Finally, some plain talk about a pervasive problem
- Subtitle: Trials & Tribulations
These people are not the typical self-represented litigants, but rather they are individuals who purposefully and intentially disregard the rule of law and use the courtroom for their own self-aggrandizement or to advance vexatious objectives antithetical to the proper operation of our court system. Rooke dubbed these vexatious litigants “Organized Pseudolegal Commercial Argument litigants.”
OPCA litigants, says Rooke, should now be readily identifiable, and denied the opportunity and platform to make a mockery of the courts.
In his lengthy decision (736 paragraphs over 163 pages), Rooke listed several species of OPCA litigants, and enumerated their distinguishing traits, strategies, and ploys, all of which have already been evaluated and rejected by Canadian courts. His in-depth analysis and rejection of these different strategies was intended to act as a future aid to courts, lawyers, and other parties to litigation when faced with OPCAs. He also gives guidance on responding to their tactics.
The decision sends a stern warning to OPCA litigants that the courts are on to their game. It explains the spectrum of consequences they may face if they thumb their nose at our legal and judicial systems.
As Rooke makes clear: “There is no place in Canadian courts for anyone who advances OPCA concepts.”
He recommends a strong response from future courts to curb their abusive and vexatious litigation strategies, which he describes as “little more than scams that abuse legal processes.”
He warned: “As this Court now recognizes that these schemes are intended for that purpose, a strict approach is appropriate when the Court responds to persons who purposefully say they stand outside the rules and law, or who intend to abuse, disrupt, and ultimately break the legal processes that govern conduct in Canada. The persons who advance these schemes, and particularly those who market and sell these concepts as commercial products, are parasites that must be stopped.”
The OPCA litigants, says Rooke, fall into the following broad categories or “movements”:
1. De-taxers who focus on avoiding tax liability;
2. Freemen or freemen-on-the-land who focus on anti-government theories, with libertarian and right-wing overtones, and believe they can opt out of societal obligations. Commercial contract overtones are common;
3. Sovereign men or sovereign citizens who focus on state oppression and violence;
4. Church of the Ecumenical Redemption International — an Edmonton-based “pot church”;
5. Moorish law in which black Muslims who self-identify as “Moors” are governed by their own laws, not the state;
6. Others who do not identify themselves with any of these groups but follow similar tactics, or rely on “magic hats” to absolve them from their obligations.
The concepts advanced by each subspecies of OPCA litigant generally involve a rejection of the inherent jurisdiction of the court with the adherents believing they are above the law and immune from societal obligations. They tend to employ fanciful documents and nomenclature.
OPCA litigants are often conspiracy theorists, but don’t have a specified target, other than “the man,” hence they conclude that they are entitled to disregard the system that is their oppressor. Rooke concludes: “When reduced to their conceptual core, most OPCA concepts are contemptibly stupid,” and the leaders or “gurus” of these schemes are “nothing more than conmen.”
In Meads, Rooke categorized the different schemes, identified indicia of OCPA litigants are typically not seen in the conduct in other self-represented litigants, and enumerated the global defects in their schemes. He recommended responses for members of the judicial system, including judges, lawyers, and court officials.
His reasons begin by confirming: “One of the purposes of these Reasons is, through this litigant, to uncover, expose, collate, and publish the tactics employed by the OPCA community, as a part of a process to eradicate the growing abuse that these litigants direct towards the justice and legal system we otherwise enjoy in Alberta and across Canada.
“[T]hey also are intended to assist others, who have been taken in/duped by gurus, to realize that these practices are entirely ineffective; to empower opposing parties and their counsel to take action; and as a warning to gurus that the Court will not tolerate their misconduct.”
To respond to and penalize the abuses of OCPA litigants, the Alberta judge recommends: “Any judge who faces OPCA litigation should consider deployment of all tools in this arsenal [i.e. the traditional steps a court may take to address vexatious litigation], and others that may be developed for this difficult litigant category” including:
1. Courts should adopt special procedures for documents that show OPCA indicia, including court clerks either rejecting materials that are not compliant with the rules, or marking them as “received” rather than “filed”;
2. Judges act on their own motion to review documents with OPCA indicia and make such orders as are appropriate including a declaration that the litigation is frivolous, rejecting the documents, ordering a “show-cause” hearing requiring the OPCA litigant to prove that within the morass of spurious materials there is a case, or fining the litigant;
3. Additional in-court security be available;
4. In some cases, the public should be excluded from the court, where it appears individuals in the gallery are present to assist in disrupting the proceedings;
5. Heightened cost awards, including full indemnity costs; or
6. Appointment of an amicus curiae.
He set out a long list of the “arsenal” available to the court to curb abuses. The list is included to aid opposing parties, and to warn OPCA litigants of the consequences of their abuse of process, including contempt and cost awards.
Rooke also gives advice to lawyers facing OPCA litigants. Importantly, he warns lawyers should not notarize OPCA documents, which thereby assists in the implementation of their strategies. In addition, he notes lawyers have a duty to identify real issues in dispute and facilitate their resolution.
Hence, the opposing lawyer can assist the court by identifying any real “legal issues [that may lie] buried in that morass,” so the court can make a fair adjudication on those points. He encourages opposing parties to educate other courts about OPCA concepts, tactics, and language to illustrate the intent is to disrupt the court proceedings.
Finally, Rooke encourages those facing an OPCA litigant to pursue punitive damages and elevated cost awards “to minimize harm to their clients.”
I take my hat off to Justice Rooke. While he repeatedly affirms the court will provide a fair hearing of legitimate issues, his strongly worded judgment should send a clear message to OPCA litigants, and any other litigant that engages in abusive strategies, that our courts will not tolerate these abuses. I hope through this article, Rooke’s reasons come to the attention of many others, and that it assists and encourages all those involved in the court system to take a decisive and strong position to curb these vexatious litigants and bring them to heel.
is a senior partner at Paliare Roland Rosenberg Rothstein LLP in Toronto. She has a varied advocacy practice including a broad range of complex commercial and shareholder litigation, professional liability cases, class actions and appellate advocacy. She can be reached at email@example.com.
Column: Trials & Tribulations