On occasion, courts are faced with the issue of determining whether or not a particular litigant should be permitted to continue or initiate court proceedings without oversight. The issue sometimes arises when the litigant has a lengthy history of bringing such proceedings or otherwise might be regarded as having abused court resources. This blog will explore the meaning of the term “vexatious litigant,” the process for having a litigant declared “vexatious,” and the consequences such a declaration has on a litigant.

The Courts of Justice Act

The Ontario Superior Court of Justice has inherent jurisdiction to control its own processes and prevent their abuse. This includes the ability to restrict a party’s right to access the court system.

This inherent power has also been codified in the Courts of Justice Act. Section 140(1) of that statute provides that where a party “has persistently and without reasonable grounds” instituted “vexatious proceedings” in a court or “conducted a proceeding in any court in a vexatious manner,” the Court may make certain orders to address that conduct. The purpose of section 140(1) is not to punish the vexatious party but rather “limiting the costs imposed on the system and other litigants” (see Ironside v. Roskam).

Courts have clarified that the power to declare a party a “vexatious litigant” is an “extraordinary” one that must be “exercised sparingly and with the greatest of care” (see Dobson v. Green). Courts have also said this power should only be used “for those rare cases where the normal rules of court seem unable to reasonably control a litigant.”

Courts must be cognizant that “even a vexatious litigant can have a legitimate complaint.” In Gao v. Ontario WSIB, the Superior Court of Justice noted that care should be taken “to allow generously for drafting deficiencies and recognizing that there may be a core complaint which is quite properly recognized as legitimate even if the proceeding itself is frivolously brought or carried out and ought to be dismissed.”

What Are the Characteristics of a Vexatious Litigant?

Courts have said the following characteristics are often common in vexatious litigants:

• They pursue claims that are obviously meritless, regardless of the costs consequences;
• They may initiate multiple proceedings for the purpose of re-litigating matters that have already been decided;
• They often ignore rulings against them;
• They may pursue “selfish and single-minded goals”;
• They are usually self-represented;
• They often pursue litigation with the intention of wearing down or harassing adversaries rather than asserting legitimate rights;
• They often repeat pleadings in subsequent actions;
• They may bring actions against lawyers who previously acted against them;
• They often appeal unsuccessfully;
• Materials they file with the court tend to be “voluminous;” and
• They often fail to pay costs that are awarded against them.

When Will a Person or Proceeding Be Deemed “Vexatious”?

A motion to seek an order declaring someone to be a vexatious litigant can be made either on the motion or application of a specific person or on a judge’s initiative (see Rule 2.2.02 of the Rules of Civil Procedure).

Recently, in Lenczner Slaght LLP v. Glycobiosciences Inc et al., the Superior Court of Justice observed that, in determining whether a party is a “vexatious litigant,” the court “must look at the whole history and not just whether there was once a good cause of action.”

The standard to be applied in determining whether proceedings brought by a litigant have been pursued vexatiously is objective (see Dobson). Courts have broad latitude to consider a “wide range of proceedings in which an allegedly vexatious litigant has participated, including actions, applications, motions and appeals, and how the litigant has conducted him or herself within those proceedings, including any acts of dishonesty or deceit with the court.”

Courts are also permitted to consider a litigant’s behaviour outside of the courtroom if it is relevant since “it is not uncommon for a vexatious litigant to utilize the court process as simply part of an overall strategy of abuse and harassment.” Outside conduct may help to understand a litigant’s motivations and behaviour within court proceedings.

It should be observed that even a party with a “meritorious claim” may be declared vexatious if they engage in conduct of a vexatious nature (see Wong v. Wong).

What Are the Consequences of Being Declared a Vexatious Litigant?

An order under section 140(1) of the Courts of Justice Act does not mean a litigant will no longer have access to the courts.

A court may make various orders to restrain a vexatious litigant’s conduct. Generally, a court may order that such party not institute any further proceedings in any court or continue an existing proceeding without leave of the Superior Court of Justice. In such situations, the Court effectively becomes the gatekeeper of the ability of the vexatious litigant to commence or continue litigation.

A vexatious litigant order may also stay pending actions until outstanding costs orders are paid (see Landmark Vehicle Leasing v. Marino).

Once a party is declared a vexatious litigant, they must meet an evidentiary burden before being allowed to initiate or continue a proceeding. Specifically, they will need to establish, to the court’s satisfaction, that there is a reasonable basis for the proposed proceeding. If this hurdle is met, leave to pursue the litigation may be granted (see Roskam v. Jacoby-Hawkins). The onus is entirely on the vexatious litigant.

If a vexatious litigant commences or continues a proceeding without leave, and the court determines that the proceeding is subject to the vexatious litigant order, the court must stay or dismiss that proceeding (see Rule 2.2.09).

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