May 19, 2020

Courts Say “Enough is Enough” to Vexatious Litigants

Roscoe v. Roscoe, 2007 ONCA 516 (CanLII)

The current pandemic has dominated the news, and for good reason. But just to take a breather from that topic, we are looking backward into the archives of the Ontario courts’ rulings, to revisit some basic principles around how the Canadian justice system operates.

Today’s themes are: “Vexatious litigants” and “abuse of process”.

To frame those topics, we cite from an older Family Law decision called P.R. v. K.R. where the court wrote:

Enough is enough. This Court has limited resources and must, therefore, attempt to deal with the work before it in a fashion that is fair to all users of the court. While a person’s access to justice is a fundamental right, the court must be diligent to ensure that its processes are not abused by any particular litigant to the detriment, not only to those directly involved in the litigation, but, as well, to the system at large.

I am satisfied that Mr. P.R. is a vexatious litigator. He is abusing the processes of this Court. Indeed, during the argument before me … Mr. P.R. informed the court that he has been in this Court and in the Ontario Provincial Court on seventy (70) occasions with respect to his family law issues. Even if seventy (70) is not the correct count, the actual number is substantial. If something is not done now to control his abuses, I am afraid that the appearances will continue to grow at an unreasonable rate.

Building on this earlier decision, in 2018 the same court was asked to rule in a non-Family matter called Peoples Trust Company v. Atas. It involved a litigant named Natalie Atas, a sometime-real estate agent who had launched more than 40 lawsuits over an 11-year period. All of these suits had their genesis in the financing arrangement for two properties, with mortgages amounting to only $178,000 and $92,000 respectively.

In finding Ms. Atas’ litigation to be “without merit or so disproportionate to the matters truly in issue as to be an abuse of process”, the court made many helpful observations that resonate beyond the specifics of her civil case. Indeed, those observations can be easily be adopted into Family Law proceedings, where litigants often lose sight of the true objectives of their court processes: To untangle the financial fallout from an ended spousal relationship, and to address the best interests of the children in connection with custody and access.

For example, the court in Peoples Trust Company v. Atas observed:

Ms Atas seems to have little subjective awareness of how pointless and destructive her conduct has been. She sincerely believes that she has claims that deserve to be adjudicated. This is the heart of the problem: she is unable to exercise reasonable judgment as a litigant, even within the broad bounds within which litigation may be pursued aggressively. For the reasons that follow, I find that she and her company are vexatious litigants.

In its preface to a 350-paragraph substantive ruling that took 10 months to finalize, the court chronicled the long, extensive history of the numerous proceedings that had been launched by Ms. Atas. When viewed collectively, it found her conduct to have been wholly unreasonable, stating:

But to sue everybody in sight, repeatedly, when things don’t turn out as you’d hoped is not reasonable. To seek to litigate issues multiple times is not reasonable. To disobey court orders is not reasonable. To repeatedly miss deadlines without explanation is not reasonable. To sue opposing lawyers is not reasonable. To launch exorbitant claims is not reasonable. To bring multiple recusal motions is not reasonable. To harass, defame and abuse opponents is not reasonable. Ms Atas’ explanation for this conduct is that she feels a sense of outrage that she has not received justice, as she understands it. These are not reasonable grounds for the impugned conduct; I find that the impugned conduct has been without reasonable grounds.

In giving its judgment, the court also ruminated on many legal principles that govern important topics such as access to justice, avoiding a waste of precious judicial and court resources, and the nature and role of the appeal process.

But some of the court’s most pointed comments relate to the need for finality in litigation. This is an idea that can also be easily extended into the Family Law realm – where some litigants are prone to losing sight of the bigger picture, and trying to re-litigate matters that have already been decided. Worse, they may become obsessed with “wreaking revenge” on a former partner, or having their “day in court”. Sometimes the litigation between former spouses or partners spans a longer time period than did the failed romantic relationship that sparked it in the first place.

As the court observed in Peoples Trust Company v. Atas, this approach cannot be condoned:

Ms Atas’ conduct seems to be fixated on the enforcement of mortgages against her two properties, and anybody she believes has been connected with her failure to prevail in her defence of those mortgage enforcement proceedings. Her conduct has been obsessive, unbridled, and consistent with a certain type of vexatious litigant who will not rest until a perceived historic injustice is remedied. …

What could possibly be so difficult and complex as to spawn so many lawsuits and take so long to sort out? Three routine mortgage transactions. That is all. Conflict over these transactions, enforcement of the mortgages, and fixing and collecting the underlying debts have consumed nearly fourteen years of time, hundreds of thousands of dollars in costs (far more than any reasonable value to the underlying claims, in the aggregate), and there is still no end in sight.

Courts are the place people come to get decisions on conflicts they cannot resolve among themselves. Decisions, once rendered, subject only to appeal rights, put a final end to the dispute. A party may disagree with the result — that is not unusual — but like it or not, the thing has been decided, the matter is at an end, and the parties can move on with their lives. Ms Atas seems unable to accept decisions with which she does not agree. She does not seem to accept that her agreement is not a condition precedent to ending the dispute.

I am convinced that Ms Atas sincerely feels that she has been wronged. In this she herself is wrong. It is she who has wronged others, in a campaign of abuse of process stretching over almost a decade and a half, endless cycles of claims and follow-on litigation, and a studied inability, perhaps emotional incapacity, to see disputes come to an end.

The Importance of Finality to Litigation

Why do we have civil courts? What is their purpose? To do justice, one would hope. To provide a fair and efficient process, one would try. To apply the law, one would expect. To do all this fairly and impartially, one would insist. But as much as any of these important things, the purpose of the civil justice system is to decide.

Civil courts are the places we go to obtain a final decision for ordinary disputes, of some materiality, that parties cannot solve for themselves. The process of justice can be slow, indeed, grinding. It certainly can be expensive relative to the value of the matters in dispute. The system can be criticized for these failings, and often is, but it is still better than the alternatives: pistols at dawn, no recourse at all, lawlessness, self-help. Any civilized society requires a mechanism for deciding such disputes. And there is no more fundamental feature to such a system than its finality: however long and elaborate the process may be, however many appeals may be available, once the process has run its course, the dispute is at an end. The matter is decided. Whether the parties disagree with results or not, they have become beyond dispute or debate.

There is much wisdom in these words, for civil and Family Law litigants alike.

For the full text of the decisions, see:

P.R. v. K.R., 2005 CanLII 44186 (ON SC), at para. 1 affirmed on this issue, 2007 ONCA 516.

Peoples Trust Company v. Atas, 2018 ONSC 58

[This post by Russell Alexander first appeared on FamilyLLB.com on May 15, 2020]