Vexatious litigant orders: what courts require and its effects

A vexatious litigant is not simply someone who loses and tries again. Under the law, they’re those who file proceedings without a legitimate basis, often to wear down the opposing party instead of pursuing a genuine right. Across Canada, courts have the authority to formally designate such a person and restrict their access to the courts entirely.

What does it take to be declared a vexatious litigant?

There are legal standards for one to be declared a vexatious litigant. Aside from common law, provincial statutes also govern vexatious litigant orders and how it can be issued.

Under s. 140 of Ontario’s Courts of Justice Act (CJA) for instance, a judge may make a vexatious litigant order against a person who has “persistently and without reasonable grounds” either:

• instituted vexatious proceedings in any court, or
• conducted a proceeding in a vexatious manner

The second part matters, since a litigant does not need to file dozens of lawsuits to qualify as a vexatious litigant. Here, persistent abuse within a single proceeding may be enough in extreme cases.

In practice, courts can also look for a pattern. In Ottawa Police Services Board v. Deirdre Moore, 2025 ONSC 537, the threshold was met after the litigant had commenced 13 proceedings over a 10-year period, targeting the police board, lawyers from her family proceedings, medical professionals, the Attorney General of Ontario, a judge of the Ontario Superior Court of Justice, among many others.

Aside from the CJA, Ontario’s Rules of Civil Procedure also use vexatious as one of the many grounds that a proceeding can be stayed or dismissed:

Learn about the provincial laws and deadlines that lawyers and litigants should not miss when it comes to personal injuries proceedings. Check out our article on “Personal injuries proceedings act: Limits, notices, and traps” to find out more.

Factors courts consider in declaring a vexatious litigant

The foundational test in Ontario comes from Re Lang Michener and Fabian, 1987 CanLII 172 (ON HCJ), which identified seven markers of vexatious conduct:

• brought an action to re-determine an issue already decided by a court
• filed a claim that obviously cannot succeed or serve any useful purpose
• used the proceedings to harass or oppress the other party
• rolled grounds from earlier cases into new ones, sometimes targeting the other party’s lawyers from those proceedings
• ignored a history of failed proceedings, rather than accepting prior results
• failed to pay costs awarded against them in prior unsuccessful cases
• persistently taken unsuccessful appeals

In Colbert v. Colbert et al., 2023 ONSC 811, the Ontario Superior Court added the following recognised hallmarks of a vexatious litigant:

• threatening further proceedings against opposing counsel, family members, or regulators
• stating a plan to use litigation for “payback”

An applicant does not need to prove every marker. The case of Carleton Condominium Corporation No. 166 v. Sennek, 2017 ONSC 5016, confirmed that a party seeking a vexatious litigant order is not required to satisfy each hallmark. As such, the totality of the litigant’s conduct is what courts weigh in.

Other provinces apply similar standards, though some set a higher bar. Alberta, British Columbia, and Saskatchewan each require that conduct be “habitual” in addition to persistent, which is a qualifier Ontario does not use.

Here’s a case of a vexatious litigant, which involved a lawyer in Vancouver:

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How do courts balance access to justice against abuse of process?

A vexatious litigant designation is not a routine tool. The court in Olympia Interiors Ltd. v. Canada, 2004 FCA 195, described the power of declaring a proceeding as vexatious as “most extraordinary,” and to be “exercised sparingly and with the greatest of care.” Courts move carefully because the right they are restricting genuinely matters.

The Saskatchewan Court of Appeal put the tension plainly in Kieling v. Saskatchewan Wheat Pool, 1994 CanLII 4587 (SK CA): the right to access the courts “is not [a] right to continually require any party to spend time, effort and money in responding to a claim that has no legal foundation.”

The last resort principle when declaring a vexatious litigant

A 2019 research report from the National Self-Represented Litigants Project, drawing on more than 357 Canadian decisions involving vexatious conduct between 2013 and 2017, found that most courts adopted a deliberate “last resort” approach before formally designating someone a vexatious litigant.

