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Federal Court - Vexatious

. Feeney v. Canada

In Feeney v. Canada (Fed CA, 2022) the Federal Court of Appeal, in the course upholding a dismissal of an action against the federal Crown for lack of jurisdiction, sets out the nature of the Federal Court system and it's judges. In this quote it lists typical vexatious litigant features ('hallmarks'):
The Vexatious Litigant Order

[20] I also see no reason to interfere with the vexatious litigant Order. As the motion judge correctly noted, vexatious litigant orders may be based on various, non-exhaustive, criteria (Decision at para. 15). In Olumide, Stratas J.A. referred to these criteria as “hallmarks of vexatious litigants” or “badges of vexatiousness” (para. 34). These “hallmarks” include the following (Olumide v. Canada, 2016 FC 1106 at para. 10):
a) being admonished by various courts for engaging in vexatious and abusive behaviour;

b) instituting frivolous proceedings (including motions, applications, actions, and appeals);

c) making scandalous and unsupported allegations against opposing parties or the Court;

d) re-litigating issues which have been already been decided against the vexatious litigant;

e) bringing unsuccessful appeals of interlocutory and final decisions as a matter of course;

f) ignoring court orders and court rules; and

g) refusing to pay outstanding costs awards against the vexatious litigant.

[22] The motion judge also based his decision to grant this motion on the appellant’s litigation history at the Federal Court. After observing that vexatious litigants were often prone to "“forum shopping”", he determined that the present proceeding was “"a transparent attempt to re-litigate the allegations struck in Court File No T-272-20 and previously adjudicated in [the appellant’s] protracted disputes before the Alberta courts”". The motion judge characterized this as "“vexatious and abusive”" (Decision at para. 20).
. Elizabeth Bernard v. Professional Institute of the Public Service of Canada

In Elizabeth Bernard v. Professional Institute of the Public Service of Canada (Fed CA, 2020) the Federal Court of Appeal considered for the first time the test for a leave application by a frivolous and vexatious litigant [under s.40 of the Federal Courts Act]:
[4] Vexatious litigants almost never apply for leave. As a result, this Court has never discussed the criteria for leave, aside from some brief, passing observations in a couple of cases.

[5] Much can be gathered from the ordinary meaning of the text of subsection 40(4). It provides that the Court must be satisfied of two things before it can grant leave: "“the proceeding is not an abuse of process”" and "“there are reasonable grounds for the proceeding”".

[6] Even where the Court is satisfied the two are met, leave does not have to be granted. Subsection 40(4) provides that the Court "“may grant leave”", not "“shall grant leave”". The Court has a residual discretion not to grant leave.

[7] Vexatious litigants bear the burden of proving that leave should be granted on a balance of probabilities: Hainsworth v. Canada (Attorney General), 2011 ONSC 2642 at para. 11. In discharging that burden, they must provide evidence in a supporting affidavit.

A. The two requirements

(1) The proceeding is not an abuse of process

[8] "“Abuse of process”" can take many forms: National Bank Financial Ltd. v. Barthe Estate, 2015 NSCA 47, 359 N.S.R. (2d) 258 at paras. 214-215; Intact Insurance Company v. Federated Insurance Company of Canada, 2017 ONCA 73, 134 O.R. (3d) 241 at para. 20. Examples include relitigating issues and starting litigation to injure someone or pursue a personal vendetta rather than seeking genuinely needed remedies.

[9] Pursuing personal vendettas is often the signature move of vexatious litigants. Thus, on occasion, this Court has suggested that a vexatious litigant must show a bona fide reason for starting a new proceeding: Canada v. Olumide, 2017 FCA 42, [2018] 2 F.C.R. 328 at para. 29; Bernard v. Canada (Attorney General), 2019 FCA 144 at para. 26; Simon v. Canada (Attorney General), 2019 FCA 28 at para. 12.

[10] A proceeding started for a bona fide reason can still be prosecuted abusively. Thus, before granting leave, the Court needs an assurance that the vexatious litigant will prosecute the proceeding in an acceptable way. The vexatious litigant’s affidavit should address this.

[11] The Court will be more inclined to grant leave where the affidavit promises—with credibility-enhancing particularity—any or all of the following: a litigation plan, representation by a trustworthy agent or counsel, access to and reliance upon legal advice as the proceeding progresses, and compliance with the Rules, orders and directions of the Court. This is a non-exhaustive list.

[12] The willingness of vexatious litigants to obey the Rules, orders and directions of the Court is key. In many cases, the ungovernability of these litigants led to the finding of vexatiousness in the first place. The supporting affidavit should address this. One way is to describe with particularity what the vexatious litigant will do under the Rules to get the proposed proceeding ready for hearing, including offering a proposed schedule.

