When courts get vexed

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Everyone is supposed to be entitled to their day in court. But how should we weigh that principle against the reality of litigants who misuse court processes, tying up resources and subjecting other parties to harm? What approaches exist to identify vexatious or abusive litigation at an early stage and nip it in the bud? 

Donald Netolitzky, K.C., was complex litigant management counsel for the Alberta Court of King’s Bench. He argues that abusive litigation is often linked to mental health problems, and that letting it proceed unimpeded harms other parties, the courts, and the abusive litigants themselves.

Notes:

Stashin v. Van Norman, 2026 ABKB 297

Verdicts & Voices is a legal current affairs podcast presented by the Canadian Bar Association. With her retinue of expert guests, host Alison Crawford keeps listeners up to date on news, views, and stories about the law and the justice system in Canada.

Views expressed are not necessarily those of the CBA.

Transcript

Hello everyone. And welcome back to Verdicts & Voices, a regular legal affairs podcast from the Canadian Bar Association. I'm your host, Alison Crawford.

Last week, Alberta Court of King's Bench Justice Nicholas Devlin issued a decision that began with a line that could have been pulled from a legal thriller. After a very brief summary of facts about an agreement to buy a house, he wrote, “Unbeknownst to them at the time, the [defendants] were not just buying a very nice home, but also a ticket to a surreal litigation odyssey.”

Near the end, the judgment included a compassionate paragraph about vexatious litigation, and it read:

With the greatest respect to [the applicant], who presents as a sincere, intelligent individual, her state of mind regarding the Sale, and the litigation she has conducted in relation to it, bears hallmarks of unwellness often seen in vexatious proceedings. The Court sincerely hopes she is able to find relief from the obviously compulsive distress the sale continues to cause her, going on five years later. That relief will, however, not come from the Court and must not come at any further expense in time, stress, or resources to innocent parties.

Joining me to discuss the topic of vexatious litigation is arguably Canada's foremost expert, Donald Netolitzky, King's Counsel, and retired complex litigant management counsel for the Alberta Court of King's Bench. Welcome to the podcast, Donald.

Donald Netolitzky

Thank you for having me, Alison. Delighted to be here.

Alison

Now, before we begin, I know from our conversation last week that you're not fully on board with the well-known term of vexatious litigant. And I'd like for you to maybe explain to our listeners why that is.

Donald Netolitzky

There's actually three words which are significant for this particular… when you're talking about problematic litigation in Canada. The language which is used in these matters is either abusive, vexatious or frivolous, and two of those words are problematic. And it's because the way you use words will affect how you shape your ideas about people in advance. It's the Orwell thing. If you can control language, you can control thought. Now, vexatious has a very simple commonplace meaning. It means that you're a problem. You're out to hurt somebody. You're out to vex them. And the people who I talk about, I'm going to be talking about who I've studied, my conclusion is that is actually a fairly uncommon characteristic.

Similarly, frivolous is problematic because the legal meaning for that is it's something trivial, it doesn't matter. These people are organizing their whole lives around their litigation and their conflicts. So, it's not frivolous to them. So that leaves us with abusive. Abusive is useful because it reframes the whole context in that we're talking about people who are misusing processes, regardless of what their intentions may be.

Alison

Yeah, that's right. We don't know what's going on people's heads, and they may believe, and they do believe in the arguments they're putting forth. So, in practical terms though, these litigants do affect the day-to-day functioning of the courts. Can you explain how that is?

Donald Netolitzky

Well, to steal the term from von Clausewitz, what they do is they induce friction. They make everything that should be easy much, much harder. As I'm going to be talking about, this is really a mental health phenomenon, in my opinion, more than anything else. So, courts are not intended to handle people's mental health issues. And worse, the orientation of court staff is actually the opposite direction. Court staff are supposed to help individuals, clerks and judges, try to facilitate moving litigation along on people resolving their disputes. This is a difficult challenge if those same individuals are now dealing with people who are highly confrontational, potentially aggressive, and who may be skeptical about the operation of the courts themselves.

And it's also useful to think of at this point, not all courts are affected in the same way. In particular, appeal courts are disproportionately affected, and that's because of something which Justice Yves-Marie Morissette of the Quebec Court of Appeal, he's identified what I call the distillation effect. And that is as litigation goes through courts, the proportion of problematic litigants increases. And by the time you get to the Supreme Court, sadly, probably at least 70 % of the individuals I surveyed in 2017 had an abusive litigation record, and 40 % of them were actually identified as having mental health problems too.

Alison

Yeah.

