The Ontario Court of Appeal’s decision in Williams v. Tuck, 2023 ONCA 452 grapples with a particular issue concerning abuse of process, namely vexatious litigants, and sheds light on the process required to obtain a vexatious litigant order.
The appellant, David Williams, commenced three actions in succession against the same defendants, which were each dismissed under Rule 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for being frivolous, vexatious, and an abuse of process. When the last action was disposed of, given the prospect of continued, serial, procedural abuse by the appellant, the judge instituted a process to determine whether the appellant should be declared a vexatious litigant.
The appellant demanded that the application judge recuse himself on the basis of bias. The application judge declined, and via the inherent jurisdiction of the Superior Court and the process under section 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), found the appellant was a vexatious litigant and ordered that he was restricted from commencing new proceedings or advancing existing proceedings without leave of the Superior Court of Justice.
The appellant appealed the order of the application judge.
Despite the Court finding that the vexatious litigant order appeared amply justified, the appeal was allowed on account of the application judge lacking the jurisdiction to make the order.
The Appellant Was a Vexatious Litigant
The Court found that there was “ample and obvious reason” why the application judge would want to make the vexatious litigant order. The appellant had instituted proceedings, of the same nature, that had no legal foundation and were not capable of amendment. This imposed an unwarranted cost on litigants and on an overburdened legal system. Without the order, the appellant would continue filing the same proceeding in different registries, resulting in further Rule 2.1.01 dismissals.
The Application Judge Did Not Have a Personal Interest in the Litigation
The appellant argued that the application judge had a personal interest in the litigation. This allegation was found to be “fantastical”, “absurd”, and “grossly disrespectful”, and the anonymous letter the appellant pointed to (which claimed that a judicial officer in Alberta was interfering) did not constitute credible evidence. The Court concluded that there was no merit whatsoever to the allegation.
The Application Judge Lacked Jurisdiction
The appellant’s appeal was allowed because there is no inherent, common law authority to make a vexatious litigant order, and section 140 of the CJA does not authorize the judge-initiated process that was employed in this case.
Pursuant to section 140 of the CJA, the process to determine a litigant vexatious must be initiated by any interested person bringing an application (also see Balanyk v. Dutton Brock LLP, 2014 ONCA 122).
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.
The purpose of mandating this process is that an application is an originating process and provides procedural fairness (e.g., the subject is provided with written notice that the order will be sought, the facts thought to justify the order, an opportunity to make written submissions, notice of an oral hearing, and an opportunity to make oral submissions at the hearing).
In this case, no such application was brought. The application judge had provided the plaintiff with all of the procedural protections he would have received had the matter proceeded by application, but ultimately, the judge-initiated process was not authorized by section 140.
This decision was not a “slam dunk” for the appellant. Rather, the Court specifically noted that they allowed the appeal with reluctance. The section 140 remedy is extraordinarily broad in nature, and thus, a different outcome is plausible. Nonetheless, if a litigant is vexatious and a party is seeking an Order declaring them as such, the most prudent course of action is to bring an application under section 140 of the CJA. Williams v. Tuck, 2023 ONCA 452 (CanLII).  Rules of Civil Procedure, R.R.O. 1990, Reg. 194.  Courts of Justice Act, R.S.O. 1990, c. C.43.  Balanyk v. Dutton Brock LLP, 2014 ONCA 122 (CanLII).