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How to Spot a Vexatious Litigant

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One of the ongoing problems within many court systems is the existence of the vexatious litigant.  A vexatious litigant can take many forms, but is typically someone who harasses other people by filing frivolous lawsuits.  But what distinguishes someone who has brought one or more weak claims from someone who is genuinely a vexatious litigant?  A few recent decisions can help us understand this a little better.

 

Generally speaking, the laws in Ontario recognize that some people will be so ungovernable that they need to have their access to the court system restricted.  This is typically by way of a vexatious litigant order unders s. 140 of the Courts of Justice Act.  Section 140 is fairly sparse, and simply says:

140.(1)Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,
     (a) instituted vexatious proceedings in any court; or
     (b) conducted a proceeding in any court in a vexatious manner,
the judge may order that,
     (c) no further proceeding be instituted by the person in any court; or
     (d) a proceeding previously instituted by the person in any court not be continued,
except by leave of a judge of the Superior Court of Justice.

Judges are typically very hesitant to touch this section, except in clear cases.  Even where this section is considered, the courts are typically very particular about affording the alleged vexatious litigant all the procedure benefits possible, so as to make sure they are given a proper hearing.1  While this sounds basic, it can sometimes be tough to do so when a party is going out of their way to be as difficult as possible.

What is a Vexatious Litigant

When it comes to deciding who is a vexatious litigant, the test is somewhat open and discretionary.  Justice Ken Campbell has given us the benefit of a good summary of the law, including a good description of what a vexatious litigant is, in a recent decision of Dobson v. Green, 2012 ONSC 4432:

[7] Generally speaking, vexatious litigants often share common characteristics. They advance claims that are often manifestly without merit. They tend to ignore adverse rulings and procedural setbacks, such as costs orders against them. They may resort to multiple, repetitive proceedings, often against the same adversary. They will sometimes similarly engage others who present themselves as an obstacle in their path. They often launch court proceedings as if unconcerned about the financial resources invariably consumed by such actions. They tend to be litigants who, with persistence, abuse the court process for their own selfish and single-minded goals. They are typically self-represented litigants who seem intent, through a series of persistent and fruitless proceedings, on wearing down their opponents through an ongoing battle of attrition.

This is similar to the classic list of characteristics of a vexatious litigant, from the oft-cited case of Re Lang Michener and Fabian2, which is quoted from in Justice Campbell's decision.  This list, which hasn't really changed since it was first enumerated in 1987 is a number of typical characteristics of a vexatious litigant (not all of which are present in every case):

(a) The bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

(b) Where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) Vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) It is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) In determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f) The failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;

(g) The respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

The case itself involved a family law dispute, where the former husband essentially alleged that the shares held by the former wife in a mining corporation were worth hundreds of millions of dollars (there are also various other issues, but this seems to be the central one).  The underlying dispute, which has apparently been going on since 1993, is said to involve multiple separate actions over essentially the same subject matter, multiple unpaid costs awards and unsuccessful attempts to have the former wife charged criminally. As a result, the judge granted the vexatious litigant order.

What Happens After a Vexatious Litigant Order is Granted?

Technically, what happens when a vexatious litigant order is made is that the vexatious litigant has to obtain leave to start or continue any actions (whether against the person who obtained the vexatious litigant order, or someone else entirely unconnected).  Getting leave means bringing a motion before a judge, and essentially proving to that judge (on proper affidavit materials, presumably) that the litigation has merit and will be prosecuted properly (i.e. a lawyer has been hired to run it).  That means that until they get permission from the court, the only thing they can do is appeal the vexatious litigant order.

