Canada: When Enough Is Enough: A Case Of Vexatious Litigation

In one of the "clearest cases" yet, the Court of Appeal recently exercised its jurisdiction to summarily dismiss an appeal as an abuse of process pursuant to r. 2.1.01(1) in Wilson v. Fatahi-Ghandehari, 2023 ONCA 74.

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 brought by the appellant, Stewart Wilson. Following receipt of this written request, the court invited written submissions in accordance with the procedures outlined under r. 2.1.01(3). After receiving the written submissions, the court allowed Ms. Fatahi-Ghandehari's request and summarily dismissed the appeal.

The factual circumstances giving rise to the Court of Appeal's application of r. 2.1.01(1) were extraordinary:

• the parties were involved in "long-standing, acrimonious litigation" for over more than seven years, including 30 family, commercial and bankruptcy decisions relating to the conflict and 4 prior unsuccessful attempted appeals by the appellant to the Court of Appeal;
• the appellant had "deliberately and wilfully" breached court orders, resulting in a finding against him for contempt and his pleadings being struck in the underlying litigation;
• the appellant had failed to pay multiple cost orders against him totalling well over $150,000;
• the appellant had re-raised issues in overlapping actions; and
• the appellant had made informal allegations of judicial bias against two judges and fraud allegation against the respondent's lawyer, which type of conduct the court considered to be a "potential hallmark" of a vexatious litigation.

After reviewing the common characteristics typically found in vexatious litigations as identified in Gao v Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497 and Lochner v Ontario Civilian Police Commission, 2020 ONCA 720, the court found that these characteristics were "on ready display" by the appellant.

The court determined that "it is plain on a review of the record that it would be an abuse of the court's proceedings to permit this appeal to continue." The appellant was attempting to re-argue the same factual basis for the appeal, which had been rejected in prior proceedings, as well as attempting to participate indirectly in a trial that he was not permitted to participate in as a result of his pleadings being struck. The Court of Appeal rejected the appellant's attempt to reargue the trial on appeal.

The court identified this case as "one of the clearest cases for invoking this court's authority to summarily dismiss the appeal as an abuse of process pursuant to r. 2.1.01(1)." While it is fortunate that this extremely litigious and vexatious conduct is not often encountered before appellate courts, there is some comfort to parties that the court retains jurisdiction under the Rules to dismiss appeals without oral hearings where the dismissal is necessary to prevent an abuse of process.