VEXATIOUS LITIGANTS

For a nominal filing fee, a vexatious litigant can commence an action which can have many deleterious effects upon a defendant. Such claims are often prosecuted by self-represented litigants and divert scarce judicial and administrative resources from otherwise meritorious actions.

The Alberta legislature recognized that new remedies were needed to deal more effectively with serial litigants who institute vexatious proceedings and enacted amendments to the Alberta Judicature Act to deal with such parties.

Prior to the Judicature Amendment Act, 2007, an applicant was required to seek the Attorney General’s consent to bring such an application, however, the 2007 amendments eliminated that need. At present, an applicant can apply to a single judge of the Court of Appeal, Court of Queen’s Bench or Provincial Court for relief which includes the Court prohibiting, without leave of the Court being granted:

• a person from instituting a further proceeding or instituting proceedings on behalf of any person, or
• a proceeding instituted by the person to be continued.

For the purposes of establishing the requirements of whether vexatious proceedings have been instituted or whether a proceeding has been conducted in a vexatious manner, section 23.2 provides a non‑exclusive list of factors as follows:

(2) For the purposes of this Part, instituting vexatious proceedings or conducting a proceeding in a vexatious manner includes, without limitation, any one or more of the following:

(a) persistently bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction;

(b) persistently bringing proceedings that cannot succeed or that have no reasonable expectation of providing relief;

(c) persistently bringing proceedings for improper purposes;

(d) persistently using previously raised grounds and issues in subsequent proceedings inappropriately;

(e) persistently failing to pay the costs of unsuccessful proceedings on the part of the persons who commenced those proceedings;

(f) persistently taking unsuccessful appeals from judicial

decisions; or

(g) persistently engaging in inappropriate courtroom behaviour.

There have been multiple successful applications under the Judicature Act for relief, including the most recent decision from the Alberta Court of Appeal in Wong v. Giannacopoulos. In that case, Justice Slatter reviewed what he found to be a pattern of vexatious litigation by the plaintiff V. W. Wong, also known as Victoria Wong, which Justice Slatter listed as including the followinG;

1. “Commencing actions which are subsequently struck because she failed to appear for examinations for discovery: Wong v. Williams, [1994] A.J. No. 426 (C.A.), leave to appeal refused [1994] 3 S.C.R. xi.

2. Applying for interlocutory relief for which there is no basis in law: Wong v. Sun Life Assurance Co. of Canada, [1995] A.J. No. 1629.

.3 Delaying prosecution of an action for eleven years until what “will otherwise be a lifelong career lawsuit by the Plaintiff” was finally dismissed: V. W. W. v. Baxter (c.o.b. All Well Walk In Clinic), 2000 ABQB 816.

4. Commencing numerous unsuccessful actions against many people over the years, and habitually failing to pay the resulting costs: Wong v. Booker, [2004] A.J. No. 1118 at para. 15.

5. Launching unmeritorious appeals and failing to comply with rules of court: Leung v. Wasylyshen, 2008 ABCA 430; Leung v. Wasylyshen, 2009 ABCA 13.

6.  Commencing “busybody” lawsuits, in fatally flawed format, in which she attempts to enforce the rights of third parties, and sues counsel who are representing various parties in the litigation, then resisting the payment of costs and enforcement of the judgment for improper reasons: Wong v. Chambers, 2009 ABQB 57; Wong v. Chambers, 2009 ABQB 133, 67 C.P.C. (6th) 54 at paras. 23, 26.

7.  Launching an appeal that is struck for want of prosecution, and then seeking leave to appeal the order that struck the appeal: Leung v. Edmonton (City), 2009 ABCA 149.

8. Commencing an action which was struck out because it disclosed no cause of action against some of the defendants, and included claims against the lawyers who represented the defendants in previous actions commenced by her: Wong v. Leung, 2010 ABQB 628.

9. Launching appeals based “mainly on intemperate remarks against individual members of the judiciary and of the bar and against the judiciary and the bar in general, based on what appear to be racial and religious characterizations, i.e., `he is a German Mennonite ... white man’.”: Wong v. Leung, 2011 ABQB 159 at para. 29. “

‘Justice Slatter granted the application and imposed a number of conditions including as follows:

a. The appellant, Victoria Wong, is prohibited from commencing, or attempting to commence, or continuing any appeal, action, application or proceeding in the Court of Appeal, the Court of Queen’s Bench or the Provincial Court of Alberta, on her own behalf or on behalf of any other person or estate without an order of a judge of the court in which the proceeding is conducted.

b. An application to commence any appeal, action, application or proceeding must be accompanied by an affidavit:

(i) attaching a copy of the order declaring the appellant to be a vexatious litigant;

