How persistent does a vexatious litigant have to be?

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Case considered: Wong v Giannacopoulos, 2011 ABCA 206

Are the 2007 vexatious litigant provisions in the Judicature Act, RSA 2000, c J-2, being overused? Is it too easy to have a person declared a “vexatious litigant and barred from bringing or continuing court actions without leave of a court? I am sure that every person who has had a vexatious litigant order made against them would answer “yes” to both questions, but what might a more detached assessment reveal? These questions demand empirical answers that I cannot give. However, the recent decision of Justice Frans Slatter in Wong v Giannacopoulos suggests that vexatious litigant orders are only being granted in rather extreme cases. It seems to take a lot of improper behaviour against a variety of long-suffering defendants before a person is denied unmediated access to a court.

The Alberta government passed new legislation in 2007 with the express purpose of giving the courts in the province more power to deal more efficiently and effectively with “vexatious litigants.” These individuals were described by the Honourable Minister of Justice and Attorney General, Ron Stevens, in the Legislative Assembly on second reading of the amendments, in the following terms:

A vexatious litigant is someone who persistently files proceedings that have already been determined by a court, persistently files proceedings that can’t succeed or that have no reasonable expectation of providing relief, persistently files proceedings for improper purposes, inappropriately uses previously raised grounds and issues in subsequent proceedings, persistently fails to pay the costs ordered by a court as a result of unsuccessful proceedings, persistently takes unsuccessful appeals from judicial decisions, or persistently engages in inappropriate courtroom behaviour. . . .(emphasis added)

See also s. 23(2) of the Judicature Act for the same non-exhaustive list of what amounts to “instituting vexatious proceedings or conducting a proceeding in a vexatious manner.”

There have been at least twenty people declared “vexatious litigants” pursuant to s.23.1 of the Judicature Act, the new vexatious litigant preclusion. Before the 2007 amendments, an applicant had to ask for the Attorney General’s consent to bring such an application before the Court of Queen’s Bench and the Court of Appeal. This procedural barrier undoubtedly deterred at least some weary defendants from making such applications. The 2007 amendments eliminated the need for the Attorney General’s consent and they also gave single judges of the Court of Appeal and judges of the Provincial Court jurisdiction to make vexatious litigant orders. According to the Alberta Courts web site, there have been twelve different vexatious litigants named in Court of Appeal cases since 2007, eight in the Court of Queen’s Bench, and two in Provincial Court, but at least one person appears to be the subject of both a Court of Queen’s Bench and a Provincial Court order.

In Wong v Giannacopoulos, the unfortunate defendants were lawyers and insurance company employees, people who are better situated than most to defend themselves and people who should be less intimidated than most by being sued. The Wong v Giannacopoulos lawsuit had its roots in a motor vehicle accident that occurred in 2001, as a result of which Yui Wah Leung sued the defendant driver, Ian Darrell Awid, in 2003. Awid’s insurer was the Dominion of Canada General Insurance Company and the adjuster who investigated the claim was Chris Dundas. Dominion of Canada General Insurance Company retained McLennan Ross LLP to defend the action and the members of the firm who acted on the file were two lawyers, Vicki Giannacopoulos and Christina Tchir, and Ms. Giannacopoulos’ assistant, Rebecca Cormack. That action was dismissed in 2006 as a result of the failure of Yui Wah Leung to post security for costs.

In 2008, the self-styled “V.W. Wong” sued all of the people involved in Yui Wah Leung’s action: Ian Darrell Awid, the Dominion of Canada General Insurance Company, Chris Dundas, McLennan Ross LLP, Vicki Giannacopoulos, Christina Tchir, and Rebecca Cormack. In her action, she alleged she was treated unfairly in the 2003 action by Yui Wah Leung, and that some of the orders made were not correct and were made by corrupt judicial officers. Not surprisingly, her action was dismissed by Court of Queen’s Bench Justice Ouellette under Rule 3.68 of the Alberta Rules of Court, Alta. Reg. 124/2010 as the abuse of process that it was.