Donald Netolitzky

There's actually an interesting phenomenon that virtually nobody who is a self-represented litigant at the Supreme Court gets leave. There hasn't been leave granted since 2017.

Alison

What are the practical effects? Like, in terms that regular people can understand, what are the practical effects on institutions and individuals who end up on the other end of this kind of litigation?

Donald Netolitzky

For institutions, for courts at least, for them it's consuming resources. For institutions, it's public resources that get consumed. Because something which is important to keep in mind with these individuals is problematic litigants are almost always initiating litigation or initiating steps. It's very uncommon that they're on the other side. So, if you go to institutions like the Federal Court of Canada, a large proportion of their litigation is spurious, abusive, and targeting government. Ultimately, the taxpayers are the ones who are paying, regardless one way or another, on that.

But there's also a really heavy impact on the individuals themselves who launch this litigation. Unfortunately, many of them undergo severe distress and ultimately end up with, following through psychiatric pathologies to very negative end results. And the whole scenario is fraught with tensions and anger as well. Because these people are not frivolous and because they think they're actually engaged in justified actions and not vexatious, they don't like those labels. But that also means that they are hostile to the institutions and individuals on the other side. So, being a lawyer or a litigant on the opposite side is a real challenge. Not only just professional complaints, but the anger and the rage that occurs with these scenarios.

Alison

So, what do courts look for? Like, how do they deal with these cases when they come forth?

Donald Netolitzky

Well, the major issue there is most of what happens is after the fact. The way that we set up case law to deal with problematic litigation is really twofold. There's litigation and then there's litigants. Those are quite different in what we look for. For litigation, there are what are commonly called indicia of problematic or abusive litigation. And these are patterns that show up all the time in people's behavior. You see that they won't follow court orders, they won't pay costs, they repeat actions over and over again, they make appeals without merit. And there's personal misconduct too, in that they will allege things like corruption, denigrate opposing parties, lawyers and judges, and they're generally rude. That's fine for identifying someone who is already in the pathway, but it doesn't anticipate future conduct. So, it's a backwards, a punitive sort of progress.

Alison

Yeah. Is there a way to prevent people from getting into that pathway?

Donald Netolitzky

In some instances, yes, because we know in some cases, particularly what are called pseudo-law litigants, that if you intercept them early enough, they seem to just drop off. But the problem is with other individuals, we're looking at an established pathology. These are people who are acting because of illness. Mental health professionals have said the best thing to do is to intervene as early as possible and as firmly as possible. But the problem is our courts do the exact opposite.

Alison

What do you mean by that?

Donald Netolitzky

The rules are that you only intervene, courts only intervene, when there's an established pattern of problematic litigation. It's quite often called persistence. There has to be persistent conduct which is problematic. And then we intervene. And that doesn't really make a lot of sense. Because in certain… Once you know the patterns of mental health which leads to abusive litigation, it's fairly easy to actually pick up that you've got somebody who is potentially in one of these pathways. Because they're making allegations which are disproportionate. They are focusing on trivial things or procedural things and making excessive claims. All that hints that there's a querulous individual in play.

Alison

Is there a way for, at the entry, like at the opening the door of the process, you know, with the clerks, is there a way to help right there at the outset?

Donald Netolitzky

Here's one of problems. Clerks have no authority to look at the substance of a filing. So, for example, there was an instance in Alberta where an individual was filing a bunch of lawsuits which had names involved, it had penalties, but the rest of the content was TBA. And is that a legitimate statement of claim? The form was filled in correctly and clerks do not have the authority to say I think there's a problem here. Unless you might set up a process in which they could then refer that to judges. But then again, this is the court acting. And the standard rule in Canada is litigants own processes, not courts.

Alison

All right. But there needs to be a better way. I mean, you worked in this for a long time, of course, and I know you can't speak about that experience specifically, but I mean, what do you feel are the options? Our courts are certainly dealing with a lot of workload. We hear all the time. I mean, in Newfoundland and Labrador right now, there's some courts that are not operating at all due to a lack of sheriffs and other court staff. So, is there a practical lesson we can take from anywhere else to guide us here?

Donald Netolitzky

It's not so much a practical lesson as it is a philosophy. The philosophy in the common law tradition, the highest value is, well, we now call it access to justice, but let's call it your day in court. Everybody gets your day in court. You don't have to have a lawyer. You can put yourself in front of a judge and be heard.

You could frame that as litigants own the litigation. In other jurisdictions, like the civil law tradition, it's the judges who own the litigation. So, if you look at the highest level of how our courts work versus other courts, it's like we have a procedural defect or a gap in our apparatus. And it's very hard to work around that because of you could call it the highest operating principles or the theology of our courts that focus on rights to access.

