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Civil Litigation - Frivolous and Vexatious (3). Glen Patrick Bogue (a.k.a. Spirit Warrior) v Law Society of Ontario
In Glen Patrick Bogue (a.k.a. Spirit Warrior) v Law Society of Ontario (Div Court, 2023) the Divisional Court considered an R2.1 frivolous and vexatious matter, embodying what the court described as 'pseudo-legal arguments':[13] There have been no material legal developments that impact on the Law Society’s duty and authority to supervise its membership in the public interest. The appellant’s argument to the contrary is without merit. Second, the substance of the appellant’s legal argument is pseudo-legal nonsense that has been rejected repeatedly by the courts. This has been going on for years. In a 2018 decision a panel of the Law Society stated as follows (2018 ONLSTH 46, para. 14):The panel lastly notes, in passing, as put forward by Law Society counsel, that Mr. Bogue has made similarly vague and untenable arguments in other Courts, which have been dismissed, namely: The Children’s Aid Society of Ottawa v. A.C., Endorsement of the Court of Appeal for Ontario dated April 1, 2016; The Children’s Aid Society of Ottawa v A.C., Reasons of the Divisional Court dated May 11, 2016; The Children’s Aid Society of Ottawa v. A.C., 2016 ONCA 512; R. v. Anderson, 2016 BCSC 2170; R. v. Anderson, 2017 BCCA 154. While these cases are not strictly binding on this panel, they are nonetheless worth noting for the fact that they confirm and support this panel’s conclusions with respect to Mr. Bogue’s similar arguments before us, with respect to issue(s) before the panel and our jurisdiction. [14] Recently, in Bogue v. Bogue, 2023 ONSC 1642, per Gilmore J., the court reviewed and rejected pseudo-legal arguments to the effect (among other things) that the Constitution of Canada is invalid, and litigation involving the appellant requires Ontario and/or Canada to consult with First Nations. . Segura Mosquera v Child and Family Services Review Board
In Segura Mosquera v Child and Family Services Review Board (Div Court, 2023) the Divisional Court addressed the procedure used to invoke R2.1.01 ['Stay, Dismissal of Frivolous, Vexatious, Abusive Proceeding'], which states that: "(t)he court may, on its own initiative". Here the underlying proceeding was a JR against a police service (although an IPC order under MFIPPA was identified as 'the decision to be reviewed'), and the respondent used a court 'requisition' to the Registrar to initiate R2.1.01:This proceeding
[1] The court received a requisition from the Ottawa Police Service (“OPS”) seeking a dismissal of this judicial review application against the respondent Ottawa Police Services Board pursuant to r. 2.1.01 of the Rules of Civil Procedure.[1]
[2] Notice was provided to the applicant that the court was considering dismissing her application for judicial review “because it appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.” The applicant delivered written submissions and “supporting documents” in response to the notice that was sent to her. The OPS declined to provide written submissions.
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[9] The Court of Appeal for Ontario has, repeatedly, highlighted that dismissal of a proceeding under r. 2.1.01 is a blunt instrument, reserved for the “clearest of cases”: Scaduto v. The Law Society of Upper Canada, at para. 8;[3] Simpson v. The Chartered Professional Accountants of Ontario, at para. 43;[4] Khan v. Law Society of Ontario, at para. 7.[5] As the Court of Appeal stated in Khan v. Krylov & Company LLP, at para. 12:Rule 2.1 is an extremely blunt instrument. It is reserved for the clearest of cases, where the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading. Rule 2.1 is not meant to be an easily accessible alternative to a pleadings motion, a motion for summary judgment, or a trial.[6] [10] Absence of merit on its own is not sufficient to justify dismissal under r. 2.1. As the Court of Appeal stated in Collins v. Ontario, at para. 19:Simpson, at para. 43, makes it clear that a r. 2.1 request is not a substitute for a motion to quash and filing the appropriate materials. The rule does not replace the bringing of a motion to quash an appeal for want of jurisdiction or for lack of merit. However, it does allow for a speedy process for disposing of proceedings and motions that are on their face frivolous, vexatious or otherwise an abuse of process.[7] ....
