On August 2, 2024, the Ontario Government introduced Ontario Regulation 322/24, a new regulation that overhauls the vexatious litigant regime in Ontario.
The new regulation revises the Rules of Civil Procedure to create a comprehensive framework for addressing frivolous, vexatious, or abusive litigants while also providing guidance on the content of orders made against such litigants. At the same time, the Courts of Justice Act1 will be amended to facilitate the new regime.
The trouble with vexatious litigants
The Courts of Justice Act defines a vexatious litigant as a person who "has persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner."2 In turn, the Oxford English Dictionary describes vexatiousness in the legal context as a legal action "instituted or taken without sufficient grounds, purely to cause trouble or annoyance to the defendant."3
The problem of vexatious litigants has hindered the administration of justice in Ontario for decades. Various courts have recognized that vexatious litigants clog the courts, waste time, and critically, deny others timely access to justice by so doing.4
To alleviate this problem, the Courts of Justice Act allows for a party to apply for a "vexatious litigant order" against another person. If such an order is granted, it prevents the vexatious litigant from instituting or continuing any proceedings without leave of a judge.
The current regime
Vexatious litigants are currently dealt with under a mixture of provisions of the Rules of Civil Procedure and the Courts of Justice Act.
Rule 2.1 provides for a summary process of dealing with vexatious proceedings. Currently, Rule 2.1 allows a court to dismiss or stay a proceeding or motion that is frivolous, vexatious, or otherwise an abuse of process on its own initiative or at a party's request. However, the current regime has few guidelines for litigants seeking such an order and does not allow for a party to obtain an order declaring another party a vexatious litigant.
The downside to the current regime is that, even if a person or the court successfully has a vexatious proceeding dismissed under Rule 2.1, that does not prevent the vexatious litigant from bringing further vexatious proceedings. Currently, if a party wants to stop a vexatious litigant from bringing or continuing proceedings, they are required to bring an application under s. 140 of the Courts of Justice Act. This requires that party file an application (an originating process), even when the grounds for a vexatious litigant order rise from an ongoing proceeding.
The new regime
Ontario Regulation 322/24 amends Rule 2.1 and introduces a new Rule 2.2. The changes to the Rules coincide with changes to s. 140 of the Courts of Justice Act made by the Enhancing Access to Justice Act5 The new regime will come into force on a day to be proclaimed by the Lieutenant Governor for Ontario.
Rule 2.1
The revised version of Rule 2.1 modifies the procedural process for dismissing a proceeding or motion for being frivolous, vexatious or an abuse of process. Either the court or a party may request an order that the proceeding or motion be dismissed. Parties must now use a new form 2.1A "Request for Stay or Dismissal under Rule 2.1" to make such a request.
Upon receipt of such a request (or on the court's own initiative) the court will review and determine whether a dismissal/stay order may be appropriate. If so, the registrar will deliver new form 2.1B "Notice that Proceeding (or Motion) May be Stayed or Dismissed Under Rule 2.1." Once the registrar delivers this notice the proceeding is automatically stayed.
Rule 2.1 (8) sets out a unique procedure for both parties to make submissions about the potential dismissal. In effect, the new Rule 2.1 almost creates a "mini motion" for 2.1 dismissals. Following submissions, the court may make an order staying or dismissing the proceeding or motion.
Rule 2.2
The new Rule 2.2 provides that a vexatious litigant order can now be made on either:
- A party's motion in an existing proceeding (via new form 2.2A, "Notice of Motion for Vexatious Litigant Order").
- A judge's own initiative (via new form 2.2C "Registrar's Notice Proposing Consideration of Vexatious Litigant Order."
- A party's application in any other case (via new form 2.2B "Notice of Application for Vexatious Litigant Order").
Interestingly, Rule 2.2.03(7) provides that the general frameworks for motions and applications under Rules 37, 38, and 39 do not apply to motions or applications made by a party seeking a vexatious litigant order. Instead, Rule 2.2 sets out unique procedures for vexatious litigant motions and applications.
Once a party who is the potential subject of a vexatious litigant order receives a vexatious litigant notice of motion, registrar's notice, or notice of application, the party may serve and file a new form 2.2D "Response from Potential Subject of Vexatious Litigant Order." The moving party/applicant or any "notified person" has a right of reply and may serve and file a new form 2.2E "Reply Respecting Potential Vexatious Litigant Order."
A judge will then conduct an initial review of the vexatious litigant notice and submissions. The judge may then direct that a hearing take place or may dismiss the matter via new form 2.2F "Order Following Initial Review Under Rule 2.2." If the judge decides to direct a hearing, Rule 2.2.06(2) gives the judge broad powers to determine the scope of the hearing, including, for example, requiring a party to serve and file a full motion record. A judge's decision to direct a hearing or dismiss the matter is not reviewable on appeal.
If the judge decides to direct a hearing, the judge may make orders and give directions as they consider appropriate in the interests of justice. The judge may make a vexatious litigant order (in new form 2.2G, "Vexatious Litigant Order"), or decline to make such an order.
Rule 2.2 concludes by providing the court with the authority to stay or dismiss any proceeding brought or continued by a party that is subject to a vexatious litigant order. Such orders may be made without notice. Further, the registrar is granted the power to refuse to issue or file any documents from a vexatious litigant.
Concurrently, s. 140 of the Courts of Justice Act has been amended to allow parties to bring motions in existing proceedings. S.140 of the Courts of Justice Act now also enables a judge of the Court of Appeal to issue a vexatious litigant order. Finally, s.140 clarifies the appeal process for a party seeking to appeal vexatious litigant order. Vexatious litigant orders made by a judge of the Superior Court of Justice may be appealed to a panel of the Court of Appeal; orders made by a judge of the Court of Appeal may be set aside or varied by a panel of the Court of Appeal.
Takeaways
The new vexatious litigant regime represents a sea change in the way courts and parties can deal with vexatious litigants. Most importantly, the new regime will significantly reduce the burden of obtaining a vexatious litigant order by allowing for parties to bring motions in an existing proceeding and for courts to make such orders on their own initiative; no longer is a separate and full-fledged application required.
Further, the streamlined process described in Rules 2.1 and 2.2 are designed to create an efficient procedure of combating vexatious proceedings or litigants.
Vexatious litigants are just one of the many ills that burden Ontario's court system and hamper the administration of justice. We welcome the new vexatious litigant regime and hope that it will help create a fairer, less costly, and more efficient justice system.
Footnotes
1 Courts of Justice Act, R.S.O. 1990, c. C.43.
2 Courts of Justice Act, s.140.
3 The Oxford English Dictionary, "Vexatious", online
4 See, for example, Williams v Tuck, 2023 ONCA 452 at para 10.
5 Enhancing Access to Justice Act, 2024, S.O. 2024, c. 2 - Bill 157, Schedule 6, subsection 7(1).
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