College of Registered Nurses of Manitoba v Hancock, 2023 MBCA 70

Citation: College of Registered Nurses of Manitoba v Hancock, 2023 MBCA 70 Date: 20230828 Docket: AI22-30-09782 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Associate Chief Justice Shane I. Perlmutter ( ad hoc ) BETWEEN : ) D. Klaudt the COLLEGE OF REGISTERED NURSES ) for the Appellant OF MANITOBA ) (via videoconference) ) (Applicant) Respondent ) D. E.

Swayze, K.C. ) for the Respondent - and - ) ) Appeal heard: SHANNON HANCOCK ) February 27, 2023 ) (Respondent) Appellant ) Judgment delivered: ) August 28, 2023 On appeal from 2022 MBQB 26 mainella JA Introduction [ 1 ] This appeal is principally about the dark side of an accessible and independent justice system—the phenomenon of the vexatious litigant.

The Challenge of Vexatious Litigants [ 2 ] The courts have long thought it “unwise” to lay down a rigid definition of the legal term “vexatious” as it can arise in innumerable ways and, therefore, the concept is a flexible one ( McHenry v Lewis (1882), [1883] 22 ChD 397 (CommonLII) at 407-8 (CA UK) ). The term “vexatious” can be used to describe either the nature of a legal claim or a litigant personally. Central to either manifestation is evidence of the attempted abuse or significant misuse of the court process which, if allowed to continue unabated, would bring the administration of justice into disrepute.

At the core of vexatiousness is conduct that has no discernable basis in law which, if not stopped, would result in real harm to another or the system itself. While a party’s motivation(

s) or the proportionality of their conduct may bear on the determination of vexatiousness, the egregiousness of the conduct in the given context is the controlling question. [ 3 ] When discussing vexatiousness in relation to a litigant personally, the concern is that, irrespective of their motive(s), a vexatious litigant abuses their civil rights by bombarding the courts with proceedings having no merit.

The result is that chaos ensues: defendants are inconvenienced, harassed and financially taxed, and the limited resources of the courts, which face challenges in affording justice without unreasonable delay to genuine grievances, are diverted and strained to deal with this nuisance. [ 4 ] In Yves-Marie Morissette, “ Querulous and Vexatious Litigants as a Disorder of a Modern Legal System” (2019) 24 Can Crim L Rev 265 (WL), Morissette JA of the Québec Court of Appeal explains that a vexatious litigant is typically “abnormally belligerent and obdurate” (at p 1): . . .

Some self-represented litigants never let go. Not only do they resist any reasonable attempt to settle a dispute consensually, but they also forever refuse to accept defeat in the courts. They continue to fight on, in any available forum, until they are forced to stop.

Whatever the “initial dispute” that they had with an employer, a neighbour, an ex-spouse, a relative, a government agency, or any other person or institution, there is a strong probability that this dispute will have evolved and eventually degenerated into an all-out war fought on every front, at first in a tribunal or a court of law, against one or several parties, and later against those parties’ lawyers, the lawyers’ partners, their professional regulators or their insurers, the court personnel, judges in person, or even the judicial council if its decisions are subject to judicial review.

Whenever possible, they will seek leave to appeal to the Supreme Court of Canada. . . . [ 5 ] The problem of the vexatious litigant is an old one. The common law offences and torts of maintenance, champerty and barratry arose because of this phenomenon ( ibid at p 7). In its decision of J S Grepe v Loam (1887), 37 ChD 168 (CommonLII) , the English Court of Appeal acknowledged the inherent power of a superior court to restrain a litigant from making further applications in an existing proceeding without first obtaining leave of the Court (the Grepe v Loam authority).

Such an order was designed to guard against the repetition of “unfounded applications” to impeach a matter already decided where it was “impossible to obtain payment of the costs” (at p 169). [ 6 ] Of course, “self-represented litigants do not form a homogenous group” ( Crowe v The Manulife Financial Corporation , 2010 ONSC 3302 at para 14 ). Not all self-represented parties are vexatious or potentially vexatious (see Jonsson v Lymer , 2020 ABCA 167 at para 14 ; and Lochner v Ontario Civilian Police Commission , 2020 ONCA 720 at para 22 ).

The vast majority of self- represented litigants are neither vexatious litigants nor do they pursue abusive litigation (see Gerard J Kennedy, “The Alberta Court of Appeal’s Vexatious Litigant Order Trilogy: Respecting Legislative Supremacy, Preserving Access to the Courts, and Hopefully Not to a Fault” (2021) 58:3 Alta L Rev 739 at 742; and Morissette at p 10).

