On February 2, 2023, Justice Sally Gomer released a “vexatious litigant” decision in the matter of the Estate of John Ellsworth Colbert, deceased on February 28, 2021, at 93 years of age in Stittsville Ontario (Colbert v. Colbert et al., 2023 ONSC 811 (CanLII)). In an unfortunate case of two brothers disagreeing over their father’s estate, as well as apparently everything else, one of the brothers was declared by the court to be a “vexatious litigant”. The Order was granted based on the Courts of Justice Act, RSO 1990, c C.43:
140 (1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,
(a) instituted vexatious proceedings in any court; or
(b) conducted a proceeding in any court in a vexatious manner,
the judge may order that,
(c) no further proceeding be instituted by the person in any court; or
(d) a proceeding previously instituted by the person in any court not be continued,
except by leave of a judge of the Superior Court of Justice.
Justice Gomery reviewed previous decisions and found that:
“a vexatious litigant has typically engaged in one or more of the following behaviours:
(a) they have brought one or more legal proceedings that obviously cannot succeed;
(b) they have brought these proceedings for an improper purpose, including “the harassment and oppression of other parties by multifarious proceedings brought for other than the assertion of legitimate rights”;
(c) they have rolled over, repeated, and supplemented grounds and issues raised from one proceeding to another; and
(d) they have failed to pay the costs of unsuccessful proceedings.
In this case, the Order granted continued a previous temporary injunction enjoining one brother from:
(1) commencing new proceedings against the other brother or his lawyer, and from taking steps in any existing proceedings against any of these parties;
(2) all contact with his brother or his lawyer or their respective family members, including but not limited to attending at or near their residences or offices; and
(3) releasing the personal information or any information or photos of his brother or lawyer or their respective immediate family members.
One brother was successful on the main issue on the application, being the designation of his brother as a vexatious litigant, and so was entitled to costs. The court was advised that the costs outline would be provided and that they were described as “staggering”. This is not surprising given the conduct of the vexatious litigant. In previous cases, courts have barred vexatious litigants from seeking leave to take any further steps in proceedings until they had paid all outstanding costs awarded against them. Unsurprisingly this was the course of action followed in this case.