[15] In Currie, the Court of Appeal stated that “any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process. The common example appears to be the situation where a plaintiff seeks to relitigate a cause which has already been decided by a court of competent jurisdiction”: Currie, at para. 17. The applicant has already availed herself of the right to appeal the OPS’ decision responding to her request under s. 39(1) of the MFIPPA. Decisions of the IPC are subject to judicial review. The applicant is not permitted to relitigate the OPS’ decision. . Samra v. Ontario (Attorney General)
In Samra v. Ontario (Attorney General) (Ont CA, 2023) the Court of Appeal suggests that a R2.1.01 notice ['Stay, Dismissal of Frivolous, Vexatious, Abusive Proceeding'] may be triggered by a simple request to the Registrar:[1] Following a request made by the respondents on this appeal, the Registrar issued a notice to the parties that the court was considering dismissing the appeal pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, because the appeal appears on its face to be frivolous, vexatious and an abuse of process. The appellant made submissions in response to the notice.
[2] Having reviewed the materials, including the appellant’s notice of appeal, factum on appeal and submissions in response to the r. 2.1.01 notice, we are persuaded that the appeal should be dismissed as frivolous, vexatious and an abuse of process.
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[5] As held in Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, at para. 9, leave to appeal refused, [2015] S.C.C.A. No. 488, this court said:[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. No evidence is submitted on the motion…. [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. [6] This is not a close call. The appellant’s notice of appeal and factum on appeal bear all the hallmarks of an appeal that is frivolous, vexatious and an abuse of process. The appellant is seeking to relitigate issues already litigated and he makes spurious inflammatory allegations against a wide range of individuals who have previously been involved in his litigation: Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at paras. 23-24. There does not appear to be any merit whatsoever to his appeal. . Tran v Office of the Independent Police Review Director
In Tran v Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court commented as follows in a R2.1 dismissal of an application, here regarding the degree to which the court and court staff have (and have not) a duty to assist litigants:[5] The court is not required to advise parties about their appeal rights from the court’s decisions, but the court does so as a courtesy, and, in this case, to assist a self-represented litigant navigate the justice system. Where a party expresses an intention to make a complaint about a judge, the court will provide the party with information about where to make that complaint. The court is not required to provide legal advice to parties about appeals and complaints, or to defend or explain its advice to parties on these topics.
[6] Ms Tran’s proceedings in this court against the OIPRD are now concluded. Her recourse from the court’s recent decision has been explained to her. The court will not explain its decisions further.
[7] Ms Tran claims that court staff at the Ontario Court of Appeal have expressed uncertainty about the appeal rights that flow from this court’s decision. If Ms Tran provides copies of this court’s R. 2.1 decision to Court of Appeal staff, any difficulty should be addressed easily. The R. 2.1 decision is not a decision of a “motion judge”, but rather is a final disposition from the Divisional Court, appealable with leave to the Ontario Court of Appeal: Courts of Justice Act, s. 6(1)(a). It is a decision of a single judge of the Divisional Court, rather than a panel, because all R. 2.1 matters in Divisional Court have been directed to be heard and decided by a single judge of the Divisional Court pursuant to s. 21(2)(c) of the Courts of Justice Act, a procedure that has been in place for many years.
[8] Ms Tran’s repeated vexatious communications with court staff are an unwarranted use of staff time. Henceforth, all communications from Ms Tran shall be sent to a Divisional Court judge, and ordinarily no response to those communications will be provided to Ms Tran. I am seized with this task, and if I am unavailable, then communications from Ms Tran should be sent to an administrative judge of the Divisional Court or their designate. . Sumner v. Ottawa (Police Services)
In Sumner v. Ottawa (Police Services) (Ont CA, 2023) the Court of Appeal sets out an example of the R2.1 'frivolous and vexatious' provision 'in action':[6] A decision made under r. 2.1 is a discretionary decision and, as such, is entitled to deference. That said, discretionary decisions may be set aside where the court misdirects itself or comes to a decision that is so clearly wrong that it amounts to an injustice: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27.
[7] We are unable to find that the motion judge misdirected herself or came to a clearly wrong decision in this case for a number of reasons.
