Evaluating How Alberta Courts Have Issued Vexatious Litigant Orders After the Vexatious Litigant Order Trilogy

By Jessa Meyer*, Student at the Faculty of Law, University of Alberta

A vexatious litigant order (“VLO”) is used to prevent a vexatious litigant from commencing or continuing proceedings in court, unless the litigant obtains permission from the Court to do so.1 In 2020, the cases of Jonsson v Lymer,2 Makis v Alberta Health Services,3 and Vuong Tai Holdings v Alberta (Minister of Justice and Solicitor General)4 established guidelines for the Court of King’s Bench of Alberta to follow when issuing VLOs. These cases have collectively been referred to by Gerard Kennedy as the “Vexatious Litigant Order Trilogy”, 5 and will be referred to throughout this blog post as “the Trilogy”.

In Part II of his article, Gerard Kennedy effectively summarizes the key holdings from the Trilogy.6 This blog post will evaluate how Alberta courts have issued VLOs in light of these key holdings, paying particular attention to how the Trilogy decisions have since promoted access to justice. Two post-Trilogy cases will be examined: Belseck v Bond,7 and Dmyterko v Nissan Canada Inc.8

An Evaluation of Belseck v Bond

In Belseck v Bond, the Court of King’s Bench of Alberta issued a VLO after careful consideration of the principles established in the Trilogy. The case involves a high-conflict family law dispute in which Ms. Bond brought forth an application to have Mr. Belseck declared a vexatious litigant pursuant to Section 23.1 of the Judicature Act.9 Justice Harris, in her decision, immediately cites the Trilogy as being the appropriate guidance for issuing a VLO.10 Justice Harris affirms that VLO applications should “prima facie be initiated pursuant to the [Judicature Act]”,11 accepting the narrow inherent jurisdiction that the Trilogy has given the Court when issuing a VLO. As such, Justice Harris maintains respect for the legislature, as per the guidance of the Trilogy.

One of the greatest considerations given weight to in Belseck v Bond is the fact that Mr. Belseck was largely self-represented throughout the dispute. Lymer is clear that courts should be sensitive to the challenges faced by self-represented litigants.12 As seen in Vuong, it is not uncommon for self-represented litigants to be unfamiliar with court processes and confused about the process in general.13 This does not amount to vexatious behaviour and should not be treated with a VLO. Rather, a VLO should only be issued in circumstances when there is persistent offensive conduct.14

Throughout the dispute, Mr. Belseck submitted eight applications and twelve affidavits, many of which were deemed to be repetitive and collateral attacks.15 His actions included selling property awarded to Ms. Bond, obstructing her sale of another property, and failing to cooperate with court orders, for which he was arrested.16 Justice Harris found that Mr. Belseck’s behaviour constituted “more than simply ignorance and misunderstanding of the law or court processes”.17 Distinct from cases like Vuong, Mr. Belseck’s actions demonstrated bad faith. Although VLOs are deemed in Lymer to be an extreme response to inappropriate litigation,18 Justice Harris found that such an order was warranted here. This is because of Mr. Belseck’s deliberate and continuous attempts to undermine the opposing party, ultimately amounting to a pattern of abuse.

Justice Harris, however, does not make this decision lightly. By making a clear distinction between Mr. Belseck’s self-represented status and vexatious behaviour, Belseck v Bond aligns with the principles of the Trilogy. The Trilogy’s goal of ensuring that self-represented litigants are not barred access to the courts unnecessarily is promoted, preventing future situations like that in Vuong.

Justice Harris also addresses the Trilogy’s emphasis on case management, which was found to be a better alternative to a VLO in both Lymer and Makis. While Justice Harris acknowledges that issuing a VLO is not a substitute for case management,19 she maintains that case management in this situation would not be appropriate. In the past, the Court attempted various remedies to address Mr. Belseck’s actions. These included increasing costs awarded to Ms. Bond over time, granting police enforcement clauses, and granting a restraining order.20 Justice Harris found that these remedies were simply time-consuming and expensive.21 Moreover, the litigation was nearing its endpoint. Reasonable concerns were held that Mr. Belseck would bring forth more applications and delay the action even further.22 It is likely, then, that case management would not have as effectively addressed this situation as it did in Lymer and Makis.

