How to Deal with a Vexatious Litigant or Legal Bully

Historically, those faced with a vexatious claim in Canada had to seek the Attorney General’s consent to bring an application to have a person declared a vexatious litigant before the court. In addition, in Provincial Court, where many litigants proceed without a lawyer and the potential for vexatious litigation is therefore high, those who sought such an application had to do so in the Court of Queen’s Bench or Court of Appeal.

The laws have been changing in Canada in how the justice system deals with vexatious litigation. For example, in 2007, Albertans gained a stronger stance against vexatious or frivolous claims brought against them thanks to the enactment of the Judicature Amendment Act, S.A. 2007, c. 21 by the Alberta Government on June 19, 2007. The Judicature Amendment Act amends the Judicature Act, R.S.A. 2000, c. J-2, empowering the judiciary to deal more effectively with applications to have a person declared a vexations litigant.

The amendments have expanded the ability to hear vexatious litigant applications to all three levels of Court in Alberta: the Provincial Court, Court of Queen’s Bench and Court of Appeal. In addition, the requirement of obtaining the Attorney General’s consent to make vexatious litigant applications has been removed and replaced with a requirement that the Attorney General be given notice of such applications.

The category of individuals able to bring forth vexatious litigant applications has also been broadened. A vexatious litigant application can be made by a party to vexatious proceedings, a clerk of the Court or the Minister of Justice and Attorney General or, with leave of the Court, any other person.

Previously, in order to be successful in having someone declared a vexatious litigant, the applicant had to rely on common law definitions of vexatious litigation and prove to the court that it was “plain and obvious” or “beyond a doubt” that the claim has no cause of action and that allowing the action to proceed would amount to an abuse of process. This has been clarified by the amendments. A non-exhaustive list of factors that the courts may use as a guide to determine what constitutes vexatious behaviour has been outlined. Vexatious behaviour includes but is not limited to:

• Persistently bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction;

• Persistently bringing proceedings that cannot succeed or that have no reasonable expectation of providing relief;

• Persistently bringing proceedings for improper purposes;

• Inappropriately using previously raised grounds and issues in subsequent proceedings;

• Persistently failing to pay the costs of unsuccessful proceedings on the part of the person who commenced those proceedings;

• Persistently taking unsuccessful appeals from judicial decisions;

• Persistently engaging in inappropriate courtroom behaviour.

The amendments allow the judiciary to deal with those placing undue strain and burden on the judicial system, without limiting access to those with legitimate claims. Individuals who file claims without merit or behave unreasonably in furthering their claim can be dealt with by the courts in a more efficient manner, allowing for court time and resources to be devoted to addressing legitimate claims.

Vexatious litigation may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action, or already decided upon.

A single action, even a frivolous one, is not enough to raise a litigant to the level of being declared vexatious, though repeated and severe instances by a single lawyer or firm can result in eventual disbarment.

Some jurisdictions have a list of vexatious litigants: people who have repeatedly abused the legal system. Because lawyers could be disbarred for participating in the abuse, vexatious litigants are often unable to retain legal counsel, and therefore represent themselves in court. Those on the list are usually either forbidden from any further legal action or required to obtain prior permission from a senior judge before taking any legal action. The process by which a person is added to the list varies among jurisdictions.

Under the Constitution Act of 1867, Section 92, each province is vested with the power to enact and apply laws relating to the administration of justice within its own territory.

In Canada, Section 40 of the Federal Court Act, and in Ontario Section 140 of the Courts of Justice Act, restrict the ability to introduce or continue proceedings for those who have instituted vexatious proceedings or conducted proceedings in a vexatious manner.

As an example, under California law, a vexatious litigant is someone who does any of the following, most of which require that the litigant be proceeding pro se, i.e., representing himself:

1. In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been:

(i) finally determined adversely to the person; or,

(ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.

2. After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i)the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.

3. In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.

4. Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.

Appeals of an existing action do not count as “final determinations”. Appeals and writs that are related to a current action do not count as “final determinations” or additional determinations, because until all avenues of appeal have been exhausted the determinations cannot be construed as “final”. A judgment is final for all purposes when all avenues for direct review have been exhausted. Interlocutory decisions before a judgment cannot be considered “final determinations”. Docket lists show nothing about qualifying merit of interim motions.

To meet the unspecified criteria for “repeated” motions or litigations, the number must be much more than two, and the rule based on case law seems to be around 12. While there is no bright line rule as to what constitutes “repeatedly,” most cases affirming the vexatious litigant designation involve situations where litigants have filed dozens of motions either during the pendency of an action or relating to the same judgment.

Repeated motions must be “so devoid of merit and be so frivolous that they can be described as a flagrant abuse of the system, have no reasonable probability of success, lack reasonable or probable cause or excuse, and are clearly meant to abuse the processes of the courts and to harass the adverse party than other litigants.” Evidence that a litigant is a frequent plaintiff or defendant alone is insufficient to support a vexatious litigant designation. The moving party, in addition to demonstrating that the plaintiff is vexatious, must make an affirmative showing based on evidence that the case has little chance of prevailing on the merits. If the plaintiff is so determined, a bond may be required, and if the bond requirement is not met within a specified time period, a judgment of dismissal is ordered. A finding of vexatiousness is not an appealable order, but a dismissal for failure to post a bond requirement based on a judgment of vexatiousness is appealable.

Habeas petitions do not count towards vexatious litigant determination. Vexatiousness in Probate Actions are governed by a different standard (Cal. Prob. Code s. 1611).