Litigants in Ontario are free to bring an action against another party, so long as they meet the necessary requirements, such as time limitation rules. However, in some cases, a court may bar litigation where it contravenes the law in one respect or another. One of those cases is a situation known as ‘vexatious’ litigation. Under Ontario’s Courts of Justice Act, s. 140 states:
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.
‘Vexatious’ is not defined in the Courts of Justice Act, however, the definition of the term in a legal context according to the Oxford English Dictionary is “denoting an action or the bringer of an action that is brought without sufficient grounds for winning, purely to cause annoyance to the defendant”. When a court finds that a lawsuit fits the meaning of vexatious, the court is permitted to dismiss the matter.
Litigant Claims Attempts to Stop ‘Vexatious’ Litigation Infringed Her Right to Expression on a Matter of Public Interest
In a recent decision from a court in London, Ontario, the court considered whether a vexatious lawsuit was a form of valid public interest expression under the Courts of Justice Act.
In the matter at hand, the London District Catholic School Board (the “Board”), brought an application seeking to prohibit a former employee (the “employee”) from bringing future proceedings against the Board without judicial leave. The Board claimed the employee was a vexatious litigant pursuant to the Courts of Justice Act. The employee then brought a motion to dismiss the Board’s application for dismissal. She alleged the Board’s attempts to place limits on her ability to bring proceedings against the Board amounted to a strategic lawsuit against public participation, otherwise known as a SLAPP.
A History of Administrative and Court Proceedings
The employee had been employed by the Board for 24 years, from 1990 to 2014. In the three years prior to the employment relationship coming to an end, the employee was involved in various grievances, via her union representation, with the Board. Litigation continued into 2019, with the employee bringing various claims against the Board, including allegations of discrimination based on disability and the tort of intentional infliction of emotional distress. The employee had brought actions and filed motions against the Board in several administrative and litigation venues including the Ontario Labour Relations Board, the Workplace Safety and Insurance Board, the Superior Court of Justice and the Court of Appeal.
The Board brought an Application before the court seeking an order that the employee was a vexatious litigant and an order that the employee was prohibited from bringing further proceedings against the Board without judicial leave. The employee subsequently filed a motion seeking a dismissal of the Board’s application as a SLAPP action pursuant to s. 137 of the Courts of Justice Act.
Vexatious Proceedings Not a Protected Form of Expression Under s. 137 of the Courts of Justice Act
In order to satisfy the two-part test under s. 137, the employee was first obliged to demonstrate that the Board’s application pertained to an expression by the employee about a matter of public interest. The employee argued that her past proceedings were about matters of public interest including the rights of union workers in Ontario, and the preservation of justice in the province. The court found that the employee regularly and publicly comments on her various positions relating to worker’s rights in the province and has spoken to the media and on her personal website on the topic a number of times. However, it was the Board’s position that it was unwilling to continue to bear the expense of relentless and meritless litigation brought by the employee. The court found that the employee had a pattern of repeated litigation, and of not accepting the outcome whenever it did not go in her favour. As a result, the court said that the employee had failed to demonstrate that her litigation attempts against the Board amounted to a matter of public interest.
The court cannot be viewed as a proponent of vexatious litigation by deeming vexatious litigation a protected form of expression. Ms. Michail appears to conflate the expressions forming the basis of the proceedings she has brought to date – allegations relating to the constitutionality of legislation, breach of her Charter rights, discrimination on the basis of a disability and other human rights violations – with the expression sought to be “suppressed” by LDCSB in this application – the commencement and continuation of vexatious legal proceedings. The former is arguably protected expression while the latter clearly is not.
With this decision, the Superior Court of Justice has made it clear that, while legal proceedings do constitute a form of expression, vexatious proceedings will not be protected as a form of valid expression under s. 137 of the Courts of Justice Act.
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