Economics plays the largest role in the decision of a litigant to be self-represented. [ 7 ] Equally important to this factual context that vexatious litigants are only a small subset of self-represented litigants is the legal context regarding vexatious litigants, which gives rise to a balance of the competing interests of the important right of an individual to access the jurisdiction of the courts on one hand, and the need on the other hand to protect the courts’ processes and the rights of others not to be faced with vexatious claims. [ 8 ] To begin, it is axiomatic that courts must proceed with great caution in fettering access to justice as it is a fundamental and ancient civil right.

Restrictions on an individual’s access to the courts are extraordinary and are reserved for only the clearest of cases (see Winkler v Winkler , 1990 CarswellMan 238 at para 34 (QB) , aff’d 1991 CarswellMan 212 (CA) ; Green v University of Winnipeg , 2018 MBCA 137 at paras 1 , 28 ( Green 2018 ); and Bloomfield v Halfyard , 2019 MBQB 81 at para 43 , aff’d 2020 MBCA 73 ( Bloomfield CA )). [ 9 ] However, ensuring due process is about more than just upholding the rights of one party to a proceeding. As was explained in Bhamjee v Forsdick & Ors (No 2) , [2003] EWCA Civ 1113 (BAILII) (at para 15): . . .

A court’s overriding objective is to deal with cases justly. This means, among other things, dealing with cases expeditiously and allotting to them an appropriate share of its resources (while taking into account the need to allot resources to other cases). This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications.

They thereby divert the court’s resources from dealing with meritorious disputes, delay the handling of those disputes, and waste skilled and scarce resources on matters totally devoid of any merit. . . . [ 10 ] Fairness is therefore a broader concept than the rights of one litigant; it encompasses the rights of every party to a proceeding and the integrity of the system itself and overall public confidence in the justice system.

The Supreme Court of Canada has remarked that “[t]here is no constitutional right to bring frivolous or vexatious cases, and measures that deter such cases may actually increase efficiency and overall access to justice” ( Trial Lawyers Association of British Columbia v British Columbia (Attorney General) , 2014 SCC 59 at para 47 ).

Also insightful is the comment of Grammond J in Bartel-Zobarich v Manitoba Association of Health Care Professionals (MAHCP-Bargaining Unit) , 2021 MBQB 87 , where she said, even in a vexatious litigant proceeding, a court must be mindful that “civil proceedings be determined expeditiously, and that proportionality should be considered” (at para 38). [ 11 ] In Hryniak v Mauldin , 2014 SCC 7 , the Supreme Court signalled that the modern civil justice system must have at its core the values of “timely, affordable and fair access to justice” (at para 21).

Obviously, those values are sacrificed if courts sit passively by, hoping that a vexatious litigant will simply tire and move on, while the resources of defendants are taxed and the attention of the courts are diverted from providing access to justice to those in true need. [ 12 ] Mindful of the culture shift espoused in Hryniak that is required for an improved civil justice system, the modern approach to detect and address vexatious litigants requires both ex-post and ex-ante analysis by the courts to best make sense of the tension between the competing interests. [ 13 ] Put another way, when dark clouds are on the horizon, the justice system does not need to wait to see the lightning, hear the thunder and wind, and feel the rain before taking action to prevent storm damage—prudence demands pre-emptive action.

Whether a vexatious litigant order is the most proportional order or is overbroad is an entirely different question than saying a court must wait until an abusive litigant has harmed themselves, another party and/or the system itself before making some form of order restraining the abusive litigant’s civil rights. It is entirely appropriate for a court to take early and proportional measures to either keep litigation on track or terminate it if it lacks any plausible chance of success.

In an extreme case, such as here, a vexatious litigant order is available in the tool box of remedies as a preventative order to protect defendants and the system itself going forward from a vexatious litigant. In my view, a proactive proportional approach to dealing with abusive litigants is what the vision of the modern civil justice system outlined in Hryniak demands. The Nature of This Appeal

[ 14 ] In this case, a judge found the appellant to be a vexatious litigant. The appellant is, as was explained in Bhamjee , a vexatious litigant because she refuses to “take ‘no’ for an answer” (at para 4) despite unsuccessfully having had her day in court on multiple previous occasions. [ 15 ] The judge’s order was based on his statutory jurisdiction under section 73(1) of The Court of King’ s Bench Act , CCSM c C280 (the KB Act ).

He restrained the appellant’s litigation rights in the Court of King’s Bench in relation to the respondent and its agents because she had “abused her access to the court system” (at para 119). He found that the appellant was commencing abusive and harassing collateral litigation relating to her professional discipline dispute with the respondent despite unsuccessful appeals in two separate administrative proceedings (see 2021 MBCA 20 ; and 2022 MBCA 70 ) and a frivolous action raising the same dispute that was struck.