[8] First, the motion judge carefully applied the procedure set out in r. 2.1.01(3). In particular, having reviewed the statement of claim, she advised the appellant that she was considering making the order. He was so notified, given the opportunity to provide written submission, and in fact did so. As the motion judge’s reasons demonstrate, she considered the submissions and addressed them clearly.
[9] Second, the motion judge carefully and accurately set out the law and policy of r. 2.1.01. After stating that the rule’s purpose is “nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources”, citing Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664, at para. 3, she noted that the abusive nature of a proceeding must be obvious “on the face of the pleadings themselves”. She also properly instructed herself that r. 2.1.01 is a blunt instrument, reserved for the clearest of cases: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 81 C.P.C. (7th) 258, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488; Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 12. Finally, she noted that in considering whether a claim ought to be struck under r. 2.1.01, the judge must read the statement of claim generously, and assume that the assertions of fact are true unless they are obviously implausible or ridiculous.
[10] Third, the motion judge considered the statement of claim through the lens of r. 2.1.01 and the considerations she had articulated. She set out the allegations the appellant made in his statement of claim, and then reviewed his submissions on the motion. She noted that the appellant was seeking both (i) orders prohibiting the police from interfering with his efforts to arrest Prime Minister Trudeau and requiring the police to arrest him for extortion themselves, and (ii) damages in tort based on the past failure of the police to arrest Prime Minister Trudeau, and because the police prevented the appellant from doing so.
[11] Finally, having carefully and accurately summarized the appellant’s submissions, the motion judge found that his statement of claim bore the following hallmarks of a frivolous and vexatious proceeding:i) there is no legal basis under Ontario or Canadian law that would enable a person to obtain an injunction to require a police officer to arrest a potential offender, and for that reason, the plaintiff could not reasonably believe that the court would grant an order to force the police to arrest the Prime Minister, or to require them to cease protecting him from an individual who seeks to arrest him;
ii) the statement of claim is unintelligible, consisting largely of legal conclusions and argument rather than an account of the facts that could give rise to a legal remedy. For example, the appellant claims that on February 12, 2021, the Prime Minister “corruptly threatened” the plaintiff “and other Canadian citizens that if we do not buy influence in official acts from private third-party hotels and pay them a bribe we would be prosecuted by conspiring public officials for entering Canada”, but the appellant does not indicate what the Prime Minister allegedly said, or allege any factual basis for the assertion that, in doing so, he was engaged in a corrupt act; and
iii) the statement of claim uses rhetorical questions, rambling discourse, and pseudo-legal jargon that has no meaning in modern Canadian law, including the repeated use of terms such as “misprisoning a felony” in reference to the respondent’s failure to arrest the Prime Minister. [12] The motion judge’s thorough assessment of the appellant’s statement of claim and submissions, and her consideration of hallmarks of frivolous and vexatious proceedings are well grounded in the r. 2.1.01 case law: see Gao v. Ontario WSIB, 2014 ONSC 6497, 37 C.L.R. (4th) 7, at para. 15; Markowa, at para. 11; and Scaduto, at paras. 7-9. Indeed, the appellant does not raise any errors made in her analysis of r. 2.1.01. His argument on appeal appears to focus on his view that the motion judge as well as the Prime Minister committed acts of extortion that do or should constitute legal causes of action in Ontario and could ground the relief claim. We see no merit to this argument and no error on the part of the motion judge in this respect.
[13] In conclusion, we find no basis for interfering with the motion judge’s exercise of discretion to dismiss the action. She followed the proper procedure, set out the correct legal principles to be applied, and reached conclusions that were grounded in the record before her. . Wilson v. Fatahi-Ghandehari
In Wilson v. Fatahi-Ghandehari (Ont CA, 2023) the Court of Appeal considered a party-initiated R2.1 frivolous and vexatious request:[1] The respondent in the proposed appeal, Ms. Fatahi-Ghandehari, made a written request pursuant to r. 2.1.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 104, for the summary dismissal of appeal COA-22-CV-0205, brought by the respondent, Stewart Wilson. Rule 2.1.01(1) authorizes this court to dismiss, on a summary basis, an appeal that appears on its face to be frivolous, vexatious or otherwise an abuse of the process of the court: Bell v. Fishka, 2022 ONCA 683, [2022] O.J. No. 440, at paras. 2-3. Following receipt and consideration of the written request to this court, the Registrar provided notice to the parties that the court was considering dismissing the appeal pursuant to r. 2.1 and solicited written submissions on the matter in accordance with the procedures outlined under r. 2.1.01(3).