V.W. Wong wanted to appeal the dismissal, of course The defendants applied for security for costs on the appeal. In Wong v Giannacopoulos, 2011 ABCA 156, Justice Jack Watson granted them security for costs, staying V.W. Wong’s action until costs were posted. V.W. Wong sought his leave to appeal his security for costs order to a panel of the Court of Appeal. Understandably, in Wong v Giannacopoulos, 2011 ABCA 207, Justice Watson refused to give her that permission. Leave to appeal is not granted under Rule 505(6) unless the issues engage a serious question of general importance or a possible error of law or an unreasonably exercised discretion or a misapprehension of important facts. V. W. Wong alleged injustice – another injustice in a long line of injustices ostensibly perpetuated on her by the courts. In some of her more intemperate remarks, V.W. Wong characterized herself as the victim of racial, ethnic or cultural bias at the hands of a “German Mennonite . . . white man” and judges with French-Canadian names. Justice Watson dealt with some of what he charitably characterized as her “multi-topic and wide-ranging submissions” (at para 7, 2011 ABCA 207) and concluded she failed to meet any element of the test.

In an added twist, V.W. Wong had named Monica Leung and Amelia Leung, Guardian and Trustee for Yui Wah Leung as co-plaintiffs. Apparently V.W. Wong is the common-law spouse of Yui Wah Leung, who is a dependant adult. Monica Leung died in 2009; she was the sister of V.W. Wong. Amelia Leung is the daughter of Monica Leung and Yui Wah Leung and the court-appointed Trustee and Guardian of Yui Wah Leung. V.W. Wong did not have permission or authority to name Monica Leung or Amelia Lueng as plaintiffs. Amelia Leung therefore had to appear before Justice Jack Watson when the defendants applied for security for costs, saying she and her father had been dragged into V.W. Wong’s 2008 lawsuit without their permission and without proper notice. They were in danger of having costs orders made against them. In June 2011, Justice Watson signed a Consent Order removing Monica Leung and Amelia Leung as parties to the action.

Perhaps their decisive win on the abuse of process and security of costs matters emboldened the defendants. In any event, the defendants – law firm, lawyers, legal assistant, insured, insurance company and adjuster – applied to Justice Slatter as a single judge of the Court of Appeal to have V.W. Wong declared a “vexatious litigant.”

Justice Slatter noted (at para 8 ) some of the criteria for determining whether a person is a vexatious litigant that are set out in the Judicature Act, all of which appeared to have been met just by this one action:

a. the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction;
b. where it is obvious that the action cannot succeed, or if the action would lead to no meaningful remedy, or if no reasonable person can reasonably expect to obtain relief;
c. grounds and issues raised in one proceeding are rolled forward into subsequent actions and repeated or supplemented;
d. failure to pay costs of unsuccessful proceedings;
e. persistently taking unsuccessful appeals from judicial decisions.

Bringing an action on behalf of others without their permission, asserting rights based on the 2003 action to which she was not a party, and complaining about the treatment of Yui Wah Leung, who had Amelia Leung as a court-appointed Guardian and Trustee to look after his interests, all fell within the Judicature Act’s criteria. The failure to pay costs and the taking of unsuccessful appeals was evident in the matters heard by Justices Ouellette and Watson.

But what of persistence? In subsection 23(2) of the Judicature Act and the quote from the Honourable Minister of Justice and Attorney General that begins this post, a persistent pattern of behaviour was said to be the target of the vexatious litigant amendments. Justice Slatter notes (at para 10) seven other lawsuits in which V.W. Wong had behaved as a vexatious litigant abusing the processes of the court, including:

  • Commencing actions which are subsequently struck because she failed to appear for examinations for discovery: Wong v Williams, [1994] AJ no426 (CA), leave to appeal refused [1994] 3 SCR xi.
  • Applying for interlocutory relief for which there is no basis in law: Wong v Sun Life Assurance Co. of Canada, [1995] AJ No. 1629.
  • Delaying prosecution of an action for eleven years until what “will otherwise be a lifelong career lawsuit by the Plaintiff” was finally dismissed: V.W.W. v Baxter (c.o.b. All Well Walk In Clinic), 2000 ABQB 816.
  • Commencing numerous unsuccessful actions against many people over the years, and habitually failing to pay the resulting costs: Wong v Booker, [2004] AJ No. 1118 at para 15.
  • Launching unmeritorious appeals and failing to comply with rules of court: Leung v Wasylyshen, 2008 ABCA 430; Leung v Wasylyshen, 2009 ABCA 13.
  • Commencing “busybody” lawsuits, in fatally flawed format, in which she attempts to enforce the rights of third parties, and sues counsel who are representing various parties in the litigation, then resisting the payment of costs and enforcement of the judgment for improper reasons: Wong v Chambers, 2009 ABQB 57; Wong v Chambers, 2009 ABQB 133, 67 CPC (6th) 54 at paras 23, 26.
  • Launching an appeal that is struck for want of prosecution, and then seeking leave to appeal the order that struck the appeal: Leung v Edmonton (City), 2009 ABCA 149.

