Duhaime's Law Dictionary


Vexatious Litigant Definition:

An individually who habitually or persistently engages in legal proceedings, without having a legitimate claim requiring resolution.

Related Terms: Vexatious Action, Organized Pseudolegal Commercial Argument Litigant, Abuse of Process, Litigant

In O'Neill v. Deacons, the dispute was over a "dog" which, by the time of a hearing, had caused quite a lot of paperwork in the local court registries even though ownership was not contested.

Associate Chief Justice Neil Wittmann of the Court of Queen’s Bench of Alberta wrote:

"What the various common law and statutory criteria suggest is that vexatious litigants are those who persistently exploit and abuse the processes of the court in order to achieve some improper purpose or obtain some advantage. Vexatious litigants tend to be self-represented, and quite often the motivation appears to be to punish or wear the other side down through the expense of responding to persistent, fruitless applications."

vexatious litigantIn a 2006 report, the Law Reform Commission of Nova Scotia used these words:

"(A) vexatious litigant (is) someone who persistently and habitually engages in legal proceedings, often against a large number of people, without having a legitimate claim requiring resolution.

"Vexatious litigants persistently and habitually engage in legal proceedings, without having a legitimate claim requiring resolution. The vexatious litigant may sue in order to annoy, harass, or financially punish other people. Vexatious litigants can strain court resources. They can waste the time of judges and administrative staff and prevent other, legitimate claims from being dealt with. They can also force other people to incur otherwise unnecessary legal bills."

In Lang Michener v Fabian, Justice Henry of the Ontario Supreme Court, High Court of Justice offered these words helpful as they were to posterity as they have been often cited since, at ¶19 of his reasons:

"From these decisions1 the following principles may be extracted:

  • 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;
  • 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;
  • 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;
  • 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;
  • 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;
  • 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; (and)
  • The respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings."

Vexatious litigation has also been referred to as legal bullying2 ... and such litigants, legal terrorists3.

An important point is that courts with inherent jurisdiction such as, in Canada, superior-level courts, have, within that inherent jurisdiction, the authority to, of their own avail, preclude a litigation-happy individual from continuing on their abusive marathon through the registries and courtrooms. Consider these instructive words of madam Justice Southin of the British Columbia Court of Appeal in Household Trust v Golden Horse. In this case, the respondent Golden Horse Farms was fighting foreclosure tooth and nail. Justice Southin hit the nail on the head when she summarized the history of this case as it came before her, much to her chagrin as it can only be imagined:

"Mr. Nelson has caused this matter to be in the Supreme Court of British Columbia on sixteen different occasions and in this Court on twenty different occasions.... In this foreclosure action in which the amount at issue is some $89,000, his clients have been forced to incur a legal bill of some $75,000....The appeal book before us is four volumes, consisting of 800 pages.

"In my opinion, the Supreme Court of British Columbia has an inherent jurisdiction and a corresponding duty to exercise that jurisdiction to protect a petitioner or plaintiff who seeks relief in that Court from proceedings by a defendant who is vexatiously abusing the process of the court. That it is a jurisdiction to be exercised with great caution, I have no doubt. But not to exercise it where there is no other way to bring reason into proceedings is, in effect, to deprive the plaintiff or petitioner of justice according to law. The court if it fails to act becomes but a paper tiger."

REFERENCES:

  • British Columbia (Public Guardian and Trustee) v. Brown, 2002 BCSC 1152 as to the criteria based on the wording of the Rules of Court in that Canadian jurisdiction but suggestive of the test in any events.
  • Canada v. Nourhaghighi, 2014 FC 254 (Mr. Justice James Russell: "Mr. Nourhaghighi has shown no compunction about filing public documents that contain scandalous allegations against a Prothonotary, a judge of the Court, and even unrelated parties who have no real way to counter these groundless accusations.")
  • Household Trust Co. v. Golden Horse Farms Inc., 65 B.C.L.R. (2d) 355 (1992)
  • Lang Michener Lash Johnston v. Fabian, 37 D.L.R. (4th) 685
  • Law Reform Commission of Nova Scotia, Vexatious Litigants Discussion Paper, December 2005 and also Final Report: Vexatious Litigants, April 2006.
  • Mazhero v Fox, 2011 FC 392
  • NOTE 1: By "these decisions", Justice Henry refers to the prior Ontario cases of Foy v. Foy, 102 D.L.R. (3d) 342 (ONCA); Kitchener-Waterloo Record Ltd. v. Weber, 53 O.R. (2d) 687 (1986) and Law Soc. of Upper Can. v. Zikov, 47 C.P.C. 42 (1984)
  • NOTE 2: Esther L. Lenkinski, Barbara Orser, & Alana Schwartz, Legal Bullying, Abusive Litigation within Family Law Proceedings, 22 C.F.L.Q. 337
  • NOTE 3: Tibbetts, Janice, Courtroom Backlog Getting Worse: StatsCan, Calgary Herald, December 11, 2004, page A10.
  • O'Neill v. Deacons, 2007 ABQB 754
  • Wilson v Canada (Revenue), 2006 FC 1535

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