By: Jacob Willms, University of Alberta Law Student
Modern-day judicial systems simply do not have the resources to hear every conflict brought before them, and this problem is only made worse by vexatious litigants. Generally, vexatious litigants are those who waste the court’s resources by launching frivolous, vexatious, or abusive proceedings, improperly conducting litigation, or otherwise misusing the procedures of the court.[1] When judicial resources are put towards vexatious litigants, those resources are taken away from others who may truly need them. One way courts attempt to address the problem of vexatious litigants is through Vexatious Litigant Orders (VLOs), which attempt to balance judicial efficiency and access to justice for the vexatious litigants.[2]
A VLO will designate a party before the court as a Vexatious Litigant and prevent them from commencing or continuing any litigation before the court without leave.[3] A VLO “aims in part to further access to justice by those seeking the resources of the Court in a proper way.”[4] However, there is some discrepancy about whether this furtherance of access to justice for some litigants comes at an acceptable cost to others. Can VLOs truly enhance access to justice if they are doing so by preventing a whole class of litigants from utilizing the courts at will?
Different approaches to Vexatious Litigant Orders
In Alberta, VLOs are viewed as “extraordinary” and are intended to be orders of last resort.[5] In Jonsson v Lymer, a leading 2020 Court of Appeal case on VLOs in Alberta, the court discussed the intent of the legislature to balance access to justice with judicial efficiency in creating the current statutory regime for issuing VLOs.[6] Jonsson held that superior courts’ inherent jurisdiction to control their procedures and grant discretionary VLOs was subordinate to the regime created by the legislature in the Judicature Act and should only be invoked in cases where other remedies are unavailable.[7] This created a far narrower approach to VLOs than was previously employed by Alberta courts. To obtain a VLO under the Judicature Act, the court must be satisfied that the litigant “persistently” engaged in vexatious conduct before the court.[8] Before Jonsson, courts in Alberta were invoking the inherent jurisdiction of the court to grant VLOs absent a demonstration of “persistent” vexatious conduct of the litigant, which in the eyes of the Court in Jonsson, offended the rule of law by creating unfair barriers to justice for those subject to VLOs.[9]
The Albertan perspective assumes barring access to courts in the absence of a “pattern of abuse” is “problematic” under the rule of law.[10] This perspective could be said to value access to justice more than judicial efficiency. This may be the appropriate balancing if VLOs are “insurmountable” barriers to justice, as discussed in Jonsson, but other Canadian courts have a different perspective.[11] In other Canadian jurisdictions, a more permissive view is taken towards VLOs. The Federal Court of Appeal held in Canada v Olumide, and many provinces have subsequently agreed, that “the only legal effect of [a VLO] is to ensure that the claims of such litigants are pursued in an orderly fashion.”[12] The approach in Olumide assumes that a VLO is not a drastic barrier to justice, only a regulatory tool that can be used by courts to ensure the best use of their limited resources. Significantly, this approach can allow courts to issue VLOs in a single instance of litigation, regardless of any pattern or history of vexatious conduct before them.[13]
The more relaxed approach taken by other jurisdictions regarding VLOs may permit courts to use them more flexibly to further access to justice than Alberta courts can. Other jurisdictions still employ VLOs as orders of last resort when procedural orders have been insufficient in the litigation, but they recognize that conduct from a litigant with no history before the court may be vexatious and cause a disproportionate strain on the administration of justice.[14] In some cases, by the time a pattern of vexatiousness emerges before a court, the litigant has wasted vast amounts of resources that could have gone to deserving parties.[15]Requiring “persistence” can also lead to uncertainty for applicants or courts because it may be unclear when a litigant’s behaviour crosses that threshold, meaning an “important tool” of the courts is going unused.[16] By purportedly prioritizing access to justice, the approach to VLOs in Alberta may actually be harming it.
Is it time for Alberta to adapt?