Justice Harris also took guidance from the Trilogy in assuring that the VLO issued was proportionate to Mr. Belseck’s actions. In his article, Gerard Kennedy emphasizes that access to the courts is a constitutional right, so if it is to be restricted by a VLO, the terms should be tailored to the individual person.23 Because Justice Harris was satisfied that Mr. Belseck’s vexatious behaviour targeted only Ms. Bond, the order was narrowed in scope. It focused only on preventing Mr. Belseck from bringing further applications related to that particular action, and commencing any future proceedings against Ms. Bond without leave from the Court.24 The order did not bar Mr. Belseck from commencing any future actions, against any other Defendants, on any other issues.25 Lymer reinforces that a vexatious litigant order can be an insurmountable barrier for a party. 26 As such, Justice Harris chooses not to unreasonably impact Mr. Belseck’s access to justice by issuing an overbroad order. At the same time, however, the order condemns Mr. Belseck’s vexatious behaviour, preserves court time and resources, and protects Ms. Bond from further unacceptable litigation behaviour. This is to be commended.

An Evaluation of Dmyterko v Nissan Canada Inc.

In contrast, Dmyterko v Nissan Canada Inc. illustrates perhaps a more critical application of the Trilogy guidelines, specifically those from Lymer. The case involves a litigant, Ms. Dmyterko, who filed fourteen Statements of Claim in the Alberta Court of Queen’s Bench (as it then was) within five months. In his decision, Associate Chief Justice Rooke found that Ms. Dmyterko engaged in repeated, persistent, and abusive litigation.27 Because of this, he invited the Defendants to initiate a Judicature Act process against Ms. Dmyterko to declare her a vexatious litigant.28 None of the Defendants chose to do so.29

Lymer emphasizes that it should be an exception for the courts to institute vexatious litigant proceedings on their own motion.30 This should only be done in specific circumstances, like when the litigants have failed to do so after invitation.31 Associate Chief Justice Rooke suggests that this is a shortcoming of the Lymer decision.32 He therefore exercises the Court’s residual authority to initiate a Judicature Act process against Ms. Dmytreko, satisfied that doing so met the criteria of the Defendants “failing to act”.33

It is clear on the facts of Dmytreko that Ms. Dmytreko possesses an abusive pattern of litigation where she initiates a lawsuit against one Defendant, then continuously shifts to a new target.34 Because of this pattern, Associate Chief Justice Rooke emphasizes that case management would not adequately remedy Ms. Dmyterko’s behaviour.35

Associate Chief Justice Rooke also asserts that the Defendants refrained from seeking a VLO against Ms. Dmytreko because, in his view, the “individual litigant does not care about whether or not courts function”.36 Rather, they want to end the litigation directed at them quickly and affordably, especially because in this instance, Ms. Dmytreko would simply move on to sue someone else.37 Associate Chief Justice Rooke’s critique of the Lymer decision lies in the idea that “parties only care about themselves”.38 As such, there are times when it must be left to the courts to ensure that the court system is efficient and therefore accessible to all.

Dmytreko appears to be a rare exception to Lymer’s guidance that litigation should be left in the hands of the litigants.39 Exercising this very narrow residual authority may raise questions as to whether this achieves Lymer’s goal of upholding a litigant-driven adversarial system and preventing judicial overreach. However, it is worthwhile to consider Associate Chief Justice Rooke’s critique of the Lymer decision. Associate Chief Justice Rooke seemingly suggests that if a Court is discouraged from initiating vexatious litigant proceedings on its own motion, a true vexatious litigant could be freely enabled to continue wasting court time and resources. This could, in turn, obstruct access to the courts for many more litigants, and hinder access to justice in this way. In essence, Associate Chief Justice Rooke’s critique raises the question of whether the Trilogy adequately emphasizes just how harmful abusive litigation is to the court system, a notion also put forth by Gerard Kennedy in his article.40

Conclusion

Ultimately, when evaluating Belseck v Bond and Dmytreko v Nissan Canada Inc, there is a clear difference in how Alberta courts have applied and endorsed the Trilogy’s principles. Belseck illustrates a decision that seems to abide by and support the Trilogy principles. Dmyreko, however, demonstrates a decision in which the principles are critiqued. Despite these differences, both cases strongly prioritize access to justice in their own way, which was a pivotal factor in the Trilogy decisions.

