One myth I like to dispel is the idea that there are too many frivilous lawsuits in Court or that the system is not equipped to deal with such claims when they do arise. Special interest groups push stories of ‘lawsuit abuse’ arguing that change is necessary. The truth, however, is that frivolous lawsuits can and do get weeded out of Court. As previously discussed, BC Courts have very effective tools for eliminating bad lawsuits the most powerful of which is a “vexatious litigant” order.
In short a vexatious litigant order can strip a person of their right to sue without first getting judicial approval. Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, making such an order. The reasons are here and are worth reviewing in full to gain insight into the consequences of such an order and the circumstances when one could be made.
Every so often a sensational case makes headlines that gets dismissed after trial. Pundits and the press pick up on these stories. Such cases can receive disproportionate media attention and are sighted as key examples for the need to have tort “reform“. The other catchphrase that’s thrown around is “lawsuit abuse”.
“Reform“, however, is not necessary. The BC Supreme Court already has tools built in to discourage litigation. We have a “loser pays” system which exposes losing litigants to significant costs consequences. Additionally, if a litigant continues to pursue actions without merit they can be locked out of the Court process entirely. Reasons for judgement were released this week by the BC Court of Appeal demonstrating this tool in action.
In this week’s case (Keremelevski v. ICBC) the Plaintiff brought an application which the Court described as having “no sensible basis in law or fact” and had “absolutely no chance of success“. The Plaintiff’s application was dismissed but the Court noted that “The current proceedings, wholly devoid of merit and lacking any possibility of success, are simply another chapter in a long series of proceedings launched by the applicant in this Court”
The Court went on to make a so-called vexatious litigant order and in doing so provided the following reasons: Mr. Keremelevski has clearly demonstrated that he has no real comprehension of the court process and he persistently files applications in this Court that are completely unmeritorious. As Mr. Justice Frankel observed in the above excerpt from the Houweling case, judicial resources are not infinite, and the filing of what could justly be described as a blizzard of applications does take up valuable court time that ought to be used to hear other matters that have substance. As Frankel J.A. also observed, while persons are entitled to have their day in court, they are not entitled to be always in court “day after day in the futile pursuit of remedies to which [they are] not entitled”. As I observed, Mr. Keremelevski has initiated a significant number of proceedings in this Court that have had no possibility of success. He has also sought unsuccessfully leave to appeal to the Supreme Court of Canada in some of the proceedings. As is the case with the instant proceedings, it appears these matters have been devoid of merit with no possibility of success. In these circumstances, it seems apparent to me that it is now requisite for this Court to take action to prevent the misuse of its process. It is time, and indeed probably past time, to make an order in the case of Mr. Keremelevski in the terms made in the earlier cases referred to that Mr. Keremelevski will be precluded from filing any further documents in this Court without leave first obtained from a justice of the Court in chambers. As I observed in the Booty case, such an order is requisite to prevent misuse of the litigation process.
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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