A vexatious litigant order cannot be obtained on motion in an action but only by application

Lukezic v. Royal Bank of Canada, 2012 ONCA 350 holds a vexatious litigant order cannot be obtained on motion in an action but only by application:

 [12]       My colleague concluded that the proper interpretation of s. 140(1) requires that an application be brought to obtain this relief.  It cannot be obtained by way of motion in an action.  She offered four reasons for this conclusion, all set in the context of the reality that, as the majority said in that case, a vexatious litigant order is an extraordinary remedy that alters a person’s right to access the courts.

[13]       In summary, Lang J.A. emphasized that the Courts of Justice Act is designed to advance access to justice which is, as she says, a fundamental pillar of the rule of law.  Section 140(1) runs contrary to that important goal by denying access to individuals with carefully specified characteristics.  In that sense, it is an exception to the thrust of the legislation and therefore should be construed strictly.

[14]       Second, Lang J.A. looked to the legislative history of s. 140(1) to support her conclusion.  The first and only previous legislative incarnation permitting this relief was the Vexatious Proceedings Act, R.S.O. 1980, c. 523.  It required an “originating notice” which was clearly different from an interlocutory motion.

[15]       Third, Lang J.A. found that the plain reading of s. 140(1) compels the same answer.  The relief must be sought “on application”.  Section 1 of the Courts of Justice Act defines “application” as “a civil proceeding that is commenced by notice of application or by application”.  This is different from a motion in an action.

 

 [16]       Finally, Lang J.A. found that an application provides the procedure best suited to the determination of whether a litigant is vexatious.  In large measure this is because of the due process protections which that procedure accords to the person targeted, such as personal service, adjudication by a judge, a directed trial of an issue if necessary, and the right of appeal without the need for leave. 

[17]       I agree with this reasoning.  As a consequence, I would allow the appeal from that part of the order of the motion judge and would dismiss the respondent’s claim for an order that the appellant Lukezic is a vexatious litigant.