Post-Script

I extend my acknowledgement to Professor Gerard Kennedy, whose article, “The Alberta Court of Appeal’s Vexatious Litigant Trilogy: Respecting Legislative Supremacy, Preserving Access to the Courts, and Hopefully Not to a Fault”,41 sparked the inspiration behind this blog post and encouraged me to write on this topic.

* This blog post was greatly inspired by the work of Gerard Kennedy in his article, “The Alberta Court of Appeal’s Vexatious Litigant Trilogy: Respecting Legislative Supremacy, Preserving Access to the Courts, and Hopefully Not to a Fault”. I would recommend reading it before delving into the content presented here, as it insightfully analyzes many of the principles of the Vexatious Litigant Order Trilogy that are discussed in this piece.

  1. Jonson v Lymer, 2020 ABCA 167 at para 9 [Lymer]. ↩︎
  2. Ibid. ↩︎
  3. 2020 ABCA 168 [Makis]. ↩︎
  4. 2020 ABCA 169 [Vuong]. ↩︎
  5. Gerard J Kennedy, “The Alberta Court of Appeal’s Vexatious Litigant Trilogy: Respecting Legislative Supremacy, Preserving Access to the Courts, and Hopefully Not to a Fault” (2021) 58:3 Alta L Rev 739 (CanLiiDocs). ↩︎
  6. Ibid. ↩︎
  7. Belseck v Bond, 2022 ABKB 845 [Belseck]. ↩︎
  8. Dmyterko v Nissan Canada Inc, 2021 ABQB 405 [Dmyterko]. ↩︎
  9. Judicature Act, RSA 2000, c J-2. ↩︎
  10. Belseck, supra note 7 at para 22. ↩︎
  11. Ibid at para 24. ↩︎
  12. Lymer, supra note 1 at para 85. ↩︎
  13. Vuong, supra note 4. ↩︎
  14. Lymer, supra note 1 at para 85. ↩︎
  15. Belseck, supra note 7 at para 31. ↩︎
  16. Ibid at para 13. ↩︎
  17. Ibid at para 33. ↩︎
  18. Lymer, supra note 1 at para 12. ↩︎
  19. Ibid at para 85. ↩︎
  20. Belseck, supra note 7 at para 34. ↩︎
  21. Ibid at para 35. ↩︎
  22. Ibid at para 34. ↩︎
  23. Kennedy, supra note 5 at page 754. ↩︎
  24. Belseck, supra note 7 at para 38. ↩︎
  25. Ibid. ↩︎
  26. Lymer, supra note 1 at para 11. ↩︎
  27. Dmyterko, supra note 8 at para 8. ↩︎
  28. Ibid. ↩︎
  29. Ibid at para 9. ↩︎
  30. Lymer, supra note 1 at para 48 [emphasis added]. ↩︎
  31. Ibid. ↩︎
  32. Dmyterko, supra note 8 at para 17. ↩︎
  33. Ibid at para 10. ↩︎
  34. Ibid. ↩︎
  35. Ibid at para 14. ↩︎
  36. Ibid para 17. ↩︎
  37. Ibid. ↩︎
  38. Ibid. ↩︎
  39. Ibid at para 10. ↩︎
  40. Kennedy, supra note 5 at 739. ↩︎
  41. Kennedy, supra note 5. ↩︎

The views expressed in these blogs do not necessarily reflect the views of the Faculty of Law at the University of Manitoba and should not be construed as legal advice or endorsement.

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