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Vexatiously Brought Proceedings Should Be Struck or Stayed As an Abuse of Process
Question: What constitutes a vexatious lawsuit in Canada?
Answer: A vexatious lawsuit is one initiated without reasonable grounds, primarily for the purpose of harassment or oppression rather than legitimate legal claims. This abuse of the judicial system can lead to the proceedings being struck out or dismissed, protecting the integrity of the court and ensuring fair access to justice for all parties involved. For assistance in navigating complex legal matters, reach out to Caruso Legal Services at (289) 271-0488.
What Does Vexatious Mean In Terms of Litigation?
Vexatious Litigation Involves a Lawsuit, Motion, Appeal, Among Other Proceedings, That Are Initiated For An Illicit Purpose Rather Than For a Legitimate Purpose.
Understanding Vexatious Proceedings Including Impropriety By Those Who Weaponize the Administration of Justice
The litigative process, among other types of legal proceedings, usually poses a heavy emotional and financial burden for those involved. As such, proceedings are sometimes initiated for the illicit purpose of weaponizing the burden of proceedings. Such proceedings are viewed as vexatious and should be struck or permanently stayed so to ensure against inappropriate weaponizing of the administration of justice.
The Law
Both the Rules of Civil Procedure, R.R.O. 1990, O. Reg 194, as well as the Rules of the Small Claims Court, O. Reg. 258/98; address the concern for vexatiously brought proceedings whereas each respectively state:
25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court.
12.02 (1) The court may, on motion, strike out or amend all or part of any document that,
(a) discloses no reasonable cause of action or defence;
(b) may delay or make it difficult to have a fair trial; or
(c) is inflammatory, a waste of time, a nuisance or an abuse of the court’s process.
(2) In connection with an order striking out or amending a document under subrule (1), the court may do one or more of the following:
1. In the case of a claim, order that the action be stayed or dismissed.
2. In the case of a defence, strike out the defence and grant judgment.
2.1 In the case of a motion, order that the motion be stayed or dismissed.
3. Impose such terms as are just.
Interestingly, while the Rules of the Civil Procedure expressly contain the word "vexatious", the Rules of the Small Claims Court omit the term "vexatious"; but, do expressly include the words, "inflammatory, a waste of time, a nuisance or an abuse", which may be deemed as encompassing vexatious proceedings. At to what actually constitutes as "vexatious", a review of common law decisions is required and whereas such cases include:
[18] The courts have tackled the definition of “scandalous”, “vexatious”, “frivolous” and what constitutes an “abuse of process” on many occasions. The principles can be summarized as follows:
- A fact that is relevant to a cause of action pleaded can be neither scandalous, frivolous nor vexatious: Brodie v. Thomson Kernaghan & Co. (2002), 27 B.L.R. (3d) 246 (S.C.), at para. 28.
- If a fact has no effect on the outcome of the proceedings, whether true or not, and is inserted solely for atmosphere, it is scandalous, frivolous and vexatious: Taylor v. Canada Cartage Systems Diversified GP Inc., 2018 ONSC 617, at paras. 26, 28, citing Canadian National Railway v. Brant (2009), 69 O.R. (3d) 734 (S.C.), at para. 28; and Brodie, at para. 26.
- If historical facts are pleaded and they have no relevance to the proceedings, they will be struck: Canadian National Railway, at para. 28.
- A scandalous pleading is one that is irrelevant, argumentative and inserted for colour; it is a pleading that contains bare allegations with no facts to support them or contains unfounded and inflammatory attacks on the integrity of a party: George v Harris, 2000 CarswellOnt 1714 (S.C.), at para. 20.
- A frivolous pleading is one that lacks a legal basis or legal merit, which is not serious and not reasonably purposeful: John v. Samuel, 2018 ONSC 5651, at para. 24. It includes an action that is so clearly and palpably bad as to require no argument to convince the courts and would be pronounced as an indication of bad faith on the basis of mere inspection: Eastside Apartments Limited v. Aird Berlis, 2015 ONSC 1379, at para. 44, citing 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd. (1997), 1997 CanLII 12196 (ON SC), 37 O.R. (3d) 70 (C.J. (Gen. Div.)), at para. 18; and Vatamanu v. Baird, 2009 CarswellOnt 8045 (S.C.), at para. 36, citing Elguindy v. Koren, 2008 CarswellOnt 1081 (S.C.), at paras. 45-48.
- An abuse of process requires the court to control its process and prevent the abuse of procedures that would place the administration of justice into disrepute: Samuel, at para. 24.
- An abuse of process may be established where the proceedings (a) are oppressive or vexatious and (b) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The doctrine evokes the public interest in a fair and just trial process and the proper administration of justice: Eastside Apartments Limited, at para. 46, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 35.