There are a few problems, unfortunately.  First, there is no central registry of vexatious litigants.  So there is little in the way of a vexatious litigant simply starting a new action, despite the order against them.  It is really up to the party that is being sued to then bring a motion to stop the proceeding (assuming they even know about the vexatious litigant order).  Second, since they are technically allowed to bring motions for leave to commence or continue an action, this means they can start harassing the other party by simply bringing repeated motions for leave.  Third, a vexatious litigant order does not, by itself, stop the vexatious litigant from pursuing other channels.  They can call the police and make frivolous complaints.  They can report lawyers to the Law Society.  They can undertake more "classic" harassment, such as stalking or frequent phone calls.  So ultimately, the vexatious litigant order is helpful, but not a magic bullet to stop all harassment.

An example of this type of frustration is another recently released case of Aziz v. Riad, 2012 ONSC 4411.  This is another family law case, where multiple judges have made orders against the former husband, culminating in a February 2012 vexatious litigant order.  Since the vexatious litigant order restricted the former husband from proceeding without leave, he then brought a leave application.  More particularly, he brought a motion asking for the following relief:

To have This Honourable Court grant a leave to the Applicant to proceed with his VERY OUTASTANDING Courts’s CASES that are STILL BEFORE THE COURTS AND MUST BE CONCLUDED BY THE COURTS. In particular: Court File Numbers: 357/11 (Divisional Court-Toronto [It is actually a Newmarket file.]), File # FC-22844-00/01/02/03/ Family Division in Newmarket Court. File # 449/11 Divisional Court-Toronto, a non-relevant matter to the Applicant’s wife, Mrs. Aziz, File # DC-000137 Civil matter, File # CV-07-082789, File # CV-10-00397881, CIVIL-TORONTO, File # 218-11 Divisional Court-Toronto (moved to 357/11 DC-T), SEVERAL APPLICATIONS AND MOTIONS to remove the Applicant’s wife counsel, Mr. David Areih Weisman (whom the LSUC FOUND HIM GUILTY OF CONFLICT OF INTEREST AND PROFESSIONAL MISCONDUCT FOR ACTING FOR BOTH The Applicant and the Respondent for four and a half years, then taking and pitting the Respondent against her HUSBAND, the applicant for more than six and a half years !!!!!!!, also Removal of his legal firm, OKELL & WEISMAN as solicitors of record on behalf of the Applicant’s wife, the respondent, which is a MUST as I was told by the LSUC and also the Chief Justice, Hon. Justice Warren Winkler, in 2011), In addition to ANY COURT FILE THAT IS NOT RELEVANT to The Applicant’s wife, EXCEPT HER CRIMINAL COURT FILE # 09-11539 Newmarket court, and other criminal courts in Ontario). [sic]

He also appears to have continued his attempts to have the Law Society discipline the former wife's lawyer.  So in addition to having to respond to this motion, the former wife and her lawyer continue to have to deal with this matter even after the vexatious litigant award.  While the former wife was awarded costs, it is unlikely that she will ever recover these costs from the former husband.

If the vexatious litigant order does not seem to have any effect, it is likely that the next step will be for a judge to restrict their ability to bring leave motions.  For example, in the Chuang case mentioned as item #5 in this previous blog post, the court ruled that the vexatious litigant must essentially write to a judge to get permission to even bring a full leave motion.  This, combined with a restraining order, might alleviate some of the problems left over after a vexatious litigant order.

What is interesting from these types of vexatious litigant cases (from a psychological standpoint, at least) is that they have a complete disregard for court orders, but still feel the need to come to court to continue to ask for relief.  Either they know that their attempts are hopeless, but they are just bringing them to harass the other party, or they are under the belief (probably delusional) that eventually they will find a judge who completely understands them and will fix everything.

 


 

1 For example, in the recent Court of Appeal decision in Lukezic v. Royal Bank of Canada, 2012 ONCA 350, a vexatious litigant order was set aside simply because it was brought by way of motion instead of application.

2 The re Lang Michener and Fabian case has always been a bit of a favourite of mine (yes, I do have favourite cases), partly because I've had to go up against a fair number of vexatious litigants in the past, and partly because the now defunct Lang Michener firm (now part of McMillan LLP) was my former home for a number of years.

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