This long list makes it evident that V.W. Wong had persistently abused the processes of the courts for improper purposes over a long period of time. As a result, V.W. Wong, also known as Victoria Wong, was declared to be a vexatious litigant by Justice Slatter. He made the only type of order allowed by subsection 23.1(1) of the Judicature Act, namely, an order preventing her from instituting new proceedings or continuing proceedings already instituted, whether on her own behalf or on behalf of any other person, without leave of the Court in which the proceeding is initiated or continued. He also prohibited her from describing herself with her initials or a pseudonym, insisting that she use her own name. He added that any application she made to be allowed access to a court had to be heard before a regularly assigned duty or chambers judge (i.e., in open, public court) and had to be recorded.

Vexatious litigants have been the subject of law reform studies. For example, the Parliament of Victoria, Law Reform Committee, conducted an “Inquiry into Vexatious Litigants” in 2008. In Canada, the Law Reform Commission of Nova Scotia issued a comprehensive “Vexatious Litigants” Discussion Paper in 2005 and a Final Report in 2006. Why are vexatious litigants seen as a serious civil justice problem? To quote from the Law Reform Commission of Nova Scotia’s News Release, “Vexatious litigants can waste the time of judges and administrative staff and prevent other, legitimate claims from being dealt with. Vexatious litigants can also force other people to incur otherwise unnecessary legal bills, by having to defend themselves against meritless claims.”

There is also some interesting psychiatric literature discussing vexatious litigants and what motivates them. See, for example, I. Freckelton, “Vexatious litigant law reform” (2009) 16(5) Journal of Law & Medicine 721-27; P. E. Mullen and G. Lester, “Vexatious litigants and unusually persistent complainants and petitioners: from querulous paranoia to querulous behaviour” (2006) 24 Behavioral Sciences & the Law 333-49; and MW Rowlands, “Psychiatric and legal aspects of persistent litigation” (1988) 153 The British Journal of Psychiatry 317-23.

From a personal perspective, Justice Slatter’s order makes the difference between my writing or not writing a post about a court decision that went against V.W. Wong. I would not write about Justice Watson’s security for costs decisions, for example, because I would not want the aggravation of being sued by V.W. Wong for saying Justice Watson’s characterizations of her submissions was “charitable” or the defendants’ win was “decisive”, as I have in this post. While I could easily defend myself against V.W. Wong, I have better things to do with my time. With Justice Slatter’s order, I now know the chances of V.W. Wong suing me are considerably lessened. Not only is there no reason to sue me, but now she needs a judge’s permission to do so.

To return to the questions I asked at the beginning of this post, perhaps Justice Slatter’s decision suggests that the new vexatious litigants provisions are being under-used. Perhaps those who have the qualifications and resources to more easily defend themselves should act more quickly when sued by someone who persistently file proceedings that have already been determined by a court and/or persistently file proceedings that cannot succeed and/or persistently file proceedings for improper purpose and/or persistently fails to pay court-ordered costs and/or persistently take unsuccessful appeals and/or persistently engage in inappropriate courtroom behaviour. I am not advocating that those with power bully those without, or that someone with a cause of action be denied access to the courts. But look at the long list of people that V.W. Wong brought to court for improper purposes. Not all of them could have found it easy to defend themselves.

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About Jonnette Watson Hamilton

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.). Professor. Member of the Alberta Bar. Please click here for more information.
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5 Responses to How persistent does a vexatious litigant have to be?

  1. Jonnette Watson Hamilton says:

    Apparently Victoria Winnie Wong is very persistent. She asked Justice Slatter for leave to appeal the vexatious litigant order he made against her in Wong v. Giannacopoulos, 2011 ABCA 206. She was unsuccessful, a result that probably surprises no one but Ms. Wong. The decision of Justice Slatter on the leave application — Wong v. Giannacopoulos, 2011 ABCA 277 — is of interest because the Attorney General appeared and spoke to the question of whether leave to appeal is required. As Justice Slatter notes (at para. 3), leave is not required to appeal a vexatious litigant order made by a Court of Queen’s Bench judge, but leave is required to appeal a similar order made by a single judge of the Court of Appeal. He puts this apparent anomaly down to the interaction between section 23.1(6) of the Judicature Act, RSA 2000, c. A-2 and Rules 501 and 505 of the Alberta Rules of Court.