[6] The term "vexatious proceedings" was defined by Chief Justice Howland in Foy v. Foy, in the context of the Vexatious Proceedings Act, R.S.O. 1970, c. 481, the predecessor to CJA s. 140, as follows:
The word "vexatious" has not been clearly defined. Under the Act the legal proceedings must be vexatious and must also have been instituted without reasonable ground. In many of the reported decisions the legal proceedings have been held to be vexatious because they were instituted without any reasonable ground. As a result the proceedings were found to constitute an abuse of the process of the Court. An example of such proceedings is the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction.
Foy v. Foy (No. 2) (1979), 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220, 102 D.L.R. (3d) 342 (C.A.), at p. 226 O.R., as cited by Sedgwick J. in National Bank of Canada v. Filzmaier, [2000] O.J. No. 567, [2000] O.T.C. 19 (S.C.J.), at paras. 12 and 13.
[7] The control of vexatious proceedings is necessary to protect the integrity of the judicial system. The purpose of the section is to prevent people from abusing the system for improper purposes such as harassment or oppression. This point was highlighted in Justice Blair's dissent in Foy, whose broad view of the term was accepted in subsequent jurisprudence after the introduction of CJA s. 140:
It is plain that the word "vexatious" as used in this Act is broadly synonymous with the concept of abuse of process developed by the Courts in the exercise of their inherent right to control proceedings.
The concept of abuse of process protects the public interest in the integrity and fairness of the judicial system. It does so by preventing the employment of judicial proceedings for purposes which the law regards as improper. These improper purposes include harassment and oppression of other parties by multifarious proceedings which are brought for purposes other than the assertion or defence of a litigant's legitimate rights. Such abuse of process interferes with the business of the Courts and tarnishes their image in the administration of justice.
Foy [at] p. 237 O.R., National Bank of Canada v. Filzmaier, [at] para. 14.
[8] In Lang Michener v. Fabian, Henry J. summarized the characteristics of vexatious proceedings as follows:
(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.
Lang Michener v. Fabian (1987), 1987 CanLII 172 (ON SC), 59 O.R. (2d) 353, [1987] O.J. No. 355 (H.C.J.), at pp. 358-59 O.R., as cited by Sedgwick J. in National Bank of Canada v. Filzmaier, supra, at para. 15.
[9] The case law indicates that the court has great latitude to consider a wide range of proceedings in which a litigant participates, and the manner in which the litigant conducts him or herself including actions, applications, motions and appeals from the results; litigation in any court and any proceeding; forensic and ethical incompetence, including dishonesty and deceit with the court; and the unauthorized practice of law. The categories of vexatious proceedings are to be determined by an objective standard.
Predie v. Barrie (City), [2006] O.J. No. 1524, 147 A.C.W.S. (3d) 607 (S.C.J.), at para. 28.
Ontario v. Deutch, [2004] O.J. No. 535, [2004] O.T.C. 120 (S.C.J.), at paras. 18 and 21.
With all the above said, as per the Dale Streiman & Kurz case, it appears that what constitutes as vexatious litigation remains always open for review and should be reviewed objectively.
“The categories of vexatious proceedings are to be determined by an objective standard.”
~ Wein J.
Dale Streiman & Kurz v. De Teresi, 2007 CanLII 1902
When reviewing whether litigation is vexatious, courts may consider both the stated facts and nature of the litigation itself including in court behaviour as well as out of court behaviour. The appropriateness of reviewing out of court behaviour was stated in Dobson v. Green, 2012 ONSC 4432, where it was said:
[12] Moreover, the court is not strictly limited to the conduct of the allegedly vexatious litigant in the courtroom. The behavior of a litigant both inside and outside of the courtroom may be relevant. It is not uncommon for a vexatious litigant to utilize the court process as simply part of an overall strategy of abuse and harassment. Their conduct out of court may provide evidence from which it may be inferred that court proceedings are not bona fide but merely the product of someone who is “unreasonably obsessed with a cause and likely to pursue vexatious court proceedings on an indefinite basis unless stopped.” In this way, the conduct of the vexatious litigant outside of the courtroom may be helpful in understanding his or her motivation and conduct within the litigation process. See: Canada Post Corporation v. Varma, 2000 CanLII 15754 (FC), [2000] F.C.J. No. 851, at para. 22-24; Bishop v. Bishop, at para. 8-9.
Summary Comment
The litigation may be misused as a weapon of oppression and harassment. When a lawsuit is misused rather than used legitimately, the lawsuit may be deemed vexatious and an abuse of process that should be stayed or struck.
