Non-judicial proceedings may properly be considered in making a vexatious litigant order

Bishop v. Bishop, 2011 ONCA 211, released today online, holds:

[8] As for the second ground of appeal – that the motion judge improperly took non-judicial proceedings into account – we agree with the principle enunciated by Dawson J. in Canada Post Corp. v. Varma, [2000] F.C.J. No. 851 at para. 23:

A respondent’s behaviour both in and out of the court has been held to be relevant. In Canada v. Warriner, (1993), 70 F.T.R. 8 (T.D.), McGillis J. noted that frivolous and unsubstantiated allegations of impropriety had been levelled against lawyers who had acted for or against the respondent. InVojic, supra, McGillis J. took into account the fact that the respondent had failed to appear on several occasions and had shown disregard for the court. In Yorke v. Canada, (1995), 102 F.T.R. 189 (T.D.), Rouleau J. considered a number of factors, including that the respondent’s proceedings in the Federal Court were replete with extreme and unsubstantiated allegations.

[9] We would simply add to that statement by noting that in our view, the institution of non-judicial proceedings can, depending on the circumstances, constitute evidence from which a court may infer that court proceedings commenced by the litigant are not bona fide but the product of someone who is unreasonably obsessed with a cause and likely to pursue vexatious court proceedings on an indefinite basis unless stopped. In this case, we are satisfied that the motion judge was entitled to look to the extra-judicial proceedings commenced by the appellant in assessing the bona fides of the legal proceedings he had commenced and was continuing to pursue