Rule 2.1.01 and Jurisdiction: Simpson (2016 ONCA 806), Collins (2017 ONCA 317) vs. Chowdhury (2025 ONCA 90)

A court that follows paragraph 4 of Chowdhury v. Unity Health Toronto, 2025 ONCA 90, or the citation of that paragraph in Seo v. Ontario (Information and Privacy Commissioner), 2026 ONCA 246^{[note 1]}, remains bound by Collins v. Ontario, 2017 ONCA 317.

In Montford v. Canadian College of Naturopathic Medicine et al., 2026 ONSC 4273, the Divisional Court:

[9] Mr. Montford correctly states that r. 2.1 is reserved for the clearest of cases: Scaduto v. Law Society of Upper Canada, 2015 ONCA 733. But r. 2.1 also “must be interpreted 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”: Scaduto, at para. 8; Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8. This means, in appropriate cases, proceedings can, for example, be dismissed under r. 2.1 for lack of jurisdiction: Seo v. Ontario (Information and Privacy Commissioner), 2026 ONCA 246; Chowdhury v. Unity Health, 2025 ONCA 90, at para. 4.

Chowdhury at para. 4 states: “The clear lack of jurisdiction is sufficient to render the motion for leave to appeal an abuse of process.” Seo at para. 5 adopts that statement: “A purported appeal that clearly does not engage the jurisdiction of this court is an abuse of process and is properly dismissed under r. 2.1.01,” citing Chowdhury at para. 4.

Collins v. Ontario, 2017 ONCA 317, grounded in Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, holds at para. 19 that Rule 2.1 does not replace a motion to quash an appeal for want of jurisdiction. Scaduto contains no language equating a lack of jurisdiction with an abuse of process, nor does it authorize a single judge to determine appellate jurisdiction. The issuance of Collins two years after Scaduto, and Simpson in 2016, confirms that boundary. Because Simpson and Collins have never been overturned, they remain the binding rule in Ontario that all subsequent Rule 2.1 decisions must follow.

Under section 7(1) of the Courts of Justice Act, an appeal shall be heard and determined by not fewer than three judges. A determination that the court lacks jurisdiction is a substantive ruling on the appeal. Section 7(2) permits a single judge to determine motions; it does not authorize a single judge, acting under Rule 2.1, to make that determination and dismiss the appeal.

The ordinary motion to quash supplies the adversarial process—notice, responding submissions, and a perfected record—that section 7(1) requires. Even where a panel proceeds in writing, the process required by section 7(1) remains an appellate hearing. It requires formal notice to the parties, an opportunity to file responding submissions, and a perfected record on which the panel decides.

Rule 2.1 is a written process. The registrar issues a Form 2.1B notice that the court is considering dismissal. The party then files written submissions in response. There is no oral hearing and no exchange of factums beyond those submissions. The judge or panel decides on the materials filed.

A Rule 2.1 endorsement that treats lack of jurisdiction as an abuse of process displaces that process, whether the endorsement is issued by a single judge or a panel.

Chowdhury and Seo treat a lack of jurisdiction as an absolute, binary trigger (“is sufficient”, “is properly dismissed”), and Montford states it is an action to be taken “in appropriate cases” and “for example.”

By equating a lack of jurisdiction with an “abuse of process,” the court has conflated a structural legal boundary with vexatious conduct. If any jurisdictional defect can be classified as an abuse of process, Rule 2.1 ceases to be a narrow gatekeeping tool reserved for frivolous litigation. It grants a single motion judge via Rule 2.1 the discretion to label any arguable jurisdictional error as an “abuse,” and to dismiss the appeal outright without the substantive panel review mandated by section 7(1) of the Courts of Justice Act.

The arbitrary nature of this practice is demonstrated by its expanding application. The court has invoked Rule 2.1 to avoid formal hearings across fundamentally different jurisdictional categories: lack of a statutory right of appeal (Chowdhury), prematurity (Montford), and filing in the wrong appellate forum (Seo). This confirms that “abuse of process” is no longer being used as a behavioural standard, but for any procedural error. Regardless of the underlying merits of the appeal, the statutory mechanism for determining jurisdiction remains a motion to quash or a transfer of the proceeding.

Note 1: The title for 2026 ONCA 246 is truncated to Seo v. Ontario (Information and Privacy Commissioner), omitting the City of Toronto. The case involved both the Information and Privacy Commissioner of Ontario and the City of Toronto as respondents, as reflected in the Supreme Court of Canada docket for File No. 42381 (Ian Seo v. Information and Privacy Commissioner of Ontario, et al.).

