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The Vexatious Litigant: Repeatedly Abusing the Court System Leads to Significant Hurdles in Bringing a Court Action

July 20th, 2013 — Litigation

The Courts in Ontario are faced with a backlog of cases that is only getting longer. The result is that courts are being booked months in advanced and simply cannot cope with the onslaught of cases. In order to limit some the most frivolous of lawsuits from being brought to court, the Ontario government has given judges a new power to declare a litigant vexatious.

A vexatious litigant will have to get court approval before any new action can be filed with the court. A vexatious litigant faces significant hurdles in order to bring any new actions. On the one hand, this is an extraordinary power that severely limits an individuals ability to bring claims to court.  On the other hand, this is an essential power that the court needs to limit the most egregious situations.

Because the power is so restrictive, the courts generally do not apply the designation unless it is clearly needed. One example is the case of William Malamas who spent 25 years suing various lawyers for fraud, breach of fiduciary duty and many more claims. The Ontario Court of Appeal affirmed the vexatious litigant designation for Mr. Malamas and ordered him to pay over $60,000 in costs.  Mr. Malamas’ case illustrates the extraordinary lengths that a litigant must go to before they will be declared vexatious.

With the vexatious litigant power, the Ontario courts have an extraordinary power to limits access to the courts. They will only use it in rare occasions where the facts clearly show a need.

If you have questions about civil litigation or believe that an action is vexatious, you should contact a trained legal professional. They have the expertise to help you navigate through the court system and ensure a successful result.

The Simplified Procedure: New Measures in the Rules of Civil Procedure Make it Easier to Sue Someone For Less than $100,000

July 20th, 2013 — Litigation

The Rules of Civil Procedure govern the procedure for starting a civil law suit in Ontario. This is any legal proceedings between two or more private persons (including corporations). Every lawyer who practices civil litigation will have a copy of the rules in their office. There are dozens of rules with hundreds of sub-rules that govern every aspect of a trial and the process leading up to it. The rules are designed to achieve a fair process through technical requirements. The process is typically long and expensive.

In 2010, the Ontario government introduced a new rule designed to make the process faster and cheaper for any civil law suit claims under $100,000. The simplified procedure, as it was called, eliminates many of the requirements concerning discovery and procedure. This streamlined process provides litigants with an efficient mechanism for resolving their claims.

The important elements of the simplified procedure are:

  • The is no discovery or cross-examination
  • There is automatic dismissal for delay
  • There is a lower threshold for summary judgment

Litigants should be aware that the simplified procedure is mandatory for any action for less than $100,000. Failure to comply with the rule will result in cost consequences. This is designed to streamline the court system so that small claims do not clog up the system. Litigants should also be aware that the simplified procedure does not apply to class proceedings, construction lien actions, case managed actions, family law actions, small claims court actions and applications to the court. A claim under the simplified procedure can be filed with the Superior Court of Justice.

If you feel that you have a claim under the simplified procedure you should seek legal advice from a lawyer who practice civil litigation. They are experts on the rules of civil procedure and can help you resolve your claim in a timely and cost effective manner.

Limitation Periods

July 20th, 2013 — Litigation

Anyone who thinks that they may have a claim should be wary of the relevant limitation period in bringing that claim. The Limitations Act imposes restrictions on the period of time after which a claim cannot be advanced. This legislation has undergone significant changes over time and has a number of exceptions that go beyond the scope of a simple blog posting. If you believe you have a claim, you should seek legal advice as soon as possible in order to avoid running afoul of the appropriate limitation period.

The following are some general guidelines only and not to be construed or interpreted as a limitation period in your case without consulting a lawyer first. Generally speaking the basic limitation period in Ontario is two years for things like torts and simple contracts. The two years begins to run when the potential claim is discovered or ought to be discovered. This is somewhat vague and can confuse a number of people. Particularly, the time when a claim ought to have been discovered can be difficult to determine. The court will look at the facts through an objective perspective to determine what is reasonable under the circumstances. That is to say, discoverability can be debatable.

In Family actions/applications, the equalization of net family property is 2 years after divorce, 6 years after separation and 6 months after death of a spouse (see Family Law Act, s. 7(3).  When it comes to spousal support, there is no limitation period,Family Law Act, s. 50.   In estate matters, the limitation period is 2 years for executors and administrators, Trustee Act, s. 38.

There is also the “Ultimate Limitation Period” which is the 15 year limitation period in Ontario. This is a catch all that prevents claims from being advanced 15 years after the act or omission (subject to certain exceptions which include age of minority and incapacity), Limitations Act, 2002, s.15. This ultimate limitation does not depend on whether the claim was discoverable or not. It is as simple as counting 15 years from the date of the act or omission in order to see if a claim can still be advanced.

There are a number of exceptions to the limitation periods that can extend the period in which a person can advance a claim. Certain claims have no limitation period, such as family law claims for support or for the Crown to recover taxes and penalties. There are also specific statutory limitation periods that are not under the Limitations Act. These include construction lien claims, Securities Act claims and many more.

Limitation periods are important considerations when a person is considering making a claim. There are a number of statutes that overlap and impose limitations above and beyond what the Limitations Act itself imposes. The act has multiple rules that must be considered. These issues are complex and involve significant legal expertise.

If you feel that you have a possible claim, you should be aware that there may be limits on when you can bring a claim. The sooner you seek legal advice the sooner you can determine the best course of action. By consulting a lawyer, you can get the appropriate advice in order to preserve and possibly advance you claims before time runs out.