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[10] In Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 20, this court adopted a list of other common characteristics typically found in vexatious litigants contained in Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, 37 C.L.R. (4th) 7, at paras. 14-15, which include:. bringing multiple proceedings to try to re-determine already determined issues
. rolling forward grounds and issues from prior proceedings
. persistent pursuit of unsuccessful appeals
. failure to pay costs awards
. bringing proceedings for a purpose other than the assertion of legitimate rights[...] . Lazi Ventures Inc. v. Carter
In Lazi Ventures Inc. v. Carter (Div Court, 2023) the Divisional Court set out 'hallmarks' of frivolous and vexatious proceedings [here under Construction Act s.47(1), to discharge a lien], and makes the useful point that an otherwise meritorious cause of action can still be frivolous and vexatious (and an abuse of process):[30] The Appellant’s argument, in essence, is that a potentially meritorious claim cannot be dismissed as vexatious and an abuse of process. This is incorrect. In Re Lang Michener and Fabian (1987), 1987 CanLII 172 (ON SC), 59 O.R. (2d) 353, [1987] O.J. No. 355 (H.C.), at para. 20, Henry J. summarized the “hallmarks” of a vexatious proceeding as follows:(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;
(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;
(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and
(g) persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings. [31] It is implicit in paragraph (e) above, that a proceeding could be vexatious even where there was originally a good cause of action. The existence of a good cause of action originally does not, after considering the whole history of the matter, preclude a proceeding from being found vexatious.
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[38] In A.J. (Archie) Goodale Ltd. v. Risidore Brothers Ltd. (1975), 1975 CanLII 516 (ON CA), 8 O.R. (2d) 427 (C.A.) at p. 432, the Court of Appeal found that, “where it is apparent at any early stage that the plaintiff has no basis for a lien claim, it would be an abuse of process to allow the summary procedures to be used as a subterfuge for processing a personal claim in summary fashion.” As the Respondent notes, but for the lien claim, the action would be within the jurisdiction of the Small Claims Court. . Kim v. McIntosh
In Kim v. McIntosh (Div Court, 2022) the Divisional Court reviewed the principles applicable to a R2.1 'frivolous' motion:The Substantive Test Under rr. 2.1.01 and 2.1.02
[7] Rule 2.1 establishes streamlined procedures that permit the court to fairly, and in a just manner, resolve a particular category of disputes in a timely, proportionate, and affordable way. The majority of the law that has developed with respect to r. 2.1 has developed in relation to proceedings (r. 2.1.01) rather than motions (r. 2.1.02). In the overview that follows, the references to “proceeding” or “action” is, for the purpose of this endorsement, replaced with “motion”.
[8] In at least three decisions, the Ontario Court of Appeal has highlighted that dismissal of an action under r. 2.1.01 is a blunt instrument, reserved for the clearest of cases (Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733; Khan v. Krylov & Company LLP, 2017 ONCA 625; and Khan v. Law Society of Ontario, 2020 ONCA 320). At para. 15 of Khan v. Law Society, the Court cautioned judges regarding reliance on r. 2.1.01:We reiterate that judges should be cautious about allowing parties to have recourse to r. 2.1 except where it is plain and obvious on the face of the pleading that the action is frivolous, vexatious or an abuse of process. There are many other remedies provided for in the Rules of Civil Procedure by which parties can deal with cases that are not clear on the face of the pleading. [9] The principles to be applied by a judge determining matters under rr. 2.1.01 and 2.1.02 include, but are not limited to, the following:. “[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”: Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801 (CanLII), at para. 9; and
. The procedure is intended to serve the purpose of “nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources”: Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664 (CanLII), at para. 3. [10] To determine whether an action may be characterized as “vexatious, frivolous or an abuse of the court” under r. 2.1.01, the court may consider the criteria developed for applications pursuant to s. 140 of the Courts of Justice Act.
