Vexatious Litigant Declaration: an Order Stating That a Person Must Get Court Permission to Sue

[80]  The rationale underlying s. 140 was discussed by Blair, J.A. in his dissenting opinion in Foy v. Foy (1979), 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220.  Though he was describing provisions of the Vexatious Proceedings Act, that legislation preceded the present s. 140 of the Courts of Justice Act and the rationale remains the same. Blair, J.A. described the object of the legislation as follows:

It is not difficult to perceive the object of the Vexatious Proceedings Act. The protection afforded honest litigants by the exercise of the Court's inherent jurisdiction to control abuse of process is subject to a serious limitation. It can only be exercised ex post facto. The vexatious litigant has the luxury of being able to initiate proceedings and to force the other party to the expense and inconvenience of responding. The severe financial burden which can be inflicted on a responding party is made obvious by this case. Moreover, the onus of proving that a proceeding is an abuse of process will always be on the responding party. Clearly the purpose of this legislation was to overcome the unfair advantage enjoyed by a vexatious litigant and, in cases where an order is made under the Act, to place upon him the onus of establishing that any proposed proceedings are not an abuse of the process of the Court. Significantly, the vexatious litigant is not deprived of the right to bring proceedings. Rather, the burden is shifted: the vexatious litigant must establish to the Court's satisfaction that there is a prima facie ground for the proposed proceedings.

[81]  More recently, Myers J., of this court, described the mischief caused by vexatious litigants and the difficulties encountered by those responding to vexatious proceedings in the following terms:

Experience teaches that vexatious litigant proceedings can be very expensive and often serve just to give a vexatious party yet another opportunity to inflict the very harms that the process is designed to end. To obtain a vexatious litigant order, an applicant must commence a separate proceeding and prove that the target has persistently and without reasonable grounds instituted vexatious proceedings or has conducted proceedings in a vexatious manner. The requirement to show persistence has meant that litigants must endure several vexatious proceedings prior to bringing a vexatious litigant proceeding. While courts have recognized that vexatious litigants can inflict substantial costs on the opposing parties and significant systemic costs, the harm is amplified by the need to endure multiple frivolous proceedings before section 140 applies. Moreover, an application for a vexatious litigant declaration is a separate legal proceeding. This gives the vexatious litigant a platform from which to repeat all of her or his vexatious conduct. The respondent in a vexatious litigant proceeding has all of the rights of a respondent to a regular application -- i.e. to file evidence, to cross-examine, to summon third party witnesses, to bring motions, and, especially exhausting and expensive, the right to or to seek leave to appeal at every step of the way. In virtually all of these cases the respondents are impecunious and will not be able to pay the costs awards that they invariably rack up along the way to being declared vexatious litigants. Furthermore, as legal proceedings are protected from the laws of defamation, some vexatious litigants will use the process to publicly defame the applicants or others with no accountability.

See Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497 at para. 8.

[82]  Myers J. went on to describe the characteristics typically seen with vexatious litigants.  They include:

(a)  The commencement of multiple proceedings in an effort to re-determine already determined issues;

(b)  Rolling forward grounds and issues from prior proceedings;

(c)  Persistent pursuit of unsuccessful appeals;

(d)  Failure to pay cost awards;

(e)  Bringing proceedings for a purpose other than the assertion of legitimate rights; and,

(f)  Bringing proceedings where no reasonable person would expect to obtain the relief sought.

See Gao, at paras. 14-15.

[83]  Gao has been cited with approval by the Court of Appeal on a number of occasions including, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, at para. 9, leave to appeal refused, [2015] S.C.C.A. No. 488; Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 13; Rallis v. Myers, 2019 ONCA 437, at para. 5; and Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720 at para. 20.

[84]  In Lochner, the Court of Appeal referenced an article written by Justice Yves-Marie Morisette of the Court of Appeal of Quebec entitled, "Querulous and Vexatious Litigants as a Disorder of a Modern Legal System", 24 Can. Crim. L. Rev. 265.  At pp. 275-275, Justice Morisette described a querulous litigant as one often exhibiting the following characteristics.  He or she:

(a)  Is self-represented;

(b)  Demonstrates a stubborn attitude;

(c)  Persistently reiterates and amplifies;

(d)  Makes arguments that are unintelligible or highly confusing;

(e)  Files written submissions that do not contain much that is legally relevant to the dispute and which are written in a distinctive style;

(f)  Markedly fails to conduct due diligence in the advancement of claims;

(g)  Exhausts all rights of appeal any time there is an adverse judgment;

(h)  Makes unsustainable allegations and gratuitous complaints against members of the legal profession; and,

(i)  Ceases proceedings only when unable to pay legal fees and costs.

[85]  The Court of Appeal cautioned, at para. 22 of Lochner, that of course not all self-represented litigants are vexatious and that even a vexatious litigant may raise a legitimate issue requiring consideration by a court.