By Dr. Gerard Kennedy & Tasha Ellis
In a 2023 Manitoba Court of Appeal decision, Justice Mainella provided an overview of the history, purpose, and challenges involved in vexatious litigant orders. In this vein, he also considered the “co-existing” inherent and statutory jurisdiction of Manitoba courts to approve, dismiss and even initiate a motion for a vexatious litigant order. In upholding the decision of Justice Champagne of the Court of Queen’s Bench (as it then was) to declare an individual a vexatious litigant, Mainella JA methodically reviewed each of the thirteen grounds for appeal put forward by the Appellant, Ms. Hancock, against the relevant factors in the in the context of a modern civil justice system that values “timely, affordable and fair access to justice” (Hryniak v Mauldin, 2014 SCC 7 at para 21).
Portrait of a Vexatious Litigant
Ms. Hancock initially brought action against the College of Registered Nurses of Manitoba in relation to disciplinary action taken by her former professional regulator. After not getting the decision she wanted, Ms. Hancock filed appeals and multiple complaints with the Law Society of Manitoba (the “LSM”) against lawyers who acted for and against her, against the LSM, and then abandoning many just before the hearing. More than $50,000 in costs had already been ordered by the courts against Ms. Hancock and remain unpaid and she stated she had no intention of ever ending the litigation.
In 2021, Ms. Hancock filed a 54-page statement of claim against the Government of Manitoba, which Mainella JA described as “gossipy”, detailing “irrelevant professional and personal relationships of dozens of people in the judiciary, the legal profession, the healthcare profession and provincial politics” and even “detailed particulars as to their children’s lives.” Ms. Hancock’s behaviour and actions inside and outside the courtroom were highly inappropriate, with Champagne J referring to them as “abusive, harassing and unacceptable”.
Issuing a Vexatious Litigant Order
The decision to restrain a person’s access to the courts by issuing a vexatious litigant order must only be made under exceptional circumstances, as judges have other discretionary tools available to address abusive litigation, such as case management, motions to strike, and sua sponte dismissals of “one-off” instances of abusive litigation. In this case, however, Mainella J.A. agreed with Champagne J that the vexatious litigant order was appropriate in this case as her conduct made it clear she intended to continue litigating the matter, stating “that feature of this case was a clear basis for the judge to conclude that the appellant had crossed the line to become a vexatious litigant.”
Mainella JA provided further guidance on some issues that can arise regarding vexatious litigant orders, including confirmation that they are final orders (not interlocutory) and thus do not require leave to be appealed, as previously discussed here. The court also addressed Ms. Hancock’s claims that her self-represented litigant status and mental health were not taken into consideration by the trial judge. Mainella JA acknowledged there are harmful stereotypes associated with those who experience mental illness, and courts must bear that in mind, just as courts have special duties to self-represented litigants. He held that:
The state of an individual’s mental health is neither “mitigating” nor “aggravating” to the question of vexatiousness… Vexatious litigant orders “are not punitive, they are protective and prospective” (Jonssonat para 21).
In the circumstances, therefore, the vexatious litigant order was warranted given Ms. Hancock’s past behaviour and the need to protect the public, including through protecting court resources. The vexatious litigant order was also limited to litigation related to the already decided professional discipline proceedings, which shows the “judge’s order was properly modulated and cannot be said to be overbroad.”
 College of Registered Nurses of Manitoba v Hancock, 2023 MBCA 70.
 The Court of King’s Bench Act, Manitoba SM 1988-89 c C280, (formerly The Court of Queen’s Bench Act) s 73.
 Supra note 1, at para 33.
 College of Registered Nurses v. Shannon Hancock, 2022 MBQB 26 at para 80.
 Supra note 1, at para 118.
 Supra note 1, at para 96 citing Jonsson v Lymer, 2020 ABCA 167 at para 21.
 Supra note 1, at para 120.
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.