As accessing the courts in Alberta becomes even more challenging, it may be time for the legislature to adopt the more relaxed approach employed elsewhere in Canada and amend the Judicature Act to allow more discretion in granting VLOs.[17] Under the current Judicature Act, a VLO can be granted when a litigant institutes vexatious proceedings or conducts proceedings in a vexatious manner, but “persistence” is required to demonstrate both forms of conduct.[18] Jurisdictions that employ the approach to VLOs from Olumide do not require persistent conduct to ground a finding that a party is conducting the specific litigation in a vexatious manner.[19] Removing the requirement of persistent conduct for a finding that a litigant is “conducting a proceeding in a vexatious manner” would allow judges hearing VLO applications or acting by their own motion to focus their consideration on “the litigant’s conduct in [the] court in determining whether an order is necessary to prevent an abuse of [the] court’s process.”[20] This approach would be more responsive to the facts of each case before the court and allow them to promptly address concerns of vexatious litigation instead of waiting for the effects to be felt by the opposing party and the judicial system at large. This is not to say VLOs should become a first-line option in regulating the procedure of actions before the court. Jurisdictions that benefit from a permissive approach to VLOs still only issue them in “appropriate circumstances” and tailor them to the issues.[21]
The current approach to VLOs in Alberta can be changed to reflect the approach in Olumide and better balance concerns of access to justice for the general public and vexatious litigants.[22] The pre-Jonsson approach of Alberta courts invoking their inherent jurisdiction over the Judicature Act clearly shows a desire of the courts to have more flexibility in their powers to issue VLOs.[23] While the desires of the courts are not determinative of what will best serve the rule of law and access to justice, it certainly supports the inference that Alberta courts feel restricted by the legislature in their ability to manage litigants’ access to their resources. Amending the Judicature Act to reflect the understanding that a VLO is not a total barrier to justice for vexatious litigants but merely one of many regulatory tools (albeit a powerful one) available to courts could better balance the principles of access to justice and judicial efficiency.[24]
[1] Canada v Olumide, 2017 FCA 42 at paras 32-34 [Olumide]; Jonsson v Lymer, 2020 ABCA 167 at para 40 [Jonsson].
[2] Jonsson, supra note 1 at paras 9-11.
[3] Judicature Act, RSA 200, c J-2, s. 23.1(1); Federal Courts Act, RSC 1985, c F-7, s 40(1) [FCA].
[4] Olumide, supra note 1 at para 45.
[5] Jonsson, supra note 1 at para 12.
[6] ibid at paras 37-40, 45-48.
[7] ibid at paras 33, 42; Judicature Act, supra note 3.
[8] Judicature Act, supra note 3, s 23.1(1); Jonsson, supra note 1 at paras 20 and 38.
[9] Jonsson, supra note 1 at paras 10-11 and 45-48.
[10] ibid at paras 36-38.
[11] ibid at para 11.
[12] See Olumide, supra note 1 at para 28, citing Canada (Attorney General) v Mishra, 2000 FCA 1734 at para 16, which was adopted by several provincial courts; E.g. Al-Haidari v Memorial University of Newfoundland, 2025 NLSC 4 at para 70 [Al-Haidari]; Gichuru v Purewal, 2023 BCCA 345 at para 24-25 [Gichuru]; Wood v Yukon (Public Service Commission), 2019 YKCA 4 at paras 18-21 [Wood].
[13] Olumide, supra note 1 at para 25.
[14] ibid at para 32, adopted in Al-Haidari, supra note 12 at para 73; See also Wood, supra note 12 at para 36.
[15] Olumide, supra note 1 at paras 19-20 and 44.
[16] ibid, at paras 12-13.
[17] Judicature Act, supra note 3.
[18] ibid, ss 23(2)(a)-(g) and 23.1(1); Jonsson, supra note 1 at para 20.
[19] See for example the FCAs interpretation of s 40(1) of the FCA, supra note 3 in Olumide, supra note 1 at para 25; Wood, supranote 12 at para 19; See also Gichuru, supra note 12 at para 13 and Al-Haidari, supra note 12 paras 68-70, which are based on the inherent jurisdiction of the court absent statutory instruction.
[20] Wood, supra note 12 at para 21 citing a separate appeal of the applicant in Wood v Yukon (Public Service Commission), 2018 YKCA 15 at para 12.
[21] Olumide, supra note 1 at para 13; Gichuru, supra note 12 at paras 22-23; Al-Haidari, supra note 12 at para 70.
[22] Olumide, supra note 1.
[23] Jonsson, supra note 1 at paras 36-39.
[24] Judicature Act, supra note 3.