Vexatious Litigant Orders in Ontario Family Law

By Maria Golarz, Senior Associate Research Lawyer,
Lam Family Law*

The Ontario government has recently passed amendments to the Courts of Justice Act, which will include changes to the procedure for seeking a vexatious litigant order.

This article:

1. Provides an overview of the current procedure to seek a vexatious litigant order;
2. Discusses the purposes of such an order and the factors to be considered;
3. Highlights recent Ontario family case law where such an order has been made;
4. Discusses upcoming amendments regarding vexatious litigant claims; and
5. Provides alternatives remedies to consider.

1. Current Procedure

The Superior Court of Justice can make a “vexatious litigant order” pursuant to s. 140(1) of the Courts of Justice Act, RSO 1990, c. C.43:

Vexatious proceedings
140 (1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

•      (a) instituted vexatious proceedings in any court; or
  • (b) conducted a proceeding in any court in a vexatious manner,
• the judge may order that,
•      (c) no further proceeding be instituted by the person in any court; or
  • (d) a proceeding previously instituted by the person in any court not be continued,
• except by leave of a judge of the Superior Court of Justice.

The Ontario Court of Justice cannot make a vexatious litigant order under s. 140: see, e.g., M.B. v. A.F., 2021 ONSC 5395 (CanLII), at para 7.

Although the legislative wording itself does not refer to a “vexatious litigant order”, this is what the courts call an order made under this subsection: see, e.g., Austin v. House, 2023 ONCA 55 (CanLII), at paras 4-5; Hart v. Fullarton, 2021 ONCA 438 (CanLII), at paras 11-12; & Kallaba v. Bylykbashi, 2006 CanLII 3953 (ON CA), at paras 24-26.

The remedial purpose of s. 140(1) is to codify the inherent jurisdiction of the Superior Court of Justice to control its own process and to prevent abuses of that process by authorizing the judicial restriction – in defined circumstances – of a litigant’s right to access the courts: Kallaba v. Bylykbashi, ibid, at paras 30 & 40, citing Ballentine v. Ballentine, 2003 CanLII 27775 (ON CA).

Currently, the wording of the subsection means that a vexatious litigant claim can only be brought on application, not by way of motion: see Bernard v. Fuhgeh, 2020 ONCA 529 (CanLII), at para 23, citing Lukezic v. Royal Bank of Canada, 2012 ONCA 350 (CanLII). This requirement is one of the most important changes in the proposed amendments, discussed below.

2. Purpose of Vexatious Litigant Order and Factors

The purposes for making a vexatious litigant order and the factors to be considered were recently outlined in the family law case of Austin v. House, 2022 ONSC 2349 (CanLII), at paras 7-10, citing various cases; aff’d 2023 ONCA 55 (CanLII), at paras 5-15.

As outlined by Justice Broad (at para 7 of the ONSC decision), there are two purposes for declaring a party vexatious: (1) to prevent litigants from harassing others; and (2) to protect the vexatious litigant from squandering their own resources.

The factors that may lead to such an order include (also at para 7 of the ONSC decision):

a) 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;

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, the action is vexatious;

c) 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;

d) 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;

e) 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;

f) 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

g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

However, it is not necessary that the litigant’s conduct fall within each of the factors. Further, the court may look at a litigant’s conduct in both judicial and non-judicial proceedings.

The court has also “sounded a note of caution, observing that s. 140 is to be interpreted narrowly, such that its application should be reserved for the clearest and most compelling of cases” (at para 8 of the ONSC decision). See also: Robertson v. McKenzie, 2020 ONSC 1747 (CanLII), at para 127, citing Howie, Sacks & Henry Llp et al. v Wei Chen, 2015 ONSC 2501 (CanLII) [court’s power to declare a vexatious litigant must be “used sparingly”].

3. Recent Family Law Cases

In recent Ontario family law cases, the court has made a vexatious litigant finding in the following circumstances:

• Taking a “very aggressive” and unreasonable approach to litigation, including numerous pre-trial motions; re-visiting previously adjudicated issues; serving voluminous, extraneous, and irrelevant materials; and failing to pay costs awards: Austin v. House, 2022 ONSC 2349 (CanLII), at paras 14-23; appeal dism’d, 2023 ONCA 55 (CanLII), at paras 6-7 & 15.
• Persistently “and without reasonable grounds” instituting vexatious proceedings and conducting proceedings in a vexatious manner: Justice for Children and Youth v. Glegg, 2021 ONSC 8515 (CanLII), at paras 1 & 78-97; appeal dism’d, Flores v. Glegg, 2022 ONCA 825 (CanLII).
• Making numerous attempts to appeal or set aside orders; avoiding court-ordered obligations; pursuing “unattainable remedies” based on a conspiracy theory; commencement of civil and criminal proceedings against not only the other party but also lawyers, judges, and other professionals; bringing and abandoning motions; re-litigating issues; and displaying a “total disregard for the Court and its resources”: Teitler v. Dale, 2021 ONCA 577 (CanLII), at paras 1-3, 25, & 27 [ONCA also considered that litigant was in default of numerous costs awards in declining to extend time to appeal the vexatious litigant order]; aff’g unreported decision dated July 5, 2019.
• Instituting numerous proceedings found to be “frivolous, vexatious and without merit; non-payment of costs”: Hart v. Fullarton, 2020 ONSC 6804 (CanLII), at paras 68-82; later proceedings at 2021 ONCA 438 (CanLII) [vexatious litigant finding not appealed].