    On the question of whether to grant leave to Ms. Wong, Justice Slatter addressed each of the three arguments that she had made because the question of whether the proposed appeal raises a serious issue of general importance with a reasonable chance of success is the most important factor in deciding whether to grant leave or not. Her first argument was that in the recitation of background facts, Justice Slatter indicated that she is the common law spouse of her brother-in-law, Yui Wah Leung, whereas she is the common law spouse of David Leung, presumably Yui Wah Leung’s brother. Justice Slatter held (at para. 5) that the error was not relevant or material to the finding that Ms. Wong is a vexatious litigant. Her second argument — her best argument — was that the original decision improperly refers to some of the other litigation Ms. Wong has conducted in the past 17 years. Justice Slatter noted that all of that litigation is a matter of public record and supported allegations made against Ms. Wong that she had failed to abide by court orders, habitually commenced proceedings on behalf of third parties, re-litigated issues, persistently took unsuccessful appeals, engaged in other specified inappropriate litigation, and repeatedly failed to pay costs awarded against her in support of these allegations, found on the records of the Court. It appears that Justice Slatter (or his clerk) gathered together the cases to back these allegations. Justice Slatter held it was appropriate for him to do so, stating that “[i]n appropriate situations the Court is entitled to take judicial notice of court records”. Thirdly, Ms Wong argued that the applicant argues that the Charter of Rights gives all Canadian citizens “a right to get justice”, a supposed right she interpreted to mean she is entitled to commence actions protecting the interests of third parties. There is no such entitlement. The total of her three arguments was therefore judged to be lacking a general issue of legal importance, as well as lacking in merit.

    Interestingly, on the same day as Justice Slatter denied Victoria Winnie Wong leave to appeal his vexatious litigant order, he also granted the application of the defendants in another one of her actions to dismiss that action for want of prosecution. See Wong v. Chambers, 2011 ABCA 278, a law suit against various members of the University of Alberta community after two students were apparently expelled. That claim was struck out in 2009 for failing to disclose a cause of action, on the basis that Ms. Wong had no standing to sue for wrongs allegedly done to third parties. At the beginning of application to dismiss the Chambers case for want of prosecution, Ms. Wong asked Justice Slatter to recuse himself because I had issued the vexatious litigant order against her. That bold argument received short shrift from Justice Slatter. He held (at para. 2): “A judge who makes a ruling against a party is not thereafter automatically disqualified from hearing any further applications concerning that party: Broda v. Broda, 2001 ABCA 151, 286 AR 120 at para. 16; Dykun v. Odishaw, 2001 ABCA 204, 286 AR 392 at para. 8; Collins v. Canada, 2011 FCA 171 at para. 11; Liteky v. United States, 510 US 540 (1994); Gallop v. Cheney, 645 F 3d 519 (USCA, 2nd cir., 2011). Judges, especially those dealing with ongoing matters, are often required to make numerous rulings for and against particular parties. Making those rulings generally does not raise a reasonable apprehension of bias in the minds of a reasonable, informed observer.”

  2. Jonnette Watson Hamilton says:

    Although Justice Franz Slatter declared V.W. Wong, also known as Victoria Wong, to be a vexatious litigant and prohibited her from commencing, or attempting to commence, or continuing any appeal, action, application or proceeding, several of her vexatious lawsuits, commenced before Justice Slatter’s July 5, 2011 order, remain to be dealt with.

    L.A. Smart, Master in Chambers, heard two applications on November 9, 2011 to strike a Statement of Claim Ms. Wong had filed on the grounds that it disclosed no reasonable cause of action and was vexatious. One application — Wong v. Leung, 2011 ABQB 687 — was brought by a lawyer who had briefly represented Ms. Wong. The second — Wong v. Leung, 2011 ABQB 688 — was brought by a lawyer who had represented someone Ms. Wong sued. In both cases the Master easily found that neither Statement of Claim disclosed a reasonable claim and that both actions were vexatious.

