The Ontario Government will be implementing a new regulation (ON Reg 322/24) that is designed to deter purposefully troublesome delay that is caused by vexatious litigants. This new regulation will coincide with the amendment passed earlier this year to s.140 of the Courts of Justice Act; all of which will come into effect at the Lieutenant Governor General’s proclamation.
Leashing Vexatious Litigants – Changes to s.140
S.140 (1) allows a Superior Court judge to effectively put a leash on a litigant who institutes or conducts vexatious proceedings. If an s.140 application is made to the judge regarding the vexatious litigant, and the judge is satisfied that the person has “persistently and without reasonable grounds” instituted or conducted vexatious proceedings, he or she may make a “vexatious litigant order.” This order can stop the vexatious litigant from pursuing any further proceeding or continuing an ongoing proceeding without the leave of the judge.
Currently, vexatious litigant claims can only be made by application, not by motion. This means that a judge cannot make the order without a someone filing an s.140 application. The new s.140 (1) allows a judge of the Superior Court or judge of the Court of Appeal to make an order on his or her own initiative (2) while continuing to allow any person to file an application.
Streamlining Motions – ON Reg 322/24
Rule 2.1 of the Rules of Civil Procedure currently sets out a procedure by which a court can “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.” The intention of the rule is fine but it needed some modification. Luke Sabourin and Ben Grondin for Gowling WLG point out a few problems with Rule 2.1’s current iteration:
- There are few guidelines for litigants seeking an order whereby the judge can stay or dismiss the vexatious proceedings;
- Even if the vexatious proceeding is dismissed under Rule 2.1, “that does not prevent the vexatious litigant from bringing further vexatious proceedings.” An s.140 application is required; and
- Filing an s.140 application is an originating process which begins new proceedings outside of the current ones, “even when the grounds for a vexatious litigant order rise from an ongoing proceeding.”
The new Rule 2.1 introduces a new form (2.1A) where a party can request a stay or dismissal of a vexatious proceeding. If the court finds a dismissal or stay to be appropriate, the registrar will “deliver a new form 2.1B,” which, when delivered, automatically stays or dismisses the vexatious proceeding. Sabourin and Grondin describe this as a “mini motion” for Rule 2.1 dismissals. The court can still dismiss or stay proceedings on its own initiative if it finds the proceedings to be vexatious, frivolous, or an abuse of process.
This new “mini motion” system will streamline filing for dismissal of vexatious proceedings and will make it easier for litigants to hold each other more accountable more fairly. This solves the first problem Sabourin and Grondin identified and the next two are addressed by the other changes made to s.140 that will be coming into effect with ON Reg 322/24. S.140 will now “allow parties to bring motions in existing proceedings,” rather than starting entirely new proceedings.
ON Reg 322/24 also introduces a new Rule 2.2 that allows a vexatious litigant order to be made on “a party’s motion in an existing proceeding, on a judge’s own initiative, or on a party’s application in any other case.”
Discussion – The Incentives for Delay and Timeliness
“Delay is a feature of the architecture of justice systems and not a bug or symptom of dysfunction (See: Top 10 Lessons of Delay and Timeliness in Justice).” Incentives for both timeliness and delay are built into the structure of our justice systems. It seems that the old system does not have enough deterrents built into its architecture to prevent troublesome litigants from making proceedings more troublesome. There were too few guidelines for parties to file to stay or dismiss a vexatious proceeding and Superior Court judges could only leash vexatious litigants in the event of an s.140 application and there weren’t enough incentives for a party to begin a new proceeding that would draw out the case even longer. These shortcomings provide a partial explanation of delay and backlog in Ontario’s civil justice system.
These changes seem to reverse the incentives in favour of those who want timeliness rather than those who want delay. Judges will no longer need to wait for an s.140 application to leash vexatious litigants and parties will soon be able to motion to stay or dismiss vexatious proceedings more speedily. We hope that these changes will constitute a partial solution to the delay in the architecture of the Ontario civil justice system.
