Ontario Superior Court Confirms the Test for Vexatious Litigants

Published on: September 2019 | What's Trending

In a recent decision involving an unrelenting personal trainer, the Ontario Superior Court has set out what it takes to have someone branded a vexatious litigant. The Court also outlined the discretion it has to issue orders to protect the administration of justice from vexatious litigants.

GoodLife Fitness Centres Inc. v. Hicks, 2019 ONSC 4942 concerned the conduct of Anthony Hicks (“Hicks”), who worked at Goodlife Fitness Centres Inc. (“Goodlife”) as a personal trainer for over five years. During his employment Hicks was repeatedly spoken to regarding his attitude and behaviour. In 2013, Goodlife proposed transferring him to a different location; in response, he initiated a proceeding against Goodlife on the basis that he had been constructively dismissed. This began a long road of litigation that lasted six years in nearly every forum available.

The first proceeding launched by Hicks was a complaint to the Ontario Labour Relations Board (“OLRB”). This complaint was withdrawn in order to pursue a civil action for wrongful dismissal. While it appears Hicks was assisted by counsel in the OLRB action, he was self-represented for all subsequent proceedings from 2014 to 2019.

Hicks consented to a dismissal of his 2014 action in order to pursue a complaint with the Human Rights Tribunal of Ontario (“HRTO”).  The HRTO adjudicator found Goodlife dealt with Hicks appropriately based on his conduct rather than in relation to discrimination, as he alleged.  When Hicks requested a reconsideration, the adjudicator found that the basis for his request was simply disagreement with the result, and the request was denied.

While the HRTO complaint was under review, Hicks filed a similar complaint with the Ministry of Labour, where he alleged breaches of the Employment Standards Act. His constructive dismissal claim was dismissed as it was the subject of his previous civil action, and his allegations of breaches of the Employment Standards Act were dismissed based on the evidence.

Beginning in 2015, Hicks made several requests to have these decisions reviewed and reconsidered. He also initiated a new civil action against Goodlife, the OLRB, and the HRTO. The claims and relief sought were similar to that of the 2014 action; however, the new action also included allegations of conspiracy and complained of the conduct of a variety of organizations and individuals not named as defendants.

In accordance with rule 2.1.01 of the Rules of Civil Procedure, the defendants successfully moved for a dismissal of the proceedings commenced by Hicks on the basis that they were an abuse of process.  Hicks responded by applying to the Federal Court for judicial review of the dismissal, which was dismissed on jurisdictional grounds.

Goodlife then commenced an application in Superior Court seeking an order declaring Hicks to be a vexatious litigant and seeking protection for itself and others from any new proceeding by Hicks that is vexatious and/or without merit.  The court reviewed the principles to be considered in an application to declare a litigant vexatious.  These criteria include whether the litigant has (a) brought action(s) with respect to an issue already determined; (b) brought an action where it is obvious it cannot succeed or would lead to no good; (c) brought an action other than to assert legitimate rights; and (d) brought an action rolling-forward issues previously raised.

The court noted that: (a) the entire history of the proceeding must be considered, and not simply whether there was originally a good cause of action; (b) failure of the litigant to pay costs of unsuccessful proceedings ought to be considered; and (c) whether the litigant has persistently made unsuccessful appeals, as this can be considered vexatious conduct.

The court stated that these criteria should be applied holistically and not all of the factors need to be present.

In applying these principles to the conduct of Hicks, the court held that the majority of the criteria supported the determination that Hicks is a vexatious litigant.

Importantly, the court noted that it is permitted to consider conduct outside the courtroom. In this case, Hicks sent over 175 emails to Goodlife’s counsel and others, including 163 sent in one day. The emails contained allegations of conspiracy and were of a threatening nature. Considering this conduct in conjunction with the various proceedings Hicks initiated, an overall pattern of abuse was evident. The court determined that Hicks “falls within the category of litigants ‘who continually abuse the court process by engaging in frivolous and vexatious litigation.’”

The court then considered what measures could be taken in response to Hicks’ conduct.  It was explained that, in order to prevent vexatious litigants from abusing the judicial system, the courts rely on the preventive mechanism provided for in section 140 of the Courts of Justice Act (the “CJA”). Section 140 allows the court to vet legal action proposed by a person deemed to be a vexatious litigant before it is permitted to proceed. The court will consider the merits of the proposed proceeding and whether it is initiated in good faith. Here, the court concluded that it was reasonable to order that Hicks may only initiate future judicial proceedings if he can first satisfy the court accordingly.

In sum, the parameters for vexatious conduct outlined in this case, and the process available under the CJA, can be used to preserve judicial resources and limit vexatious action. In this case, an order was sought after substantial evidence of vexatious conduct was available.

Author: Daniel Waldman, Lawyer

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