And another problem, which is a big issue in the theoretical end, is courts in many instances are seen as being… What happens to them is not seen as a significant consideration. Now there has been a reorientation inside the common law jurisdictions. Starting around 2000, the UK Court of Appeal issued a bunch of judgments where they rethink what I call the modern approach to abusive litigation, where they said no. The issue is we ask questions as to what's going to happen, not what happened in the past, and we also stress everyone's involvement. The courts have to be able to protect themselves. They have to have those shields and those techniques. There's this concept called inherent jurisdiction in courts, which basically is if there's a problem, a court can make up a solution.

That only works for some courts in Canada because some courts are statutory. But in Canada, we've gone the opposite way. Instead, the appeal courts, for the most part, have been saying, this is something which legislatures have to authorize and the legislatures so far have not been interested, as far as I can tell.

Alison

And what would that look like if a legislature was involved?

Donald Netolitzky

I would suggest that legislation be based on the circumstances which we're trying to address. As I've mentioned a number of times, the people who are involved in this litigation have mental health problems for the most part. And that means we should be talking to psychiatrists, sociologists, we should be looking at statistics about court operation to try to create new rules which help respond to, and compensate for, this gap in the common law tradition. The simplest solution is you give trial judges, hearing judges, a very broad right to intervene and to take steps that were going to flow forward. But at the moment, that is not how Canadian courts work at all.

Alison

So what do mean by that? Would that be that a hearing judge would say, think that you would benefit from some psychological treatment?

Donald Netolitzky

Now that would be a really novel change because so far courts have not been recognized as having that sort of authority. One thing which is used in the United States is they will sometimes require individuals to retain a lawyer to act as a kind of front-end screen. In Canada, there is mixed authority on that. Some courts have said that it’s fine for a judge to impose that requirement. Others have said no, that breaches the basic rules of Canadian litigation. If the litigant owns the litigation, the right to self-represent is absolute.

Alison

Right, and it's a barrier, right? The whole access to justice argument, you know, if you can't afford it, then you should, and you can usually go by yourself, which is back to square one.

Donald Netolitzky

Well, arguably there's a way around that already. And that is that we have legal aid societies and institutions in pretty much every jurisdiction. And those groups are already experienced and specialized in looking at claims and saying, this is a valid claim, we will carry it for legal aid versus this is not a valid claim, we will not carry it. So arguably you could delegate the merit test on problematic litigation to the legal aid society or something like that.

Alison

Well, they would need a lot more money. You know? They're already overburdened.

Donald Netolitzky

Well, there's actually… That's not true.

Alison

No?

Donald Netolitzky

Because the number of abusive litigants in Canada is not that great.

Alison

Right. Okay, yeah.

Donald Netolitzky

They're very high activity though. And they quite often argue the same things over and over and over again. So, in that sense, it would be possible to come up with some blanket answers. Now the problem is, that doesn't stop the process. These people are often sophisticated enough that they'll find out, I can judicially review the Legal Aid Society and initiate another level of these proceedings.

Alison

You mentioned when we chatted last week when we were first talking about this subject, you mentioned a questionnaire that you felt had been administered by some clerks that had some degree of success.

Donald Netolitzky

This is very specialized circumstance. And this is dealing with the pseudo-law litigants. People like the freemen on the land, sovereign citizens. Now, their form of abusive litigation is unusual in the sense that they believe they have a legal system that is superior to our legal system. And because they have a legal system that has rules, and those rules end up being very strange, they're very ritualistic, very ceremonial. And so, for example, when they file documents, they will very often include features like postage stamps attached for no reason, red ink fingerprints. They'll use language or terminology that is unique. So, back in 2012, the Alberta Court of King's Bench started an experiment in which they created an order which lists all of these weird things that only pseudo-law litigants put in their documentation. And that order says to the clerks, if you get a document that has one or more these indicia, these fingerprints of problematic litigation or formal defects, you identify which one it is, circle that, and then you hand back the documents to whoever's trying to file them along with the order, and the clerk says, I can't accept this. There are formal defects here. You can go and revise your document, take those problems out, and I'm happy to file them. But the documents also pointed these individuals to the famous Meads v. Meads case and said here's where you read to understand what this is about. And the thing which nobody expected, including myself, is it turned out that that ended about 95 % of these interactions.

Alison

Wow.

