Under B.C.’s new directions, a person who has been declared a vexatious litigant and who “requests leave of the Court to file pleadings to bring a new proceeding, or to file an application or materials within an existing proceeding, must file a requisition” and attach “a) a copy of the proposed pleading or other documents which the person requests leave to file; b) a copy of the order declaring the person to be a vexatious litigant.”
The judge or master reviewing the request for leave will then endorse the requisition to indicate whether it is granted, refused or directed to the chambers list for a hearing, either without notice or on notice to an intended defendant/respondent.
Last March, the Federal Court of Appeal provided some guidance to lawyers in bringing motions to curb frivolous litigation in the courts. In Canada v. Olumide, Justice David Stratas urged litigants bring applications under s. 40 of the Federal Courts Act in order to weed out vexatious litigants as early as possible.
“[T]oo often . . . the applicants do not start vexatious litigant applications for months, if not years, even many years,” Stratas wrote, and, in the meantime, valuable court time and resources have been used in fighting frivolous lawsuits.
In Ontario, the Rules of Civil Procedure were amended in 2014 to address the issue of self-represented litigants, and specifically vexatious litigants, in the courts. Section 2.1.01 of the rules allows for a court, “on its own initiative, [to] stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.”
Brian Gover, a litigator at Stockwoods LLP in Toronto and president of The Advocates’ Society, sees British Columbia’s administrative notice to be in keeping with what “courts have implemented to deal with vexatious litigants."
“The B.C. notice strikes a reasonable balance” between protecting court resources, funded by taxpayers, and allowing access to justice for litigants, Gover told Legal Feeds.
Such measures are the “inevitable result of the tide of self-represented litigants,” he says, of which a proportion of cases brought will be vexatious. “The courts will have to be diligent to ensure that vexatious litigants are properly addressed. . . . The B.C. notice provides a process” regarding how vexatious litigants may request leave, including notice to would-be defendants or respondents.
“We’re dealing with a limited resource, funded by the taxpayer, but we have to be responsible in the way we do it . . . to strike the appropriate balance” between using court resources responsibly and providing access to justice for litigants, Gover says.
Michael Myers, a partner in Papazian Heisey Myers in Toronto, agrees that governments and legislatures are giving courts more and more power to deal with vexatious litigants.
“In Ontario, there used to be a high bar for declaring someone a vexatious litigant,” he says. But s. 2.1.01 of the Rules of Civil Procedure does not require that declaration; rather, a lawyer or court registrar — or a judge — may flag a particular motion, and the court may dismiss that motion without a hearing if it is considered to be frivolous or vexatious.
Orders that declare someone a vexatious litigant — which are still relatively rare — mean that the litigant must receive permission from a judge in order to continue or begin any new cases at any level of court in that jurisdiction. This doesn’t mean that a declared vexatious litigant cannot appear before the courts again, including at the appellate level, and repeatedly so.
In late June, the Court of Appeal for Ontario dismissed a motion by a woman who reportedly sued at least 30 people between 2011 and 2016 and was declared a vexatious litigant last year; it was the second motion from the litigant that the appellate court had dismissed this year.
Gover says the issue of self-represented — and sometimes vexatious — litigants is “an issue the courts have been confronting for a long time,” and they have now “developed means for addressing the problem.” The Canadian Judicial Council has propounded principles for courts to employ in dealing with self-represented litigants, he says, by providing these litigants with information about the judicial process; “then courts and other participants can have some expectation that [the self-represented litigants] will comply with it. There will be vexatious litigants who are represented, but a substantial number . . . are self-represented.”
In addition to wasting court resources, vexatious litigants can also cost those they sue a lot of money.
“Litigation is by its nature oppressively expensive,” says Myers. In a vexatious lawsuit that goes forward, the defendant will “likely get a big cost award against the litigant, but you won’t collect,” he says. That’s because vexatious litigants typically spend a lot of their time in court and don’t have much money, he adds.