Universe Emotions v. Forslund, 2021 BCSC 812 is an excellent example of the courts shutting down the continued court filings of a vexatious litigant without leave of the court.
The high emotions often on display in family and estate litigation can on occasion send some litigants into a frenzy of court applications or court actions.
Section 18 of the Supreme Court Act provides that:
18 If, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court.
In Rose v. Canada (Royal Canadian Mounted Police), 2009 BCSC 1750 at para. 27, Justice Macaulay, citing Brown at paras. 47 and 48, describes s. 18 as requiring two elements to be established:
- There must be proceedings that are vexatious in the sense of being annoying, irritating, distressing, or harassing, and brought without reasonable grounds. Second, there must be a knowing and deliberate repetition or continuation of vexatious conduct.
- The second element is objective. The litigant need not have appreciated that the conduct was vexatious, so long as a reasonable person in the same position would have: Brown at para. 48; Rose at para. 30.
Section 18 mandates a consideration of the entirety of the person’s litigation history, with the ultimate question being whether the litigant has “taken himself over the line”: Lindsay v. Canada (Attorney General), 2005 BCCA 594 at para. 26.
As illustrated in Carten v. Carten, 2015 BCCA 201 at para. 32, our Court of Appeal has endorsed the list of non-exhaustive factors originally articulated by Henry J. in Re Lang Michner and Fabian (1987), 37 D.L.R. (4th) 685 (Ont. H.C.J.), for consideration. Those factors are 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) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
h) the practice of filing vast amounts of materials to no apparent purpose, as recognized by this Court in Holkhold v. Gerbrandt, 2017 BCSC 1249 at paras. 43–46.
Section 18 also entitles the court take litigation conduct into consideration: Semenoff Estate v. Semenoff, 2017 BCCA 17.
In Semenoff Estate, the strategy noted was that of making of grave allegations without any proof in support of them (para. 33).
In Dawson v. Dawson, 2014 BCCA 44, the Court of Appeal took into account the litigant’s improper conduct toward and harassment of the other party’s counsel in relation to the proceedings (paras. 23–26).
[ Conduct of a litigant before the Court of Appeal may be considered: Hokhold at para. 38–42; De Silva v. Fraser Health Authority, 2013 BCSC 659 at paras. 48–50; as may conduct before administrative tribunals: Bajwa v. British Columbia Veterinary Medical Association, 2012 BCSC 878 at paras. 207 and 211; AWM Rafique v. AWM-Alliance Real Estate Group Ltd., 2019 BCSC 247 at para. 48.
An order under s. 18 imposes a limit on the generally unrestricted right of access to the courts and, as such, is never lightly made. That said, where warranted, the order not only protects the legitimate rights and interests of the applicants, but safeguards the public right of access by reducing court time spent on matters lacking merit: S.(M.) v. S.(P.I.) (1998), 60 B.C.L.R. (3d) 232 (C.A.) at para. 13.
As observed by Justice Southin in Household Trust Co. v. Golden Horse Farms Inc., 1992 CanLII 420 (B.C.C.A.), there is a duty to make such an order where appropriate:
In my opinion, the Supreme Court of British Columbia has an inherent jurisdiction and a corresponding duty to exercise that jurisdiction to protect [an applicant] who seeks relief in that Court from proceedings by [an opposing party] who is vexatiously abusing the process of the court. That it is a jurisdiction to be exercised with great caution, I have no doubt. But not to exercise it where there is no other way to bring reason into proceedings is, in effect, to deprive the [applicant] of justice according to law. The court if it fails to act becomes but a