enumeration of the circumstances in which delegated rules may affect substantive law cannot be treated as an unrestricted authorization to alter substantive legal rights through procedural mechanisms. Although section 66(2)(d) expressly addresses the disposition of proceedings without a hearing and its effect, that authority must be distinguished from the separate question of who bears the ultimate legal burden of establishing abuse of process. Authority to regulate the manner and effect of summary disposition does not necessarily confer authority to reallocate the substantive burden of proof.

Although section 66(2) authorizes rules that may affect substantive law within specified subject matters, it does not follow that every substantive consequence arising from a procedural rule is thereby authorized. The question is whether the particular reallocation of legal responsibility alleged here constitutes an interstitial adjustment within the enumerated subject matters or an independent substantive alteration exceeding the delegated authority.

Accordingly, the question is whether Rule 2.1 remains a procedural mechanism for exercising the court’s existing jurisdiction to prevent abuse of process, or whether its operation crosses into the substantive alteration of the legal burden of proof. If the latter, the Committee must demonstrate the statutory authority under section 66 that permits that alteration. The general authority to regulate practice and procedure cannot, without more, establish authority to create a substantive reverse-onus regime.

The validity of the Rule must therefore be assessed not merely by reference to the court’s ultimate discretion to dismiss, but by reference to the authority to impose the preliminary burden, the automatic suspension of the proceeding, and the legal consequences attached to the litigant’s failure to discharge that burden.

The Jurisdictional Bind

The application of Rule 2.1 to contested jurisdictional questions raises a further concern where the summary screening mechanism effectively displaces the established procedure for determining appellate jurisdiction (Collins v. Ontario, 2017 ONCA 317). The issue is whether a preliminary conclusion concerning jurisdiction can properly be converted into a finding of abuse of process (as seen in Chowdhury v. Unity Health Toronto, 2025 ONCA 90) without first addressing the jurisdictional question through the applicable procedural framework.

Access the consolidated public records, dockets, and procedural analyses associated with this matter below.

Supreme Court of Canada (SCC)

• Formatted SCC Docket 42381
• Bulletin of Proceedings (Official)
• Official SCC Docket 42381

1. Case Overviews & Timelines

• Case Overview: Supreme Court of Canada Docket 42381, 2026 ONCA 246 and 2.1B (2025 ONCA 90)
• History of the Jurisdictional Defect in Chowdhury (2025 ONCA 90): Rule 2.1 Applied Twice
• Wrong-Forum and “Abuse of Process”: Amstar (2025 ONCA 493) and Bernard Property (2019 ONCA 830)
• “Or” vs. “Or Otherwise”: Scaduto (2015 ONCA 733), Raji (2015 ONSC 801), and the Language of Rule 2.1.01

2. Constitutional Limits & Delegated Authority

• Jurisprudence of the Administrative Reverse Onus: Rule 2.1 vs. Established Precedent
• Rule 2.1 and the Automatic Stay: A Procedural Tension with Rule 2.01
• O. Reg. 322/24: Form 2.1A and the 2024 Amendments to Rule 2.1
• The Reverse Onus of Rule 2.1: The Practical Effect of the Automatic Stay in O. Reg. 322/24
• Form 2.1B and the Reverse Onus: Colourability and the Limits of Delegated Authority

4. Jurisdiction, Forum & Procedural Mechanics

• Rule 2.1.01 and Jurisdiction: Simpson (2016 ONCA 806), Collins (2017 ONCA 317) vs. Chowdhury
• Jurisdiction and the Initiation of Rule 2.1 Dismissals
• Rule 21.01 vs. Rule 2.1.01: "A Judge" vs. "The Court"
• Case Conference and Management: Scheduling as Adjudication (2.1B)
• Jurisdictional Contrast: Alberta, Quebec, and British Columbia
• Amstar (2025 ONCA 493) and Ingarra (2026 ONCA 139): When Jurisdiction Becomes "Frivolous"

5. Family Rule 1.4 & Rule 2.1

• Rule 1.4, Rule 2.1 and the Rules of Procedure: Can Ontario's Rules Committees Override the Common Law?
• O. Reg. 310/26 and Family Rule 1.4: The Shifting Framework of Summary Dismissals

Statutory References

• Appendix: Rule 2.1 of the Rules of Civil Procedure — Statutory Reference via Ontario e-Laws