While sympathetic to her largely representing herself and her obvious mental health struggles, he concluded that the appellant was inflicting “extensive damage” (at para 120) on the respondent and its agents and the administration of justice by pursuing abusive and unmeritorious litigation. [ 16 ] The judge’s vexatious litigant order prohibits the appellant from continuing two current actions or instituting any new proceedings against the respondent and its employees or representatives except with leave of a judge, save for any administrative professional discipline proceeding the respondent takes against the appellant. [ 17 ] The first aspect of this appeal is a review of the order appealed from.

The appellant focused her 13 grounds of appeal into three submissions asking that the vexatious litigant order be set aside. She says that the judge erred by basing his conclusion that she was a vexatious litigant, in part, on her conduct outside of her current litigation. Next, she contends that the judge’s weighing of the circumstances was unreasonable and, in particular, she argues that too little attention was paid to her mental health challenges and the fact she was a self-represented litigant.

Finally, she argues that the judge failed to consider a less restrictive alternative order than the one that he pronounced. [ 18 ] The second facet of this appeal is the claim that a miscarriage of justice has occurred during the course of this appeal. The appeal was heard on February 27, 2023 and the decision was reserved. The appellant subsequently advised the registry that she had fired her lawyer and wished leave to file post-hearing materials (see r 39.1(

c) of the MB, Court of Appeal Rules , Man Reg 555/88R (the CA Rules )). [ 19 ] In a plethora of letters, emails and what the appellant called “confidential . . . letter[s] requesting accommodation”, the appellant makes essentially three arguments about the fairness of the proceedings. She asserts that she has been unfairly treated by the respondent and others and she has not received satisfactory redress to date from the courts. She also claims she has received the ineffective assistance of counsel.

Lastly, she makes an allegation of judicial bias due to a dated and benevolent professional relationship she had with the spouse of one of the members of the panel on this appeal and that judge’s spouse’s retention of various law firms, who have acted against the appellant in the past on unrelated cases, for personal and business matters irrelevant to this appeal. [ 20 ] For the following reasons, I would deny leave to file post-hearing materials and would dismiss the appeal.

Review of the Vexatious Litigant Order Background [ 21 ] The appellant is in her early 60s and was formerly a registered nurse until she was suspended for reasons of professional misconduct by an inquiry panel of the respondent. [ 22 ] The backdrop to the vexatious litigant order consists of five different civil proceedings the appellant commenced (two judicial reviews and three actions), as well as two administrative proceedings relating to her professional discipline under The Registered Nurses Act , CCSM c R40 , as repealed by The Regulated Health Professions Act , CCSM c R117,

section 261 , and appeals to this Court related to same. In rough chronological order, those matters are as follows. 2016 Judicial Review [ 23 ] In 2015, based on information received from the appellant’s former employer, the respondent commenced professional discipline proceedings against the appellant. An investigation ensued which the appellant unsuccessfully attempted to halt in 2016 by way of an application for judicial review (see 2018 MBQB 149 ).

In 2019, she discontinued her appeal of the dismissal of her 2016 application for judicial review. 2018 Action [ 24 ] On July 30, 2018, the appellant commenced an action against the respondent for breach of privacy. The respondent has defended the action and little has occurred in relation to it. Professional Discipline Appeal #1 [ 25 ] On July 9, 2019, the appellant was found guilty of professional misconduct.

Her appeal of that decision and attempt to prohibit a second disciplinary process against her was dismissed by this Court (see 2021 MBCA 20 ; and 2021 MBCA 59 ). 2019 Judicial Review [ 26 ] On October 25, 2019, the appellant commenced another judicial review in relation to a second professional discipline proceeding instituted by the respondent against her which, on June 3, 2020, she abandoned just prior to the scheduled hearing. 2020 Action

[ 27 ] On May 25, 2020, the appellant commenced an action against 44 defendants in relation to the professional discipline proceedings against her. On November 3, 2020, the claim was struck; the senior master described it as “a vexatious attempt . . . to sue virtually everyone who [had] been involved in various judicial and quasi-judicial proceedings” with outcomes unfavourable to the appellant.

The appellant filed an appeal of the order striking her claim but abandoned it on January 8, 2021. [ 28 ] The appellant concedes that the 2020 action was “inappropriate and negatively influenced by her psychological condition and self-represented status.” 2021 Action [ 29 ] On January 8, 2021, the appellant commenced a new action against the Government of Manitoba for $15 million in what she described as her “grievances with the systemic inequities encountered in the professional regulation system for nurses.” This action did not name the respondent as a defendant but, according to the appellant’s affidavit, the “factual matrix” of the professional discipline proceedings against her underpinned her claim against the Government of Manitoba.

The 2021 action also “[sought] declaratory and injunctive relief” (at para 75) against the respondent while not naming it as a defendant.

