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Civil Litigation Dicta - Fee Waiver. Sieluzycki v. Ontario
In Sieluzycki v. Ontario (Div Court, 2024) the Divisional Court considered a situation of a grossly-mismatched single self-presenter against (this time, seven) salaried (or maybe a couple of hourly-paid) lawyers, here at costs hearing.
The court revokes the applicant's fee waiver on the following reasons:Revocation of Mr. Sieluzycki’s Fee Waiver
[24] Section 4.10 of the Administration of Justice Act, RSO 1990, c A.6 says:Revocation of fee waiver
4.10 (1) A certificate given to a person under section 4.3 or 4.4 respecting a court proceeding or enforcement in a proceeding may, despite anything to the contrary in those sections, be revoked by order of a judge, deputy judge or associate judge of the court in which the proceeding was commenced, if the judge, deputy judge or associate judge is of the opinion that the person’s actions in the proceeding or enforcement are frivolous, vexatious or otherwise an abuse of the process of the court.
Same
(2) A certificate given to a person under section 4.5 or 4.7 respecting the enforcement of an order may, despite anything to the contrary in those sections, be revoked by order of a judge, deputy judge or associate judge of the court in which the order was made or filed, as the case may be, if the judge, deputy judge or associate judge is of the opinion that the person’s actions in the enforcement are frivolous, vexatious or otherwise an abuse of the process of the court.
Submissions
(3) Before making an order under subsection (1) or (2), the judge, deputy judge or associate judge shall give the person an opportunity to make submissions.
Same
(4) Submissions shall be made in the manner and form specified by the judge, deputy judge or associate judge.
Restriction on further fee waivers
(5) In making an order under subsection (1) or (2), the judge, deputy judge or associate judge may make an order that the person may not, despite anything contrary in this Act, make any further requests for a fee waiver under this Act with respect to the same proceeding or any related proceeding or with respect to the same enforcement, without permission obtained in advance from a judge, deputy judge or associate judge, as applicable.
Decision final
(6) The decision of the judge, deputy judge or associate judge is final.
Rules of court and Statutory Powers Procedure Act do not apply
(7) The rules of court and the Statutory Powers Procedure Act do not apply to this section.
No Fee
(8) No fee is payable for anything done in connection with this section. [25] A fee waiver is an administrative direction provided under the statute that entitles people to start and engage in court proceedings without paying the regular fees to do so. A fee waiver is obtained by a litigant delivering an affidavit attesting to his or her inability to afford court fees.
[26] Fee waivers are important devices to ensure access to justice so that everyone is able to have their rights adjudicated before His Majesty’s courts without regard to their economic status.
[27] However, there is no process for court staff to inquire into the truth or completeness of an affidavit delivered in support of a fee waiver. It is a process that is susceptible to abuse therefore. Moreover, it follows as surely as night follows day that vexatious litigants who bring multiple or repeated frivolous or vexatious lawsuits invariably do so freed from the obligation to pay court fees under fee waivers.
[28] Section 4.10 was added to the statute in 2020 as a mechanism to provide oversight and some measure of judicial control over fee waivers. The section applies only where a judicial officer forms the opinion that a person’s actions in a proceeding are frivolous, vexatious, or otherwise an abuse of the process of the court. Moreover, the person must be given notice and an opportunity to respond.
[29] Following the procedure set out in that statute, I gave notice to Mr. Sieluzycki that I was considering withdrawing his fee waiver and prohibiting further fee waivers in related matters. I invited him to make submissions.
[30] Mr. Sieluzycki did not provide submissions to support his continued entitlement to fee waivers. However, in his factum supporting the motion to set aside the September 3, 2024 order, Mr. Sieluzycki submits,The Moving Party is of the opinion that undue prejudice occurs against the Moving Party when Justice Frederick Meyers prohibits the Moving Party from obtaining the fee waiver certificates since restricting the Moving Party’s eligibility for the fee waiver certificates is procedurally unfair towards the Moving Party in a way that causes the Moving Party to experience significant difficulties in exercising the Moving Party’s rights (i.e., the right to security of the person). [31] I take this to mean that Mr. Sieluzycki believes the withdrawal of fee waivers would be unfair to him and a breach of his security of the person.
[32] In terms of procedural fairness, the statutory mechanism ensures that Mr. Sieluzycki has notice of the issue and a right to respond. There is no lack of procedural fairness.
[33] Substantively, I do not see how it can be either unfair or a breach of the right to security of the person to have one’s access to fee waivers limited after demonstrating abuse of the court’s processes. There is no right to bring frivolous or vexatious civil proceedings. Frivolous and vexatious proceedings are dismissed summarily. In fact, the problems posed by vexatious proceedings and vexatious litigants are so pervasive as to be the subject of numerous laws and rules designed to curtail them. (Consider, for example, the overlapping content of Rules 2.1, 21.01 (3)(d), and 25.11 (b) and (c) of the Rules of Civil Procedure.) To the same end, amendments to s. 140 of the Courts of Justice Act have just recently been proclaimed into force to decrease procedural constraints and costs involved to declare someone to be a vexatious litigant.