(ii) attaching a copy of the appeal, pleading, application or process the appellant proposes to issue or file;

(iii) deposing fully and completely to the facts and circumstances surrounding the proposed claim or proceeding, so as to demonstrate that the proceeding is not an abuse of process, and that there are reasonable grounds for it;

(iv) indicating whether the appellant has ever sued some or all of the defendants or respondents previously in any jurisdiction or court, and if so providing full particulars;

(v) undertaking that, if leave is granted, the authorized appeal, pleading, application or process, the order granting leave to proceed, and the affidavit in support of the order will promptly be served on the defendants or respondents; and

(vi) undertaking to diligently prosecute the proceeding.

c. The application shall be made in open court before a regularly assigned duty or chambers judge (not in private chambers), and shall be recorded. Leave to commence proceedings may be given on conditions, including the posting of security for costs. An application that is dismissed may not be made again before another judge unless the appellant discloses in writing to the second judge that the application has previously been dismissed.

With corporations facing an increasing number of vexatious claims, this remedy is an important weapon to combat serial litigants who commence such actions.

Ontario officially added Rule 2.1 to its Rules of Civil Procedure on July 1, 2014. The rule gives the judges in the courts a general power to stay or dismiss proceedings if they are “frivolous or vexatious or otherwise an abuse of the process of the court. The court may do so on its own initiative, although any party can file a request for a dismissal with the registrar. The process was intended to be a less expensive way of dismissing claims than bringing a motion under the older Rule 21.01 and 25.11. Under Rule 2.1, the procedure is done by written submissions, with no requirement for a formal hearing.

The recent decision of the Ontario Court of Appeal in Scaduto v. The Law Society of Upper Canada is one of the first times the Court of Appeal has considered the now frequently used rule, and its decision suggests that the rule’s scope will remain broad.

In the case, Gioliano Scaduto was an employee at a restaurant from 1993 to 2004. He unsuccessfully brought a claim before the Workplace Safety and Insurance Board (WSIB) for work-related injuries. He subsequently appealed the WSIB’s decision all the way to the Supreme Court of Canada which denied his application for leave to appeal in 2013.

In 2015, Mr. Scaduto brought an application against the Attorney General and the Law Society of Upper Canada. He sought damages based on his allegations that the Law Society failed to fulfil its duties in that it did not investigate his complaints against various lawyers, including the Registrar of the Supreme Court, who had refused Mr. Scaduto’s request for reconsideration of the Court’s dismissal of his leave to appeal application. The Attorney General requested that the motion judge dismiss the application as being vexatious or frivolous under Rule 2.1.01(6). After the motion judge reviewed Mr. Scaduto’s written submissions, the judge concluded that the complaints were an attempt to re-litigate the issues in his failed WSIB claim and dismissed his application as frivolous and vexatious on its face.

On appeal, the Ontario Court of Appeal endorsed a series of decisions by the lower courts. The court recognized that Rule 2.1 should be “interpreted and applied robustly” in the interests of weeding out litigation that is clearly frivolous, vexation or an abuse of process. However, the court also took note that the use of the rule should be limited to the “clearest of case where the abusive nature of the proceeding is apparent on the face of the pleading.” The court adopted a two-step approach from an earlier case: first, the frivolous nature of the proceedings should be obvious, and second, there should be a basis in the pleading to support the use of Rule 2.1 over other, similar rules.

Mr. Scaduto’s specific allegation on the appeal was that the motion judge failed to consider evidence that he filed in a supplementary application record. The court rejected the claim. The court noted that Rule 2.1 is intended to be used in summary fashion. Therefore, it was appropriate for the motion judge to consider only Mr. Scaduto’s notice of application and written submissions, and it was not an error to ignore the supplementary application record.

The court awarded costs to the respondent Law Society and Attorney General, although at a lower rate than they requested. With this ruling now in hand, courts may feel increasingly confident in using Rule 2.1 and some proceedings may end quicker and less expensively for the defendant parties, although without greater cost awards being awarded, some vexatious litigants may not be fully deterred from being their claims in the first place.

Years ago when I was practicing law, I represented a client who was sued by a vexatious litigant. The plaintiff lost his case against my client and was ordered to pay the costs my client was awarded. He refused. Then he sued my client again on the same topic but changed the wording of the claim. I was able to get the case thrown out without it being heard. The judge told the Plaintiff that if he brings another clam against my client, he will have to get permission from the judge and if the judge decided that it was simply anther rehash of the first and second claims, the Defendant will have to have a lawyer represent him the next times he shows p in court re new claims against my client. The costs of a lawyer was what deterred the Plaintiff from ever suing my client again.