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Wednesday, June 19, 2019

Enough is enough: the court tosses out a vexatious litigant's objection

Everyone who has ever dealt with estate litigation is aware that emotions run extremely high for most participants. Sometimes you get a person who is naturally stubborn and who is now emotionally invested in trying to force a certain outcome that he or she wants. That can lead to a person making irrational decisions regarding the litigation and in the process, making a mess of the proceedings. In law, we call them vexatious litigants.

There is a new case from Ontario that perfectly embodies the vexatious litigant. I thought it would be useful to discuss it to show how the courts deal with them.

The case is BMO Trust Co v. Childs. In this case, Eileen Childs was 92 years old and because of her Alzheimer's disease, her children Caroline and Michael were appointed as her guardians for personal care. The court appointed BMO Trust Company as the guardian of her property. Michael is also his mother's litigation guardian (meaning a guardian who is in charge of the lawsuit only, and not other assets or property).

Peter and Caroline appealed the decision to appoint BMO, saying that they should have been appointed, and they lost the appeal. Then Peter tried to appeal it to the Supreme Court of Canada but the court refused to hear it. There is another son, Andrew, who appears not to have been involved in any of this.

Things got complicated because when BMO was appointed as guardian for property in 2015, the court directed that BMO must pass its accounts at a certain pre-determined time in 2017. BMO did not do so, based largely on the fact that the appeals process was under way. Finally, with all of the appeals out of the way, BMO applied to the court to pass its accounts. Again, Peter got involved by filing a notice of objection. His objection was not about there being anything wrong with the accounts; his objection was that he was the one who should have been appointed. By then, Michael as litigation guardian was fed up and filed documents saying that Peter was a vexatious litigant.

A vexatious litigant, as mentioned above, is someone who is abusing the legal system. They certainly may not see it that way, but that is the effect of it. They bring applications that should never be brought, tie up legitimate processes by throwing in unreasonable issues, make unsupported allegations, and basically create one hell of a mess for everyone.

In this case, the court agreed that Peter was a vexatious litigant because he was trying to use a passing of accounts application to get yet another hearing on the issue of who should be appointed as guardian for property. Since the court had already decided that issue, and it had been heard again at the Court of Appeal, Peter was abusing the system by trying to derail the passing of accounts for his own purposes. At the same time, Peter alleged that there was collusion and conspiracy - and a secret agreement - between the litigation guardian and BMO. He didn't even support these allegations with evidence.

Obviously Peter felt strongly about the issue of who should be the guardian for property. He wanted to do all that he could to make things go the way he thought they should go. I'm sure most people would agree that he has a right to his opinion on the issues. But ultimately he resorted to twisting court procedures to try to achieve his goals. The court had already heard the issue and was not going to keep re-hearing it repeatedly until Peter got what he wanted. It's not surprising to me that Peter represented himself in these proceedings, as decent lawyers won't knowingly participate in junk litigation.

The court disallowed Peter's Notice of Objection. They invited the litigation guardian to apply for costs against Peter. As a side note, it wasn't just Peter who attracted negative attention from the court; the court was also unhappy that BMO didn't pass its accounts on time despite the appeals that were ongoing.

I've run into a few vexatious litigants over the years. They certainly do cause everyone a lot of money, time, and aggravation. Nobody ever gains anything from their antics. Even if their applications and lawsuits turn out to have no substance, someone still has to defend against them. The courts want to give everyone a fair chance to have their grievances heard so they are not quick to label someone as a vexatious litigant. However, it eventually gets to the point, as it did in this case, that enough is enough.


  1. vex·a·tious

    causing or tending to cause annoyance, frustration, or worry.
    "the vexatious questions posed by software copyrights"
    synonyms: annoying, vexing, irritating, irksome, displeasing, infuriating, maddening, exasperating, provoking, galling, rankling, grating, jarring, harassing, harrying, bothersome, tiresome, troublesome, niggling; More
    denoting an action or the bringer of an action that is brought without sufficient grounds for winning, purely to cause annoyance to the defendant.

    I can assure you that I am not one of those, just the opposite. TBC

    Lawyers who lie, cheat and deceive should be fined and disbarred.

    Executors, beneficiaries, who lie, cheat, and deceive, should be fined.



    1. I hope I didn't say anything in my post that made you think I was referring to you, because I most certainly was not!

      Re your comment that lawyers who lie, cheat, and deceive should be fined and disbarred: I agree. And I can tell you that it DOES happen. The public may not see it, but every time a lawyer is fined, suspended, etc, every lawyer in the province gets a notice about it.

      Unfortunately, the only process we have for imposing fines on executors and beneficiaries is the civil court system. I say "unfortunately" because using the courts is expensive and out of the reach of many average Canadians. It also takes a long time. And as you can see from the original post (and your own unfortunate experience), it can be derailed by people who are willing to take their chances on abusing the legal system.


  2. Lynne,
    No, I never felt your post was aimed at me directly or indirectly.

    Your posts and responses have always been fair and balanced IMO.

    Your response to my post is spot on.
    The public does not know what is really going on. They have given up. The current system wears and tears you down. We need an overhaul of the court system. Enough is enough.



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