[34] Given that the court’s resources are very limited and constrained, efforts to limit abusive proceedings will enhance access to justice generally by freeing up scarce court resources to be available to parties with meritorious or at least non-frivolous issues. They also protect defendants from being vexed with unrecoverable costs responding to meritless proceedings.
[35] Furthermore, an order under s. 4.10 does not prevent access to justice. Rather, it deprives people who want to bring frivolous or vexatious lawsuits of the ability to do so without paying applicable court fees. But if a person who is subject to an order under s. 4.10 wishes to bring a proceeding that is not frivolous, vexatious, or an abuse of process, he or she may apply to a judge to obtain a fee waiver. If a proposed claim, or step in an existing claim, has some apparent merit, the hurdle of demonstrating the merit to a judge is not a high bar at all. So, a person of limited means will not lose access to justice at all for claims that are not frivolous, vexatious, or an abuse of process.
[36] A “frivolous” claim is one that lacks a legal basis. Currie v. Halton Regional Police Services Board, 2003 CanLII 7815 (ON CA), at para. 14.
[37] A “vexatious” claim is one instituted with out reasonable grounds or is brought where it is obvious that it cannot succeed, i.e., to vex the defendants. Currie at para 15.
[38] A proceeding is an abuse of process when it is inconsistent with the objectives of public policy: Currie, at para. 16, relying on Canam Enterprises Inc. v. Coles, 2000 CanLII 8514 (ON CA) at para. 31, rev’d on other grounds 2002 SCC 63. To quote the Court of Appeal at para. 55 of Canam,The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. [39] Mr. Sieluzycki brings repeated and ever-broadening claims for the same underlying transaction. He has brought claims with no apparent merit on their faces. He does not accept failure. Rather, he tries again, or brings a new proceeding, and/or appeals.
[40] In my view, Mr. Sieluzycki’s application for judicial review is frivolous and vexatious. It had no merit and it was brought to challenge proceedings before tribunals that equally had no merit. Mr. Sieluzycki brought legal proceedings in the Small Claims Court arising out of his aborted his car sale transaction. But his efforts to expand the civil complaints into government incidents or matters of fundamental human rights was obviously not going to succeed.
[41] I have no idea whether Mr. Sieluzycki is bringing proceedings deliberately to leverage his chances of success by causing the private respondents costs and time, or whether he has just been misguided. Either way, in my judgment, he should not be entitled to continue to do so under fee waivers designed to enhance access to justice. His proceedings unfortunately do the opposite.
[42] I therefore revoke Mr. Sieluzycki’s fee waiver in this proceeding. In addition, I order that he is prohibited from making any further requests for a fee waiver with respect to this proceeding or any related proceeding without permission obtained in advance from a judge.
[43] Mr. Sieluzycki may make a motion for permission to obtain a waiver for a proposed future proceeding, or a step in an existing proceeding, in writing by Notice of Motion addressed to the attention of the Senior Regional Justice (or any judge as the RSJ may delegate) in the Region in which Mr. Sieluzycki proposes to seek a fee waiver. The motion may be made without notice to any responding party.
[44] Mr. Sieluzycki’s written, without notice motion in a proceeding, or in a proceeding to be commenced, shall be supported by an affidavit of no more than six pages in length setting out the reason(s) why Mr. Sieluzycki believes he should be permitted to obtain a fee waiver for the proposed proceeding or step. The affidavit shall include full particulars of Mr. Sieluzycki’s assets and liabilities, his annual projected revenue and expenses, and all other information required for the fee waiver sought under the Administration of Justice Act. . Mohammad v. McMaster University
In Mohammad v. McMaster University (Ont CA, 2023) the Court of Appeal revoked fee waivers where a finding of frivolous and vexatious behaviour was upheld on appeal:[2] On June 29, 2023, the court issued notices to the appellant that the court is considering staying or dismissing two of his motions and one of his appeals pursuant to r. 2.1.02 and r. 2.1.01 respectively. The court also issued a notice to the appellant that is it considering making an order revoking the appellant’s fee waivers in all three proceedings pursuant to s. 4.10 of the Administration of Justice Act, R.S.O. 1990, c. A.6.
....
[14] The appellant’s submissions in response to the notices given under r. 2.1 of the Rules of Civil Procedure and s. 4.10 of the Administration of Justice Act are also disjointed and non-responsive. The bulk of the submissions are bald and allege conspiracies between the various respondents and multiple other individuals. The submissions contain over 100 pages of irrelevant attachments and multiple video and audio clips.
....
[17] For the same reasons, it is also appropriate for the court to revoke the appellant’s fee waivers for the three proceedings and to order that the appellant not make any further requests for a fee waiver under the Administration of Justice Act with respect to these proceedings or any related proceedings, without permission from a judge.
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