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Report No. 192

Chapter VII

Curbs on Vexatious Litigation in Canada

In Canada there are specific statutory provisions in the Federal system which deal with prevention of 'vexatious proceedings'.

Section 40 of the Federal Courts Act (R.S. 1985, (F-7) reads as follows:

"Section 40:

(1) If the Federal Court of Appeal or the Federal Court is satisfied on application, that a person has persistently instituted vexatious proceedings or has conducted a proceeding in a vexatious manner, it may order that no further proceedings be instituted by the person in that Court or that a proceeding previously instituted by the person in that Court not be continued, except by leave of that Court.

(2) An application under sub section (1) may be made only with the consent of the Attorney General of Canada, who is entitled to be heard on the application and on any application made under subsection (3).

(3) A person against whom a Court has made an order under sub section (1) may apply to the Court for rescission of the order or for leave to institute or continue a proceeding.

(4) If an application is made to a Court under sub section (3) for leave to institute or continue a proceeding, the Court may grant leave if it is satisfied that the proceeding is not an abuse of process and that there are reasonable grounds for the proceeding. (5) A decision of the Court under sub section (4) is final and is not subject to appeal."

In addition, in the Codes of Procedure, there are provisions similar to Order 7 Rule 11 of the Indian Code of Civil Procedure. For example, in British Columbia, Rule 19(24)(9) of the British Columbia Rules of Court permit the Court to strike off or direct amendment of the whole or any part of an endorsement, pleading, petition or other document in certain circumstances. It reads as follows:

"Rule 19(24): At any stage of a proceeding, the Court may order to be struck out or amended the whole or any part of an endorsement, pleading, petition or other document on the ground that

(a) it discloses no reasonable claim or defence as the case may be, or

(b) it is unnecessary, scandalous, frivolous, or vexatious, or

(c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or

(d) it is otherwise an abuse of the process of the Court and may grant judgment or order for the proceedings to be stayed or dismissed and may order the costs of the application to be paid as between solicitor and client.

In Ontario, Rule 21.01 of the Rules of Civil Procedure, (O.Reg. 560/84) states as follows:

"Rule 21.01: (1) A party may move before a Judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially, shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause or action or defence. and the Judge may grant an order or grant judgment accordingly.

(2) No evidence is admissible on a motion,

(a) under clause (1)(a), except with leave of a Judge or consent of the parties;

(b) under clause 1(b).

In Carey Canada Inc v. George Earnest Hunt, 1990(2) SCR 959, the Canadian Supreme Court referred to the rulings under the English law in regard to striking out frivolous and vexatious pleadings or where no cause of action is shown. Wilson J observed that:

"the Court has a right to stop an action at this stage if it is wantonly brought without a shadow of an excuse, so that to permit the action to go through its ordinary stages upto trial would be to allow the defendant to be vexed under the form of legal process where there could not, at any stage, be any doubt that the action was baseless."

Prevention of Vexatious Litigation Back

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