Khan v. Krylov & Company et al.
[Indexed as: Khan v. Krylov & Co.]
2017 ONCA 625
Court of Appeal for Ontario, Pepall, Lauwers and Huscroft JJ.A.
July 26, 2017
Civil procedure — Vexatious proceedings — Plaintiff alleging that
defendant law firms defrauded him by misappropriating settlement
funds — Motion judge erring in dismissing action under rule 2.1.01 as
being frivolous, vexatious or abuse of process — Allegation in statement
of claim not entirely implausible and nothing on face of statement of
claim showing plaintiff to be vexatious litigant — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 2.1.01.
The plaintiff sued the defendant law firms, alleging that they defrauded him
by misappropriating settlement funds. The defendants moved successfully to
have the action dismissed under rule 2.1.01 of the Rules of Civil Procedure as
being frivolous, vexatious or an abuse of process. The plaintiff appealed.
Held, the appeal should be allowed.
The allegation of misappropriation was not entirely implausible, and nothing
on the face of the statement of claim showed the plaintiff to be a vexatious litigant. Once a pleading asserts a cause of action and does not bear the hallmarks
of frivolous, vexatious or abusive litigation, resort to rule 2.1.01 is not appropriate as a means for bringing the action to an early end.
Cases referred to
Gao v. Ontario (Workplace Safety and Insurance Board),  O.J. No. 5307,
2014 ONSC 6497, 61 C.P.C. (7th) 153, 37 C.L.R. (4th) 7, 247 A.C.W.S. (3d)
58 (S.C.J.); Husain v. Craig,  O.J. No. 1300, 2015 ONSC 1754 (S.C.J.);
Mester v. Wah,  O.J. No. 4274, 2016 ONSC 4887 (S.C.J.); Raji v. Borden
Ladner and Gervais LLP,  O.J. No. 307, 2015 ONSC 801 (S.C.J.); Scaduto
v. Law Society of Upper Canada,  O.J. No. 5692, 2015 ONCA 733, 81 C.P.C.
(7th) 258, 343 O.A.C. 87, 259 A.C. W.S. (3d) 447 [Leave to appeal to S.C.C. refused
 S.C.C.A. No. 488]
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 2.1, 2.1.01
APPEAL from the order of Daley R.S.J. of the Superior Court of
Justice dated December 2, 2016 dismissing an action as frivolous, vexatious or abusive.
Zaka Ullah Khan, acting in person.
B. Robin Moodie, for respondent Krylov & Company.
Louis Covens, for respondent Devry Smith Frank LLP.
 BY THE COURT: — The motion judge dismissed the appellant’s action under rule 2.1.01 of the Rules of Civil Procedure,