Under the doctrine of horizontal stare decisis at the Court of Appeal for Ontario, a regular three-judge panel is bound by the court's prior published decisions. To overrule or depart from established appellate precedent, the Chief Justice must convene a five-judge panel expressly for that purpose, or the precedent must be overturned by the Supreme Court of Canada.

The Governing Precedents: Simpson and Collins

In Collins v. Ontario, 2017 ONCA 317, the Court of Appeal defined the strict statutory and procedural boundary of Rule 2.1 of the Rules of Civil Procedure. Collins is built directly upon the foundational authority of Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806.

In Simpson, the Court of Appeal established the immutable boundary between an abuse of process and a lack of jurisdiction:

[43] "Rule 2.1 is meant to provide a streamlined procedure for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process. However, the rule is not intended or designed to supplant the established procedural mechanism of bringing a motion to quash an appeal for want of jurisdiction or for want of merit. Indeed, a party considering making a r. 2.1 request is well advised to consider if the matter would be more effectively addressed by the court by bringing a motion to quash and by filing the materials required in support of such a motion, rather than by using the procedures outlined in r. 2.1..."

From Simpson and Collins, two binding legal rules govern jurisdictional challenges:

• Jurisdiction vs. Abuse of Process: A proceeding or motion that cannot succeed because it fails to meet a threshold statutory or jurisdictional requirement is not, by that fact alone, "frivolous, vexatious, or otherwise an abuse of process" under Rule 2.1.
• The Mandatory Procedural Vehicle: Where a respondent contends that the Court of Appeal lacks jurisdiction to hear an appeal or motion (for example, because the order below is interlocutory or lies within the jurisdiction of the Divisional Court), the proper statutory mechanism is a formal motion to quash under s. 134(3) of the Courts of Justice Act—not an administrative summary dismissal under Rule 2.1.

Neither a five-judge panel of the Court of Appeal nor the Supreme Court of Canada has overturned or modified Simpson or Collins.

The Unreconciled Departure: Chowdhury v. Unity Health Toronto, 2025 ONCA 90

On February 5, 2025, in an endorsement on a written motion for leave to appeal (COA-24-OM-0326), a regular three-judge panel of the Court of Appeal stated at para. 4 that a "clear lack of jurisdiction is sufficient to render the motion for leave to appeal an abuse of process" under Rule 2.1.

The endorsement in Chowdhury did not cite or distinguish Simpson (2016 ONCA 806) or Collins (2017 ONCA 317). By treating a threshold lack of appellate jurisdiction as automatically sufficient to establish an "abuse of process," para. 4 of Chowdhury introduced an administrative summary shortcut that directly bypasses the formal motion-to-quash framework required under Simpson and Collins.

The Two-Stage Institutional Expansion (2025–2026)

Since February 5, 2025, the Chowdhury formulation has expanded across Ontario courts through two distinct procedural stages, effectively supplanting the motion to quash in direct conflict with Simpson:

1. Stage 1 — Written Panel Motions (Rule 2.1.02): Three-judge panels deciding Original Motions in writing (OM dockets, such as motions for leave to appeal under Rule 61.03.1 or panel review motions under s. 7(5) of the CJA) applied Rule 2.1.02 to dismiss motions as an "abuse of process" on jurisdictional and threshold grounds.
2. Stage 2 — Direct Appeals and Lower Courts (Rule 2.1.01): Once established in written motion endorsements, the Chowdhury rule was exported to Rule 2.1.01 to summarily terminate direct civil appeals (CV dockets) and first-instance judicial review applications without formal motions to quash.

The Procedural Paradox

The resulting jurisprudence has left Ontario civil procedure with two mutually exclusive directives: the foundational requirement to bring a motion to quash under Simpson and Collins, and the administrative shortcut minted in Chowdhury. However, under the strict rules of horizontal stare decisis, an endorsement from a three-judge panel cannot silently erase a foundational appellate framework.

Legally, there are only three ways to resolve this conflict:

1. The Chief Justice convenes a five-judge panel to explicitly overturn Simpson and Collins pursuant to the test established in David Polowin Real Estate Ltd., 2005 CanLII 21093 (ON CA);
2. The Supreme Court of Canada intervenes to restore the statutory framework; or
3. A subsequent panel declines to follow Chowdhury pursuant to the recognized exceptions to horizontal stare decisis affirmed in R. v. Sullivan, 2022 SCC 19, at para. 75.

Until one of those three institutional corrections occurs, the shortcut created in Chowdhury remains procedurally invalid. Every Rule 2.1 dismissal that substitutes an administrative notice for a formal motion to quash operates in direct conflict with the Court’s own binding precedent.