Some people like to sue other people again and again. Repetitive litigation is a frequent occurrence in family law where the litigants’ emotions often run high. But you will also see it in civil law where a person may, for example, sue a bank again and again after the bank has foreclosed on that person’s business. Most provinces now have vexatious proceedings legislation to thwart these lovers of litigation. The legislation establishes a statutory doctrine that may be used by the courts to bar a litigant from actually commencing a lawsuit without first obtaining leave of the court to do so. In Ontario, vexatious proceedings legislation dates back to 1930 but as late as 1979 there were still very few cases decided under the Ontario legislation. Now, however, we have a litigious Canadian society.
There are many criteria used to declare a vexatious litigant. Generally speaking, vexatious lawsuits are lawsuits brought for an improper purpose, including the harassment and oppression of other parties for purposes other than the assertion of legitimate rights. A general characteristic of these lawsuits is that the grounds and issues raised in a previous lawsuit 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 observing the personality of the litigant, courts have used the terms “mean-spirited” and “nasty” and observed that the nastiness conveys itself through to the legal process itself. As a result, the pleadings in the lawsuit are often replete with extreme and unsubstantiated allegations in language that is vitriolic, offensive, and defamatory.
A declaration of a vexatious litigant is an extraordinary remedy because such a declaration limits a person’s fundamental right of access to the justice system. However, once a declaration is made by the court, the onus shifts to the estopped litigant to seek leave to commence another lawsuit. The estopped litigant must satisfy the court that the intended new proceeding is not vexatious, or an abuse of process, that there are reasonable grounds for the new proceeding, and that a great or substantial injustice will occur if leave is not granted. When a declaration is made, one jurist has expressed it in interesting language: “The parties have gorged on court resources as if the legal system were their private banquet table. It must not happen again.”