Tuesday, March 19, 2013

Vexatious Litigants

I'm quoted in this week's Law Times in writer Yamri Tadesse's article on vexatious litigants - see Judge seeks end to 'longest running legal drama:'
While family law matters often lead to heated disputes, estates litigation “in some ways can be even worse,” says Toronto lawyer Garry Wise.

“Sibling rivalries go back to the beginning of time; they’re hugely entrenched,” he says.

“When parents make choices in the way they construct their wills and plan for their estates that leave one child or more than one child feeling out of the favoured circle, it’s just a prescription for this stuff to go on and on and on.”

There’s a cautionary tale for lawyers in cases like this one, says Wise. When they help clients draft a will, they should warn them about what could happen if they exclude someone or favour one child over others, he notes.

“The vast majority of their estate could get swallowed up by litigation if they don’t act in a way that is perceived as even-handed.”
Note that section 140.(1) of the Courts of Justice Act does not establish a process to absolutely bar vexatious litigants from engaging in further litigation.  Rather, it establishes a judicial triage process, invoked only after an individual has been deemed a vexatious litigant by a Judge, to require the court's approval before any further litigation may be continued or initiated by that person:
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. R.S.O. 1990, c. C.43, s. 140 (1); 1996, c. 25, s. 9 (17).
(2)Repealed: 1998, c. 18, Sched. B, s. 5 (2).
Application for leave to proceed
(3)Where a person against whom an order under subsection (1) has been made seeks leave to institute or continue a proceeding, the person shall do so by way of an application in the Superior Court of Justice. R.S.O. 1990, c. C.43, s. 140 (3); 1996, c. 25, s. 9 (17).
Leave to proceed
(4)Where an application for leave is made under subsection (3),
(a) leave shall be granted only if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding;
(b) the person making the application for leave may seek the rescission of the order made under subsection (1) but may not seek any other relief on the application;
(c) the court may rescind the order made under subsection (1);
(d) the Attorney General is entitled to be heard on the application; and
(e) no appeal lies from a refusal to grant relief to the applicant.
Abuse of process
(5)Nothing in this section limits the authority of a court to stay or dismiss a proceeding as an abuse of process or on any other ground. R.S.O. 1990, c. C.43, s. 140 (4, 5).
This is a rarely-invoked procedure, and is quite properly reserved for the most egregious of cases.
- Garry J. Wise, Toronto
Update:

I also contributed comments on vexatious litigants in this Toronto Star article by Wendy Gillis - see Toronto judge moves to end 40-year war over Forest Hill man’s estate
Toronto civil lawyer Garry Wise said Morgan’s decision to designate Assaf as vexatious is a rare move reserved for the “very, very, very, very, tiny, tiny little class of people who abuse the courts.”
“There are certain people who simply do not understand the system at all and are constantly coming back and kicking at the same can over and over and over,” he said.
- GJW 
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