How To Deal With A Vexatious Litigant
Difficult people exist. So do extremely difficult people. Some will yell and scream to get their own way. Others will threaten and bully. Still others use the courts to attempt to force other people to give in.
During my time as a litigator, I have seen people who refuse to pay their invoices and then sue the people they owe money in order to negotiate a settlement. I have also seen individuals who create multiple proceedings often based on imagined or ridiculous claims in attempts to either bully others or to force the courts to give them what they want.
Fortunately, in 2014 a Rule was created to deal with vexatious and frivolous cases or with actions or applications that are an abuse of process. This rule allows the court to summarily dismiss such actions. A decision from the Ontario Court of Appeal demonstrates how it works.
The vexatious litigant, Mr. Scaduto claimed to be injured at the restaurant where he worked and brought an unsuccessful Workplace Safety and Insurance Board claim. He appealed all the way up to the Supreme Court of Canada and was unsuccessful at each stage of his appeals. He then turned his frustration against the Law Society of Upper Canada which regulates lawyers in Ontario, and against the Attorney General. Mr. Scaduto claimed these entities failed to investigate complaints against various lawyers including the Registrar of the Supreme Court of Canada.
The Attorney General requested that the motion judge dismiss Mr. Scaduto's application as being frivolous and vexatious under the rule. Mr. Scaduto was given the opportunity to provide written submissions as to why his application should not be dismissed.
The motion judge ruled against Mr. Scaduto and dismissed his application. The motion judge found that a mistake concerning a time limit was not an issue for an ethics complaint to the Law Society of Upper Canada. Not surprisingly, Mr. Scaduto appealed.
The Court of Appeal dismissed Mr. Scaduto's appeal. The court stated that the rule should be interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process. It also stated that use of the rule should be limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process.
In other words " [R]ule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves. …. [T]here are two conditions generally required for rule 2.1 to be applied. First, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading as required by the rule. Second, there should generally be a basis in the pleadings to support the resort to the attenuated process of rule 2.1…. This second requirement is not in the rule and is not a fixed requirement. It strikes me as a guideline that reminds the court that there are other rules available for the same subject matter and that resort to the attenuated process in rule 2.1 should be justified in each case."
The Lesson: while courts are willing that litigants receive their day in court, Rule 2.1 gives an attorney another tool to use against vexatious litigants and actions/applications that are an abuse of the court's process. If you encounter such a litigant we recommend you seek legal assistance as dealing with this kind of difficult person is unpleasant at best.
If you are an individual looking for assistance with a legal problem, contact Adrian Law for professional and cost-effective advice. adrianlawoffice@gmail.com
Scaduto v Law Society of Upper Canada, 2015 ONCA 733, https://www.canlii.org/en/on/onca/doc/2015/2015onca733/2015onca733.pdf
The content and the opinions expressed here is informational purposes only and does not constitute legal or professional advice. Nor does reading or commenting on it create a lawyer/client relationship with the author. I encourage you to contact me directly at adrianlawoffice@gmail.com if you have specific legal questions or concerns.
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