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Vexatious Litigant Won’t Take “No” for An Answer

Vexatious Litigant Won’t Take “No” for An Answer

Sometimes you hear about Family litigants for whom their dispute against the former spouse has taken on a life of its own, and who will not stop until they have literally exhausted every possible legal and procedural avenue.   The case of Nassr v. Vermette seems to be a great illustration of this scenario.

The former couple had commenced their family litigation in 2009, after which time the husband brought numerous questionable and downright meritless applications and motions. In 2011, pursuant to an order of the court, he was declared a “vexatious litigant” – which means that he was prohibited from commencing or continuing any further proceedings.

About four years later the husband decided he wanted to have that “vexatious litigant” designation set aside. But the court flatly rejected his application, and made an order that declared the designation anew. For greater certainty, the wording made it abundantly clear that he was expressly prohibited from instituting any new legal proceedings, and was prevented from continuing any proceeding previously instituted by him, unless he obtained the court’s permission.

Yet the husband tried to launch another appeal, and duly asked the court for permission to proceed. Although the court granted him an audience, it found that he simply did not meet the test for being allowed to proceed, under s. 140 of the Ontario Courts of Justice Act, and found there was no merit to his appeal anyway. Section 140 deems the court’s decision to be final, so the husband was blocked from appealing the court’s refusal of his application for leave.

In other words, the husband’s road was formally at an end. Or so only it seemed.

The husband tried to appeal yet again, this time focusing on an earlier judgment that had been made dealing with custody, access, and child support. The wife brought a motion to have that appeal attempt dismissed, and she was successful.

In making its ruling, the court emphasized that since the husband had been declared a vexatious litigant, this meant he had no further right to appeal or take any other step. That designation had been validly made by an earlier court, and – under section 140 of the Courts of Justice Act – could not be appealed.

The court also rejected the husband’s last-ditch argument, to the effect that the Rules of Civil Procedure should be bent for him.   Under one of its provisions, the court was entitled at any time to decide that compliance with a rule could be dispensed with. The husband claimed he should be given the benefit of the doubt so that his appeal could go forward notwithstanding the prohibition in section 140 of the Act.

The court didn’t buy it. The provision the husband had in mind applied only to the Rules, not to the test for obtaining leave in section 140 of the Courts of Justice Act, which is entirely different legislation. The court went ahead and quashed the husband’s appeal.

Not to be deterred, the husband didn’t stop there: He applied for leave to appeal from that Appeal Court decision as well. That application was made to the Supreme Court of Canada, but it was dismissed with costs.

Game over.

For the full text of the decisions, see:

Vermette v. Nassr, 2016 ONCA 658 (CanLII)

Jason Donald Nassr v. Laurie Ann Vermette, 2017 CanLII 5363 (SCC)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com