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Courts understand that access to justice is key to the rule of law and that litigants require access to courts. However, that does not mean that some limitations are never appropriate. When parties engage in unreasonable conduct beyond good faith advocacy and demonstrate disregard for the court, a judge may find that the party is a vexatious litigant. This may have the effect of preventing the individual from pursuing proceedings through the courts.
Court Can Prevent Litigants From Harassing Others
Section 140 of the Courts of Justice Act provides that if a judge is satisfied that “a person has persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner,” the judge may make an order that:
- No further proceeding may be instituted by the person in any court,
- No proceeding previously instituted by the person in any court shall be continued, except by leave of a judge.
In Peoples Trust Company v. Atas, the judge explained that a party could be found to be a vexatious litigant if the impugned activity has been persistent, without reasonable grounds, and was vexatious. Courts previously determined that there were two purposes for declaring a party’s conduct to be vexatious: they were to “prevent litigants from harassing others and, to protect the vexatious litigant from squandering their own resources”. In Lang Michener Lash Johnston v. Fabian, the court set out a series of factors to help determine if a litigant is vexatious.
However, to declare a party a vexatious litigant does not require that their conduct falls within each of the enumerated factors. Instead, courts may consider their conduct in both the judicial proceedings as well as their behaviour outside of the court. In Bishop v. Bishop, the Ontario Court of Appeal concluded that non-judicial proceedings can provide evidence enabling courts to infer that proceedings commenced by a litigant are “not bona fide but the product of someone who is unreasonably obsessed with a cause and likely to pursue vexatious court proceedings on an indefinite basis unless stopped”.
Some Behaviour Can Justify Limiting Access to the Courts
In Kallaba v. Bylykbashi, Justice Lang, in dissent, cautioned that section 140 should be interpreted narrowly and that it should be reserved for compelling cases. She explained that Ontario’s CJA provides individuals with the right of access to justice, which provides parties “with the means to determine their rights and their freedoms”. She then explained that section 140 creates an “exception to access to justice” by establishing a procedure that prevents litigants from conducting litigation for improper purposes, and from pursuing proceedings that are an abuse of the court’s process. Additionally, it serves to protect the justice system from the improper use of its finite resources. Also, courts understand that an order identifying a vexatious litigant can be particularly important in family law cases, since there is an option of pursuing variation orders of support and decision-making. At the same time, Justice Lang noted that access to the justice system is a fundamental right that should not be restricted except when there are compelling reasons. The impact of a vexatious litigant declaration is to deny access to the courts for litigants who attempt to use the justice system for an improper purpose, unless they obtain leave of the court. Since such an order is a “serious curtailment of a basic civil right,” it was suggested that the provision should be interpreted narrowly.
Judge Finds Proceedings Were Being Used For An Improper Purpose
Peters v. Rahbar involved a series of proceedings in which the appellant’s conduct raised concerns that her objective was to harass the respondent rather than pursue legal relief. The respondent argued that the appellant had harassed him for years and was now doing so through the justice system. He specifically claimed that the relief the appellant sought before the Ontario Court of Justice was not available in law and that she was pursuing a meritless appeal that was vexatious. He also suggested the court require the appellant to post $10,000 as security to continue her appeal. During the parties’ proceedings before the Ontario Court of Justice, Justice Jenner found that some of the appellant’s claims were without merit. Still, they were not all problematic; she had some arguable claims. Nevertheless, the judge accepted that the appellant “engaged in a duplicitous campaign of harassment to which her pursuit of legal relief was secondary”.
The appellant levelled numerous unsubstantiated accusations against the respondent, which extended to child endangerment, sexual assault, and human trafficking. The judge found these baseless attacks were not restricted just to the respondent, but that she also targeted the respondent’s legal counsel. Justice Jenner found these personal attacks extended throughout the proceedings and needed to be firmly condemned by the court. Overall, her actions constituted bad faith. The judge dismissed the appellant’s proceedings and ordered her to pay costs of $13,560.
Appellant Showed Disregard for the Consequences of Her Actions
The appellant appealed that decision, repeating arguments that she had made before the Ontario Court of Justice. She also added allegations of bias and prejudice against court staff. Justice Boucher found that the appellant’s behaviour aligned with many of the factors identified in Lang Michener. It constituted an “unrelenting attack” on the respondent, his counsel, and the justice system, courts, the judiciary, and the police. The judge accepted that her conduct both during the proceedings and outside of the litigation was troubling. It also increased the costs of litigation for the respondent and unnecessarily consumed court resources. The appellant’s accusations extended from “unfounded hateful name-calling to possible extortion”. The judge concluded that her conduct showed disregard for the consequences of her actions and their impact on others and agreed that she was a vexatious litigant.
Rule 24(20) of the Family Law Rules permits judges to make an order for security for costs. Justice Boucher agreed with the respondent that this was an appropriate case for security for costs. The appellant already owed $15,560 as a result of two costs orders. In her affidavit, she claimed that she did not earn significant income and could not pay the costs. She also appeared to threaten criminal charges if the respondent did not withdraw the costs award. The judge accepted that the respondent had already incurred significant costs due to the conduct of the litigation, and there was a good reason to believe that the appellant would not pay any future costs award associated with her appeal. Also, the judge concluded there was a good basis to believe the appeal itself was a waste of time and a nuisance, since the relief she sought was not available in law. The judge agreed that the amount of security the respondent sought was fair and reasonable given the history of the proceeding. It represented a realistic estimate of the respondent’s costs in responding to the appeal. Particularly since the appellant confirmed that she had no intention of paying the costs that the court had ordered, the judge felt it would be unfair to permit the appellant to pursue her appeal “without any fear of negative cost consequences”. The appellant was ordered to pay $10,000 in court as security for the costs of the appeal.
Courts Have a Mechanism to Prevent Improper Proceedings
While access to the courts is important for resolving family law issues, judges must prevent frivolous and improper proceedings from being used to harass another party. This brings some accountability, protects other litigants, and safeguards court resources.
Johnson Miller Family Lawyers: Helping You Resolve Complex Family Law Matters
Navigating the complexities of family law can be challenging, especially when confronted with complex or vexatious court processes. While courts prioritize access to justice, mechanisms exist to prevent legal system abuse. If you are dealing with a family law dispute and are facing vexatious conduct, or if you need to understand your rights and obligations within the court system, obtaining clear and professional legal advice is crucial. The Johnson Miller Family Lawyers team offers valuable insights tailored to your unique situation, helping you understand what to expect and how to protect your interests. To discuss your specific matter further or arrange a confidential consultation, please complete our online questionnaire or contact the firm at 519.973.1500.
