In the fall of 2023 the Court Services Division of the Office of the Assistant Deputy Attorney General of Ontario reached out to NSRLP to solicit input on vexatious litigant procedures, and potential reforms to them. We were glad to answer their questions, particularly given the context of our 2019 report on vexatious litigants: “Self-Represented Litigants & Legal Doctrines of ‘Vexatiousness.'”
Below is the official NSRLP response to this request, dated October 6, 2023.
Director
Court Services Division
Office of the Assistant Deputy Attorney General
Re: Vexatious Litigant Procedural Framework
Thank you for inviting input from the National Self-Represented Litigants Project (NSRLP) regarding potential reform to the vexatious litigant procedure under section 140 of the Courts of Justice Act (CJA).
Based on our day-to-day work on issues of self-representation and supplemented by some of our previous as well as ongoing research on this topic (a copy of our previous research report in respect of this issue is attached hereto [see above link to report on vexatiousness]), we have identified several considerations that may be relevant to your questions.
First and foremost, applications involving vexatious litigant designations is an issue which directly applies to and impacts self-represented litigants. In most instances, it is the self-represented litigant who is subject to an application under section 140 or against whom claims of vexatiousness are made. In this regard, we would like to draw your attention to the report that the NSRLP generated in December 2019, entitled, “Self-Represented Litigants & Legal Doctrines of “Vexatiousness.”” A copy of that report is attached with this correspondence [see above link to report on vexatiousness].
Furthermore, an order under section 140 of the CJA represents an extraordinary remedy that limits an individual’s ability to access the Canadian legal system at any time; access that is directly relevant to the Rule of Law and corresponding democratic principles. As such, it is an order that should only be made in extreme and/or highly unusual circumstances.
In terms of the specific questions contained in your letter dated September 25th, the NSRLP has the following comments.
- Is your organization concerned about vexatious litigants/vexatious litigation in the Ontario civil justice system?
It is important that litigants who bring or maintain unmeritorious claims and/or who use the litigation process for a coercive or improper purpose do not continue to obstruct the civil justice system. However, it is equally important that these litigants not be conflated with self-represented litigants (SRLs) generally. Such litigants are unfamiliar or inexperienced with the litigation process and, therefore, genuinely confused: they are sorely disadvantaged in proceeding with their litigation.
Additionally, an assessment of vexatiousness should not stem from a court’s expectation that SRLs conduct their cases as ‘mini-lawyers.’ Such an expectation places unrealistic and unfair standards on SRLs. As the number of self-represented litigants continues to increase, this will become more of a challenge for members of the judiciary, the staff who work in the civil justice system, as well as opposing counsel. The response cannot be the relaxing of measures by which SRLs are restricted from participating in litigation processes. Additionally, it is important that vexatious litigant designations not be used as a means of addressing an over-burdened and under-resourced court system notwithstanding this being a legitimate and important challenge.
- With respect to the current framework for dealing with parties who engage in vexatious litigation (including the provisions in the CJA, the Rules, and case law)
- What are the down sides?
There is the potential for the vexatious litigant process to be weaponized against unsophisticated SRLS who are unable to defend themselves throughout the process to the full extent necessary. This has been a concern expressed by appellate courts where lower courts have not afforded the subject of such an application an opportunity to respond appropriately.
- What are the strengths?
The courts’ use of the vexatious litigant designation as a remedy of last resort: judges who make such orders typically provide in-depth analyses of the litigants’ behaviors within the courts and administrative tribunals. The strength of the existing process is that there is a full and formal record as well as appropriate due process considerations that are consistent with such an extraordinary measure – it demands the requirement of personal service, a hearing before a judge of the Superior Court, and a right of appeal with no leave required. Together, these elements help to ensure that this very serious step is closely scrutinized and that the resulting designation is subject to review.
- Are there specific reforms to this framework that you would propose?
At this time, the NSRLP does not have specific reforms in mind.
- In contemplating possible reforms to this framework, what safeguards do you consider important to protect the right of Ontarians to access the civil courts to resolve their disputes?
In contemplating any potential reforms, it is important to emphasize that if judges are granted the power to assess independently whether a litigant is a vexatious litigant as part of their inherent jurisdiction to control their courtroom processes, judges must make certain inquiries and satisfy themselves that they are not conflating vexatiousness with either a lack of substantive and/or procedural knowledge or the frustration that might accompany a SRL’s lack of experience and knowledge. Such an exercise of inherent jurisdiction should be extremely narrow in scope; this is consistent with the approach outlined by appellate courts in other jurisdictions in Canada.
To assist in limiting the scope of analysis, an exercise of inherent jurisdiction by a judge should reference persistent problematic conduct by a litigant rather than conduct in one singular case. This would also help to reinforce perceptions of fairness that might be undermined in cases where a judge of their own volition moves to designate an individual as a vexatious litigant. Moreover, it is important that in cases where there is problematic conduct by a litigant and/or repeated and unjustified steps taken in a case, it may be more appropriate to deploy intensive case-management and/or motions that dismiss a case as meritless. Prohibiting a litigant from accessing the courts is a draconian decision and should be understood as such.
In terms of reforming the current framework so as to allow parties to bring a motion based on vexatiousness, it is equally important that the motion materials and record clearly and concisely articulate the basis for the relief sought. Moreover, the procedure should be infused with the due process considerations that are reflective of the significance of this course of action being contemplated. Requiring the parties to complete both a motion record and factum will help to ensure that only the most serious and deserving cases are presented for review. Furthermore, these are not motions which should addressed in writing alone; this often places SRLs at a disadvantage. Finally, such a motion ought to be subject to appeal without leave being required.
Overall, the NSRLP remains concerned about self-represented litigants and perceptions of vexatiousness. As one author has aptly stated, “while being self-represented does not excuse abusing a court process, self-represented litigants may engage in behaviour that ‘vexes’ the court without meaning that a vexatious litigant order is appropriate – it is entirely plausible that the litigant is simply confused or overwhelmed by the process.”[1]
As more and more SRLs enter the civil justice system it is imperative that all ways be explored in order to ensure that SRLs with serious cases and serious legal issues are able to meaningfully participate in the civil justice system, while at the same time limiting abusive and/or unmeritorious conduct.
The NSRLP is, of course, happy to further discuss this issue if desired.
Thank you for your consideration.
Sincerely,
Jennifer Leitch, JD, LLM, PhD
Executive Director, The National Self-Represented Litigants Project
[1] Gerard Kennedy, The Alberta Court of Appeal’s Vexatious Litigant Order Trilogy: Respecting Legislative Supremacy, Preserving Access to the Courts and Hopefully not to a Fault”, (2021) 58(3) Alberta LR 739 at 742; Megan Campbell & Julie MacFarlane, “Self-Represented Litigants & Legal Doctrines of Vexatiousness” (December 2019)