[11] At para. 9, in Gao v. Ontario WSIB, 2014 ONSC 6497 (CanLII), Myers J. referred to the definition in Black’s Law Dictionary of “frivolous”: "Lacking a legal basis or legal merit; not serious; not reasonably purposeful", quoting from Currie v. Halton Regional Police Services Board, 2003 CanLII 7815, Ont. C.A., at para. 14.
[12] In Scaduto, Khan v. Krylov, and Khan v. Law Society, the Ontario Court of Appeal endorsed the approach taken to r. 2.1.01 in such lower court cases as Gao and Raji, referenced above.
The Procedure Under r. 2.1.02
[13] A judge considering dismissing a motion under r. 2.1.02(1) may seek written submissions from the parties. When doing so, the procedure set out at r. 2.1.01(3) is followed. Where further submissions would serve no purpose, the judge may waive the requirement for them.
[14] Waiving the requirement for further submissions is the exception, rather than the general rule. . Hart v. Balice
In Hart v. Balice (Ont CA, 2022) the Court of Appeal briefly cited the indicia of vexatious proceedings under RCP R2.1:[7] As held in Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, at para. 8, r. 2.1 “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.” The re-litigation of issues already decided is one of the hallmarks of abuse of process: Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 23. . M.E. v. Ontario
In M.E. v. Ontario (Ont CA, 2022) the Court of Appeal considered the characteristics of vexatious proceedings under R2.1:[14] In Lochner v. Ontario Civil Police Commission, 2020 ONCA 720, at para. 20, this court described many of the characteristics of a vexatious litigant, including: attempting to bring multiple proceedings; attempting to relitigate issues decided in past proceedings; failing to pay costs awards; pursuing proceedings where a reasonable person would not expect to receive the relief sought; and inappropriate conduct such as rambling and rhetorical submissions. These characteristics apply with equal force in this case. . Bell v. Fishka
In Bell v. Fishka (Ont CA, 2022) the Court of Appeal notes the range of procedures that R2.1 (frivolous and vexatious) applies to:[3] A proceeding includes an appeal. As this court noted in Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, 5 C.P.C. (8th) 280, at para. 43, “Rule 2.1 is meant to provide a streamlined procedure for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process.” . LeBlanc v. Alghamdi
In LeBlanc v. Alghamdi (Ont CA, 2022) the Court of Appeal canvassed basics of CJA 140 vexatious proceedings law:[9] Section 140 of the CJA provides as follows:Vexatious proceedings
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. [10] We begin with the observation that s. 140 applies to both proceedings that are themselves vexatious and to proceedings that are conducted in a vexatious manner. Rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) provides that a court may stay or dismiss a proceeding in a summary manner, on the basis of written material if a proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. In contrast, s. 140 of the CJA ordinarily requires a hearing, on notice to the respondent. Both measures are designed to alleviate the burden on parties and to the judicial institutions caused by lengthy, spurious, and repetitious proceedings.
[11] Vexatious proceedings do not arise out of thin air; rather, both statutory provisions, either expressly or implicitly, contemplate an animating vexatious litigant. Features characteristic of vexatious litigants, most recently summarized at para. 20 of Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, include:. bringing multiple proceedings to try to re-determine already determined issues;
. rolling forward grounds and issues from prior proceedings;
. persistent pursuit of unsuccessful appeals;
. failure to pay costs awards; and
. bringing proceedings where no reasonable person would expect to obtain the relief sought. [12] Often documents in such proceedings are marked by persistent reiteration and hyperbolic amplification, unintelligible or confused arguments, written submissions containing much that is not relevant, exhaustion of rights of review or appeal anytime there is an adverse decision, unsustainable allegations and gratuitous complaints against members of the legal profession: Lochner, at paras. 19-20.
