Estate Litigation: Frivolous and Vexatious Proceedings

Mark Feigenbaum

The Ontario Court of Appeal recently issued a decision in which a grandson’s claims in a decade-long estate litigation were dismissed for being frivolous and vexatious.

What Happened?

In an ongoing estate case that spanned almost a decade, a grandson believed that he and his siblings were unfairly excluded from his grandfather’s will. He believed that his grandfather and his grandmother had been subject to undue influence and fraudulent conduct by other family members.

After his grandfather died in March 2010, this family dispute led to two lawsuits – a 2012 action and a 2015 action. Those actions were ultimately dismissed and discontinued, respectively.

In 2017, the grandson commenced three new actions against family members and a number of lawyers who were involved in transactions relating to his grandparents’ estates, or who acted in the 2012 and 2015 actions.

The three 2017 actions were overlapping and included claims framed in harassment and defamation. In 2018, a motion judge dismissed those actions pursuant to r. 2.1.01 of the Ontario Rules of Civil Procedure, which reads, in part:

2.1.01 (1) The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

Issues

The grandson appealed each of the dismissals to the Ontario Court of Appeal. He presented three common grounds of appeal to each of the three r. 2.1.01 dismissal decisions, as follows:

(1) The motion judge did not make a finding that the proceeding was frivolous or vexatious or an abuse of process as required by r. 2.1.01(1);

(2) The motion judge erred in dismissing the action because the harassment and defamation claims found support in the pleadings;

(3)  The motion judge did not give reasons why the statement of claim could not be remedied with an amendment.

Decision

On the first ground of appeal, the court agreed that the motion judge did not describe the actions as frivolous or vexatious or an abuse of process. But the court dismissed this ground of appeal because it found that, in all of the circumstances, the motion judge had found the claims made to be frivolous and vexatious on their face.

The motion judge had considered all of the pleadings and what she found to be the grandson’s non-responsive written submissions. As a result, the motion judge concluded that although the claims appeared to identify causes of action, they did not contain pleadings supporting those causes of action. The court then stated:

“In other words, the claims were frivolous because they lacked a legal basis or legal merit, and they were vexatious in the sense that they were instituted without reasonable ground.”

On the second ground of appeal, the court found that, read generously, the claims did not sufficiently express the “gravamen of cognizable causes of action”. The court stated:

“To the extent that a basis for allegations of harassment and defamation can be gleaned from an optimistic reading of the pleadings, those allegations relate to the pleadings and evidence given in the 2012 and 2015 actions. Patently, they represent an attempt to reopen the 2012 and 2015 actions.”

As a result, the court dismissed this ground of appeal, finding that attempting to relitigate matters that had already been determined by final court orders was an abuse of process and did not form a basis for a cognizable cause of action.

Finally, the court rejected the third ground of appeal, finding that the motion judge had given sufficient explanation as to why the grandson’s statements of claim could not be remedied through amendment when she stated that the pleadings did not have legal merit and could not sustain a cognizable cause of action; as a result, permitting amendment would have been pointless.

The Court of Appeal therefore dismissed the appeals and ordered costs against the grandson.

Get Advice

If you or a loved one are planning on the distribution of an estate in preparation for a future event such as a will, it is important to speak to a trusted legal advisor. It is usually best to plan an estate ahead of time, to foresee issues before they arise and have them handled according to the wishes of the grantor.

For assistance, Contact Mark Feigenbaum, Barrister and Solicitor online or call him at (416) 777-8433 or toll-free at (877) 275-4792.