Donald Netolitzky

People received, had their documents rejected, and then they went away. And that was the end of it. There was an appeal process, but we never heard from them again. Now, later, I started to find these people showing up and going back to the people who had sold them the pseudo-law schemes, what we commonly call gurus, and the gurus had no answer for this either.

Alison

Wow, and they're self-called gurus. Imagine. Okay. It sounds to me that one of those tools could be replicated for similar pseudo-law issues. I know in Ontario, there have been some recent decisions relating to people who self-determine as Indigenous and say that they were never colonized. Are you aware of that phenomenon?

Donald Netolitzky

I am very aware, well aware of it, and its proponent Glenn Bogue, a.k.a. Spirit Warrior. He's a Law Society of Ontario lawyer, now suspended.

Alison

Okay, right, so not current. And I mean, some of these are still coming out. Did any of those filings have any of those hallmarks of the freemen on the land?

Donald Netolitzky

Yes. They're using the same underlying theme. So as a consequence, it would be possible to adapt for those. Now, there's kind of a twist, and that is that the Supreme Court of Canada has also said that any time you have litigation which has an Indigenous flavor to it, you have to be more careful about throwing that out. It's a special category which requires additional safeguards. So there’s that countervailing factor.

Alison

Even though these people are not actual First Nations people or Indigenous?

Donald Netolitzky

Do you want to make that claim? Now there are courts who have said that. Their court judgments would say, I looked up the official list of First Nations recognized in Canada and you're not there, therefore you don't qualify. But this is a pretty sensitive area as to just what are the limits.

Alison

I don't always have the world's best ideas, Donald. So, are there any differences between the provinces in how they are dealing with us? I know several courts have put in, you know, certain steps or have procedures to deal with vexatious litigants. Is there any place that's doing particularly well?

Donald Netolitzky

No. I would say overall Canada is doing quite poorly. But there are things which individual jurisdictions are doing better than others. A good example of a success is Ontario's Rule 2.1 process, which is if you put in a statement of claim or some other document like that and it is so defective that you cannot identify what the issues are, there's a process which fast-tracks that to what's called a show cause procedure, which is the court identifies to the litigant, I think there's something missing here, show me where I'm wrong. And if they can't find, answer that question, that creates a fatal gap and that ends the litigation. Another instance where a court is doing better is in Quebec, where their vexatious litigant orders have a broader range of associated things that can go along with it. You can not only tell somebody you have to ask for permission to initiate new litigation, but the court also has the liberty to say, and you have to pay your outstanding fees, or maybe you have to have a lawyer to assist you, or some other process step. So those are the successes, but they're small.

Alison

All right. If you had your druthers, what would you do?

Donald Netolitzky

I think it has to come from the top. I think it's really up to the Supreme Court of Canada to look and say, is our strategic orientation working? I don't think it is, but the countervailing answer to that is I watch the leave applications going to the SCC and there's probably between five to ten “I've gotten a vexatious litigant order and I'm unhappy with it” appeals, and the Supreme Court hasn't done anything. So perhaps they are satisfied.

But really, there's some baseline questions here. Is it acceptable for our court system to harm people? Because that's what happens when these people interact with it. They have mental health problems. We're not making any of it any better. Courts are probably making it even worse. So, in those circumstances, is this really justice? And also, it's so unbalanced, in that it's really easy to start litigation and propagate it, it's very hard to end it. Is that justice to the responding or recipient parties, defending parties? And so far the old rules are, yes it is. Sorry guys, that's the way things work. Maybe it shouldn't be.

Alison

Where are you going to concentrate… I know you're retired, but where are you going to concentrate your future research on this topic?

Donald Netolitzky

I try to do statistics collection because I think we cannot really treat a phenomenon until we understand its baselines. Is it increasing or is it decreasing? Are there some institutions that are getting hit harder than others? In what ways does that happen? So, I tend to try to generate statistical data-based studies, usually on entire populations, quite often basing that off of docket data.

Alison

Right, okay. Well, look, Donald, it's been fascinating to chat with you and learn more about this topic. Certainly, you have some very compassionate ideas of how to move forward, and I think those are very welcome. So, thank you very much for being with us on the Verdicts & Voices podcast.

Donald Netolitzky

Thank you for having me. It's been a pleasure.

Alison

I've been speaking to Donald Netolitzky, the now-retired complex litigation management lawyer for the Alberta Court of King's Bench. While he may have left the court, as you heard, he continues his voracious research into the topic of vexatious litigation.

Thank you for tuning in to another episode of Verdicts & Voices. I'm your host, Alison Crawford, and this has been a Canadian Bar Association production. Have a great week and we'll see you next time.