[13] The entire context must be looked at, always keeping in mind that legitimate claims should not be unfairly foreclosed. An application under s. 140 of the CJA is in no way a substitute for a summary judgment motion, but some proceedings are so lacking in substance that it is reasonable to conclude that they are vexatious and should not be allowed to continue. . Appleyard v. Zealand
In Appleyard v. Zealand (Ont CA, 2022) the Court of Appeal commented on the characteristics of a vexatious litigant:[50] The re-litigation of matters already and finally determined, the pursuit of unmeritorious claims or arguments, the failure to comply with procedural rules and court orders (including filing out of time and failure to satisfy costs awards), and the unnecessary incurrence of delay and expense, are all hallmarks of vexatiously conducted proceedings amounting to an abuse of process: BMO Trust Company v. Childs, 2020 ONCA 21, at paras. 2-4; Hoang v. Mann Engineering Ltd., 2021 ONCA 742, at paras. 8-13; Marché D’Alimenation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, at para. 24; Mascan Corp., at p. 7; see also: “A Survey of Abuse of Process”, Paul M. Perell, 2007 Archibald-AnnRevCivil [I]. . Ubah v. Canada
In Ubah v. Canada (Fed CA, 2022) the Federal Court of Appeal illustrated how frustrated the courts are getting with 'vexatious' proceedings. On top of the provisions of s.40 of the Federal Courts Act, which are the federal version of the 'leave required before commencing proceedings', the court added a further 'permission' stage, before a leave application could be made. There was no statutory authority for this and the court located it's jurisdiction in it's inherent ('plenary') jurisdiction. On the litigant's appeal to the CA, the court relied upon the privative s.40(5) (no appeals) to dismiss the appeal, and the Federal Court Rule 74 authority to remove vexatious 'documents' from the court file [presumably the Notice of Appeal]:[2] Central to this appeal is the fact that in addition to the usual order prohibiting vexatious litigants from instituting or continuing proceedings without leave, Pallotta J. felt that further restrictions were required because of the appellant’s tendency to relitigate matters and litigate by proxy. Those further restrictions took the form of a preliminary procedure consisting in the appellant obtaining from the Federal Court permission to serve and file a full application for leave under subsection 40(3) of the Act.
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[20] For all these reasons, I find that the appellant’s permission motion amounts to an application brought under subsection 40(3), that the Pentney Order is a decision rendered under subsection 40(4) of the Act and that, based on subsection 40(5) of the Act, this decision is not subject to appeal.
[21] Given the powers vested in this Court by its plenary jurisdiction and by section 74 of the Rules, I would summarily dismiss this appeal for want of jurisdiction and remove the Notice of Appeal from the Court record. . Mukwa v. Farm Credit of Canada
In Mukwa v. Farm Credit of Canada (Ont CA, 2022) the Court of Appeal listed typical indicia of vexatious proceedings:[9] In addition to the appeals having no hope of success, the appeals exhibit many of the features this court has recognized as characteristic of vexatious litigation, such as:• Arguments that are unintelligible or highly confused;
• Persistent reiteration and amplification;
• Written submissions contain much that is not legally relevant to the dispute;
• Inappropriate submissions in both form (curious formatting, many pages, odd and irrelevant attachments, multiple methods of emphasis) and content (rambling discourse, rhetorical questions, repeated misuse of technical terms, inappropriately ingratiating statements, ultimatums, and threats);
• The persistent pursuit of unsuccessful appeals; and
• Unsustainable allegations and gratuitous complaints against members of the legal profession. See Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at paras. 18‑20; Scaduto, at para. 9; Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 13; and Rallis v. Myers, 2019 ONCA 437, at para. 5.
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[13] Although a motion under r. 2.1 focuses on the pleadings in the proceeding under consideration and the submissions of the parties, the court may look to reasons and pleadings in other proceedings to determine whether the case before it is abusive: Khan v. Law Society of Ontario, 2020 ONCA 320, 446 D.L.R. (4th) 575, at para. 9, leave to appeal to S.C.C. refused, 39321 (January 28, 2021).
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[15] Various Superior Court of Justice decisions, while the subject of these appeals, have repeatedly and consistently recognized that, rather than pursuing legitimate Indigenous rights claims, Mukwa is engaging in abusive litigation tactics, often called Organized Pseudo-legal Commercial Arguments (“OPCA”), in order for the appellants to avoid their financial or other legal obligations: Farm Credit Canada v. 1047535 Ontario Ltd., 2021 ONSC 2541, at paras. 29-33; National Bank of Canada v. Guibord, 2021 ONSC 6549, at para. 35; Sarac, at paras. 23-24; and Mukwa, at paras. 28, 44.
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