[13] Continuing non-compliance with previous orders of the Court, such as outstanding cost awards, could lead the Court to conclude that the vexatious litigant will not comply with Rules, orders and directions of the Court. To address this, vexatious litigants should offer reasons for any non-compliance and a plan to remedy it. However, great care must be taken if the non-compliance is due to poverty or impecuniosity. Those under economic pressure or without financial means should not be barred from accessing the Court to assert a viable claim for that reason alone.

(2) Reasonable grounds for the proceeding

[14] The Court must examine the basis for the proposed proceeding to assess its viability. There must be reasonable grounds on the facts and the law to suggest that the vexatious litigant’s case has some chance of success. Cases where the vexatious litigant’s walk down the pathway to success will be difficult but not impossible meet this requirement.

[15] In other words, the proposed proceeding should not be doomed to fail: for guidance on that standard, see Wenham v. Canada (Attorney General), 2018 FCA 199, 429 D.L.R. (4th) 166 at paras. 22-33 (applying relevant Supreme Court authority); Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 F.C.R. 557.

[16] In considering whether a proposed proceeding is doomed to fail, the Court must consider the standard of review: Apotex Inc. v. Allergan Inc., 2020 FCA 208 at paras. 9-10; Hébert v. Wenham, 2020 FCA 186 at paras. 11-14; Raincoast Conservation Foundation v. Canada (Attorney General), 2019 FCA 224 at para. 16. Where, as here, the proposed proceeding is a judicial review of an administrative decision, the standard of review is reasonableness, and the administrative decision is relatively unconstrained within the meaning of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, the vexatious litigant faces a high hurdle. In that sort of judicial review, the vexatious litigant must point to a significant flaw that strikes at the heart of the administrative decision.

[17] It is not enough for vexatious litigants to offer bald allegations or speculations in support of their cases. Instead, they must set out in their supporting affidavit a reasonable factual and legal basis for the proceeding. The affidavit should include a draft notice of application or draft statement of claim and describe or even append the key supporting evidence. The more detailed the affidavit is, the better. But it is not necessary for vexatious litigants to come anywhere close to proving their cases: this is not a summary judgment motion. To grant leave, the Court only has to be satisfied there is some arguable substance behind the proceeding.

[18] Some vexatious litigants may repeatedly and unsuccessfully try to get leave to start various new proceedings. In that circumstance, yet another attempt to seek leave might be met with understandable scepticism on the part of the Court. But that would be wrong. The Court must remain open-minded. Vexatious litigants who have cried wolf too often in the past might actually come across a wolf one day and might genuinely need help.

[19] In this Court, motions under subsection 40(4) are determined on the basis of written materials. Sometimes a vexatious litigant’s materials fall short of the mark because the vexatious litigant lacks the capacity to litigate effectively. The Court should be alert for this. Sometimes the Court might direct the vexatious litigant to seek advice or assistance. Sometimes the Court might give the vexatious litigant an opportunity to cure deficient materials.
B. The residual discretion

[20] The two requirements under subsection 40(4) of the Act must both be met. If one or both are not, that is the end of the matter; there is no discretion to grant leave.

[21] But if both requirements are met, subsection 40(4) provides that the Court "“may”", not "“shall”", grant leave. The Court has a residual discretion.

[22] It would be unwise at this time to try to define the content of this discretion in detail. Over time, the facts of future cases will define the proper content and scope of the discretion. The discretion will be very much governed by the overall purpose of subsection 40(4), discussed below.

[23] It may be that this discretion allows the Court to grant leave on certain conditions and to revoke leave if certain terms are not met. One possible term is that the vexatious litigant propose an acceptable schedule or a litigation plan. Another possible term is that the vexatious litigant be represented by counsel.

C. Access to justice

[24] Some might think that subsection 40(4) should be interpreted in a manner that facilitates the vexatious litigant’s access to justice. But that is too simplistic a view of subsection 40(4) and ignores the plain meaning of its text.

[25] It is no part of the Court’s task to take abstract principles valued highly by many, such as access to justice, and force subsection 40(4) to conform with them: Hillier v. Canada (Attorney General), 2019 FCA 44, 431 D.L.R. (4th) 556. The Court’s job is to discern the authentic meaning of legislative provisions, not amend them: Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252, [2018] 4 F.C.R. 174.

[26] Further, access to justice is a vague concept that takes on different meanings depending on the context. In the particular context of a leave motion brought under subsection 40(4) of the Act, we are dealing with vexatious litigants who have been proven to be harmful to the court system, other parties, and other cases—in other words, litigants that frustrate access to justice. See Olumide at paras. 17-34.

[27] In light of this, the question under subsection 40(4) is whether the regulation of the vexatious litigant’s access to court should be loosened just enough to permit a particular proceeding to be advanced and, if so, whether additional measures should be taken to ensure the proceeding is prosecuted responsibly and efficiently without harm to others.

[28] The Court must keep this understanding of access to justice front of mind as it applies subsection 40(4) to a particular case.


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