Litigation can be ugly. Litigation where family is involved, as is often the case in estate litigation, can bring out the worst in people. According to the court, the worst of himself is what one of the respondents brought in the recent case of Colbert v. Colbert et al, 2023 ONSC 811 (“Colbert”) going so far as to declare the respondent in question a ‘vexatious litigant’.

The term ‘vexatious litigant’ comes from section 140 of the Courts of Justice Act. According to the court in Colbert, the purpose of s.140 is to prevent parties from harassing others and forcing them to incur unnecessary legal costs. Where a judge of the Superior Court is satisfied that a person has persistently and without reasonable grounds

• instituted vexatious proceedings in any court; or
• conducted a proceeding in any court in a vexatious manner

a judge may declare this person or proceedings brought by this person ‘vexatious’. The remedies for such a declaration are serious. The court can order that a proceeding already brought be discontinued, or order that the vexatious litigant cannot begin new proceedings without leave of the court.

Because it affects a person’s access to the courts, declaring a party vexatious is an extraordinarily high bar to meet. The average person involved in litigation, even where things are contentious and tensions are flaring, will not meet the test to be declared a vexatious litigant. Generally speaking, the court will only make an order under s.140 in the clearest, most extreme cases. Parties who have counsel will almost never meet the test, as their lawyers should reign in their client before things escalate to that level.

However, a party unlucky enough to be on the receiving end of a vexatious litigant’s efforts should know that there is a body of case law seeking to articulate what signs the court will look towards in making such a decision. Notably, the behaviour of the party in question both in and out of the courtroom is relevant to determining whether they ought to be declared vexatious.

The decision rendered by the court in Colbert surveyed a number of these signs, which include the use of the court process as part of an overall strategy of abuse and harassment, bringing one or more legal proceedings that obviously cannot succeed, the use of threats, and unsubstantiated allegations of impropriety. Mapping these behaviours on to those of the relevant party in the proceeding at hand, it was a clear-cut case of a vexatious litigant. In Colbert, the vexatious party brought several proceedings and threatened to bring others, all seeking to make some claim against the estate to enrich himself or set aside the will of his deceased father. Other notable behaviours include writing to the opposing parties that he was challenging them to “obtain revenge” and that he intended to deplete the estate’s value, disregarding court orders, and making multiple threats to the opposing party, their lawyer, family, and friends.

Despite the clear case before them the court was nonetheless loathe to apply the remedies laid out above, demonstrating just how seriously the court approaches the matter of vexatious litigants. While the court ordered that the vexatious party was not permitted to institute any further proceedings, the order only extended to proceedings related to the opposing parties who had been targeted by the vexatious litigant, and only related to the estate. In the same decision, the court also granted leave to participate in one proceeding arising from the case and declined to grant an order that would deprive the vexatious litigant of the ability to represent themselves in the proceeding. Altogether, the orders made put boundaries in place, rather than bar the vexatious party from moving forward entirely.