Executive Summary: Key Legal and Evidentiary Issues

• The court considered whether to dismiss the Plaintiffs' 2026 action on its own initiative under rule 2.1.01 of the Rules of Civil Procedure.
   
• Defendants argued the claim was duplicative of an ongoing 2021 action and a 2025 application, meaning it had not crystallized.
   
• Plaintiffs maintained that the underlying 2021 action against their former lawyer had concluded by agreement to dismiss without costs and a Full and Final Release.
   
• Justice Mathen applied the established tests for frivolous, vexatious, and abuse-of-process claims under rule 2.1.
   
• Evidence regarding discovery refusals by a non-party witness's counsel factored into the court's assessment of the Defendants' arguments.
   
• Ultimately, the presiding judge found the duplication question to be, at best, a close call unsuited to summary dismissal.
   

Facts of the case

In-Store Products Limited, 2686570 Ontario Inc., and Michael Davidson (the Plaintiffs) sued their former lawyers, Peter I. Waldmann [source also refers to "Waldman" at para. 6] and Peter I. Waldmann Professional Corporation (the Defendants), alleging negligent representation. The Defendants had represented the Plaintiffs from March 22, 2021, to May 1, 2025, in an earlier lawsuit the Plaintiffs brought against their prior counsel, Richard Cooper, for professional negligence connected to the Plaintiffs' purchase of IPCF Baldwin Airport. The 2026 claim against the Defendants centres on, among other things, their conduct during the examination of Cooper in February 2025.

The registrar's office referred the current motion to Justice Mathen under rule 2.1.01(7) after receiving a written request from the Defendants' lawyers under rule 2.1.01(6). On July 16, 2026, the judge directed the registrar to notify the Plaintiffs, in Form 2.1A, that the court was considering dismissal under rule 2.1.01(2). Both sides made submissions, including additional submissions the Defendants were permitted to file after objecting to material in the Plaintiffs' response.

Policy and legislative provisions at issue

Rule 2.1.01(1) permits a court, on its own initiative, to stay or dismiss a proceeding that appears on its face to be frivolous, vexatious, or otherwise an abuse of the process of the court. Citing prior authority, Justice Mathen noted the rule is not intended for "close calls." A frivolous proceeding lacks legal basis or merit, is brought without reasonable grounds, and will necessarily or inevitably fail. Vexatious proceedings are commenced for an improper purpose, such as harassment, and often display curious formatting or rambling discourse. Abuse of process requires that the abusive nature of the proceeding be apparent on the face of the pleadings themselves.

Reasoning and analysis

Justice Mathen found nothing in the claim suggesting it was frivolous or vexatious on its face, nor did it appear destined to fail. The remaining question was whether the claim was duplicative of the 2021 action and therefore an abuse of process. The Defendants pointed to the fact that the 2021 file still showed as "active" in the court system, but the judge accepted the Plaintiffs' characterization of this as a narrow, technical complaint given the asserted settlement agreement, which the Defendants had no evidence to contradict.

The Defendants also raised a 2025 Application seeking assessment of their own legal accounts from the 2021 matter as further evidence of duplication. While acknowledging overlapping facts, the judge held that an ongoing assessment application did not meet the high threshold required for dismissal under rule 2.1. Turning to discovery, the Defendants argued that any deficiency in the Plaintiffs' examination of Cooper could be remedied through continued discovery in the Cooper litigation, and that the Plaintiffs' refusal to proceed was fatal to their claim. However, the record showed that Cooper's counsel had refused to continue the examinations on November 17, 2025, and July 27, 2026, advising instead that a revised release would be forwarded for signature. The judge did not find the Defendants' suggestion that the Plaintiffs could compel Cooper's attendance sufficient to meet the dismissal threshold.

Ruling and overall outcome

Justice Mathen concluded that the question of duplication was, at best, a close call, making dismissal under rule 2.1 inappropriate. The Defendants' motion was dismissed. On costs, the Plaintiffs had sought $6,712 on a substantial indemnity basis or $5,491 on a partial indemnity basis; the judge found the Plaintiffs, having prevailed, were entitled to costs and declined to treat the motion as warranting costs thrown away given the complexity of the underlying dispute and the unsigned state of any settlement documents. The Defendants were ordered to pay the Plaintiffs costs fixed at $5,000 within thirty days.