As a civil litigator, people often ask me if whether they can sue another person in connection with a particular issue. My general response (which may sound tongue-in-cheek, but isn’t necessarily intended to be) is that anyone can sue anyone else for anything.
That said, while this statement is technically true, thankfully most people who file claims against other people have some reasonable basis for doing so.
But not all claims have a reasonable basis, and are sometimes described as being ‘frivolous’ or ‘vexatious’ – a waste of time, without merit or an abuse of the court’s process. Thanks to Rule 2.1, a recent change to Ontario’s Rules of Civil Procedure (which govern proceedings in the Superior Court of Justice), a defendant can ask the court to dismiss the claim if they believe it’s frivolous or vexatious. Previously, a defendant would need to bring a motion and appear in court to obtain an order dismissing a frivolous or vexatious claim, which would takes longer and is more expensive.
The court has used Rule 2.1 to dismiss claims in a variety of circumstances, ranging from unspecified claims of fraud against public bodies, to transparent efforts to relitigate claims that had previously been dismissed or stayed, to a claim based on a supposed agreement to purchase a condominium unit where the agreement was comprised of “a promise to provide an appraisal and a singing birthday voicemail” and nothing more, to a claim that combined a slip and fall with an alleged conspiracy to commit murder and kidnapping. The common thread in these cases, and in other claims that are dismissed under Rule 2.1, is that the court must be satisfied that the claim, on its face, is patently frivolous, vexatious and/or an abuse of the court’s process, and that the claim cannot possibly succeed if allowed to proceed further.
A large part of the reason that anyone can sue anyone else for anything is the principle, which is fundamental to our court system, of access to justice. As a general rule, the courts are hesitant to restrict any person’s ability to access the courts. However, there are exceptions if a person abuses this rule by repeatedly bringing forward frivolous claims. It is even possible for the court to go further, and can order the person not to commence or continue any further proceeding without obtaining permission from the court.
Such an order is only made in extraordinary circumstances. According to a recent Toronto Star article, vexatious litigant orders have been made by the Ontario courts fewer than 200 times. Except for appealing the order, a person who is found to be vexatious may not pursue any further litigation in the Ontario courts without going through a pre-screening process to determine whether the claim appears, on its face, to be frivolous or vexatious. This type of order has been described by the courts as being a benefit both to the vexatious litigant (since they can be prevented from exerting their efforts and energy on pointless litigation) and to the public and the administration of justice as a whole (since the court system will not be clogged up with as many pointless claims, and the potential defendants to those claims will not be required to exert the energy and expense that would otherwise have been necessary to respond to those claims).
Ultimately, if you are served with a claim naming you as a defendant, and you have good reason to believe that the claim is frivolous and vexatious, you have a few options. First, you (or your lawyer) can write to the court under Rule 2.1 to ask for an order dismissing the claim. Second, you can bring a motion under the other rules of court dealing with frivolous and vexatious proceedings to seek an order dismissing the claim this would allow you to file further materials, and make oral submissions to the court, before the court makes a decision as to whether to dismiss the claim.
Finally, if the litigant filing the claim has a history of filing frivolous and vexatious claims, you can ask the court to make an order declaring that the person is a vexatious litigant. In any event, and regardless of how ridiculous (or not) the claim appears to be on its face, I would recommend that you speak with a lawyer so that you can obtain proper legal advice. While some claims are ultimately found to be frivolous and vexatious, this fact should not lead you to fail to give other, more serious claims the attention that they deserve.
Timothy Duggan is a condominium lawyer and civil litigator with Horlick Levitt Di Lella LLP. Reasonable Doubt appears on Mondays. You can contact him on Twitter at @timmyd_ and tell him what you would like to read about in future columns.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Horlick Levitt Di Lella LLP or the lawyers of Horlick Levitt Di Lella LLP.
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