In practice, judges typically:

• reviewed the full history of conduct before reaching any conclusion
• reserved formal designation for behaviour well beyond ordinary litigation difficulty
• based findings on patterns of conduct, not isolated incidents

The Ontario Court of Appeal put the underlying principle well in Foy v. Foy (No. 2), 1979 CanLII 1631 (ON CA). In this case, the court said that a vexatious litigant order “does not take away an individual’s right to redress.” It instead requires them to satisfy a court that “the proposed legal proceedings are not an abuse of the process of the Court and there is prima facie ground for them.”

What happens to a case after a vexatious litigant order is made?

A vexatious litigant order under s. 140(1) of the CJA, as amended in 2024, can include any combination of three terms:

• term 1: no new proceedings may be started in any court without leave from a Superior Court judge
• term 2: existing proceedings may not be continued without leave, still from a Superior Court judge
• term 3: any other term that is just

That third term was introduced by the 2024 amendments and gives courts room to impose conditions tailored to the specific conduct, such as:

• requiring a litigant to retain counsel before filing, or
• to clear outstanding costs orders before a leave application will be considered

Existing proceedings are not automatically safe

Term 2 is the one personal injury lawyers need to watch closely. An order can halt a proceeding already before the courts, not only future ones. Of course, courts do retain discretion to carve out exceptions.

For example, the court in the case of Ottawa Police Services Board issued a broad vexatious litigant order, but preserved the respondent’s ongoing family law proceedings as an explicit exception.

Who can now trigger a vexatious litigant order

Before 2024, the Ontario Court of Appeal confirmed in Williams v. Tuck, 2023 ONCA 452, that judges had no authority to act on their own initiative under the old version of s. 140.

However, the 2024 amendments to Ontario’s CJA removed that restriction. A vexatious litigant order may now be made:

• by a judge on their own initiative
• on a motion brought within an existing proceeding
• on a formal application, as before

Once a notice proposing consideration of an order is delivered under the new rules, the affected proceeding is automatically stayed. The court registrar now also has the power to refuse documents filed by someone already subject to an order.

Can a designated litigant still bring new claims from the same accident?

Yes, in theory; but the standard is deliberately high. A person subject to a vexatious litigant order who wants to start or continue any proceeding must first make a formal application to the Superior Court of Justice under s. 140(3) of the CJA. This is an originating process, and not just a motion.

The two conditions for leave

The CJA’s s. 140(4)(a) sets out two conditions that must both be met before leave is granted:

• The proposed proceeding is not an abuse of process, and
• There are reasonable grounds for the proceeding

Both must be satisfied together. A claim with reasonable grounds that amounts to re-litigating an issue already decided will still be refused. Bringing a new action to re-determine a matter already settled by a court is one of the classic hallmarks from Re Lang Michener and Fabian. A personal injury plaintiff who lost their accident claim and seeks to refile it, even under a different framing, will in most cases fail the first condition before reaching the second.

When a new claim from the same accident might have a chance

A genuinely distinct claim stands a better prospect. Two scenarios where leave may be arguable:

• a new injury that emerged after the original proceeding ended and that could not have been raised at the time
• a claim against a defendant who had no involvement in the prior litigation

The applicant carries the burden throughout. Under s. 140(4)(d), the Attorney General is entitled to be heard on every leave application. Under s. 140(4)(c), the court may also rescind the vexatious litigant order entirely if circumstances have genuinely changed, rather than simply granting leave for one specific claim.

Notably, there’s one rule which has no exceptions: under s. 140(4)(e), there is no appeal from a refusal to grant leave. If the application is refused, it is final.

Vexatious litigant: when the revolving door finally stops

The revolving door does not spin forever; the laws put a lock on it, but only after the evidentiary record is built, the application is properly filed, and the whole history of conduct is laid before the court. For personal injury lawyers, knowing how to use it is half the battle.

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