“Or” vs. “Or Otherwise”: Scaduto (2015 ONCA 733), Raji (2015 ONSC 801), and the Language of Rule 2.1.01

Rule 2.1.01(1) states:

The court may make an order staying or dismissing a proceeding that appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

The word “otherwise” is not surplus. It connects “abuse of the process of the court” to the preceding grounds, making abuse a residual category rather than simply a third, unrelated ground. Ordinary principles of statutory interpretation, including noscitur a sociis and ejusdem generis, require attention to the relationship between general language and the terms that precede it. In R. v. Nabis, [1975] 2 S.C.R. 485, the Supreme Court interpreted “or otherwise” in light of the statutory context and the preceding enumeration. R. v. Daoust, 2004 SCC 6, likewise recognizes the relevance of associated words while distinguishing genuinely separate terms joined by “or.”

The danger of this kind of judicial game of telephone is well documented in Canadian jurisprudence. In Athey v. Leonati (1996), the Supreme Court described standard causation by noting a defendant is liable if their negligence "materially contributed to the occurrence of the injury." Over the following years, the language of material contribution acquired a significance that required clarification. In Clements v. Clements, 2012 SCC 32, the Supreme Court explained that Athey, read in context, had applied a robust approach to but-for causation rather than an unrestricted alternative test. The distinction illustrates how judicial terminology, repeated without its original qualifications, can develop a doctrinal significance that requires subsequent correction. Likewise, deleting “otherwise” from Rule 2.1.01(1) severs the grammatical relationship between the enumerated grounds and the residual category of abuse of process. The question is why modern formulations repeatedly omit a word the rule-maker deliberately included.

The operational framework applied under Rule 2.1 does not consistently preserve that structure.

Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, sets out the conditions for using the rule. At paras. 8 and 9, the decision states:

[8] The court has always had difficulty with the Catch-22 nature of dealing with vexatious litigants. Any time that proceedings are brought to try to end a vexatious proceeding, the vexatious litigant is provided with a fresh opportunity to conduct that proceeding in a vexatious, expensive, wasteful, and abusive manner. That is, the proposed cure causes a fresh outbreak of the disease. Vexatious litigant proceedings under s. 140 of the CJA can take years and be very expensive in light of the many opportunities provided to the alleged vexatious litigant to file material, examine and cross-examine witnesses, bring interim motions, and take advantage of other available procedures. Imposing a quick and limited written process that provides one opportunity to the plaintiff to show why the claim should not be dismissed is an important advance toward meeting the goals of efficiency, affordability, and proportionality in the civil justice system as discussed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.

[9] However, as discussed in Gao v. Ontario WSIB, 2014 ONSC 6100 (Gao No. 1), rule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves. No evidence is submitted on the motion. As discussed more fully in Gao No. 2, the use of rule 2.1 is justified by the need to prevent an apparently abusive litigant from inflicting the Catch-22 on the other parties and the court. As such there are two conditions generally required for rule 2.1 to be applied. First, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading as required by the rule. Second, there should generally be a basis in the pleadings to support the resort to the attenuated process of rule 2.1. For example, the pleadings may contain inherently abusive claims like OPCA claims as discussed by Rooke A.C.J. in Meads v. Meads, 2012 ABQB 571 (CanLII). The claims may contain hallmarks of vexatious litigants or querulous litigant behavior as discussed in Gao No. 2 at paras. 13 to 15. This second requirement is not in the rule and is not a fixed requirement. It strikes me as a guideline that reminds the court that there are other rules available for the same subject matter and that resort to the attenuated process in rule 2.1 should be justified in each case. As also noted in Gao No. 2 however, the reality is that most cases under rule 2.1 will not require much depth of analysis. Generally, these cases are obvious on their faces.

“Or” vs. “Or Otherwise”

In Raji, the justification for the abbreviated 2.1 procedure is rooted in the need to manage vexatious litigants and querulous behavior. The court’s primary concern is stopping the “Catch-22” associated with proceedings under s. 140 of the Courts of Justice Act, not procedural missteps or venue errors. The reasoning is squarely directed at inherently vexatious conduct.

Yet the formulation in para. 9—“frivolous, vexatious, or abusive nature”—drops the statutory word “otherwise.” The residual clause is presented as a third parallel ground rather than a category expressly connected to the preceding terms. Para. 9 also introduces a second condition that is expressly acknowledged as “not in the rule,” although it is described as a guideline rather than a fixed requirement.

In Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, the Court of Appeal stated at para. 9 that it fully endorsed the case law and the guidance provided in Raji. The Court of Appeal itself employed the abbreviated formulation at paras. 8 and 11. The truncated wording was therefore not confined to a single first-instance decision; it appeared in the appellate court’s own description of the Rule 2.1 standard.

Once “otherwise” is omitted, “abuse of process” is presented as a freestanding ground. The formulation can obscure whether the application of general abuse-of-process doctrines, including collateral attack and re-litigation, has been considered in relation to the preceding statutory grounds of frivolousness and vexatiousness. Combined with the general exclusion of evidence, the primary assessment remains confined to a facial review of the pleading and the submissions permitted by the rule.

The distinction is not merely grammatical. The enacted language connects the residual ground to what precedes it. The abbreviated judicial formulation does not. Repeated use of the latter risks treating the full expression “or otherwise an abuse of the process of the court” as interchangeable with the much broader shorthand “or abusive.”

This exact consequence crystallized in recent jurisprudence. Chowdhury v. Unity Health Toronto, 2025 ONCA 90, provides an appellate decision for treating a clear lack of jurisdiction as sufficient, by itself, to constitute an abuse of process. The Court of Appeal considered a motion for leave to appeal that it determined fell outside its jurisdiction. At para. 4, the court stated: “The clear lack of jurisdiction is sufficient to render the motion for leave to appeal an abuse of process.” The decision did not separately identify the proceeding as frivolous or vexatious, nor did it examine the relationship between lack of jurisdiction and the statutory expression “or otherwise an abuse of the process of the court.” Instead, the absence of jurisdiction was treated as sufficient, in itself, to establish abuse of process for the purposes of Rule 2.1. Chowdhury shows how the abuse-of-process category can operate independently of the preceding grounds, without an express examination of the connecting language chosen by the rule-maker.

This reading raises a question under the modern interpretive approach stated in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27. The text must be read in its grammatical and ordinary sense, in its entire context, and harmoniously with the scheme and object of the enactment. An interpretation that severs the residual clause from its grammatical link risks expanding the rule beyond the structure expressed in its enacted wording.

The sequence is therefore significant. A first-instance formulation omitted the statutory connector “otherwise”. The Court of Appeal endorsed the accompanying guidance and repeated the abbreviated language without examining the residual structure of the rule. That formulation has since become familiar in Rule 2.1 jurisprudence.

A further feature of Scaduto deserves attention. The decision under appeal was rendered by the same motion judge responsible for the earlier Rule 2.1 decisions discussed at para. 7, including Raji. At para. 9, the Court of Appeal expressly endorsed that body of guidance before upholding the motion judge's application of the rule. Thus, the influential appellate framework emerged from an appeal of a decision by the very judge who had developed and repeatedly articulated that framework.

When the power at issue permits a proceeding to be stayed or dismissed through an abbreviated process, that difference deserves scrutiny. The text enacted by the rule-maker—not the shorthand subsequently adopted in judicial decisions—must remain the starting point.

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)

2. Constitutional Limits & Delegated Authority

• Jurisprudence of the Administrative Reverse Onus: Rule 2.1 vs. Established Precedent
• Rule 2.1, Section 137.1 of the Courts of Justice Act, and the Administrative Reverse Onus
• 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