  3. Jonnette Watson Hamilton says:

    More on the Wong v. Leung action, with another decision by L.A. Smart, Master in Chambers, posted Decemeber 2, 2001. Wong v. Leung, 2011 ABQB 722 was a 2 day application by the defendant Mr. Leung to dismiss Wong’s lawsuit for want of prosecution. Apparently Leung is a man who cohabited with Ms Wong and the lawsuit is about property, since sold, which they shared. But of course Ms. Wong took advantage of Mr. Leung’s application to add her own. She filed a cross-application to adjourn his application, to consolidate this action with another one she had commenced (perhaps for the purpose of creating a conflict of interest for Mr. Leung’s lawyer), to allow her to examine on the affidavit and in discovery. Ms Wong also threw in an application seekign to have Master Smart recuse herself for “napping”. Apparently Ms Wong thought that Master Smart was not attentive enough to Ms Wong’s lengthy and often irrelevant submissions and she accused Master Smart of nodding off during them. You have to love the Master’s response (at para 32): “You must listen to Ms. Wong’s submissions closely and carefully so that you do not miss a genuine legal argument when it appears amidst a flurry of legally and factually impertinent submissions. If anything, my unresponsiveness would indicate my utmost concentration, a sincere attempt to grasp what Ms. Wong is trying to present as argument.” In the end, all of Ms Wong’s applications were dismissed, and Mr. Leung’s motion to dismiss her lawsuit for want of prosecution was granted, even though Ms. Wong had been appealing orders granted in that action as recently as 2009. The steps she took int he action were not “meaningful.”

  4. Jonnette Watson Hamilton says:

    Still more on the Wong v. Leung action — maybe the end. On May 24, 2012, in Wong v. Leung, 2012 ABCA 156, Justice Jean Côté denied Ms. Wong’s application for leave to appeal and did so in her absence.

    Ms. Wong wanted to appeal the summary dismissal of her lawsuit against Mr. Leung and other by Master Smart in November 2011. Master Smart found that lawsuit to be vexatious and to disclose no cause of action. It also duplicated an earlier lawsuit by Ms. Wong. Ms. Wong had already sought, and failed to be granted, leave to appeal the summary dismissal from a Master and from a Court of Queen’s Bench judge. Although he doubted that an appeal from a Queen’s Bench order denying leave to appeal was possible, Justice Côté did consider briefly the merits of the appeal she wanted to bring, based on the affidavit evidence filed by Ms. Wong. He concluded (at para. 9) that her motion for leave was “hopeless.”

    Ms. Wong did not appear to make the application in person, or through an agent. Instead she faxed opposing counsel and the Court of Appeal, seeking an adjournment to no particular date. One of her usual doctor’s notes was attached to her fax. The doctor relayed what Ms. Wong complained about, mentioned nothing about tests, and gave no opinion of his own except to say he had “advised rest.” Justice Côté noted (at para 10) that the note made the doctor’s Ms. Wong’s scribe, not her diagnostician. He noted that last minute faxes and non-attendance are common tactics among a certain type of self-represented litigant and that Ms. Wong had herself tried this tactic four times in this law suit and another one she wanted to consolidate with this one. Needless to say, the note was not enough to get Ms. Wong her adjournment.

  5. Jonnette Watson Hamilton says:

    I spoke too soon, as there is yet more on the Wong v. Leung action. Ms Wong sought leave to proceed with her appeal of Wong v Leung, 2010 ABQB 628 from Madam Justice Myra Bielby. Wong v. Leung, 2010 ABQB 628 dismissed Ms. Wong’s appeal from the decision of a Master that stuck out her statement of claim against Leung and the Crown. Under s. 23.1(7) of the Judicature Act, RSA 2000 c J-2, leave may only be granted if the court is satisfied that the proceeding “is not an abuse of process and that there are reasonable grounds for proceeding.”

    Leave was denied in October 2012 because Ms. Wong did not set out why she believed her appeal would succeed, but instead merely repeated the facts she had set out in her Statement of Claim, which were facts a different court had already found did not amount to a cause of action. Even the new evidence she wanted admitted did not disclose a cause of action. Neither did Ms. Wong explain why she had taken no steps in her appeal since she filed it in December 2009. After reviewing the facts and previous steps in this action, Justice Bielby concluded that “[t]o permit the appeal to proceed would advance claims that have no hope of succeeding” and the proceeding was therefore an abuse of process.

    This application illustrates some of the weaknesses in the current vexatious lititgant provisions in Alberta. A vexatious litigant can keep bringing application for leave — leave to commence actions and leave to appeal adverse decisions — and there is no limit on the number of leave applications she may make. Based on Justice Bielby’s description of the new evidence Ms. Wong wanted to present, it appears Ms. Wong was granted a lot of leeway and that the hearing was a lengthy one. Both of the respondents, Mr. Leung and the Public Guardian, were represented by lawyers, although one hopes their lawyers did not need to say or do much. It would be better if there was no need for long-suffering targets of vexatious litigants, such as Mr. Leung in this case, to be represented on this type of application. No order for costs was made by Justice Bielby and, while Ms. Wong’s history indicates such as order would not be paid in any event, I wonder if opposing counsel have just given up asking for costs.

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