Court Cases & Orders

Does Suing Opposing Counsel for $1 Billion Make you “Vexatious”?

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Does Suing Opposing Counsel for $1 Billion Make you “Vexatious”?

In a Blog from a little while back, we took a look at the concept of the “vexatious litigant”.

The term is used to denote a litigant who is abusing the process of the court and the processes of the justice system in general.   Courts are authorized to monitor and actively safeguard against this; they can declare a litigant to be vexatious, and can order that he or she is prevented from taking certain steps or even participating at all in the litigation in the future.   The courts’ gatekeeping function supports the notion that access to justice is a fundamental right, that court resources are limited, and that no single litigant may abuse the process to the detriment of the other party or the public generally.

With this goal in mind, some of the things that can make a person worthy of the unwanted “vexatious litigant” designation include:

  • Launching multiple actions to determine an issue that has already been determined;
  • Bringing an action where it is obvious that it cannot succeed;
  • Bringing an action for an improper purpose, including harassing opposing parties;
  • Continuing any of the types of actions listed above, even though they are without merit; and
  • Persisting instituting unsuccessful appeals of unfavourable decisions.

This is illustrated in a case called Yae v. Park, where the court was asked by a dentist to declare that a former patient (who was self-represented) was a vexatious litigant, and that she should not be allowed to initiate any further proceedings against him except with the court’s permission.

The patient had sued the dentist in 1999 for his allegedly negligent dental treatment, a claim for which she ultimately sought $40 million in damages.  The patient then delayed the proceedings and asked for extensions numerous times, ostensibly because she was suffering from unidentified ailments and was having trouble finding and hiring a lawyer.  Despite numerous scheduled hearing dates, the matter dragged on for more than 12 years, without resolution or any significant movement forward.

During that span, the patient also brought formal complaints to the Law Society against the lawyers acting against her on the dentist’s behalf.  She accused them of various misconduct, which included asking the court to “stop her from being able to bring further motions”, refusing to pay her “award money”, and refusing to approve her draft orders.    The Law Society responded by telling the patient these were not issues that it could pursue against the dentist’s lawyers on her behalf.

Then, the patient tried to add the dentist’s lawyers as defendants to the main action.  The court explained:

In addition to all of the above steps in the proceeding, I was advised … that [the patient] has in very recent weeks sought to amend her claim to add counsel for the [dentist] as new defendants in the Action. …

It would appear when the [patient] saw that the [dentist’s] counsel was in attendance at court she withdrew her motion to amend. She indicated at the hearing before me that she wanted to review this amended pleading before moving on it again. A copy of the proposed Amended Statement of Claim was handed up to me at the hearing. It does add the [dentist’s] lawyers as new defendants, and claims damages against them in the amount of “$1 BILLION” for interfering with her claim.

Against this background, the court readily concluded that the patient was indeed a vexatious litigant:  She persistently attempted to re-litigate issues that the court had already determined, and brought claims that no reasonable person could expect to win. She also initiated motions and appeals merely to harass her opponents, and appealed virtually every ruling that was not to her liking.

As a final comment, the court added:

Nothing says vexatious like a one billion dollar claim against opposing counsel for defending their client’s rights.

The court granted the dentist’s request, and ordered that the patient was to institute no further proceedings in any court except with a judge’ permission.  It also imposed a permanent stay on the patient’s specific lawsuit against the dentist.

For the full text of the decision, see:

Yae v. Park, 2013 ONSC 1331

 

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, 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. We have locations in Toronto, Markham, Whitby (Brooklin), Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.