4. Upcoming Amendments

On March 6, 2024, the Ontario government’s Bill that proposed changes to s. 140 of the Courts of Justice Act (vexatious proceedings) received Royal Assent: https://www.ola.org/en/legislative-business/bills/parliament-43/session-1/bill-157/status.

The changes to s. 140(1) come into force on a day to be named by proclamation of the Lieutenant Governor.

The Royal Assent version of Bill 157, Enhancing Access to Justice Act, 2024, can be viewed online, here: https://www.ola.org/en/legislative-business/bills/parliament-43/session-1/bill-157.

The changes affecting the vexatious litigant procedure are found in Schedule 6, which would amend s. 140 of the Courts of Justice Act to allow judges of both the Superior Court of Justice, and the Court of Appeal, to make orders related to vexatious proceedings. These orders may be made on the judge’s own initiative or on motion or application by any person. The new s. 140 also sets out rules for appeals and reviews of vexatious proceeding orders.

The new s. 140(1) will read:

Vexatious proceedings
(1) If a judge of the Superior Court of Justice or of the Court of Appeal 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 includes any of the following terms:

1. No further proceeding may be instituted by the person in any court, except by leave of a judge of the Superior Court of Justice.
2. No proceeding previously instituted by the person in any court shall be continued, except by leave of a judge of the Superior Court of Justice.
3. Any other term that is just.

Procedure
(2) An order under subsection (1) may be made on the judge’s own initiative or on motion or application by any person, as provided in the rules of court.
Notice required
(2.1) An order under subsection (1) may only be made on notice to the person who is the subject of the order, as provided in the rules of court.
Branches of the Superior Court of Justice
(2.2) An order of the Superior Court of Justice under subsection (1) may be made by a judge presiding in any branch of that court.
Appeals and reviews
(2.3) The following rules apply with respect to an order made under subsection (1):

1. If the order was made by a judge of the Superior Court of Justice, an appeal of the order lies to a panel of the Court of Appeal.
2. If the order was made by a judge of the Court of Appeal, a panel of the Court of Appeal may, on motion, set aside or vary the decision.
3. For greater certainty, leave is not required to bring an appeal under paragraph 1 or a motion under paragraph 2, unless the court orders otherwise.

The most important change is to how and when a vexatious litigant claim can be brought. As discussed above, such a claim must currently be brought on application. However, the amendments would allow a vexatious litigant claim to be sought on motion as well as on application. The amendments would also allow a vexatious litigant order to be made on the judge’s own initiative, as part of their inherent jurisdiction.

The substantive test of what type of conduct is required does not appear to be changed. However, the new wording does appear to broaden the type of order that a court may make, by adding in the catch-all “any other term that is just”.

5. Alternative Remedies to Consider

Overall, the threshold for a vexatious litigant order is high and will likely remain so under the new amendments.

However, it is expected that the amendments will make the procedure to get a vexatious litigant order easier, thus encouraging the use of s. 140.

In addition, the court has alternative options to a vexatious litigant order, including:

• Staying or dismissing a proceeding that is vexatious or an abuse of the process of the court, pursuant to R. 2.1.01(1) of the Rules of Civil Procedure, RRO 1990, Reg. 194. See, e.g., Bernard v. Fuhgeh, 2020 ONCA 529 (CanLII), at paras 9-11 & McIntosh v Sutherland, 2023 ONSC 2788 (CanLII), at paras 9-19, for relevant principles.
• Making an order to respond to a person’s failure to obey a court order or follow the Family Law Rules, pursuant to R. 1(8) or 1(8.1) of the Family Law Rules, O Reg 114/99, such as an order for costs, dismissing a claim, or striking out parts of a document or claim. See Oliver v. Oliver, 2020 ONSC 2321 (CanLII), at para 37, for the three-party inquiry in applying R. 1(8).
• Imposing criteria pursuant to R. 2 of the Family Law Rules (the primary objective of the Family Law Rules), such as seeking leave or providing specified documents, that must be satisfied before the respondent can initiate further proceedings. See Robertson v. McKenzie, 2020 ONSC 1747 (CanLII), at paras 138 & 143.
• Remaining seized of any related proceeding, also pursuant to R. 2 of the Family Law Rules (the primary objective of the Family Law Rules). See Robertson v. McKenzie, ibid, at paras 139 & 145.

*With thanks to Vanessa Lam for her suggestions and edits.