10 October 2011

Supreme Court Releases Decision on Vexatious Litigants

The Supreme Court has helpfully summarized the law on vexatious litigants in a new case, Vancouver City Savings Credit Union v. Randhawa.

In a nutshell, this issue has to do with the court's authority to control its own process and the parties before it. It can happen, but doesn't with great frequency, that a person will use the court system to initiate frivolous actions and applications seeking impossible orders without a real foundation in law. Sometimes these are the people whose make claims that the RCMP is attempting to control their thoughts through their toaster, and in the course of their claim against the RCMP also sue the Attorney General, Premier, Prime Minister and Queen for good measure. At other times, these are the people who have a legitimate grievance but lack the judgment to distinguish between the trivial and the substantive. Both sorts of litigant tend to appeal the judgments they don't like and appeal lost appeals, and their litigation gets stuck in an endless cycle of losing applications and losing appeals; these litigants lack the ability to understand that when the court says "enough," the court really means enough.

Section 18 of the Supreme Court Act provides an instructive gloss on the court's inherent jurisdiction to control its own processes and says the following, under the heading Vexatious Proceedings:
"If, on an application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court."
In other words, the court can require that a litigant not start an action, or bring an application in an action, without getting permission first.

For people stuck in endless meretricious litigation this can be a boon! Normally, you see, a litigant has the right to sue whomever he or she wishes, and, once the action is commenced, the right to apply for whatever orders strike his or her fancy whenever the moon is in the right phase. Normally, however, people exercise good judgment and are somewhat restrained by cost to bring only those actions and applications which are in fact meritorious.

In the Vancouver City Savings case, the credit union applied for a s. 18 order that the respondents:
"... be prohibited from initiating any legal proceedings, including but not limited to interlocutory applications, against VanCity, or any of its officers, agents or employees without leave of the court."
The judge began his analysis quoting from the 2010 Supreme Court decision in Holland v. Marshall (I've put the key elements in bold):
"[7] To succeed on an application pursuant to s. 18, the applicant must demonstrate:
1. that the proceedings are vexatious in the sense of having been taken in the absence of objectively reasonable ground; and

2. that proceedings have been brought habitually or persistently, such that the litigant has continued obstinately in the course of conduct, despite protests or criticism. (British Columbia) Public Guardian and Trustee v. Brown, 2002 BCSC 1152.
"[8] In Lang Michener v. Fabian ... the Ontario High Court described the characteristics of a typical vexatious proceeding:
(a) bringing one or more actions to decide an issue which has already been determined by a court of competent jurisdiction;

(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;

(c) actions brought for an improper purpose, including the harassment or oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) 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) failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings;

(f) persistently taking unsuccessful appeals from judicial decisions; and

(g) 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."
After a relatively succinct review of the lengthy history of proceedings, the judge said this:
"It is as apparent to me ... that the respondents have persisted in bringing 'a raft of doomed applications'. They have done so in the face of clear judicial pronouncements, directions or advice explaining the lack of jurisdiction of this court to set aside final orders or to revisit issues that have already been decided. ...

"It is apparent to me that in the face of the judicial criticism, advice and direction the respondents will simply continue to bring applications in this proceeding which have no objective or reasonable basis. They are acting habitually and persistently in the face of judicial direction and criticism."
As you might expect from concluding comments like these, the credit union obtained the order sought.

5 comments:

  1. Robert Webber, court bailiff4/1/14 3:39 PM

    Well-written argument. Vexatious Litigants put a great burden on the opposing party. It is particularly stressful when the opposing party is not a corporate entity or a person with a understanding of the court process service and is unable for financial or other reasons to obtain the services of a lawyer.

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  2. Can you make an application for an order prohibiting someone from making applications(without permission from the courtss) through provincial court? Or must it be done through supreme court ( in BC )

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    1. Yes, you can ask the judge to make an order like that under s. 211 of the Family Law Act, and the provincial court can make these orders, as well as the supreme court.

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  3. If you are asking for compinsation for vexatious conduct, how do you determine the proper amount to present in an application or affidavit?

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    1. Under s. 211(2)(c)(ii) of the Family Law Act, you're able to ask the judge to make an order requiring the other party to pay "for all or part of the expenses reasonably and necessarily incurred as a result of the party's actions, including fees and expenses related to family dispute resolution." This could include the cost of time off work, the cost of getting affidavits sworn, the cost of the gas to drive to court and so on.

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