Similar relief is sought against the Law Society of Manitoba (the LSM) based on the appellant being unsatisfied with how the LSM has dealt with her numerous complaints against lawyers who have acted for and against her to date. [ 30 ] The Government of Manitoba filed a motion to strike the 2021 action which was pending at the time the judge pronounced the vexatious litigant order. [ 31 ] The statement of claim underlying the 2021 action is 427 paragraphs and spans 54 pages in length. It is part personal claim and

part class action.

It has the same style as the 2020 action that was struck. [ 32 ] Much of the statement of claim for the 2021 action is an autobiography, telling the reader about the appellant’s career and the difficulties she overcame to become a registered nurse; her family and their history; the series of traumatic events they have experienced, such as suicides, traffic fatalities, deaths due to poor medical treatment and death by drug overdose; and a litany of disputes the appellant has had with the respondent, unions, government entities and the legal profession. [ 33 ] A significant feature of the statement of claim for the 2021 action is it has what can only be described as a gossipy quality.

It is not a pleading that complies with the rules of pleadings set out in the MB, Court of King’s Bench Rules , Man Reg 553/88 (the KB Rules ). The pleading details irrelevant professional and personal relationships of dozens of people in the judiciary, the legal profession, the healthcare profession and provincial politics. The reader learns about the appellant’s meticulous detective work into these people’s lives.

She sets out in the pleading the history of their careers, who their spouses or partners are and detailed particulars as to their children’s lives. [ 34 ] The 2021 action alleges multiple causes of action in contract and tort arising from the conduct of almost every entity connected to healthcare in the province of Manitoba and the legal profession. Professional Discipline Appeal #2 [ 35 ] On May 12, 2021, the appellant was found guilty of professional misconduct on a second occasion and was also declared to be ungovernable.

She failed to follow the correct procedure to appeal that decision but, in any event, this Court decided that there was no merit to her appeal (see 2022 MBCA 70 ). Vexatious Litigant Application and Judge’s Decision [ 36 ] On January 4, 2021, the respondent applied for a vexatious litigant order against the appellant pursuant to section 73(2) (

b) of the KB Act . The hearing was delayed for some time until the appellant ultimately retained counsel to resist the application. [ 37 ] On February 10, 2022, the judge pronounced his decision. He described an order pursuant to

section 73 of the KB Act as a “serious and exceptional remedy” that should “only be imposed in exceptional circumstances” (at para 52). He stated in his reasons (at paras 119-21): The factors I have outlined above demonstrate [the appellant] has abused her access to the court system. Her litigation strategy and conduct has been abusive and amounts to harassment by means of litigation. There has been extensive damage to the [respondent] in terms of time, energy and costs. There has also been extensive damage to the administration of justice as this ongoing litigation has taken up valuable court resources.

This is a clear case of vexatious litigation and vexatious conduct and it must stop. Accordingly, I declare [the appellant] a vexatious litigant. I have carefully considered and explained the discretion provided by s. 73 of the [ KB ] Act and I have determined the 2018 action and the 2021 action must be discontinued.

I am mindful that the [respondent] is not named as a defendant in the 2021 action but I have concluded the claim is an unmeritorious and abusive proceeding that must end. [ 38 ] At one point in his reasons, the judge misspoke when he contrasted the vexatious litigant legislation in the Court of King’s Bench and this Court (see sections 31.1(1) to 31.3 of The Court of Appeal Act , CCSM c C240 (the CA Act )) by stating that, under the CA Act , the “consent of the Attorney General” (at para 69) is required to bring a vexatious litigant proceeding, but the same is not true under the KB Act .

As the appellant properly highlights, the situation is the same in both Courts; the historic requirement that vexatious litigant proceedings must be approved by the Attorney General before they can proceed was done away with in 2019 (see Bill

20, The Courts Modernization Act (Various Acts Amended) , 4th Sess, 41st Leg, Manitoba, 2019, clause 2 (assented to 3 June 2019), SM 2019, c 16 ). Appropriately, the appellant concedes that this error of the judge was harmless to his decision. [ 39 ] I will briefly discuss the relevant legal principles as to a vexatious litigant order before turning to a review of the order granted here. Vexatious Litigant Orders—The Relevant Legal Principles [ 40 ] At the outset, it is important to address terminology.

There is a distinction in law between a vexatious proceeding and a vexatious litigant (see RO v DF , 2016 ABCA 170 at para 38 ).

This nuance is often forgotten or of little practical relevance in a given case because history teaches that vexatious litigation is often authored by a vexatious litigant. [ 41 ] In Benson v Workers’ Compensation Board (Man) , 2008 MBCA 32 ( Benson v WCB ), this Court explained that there are two legal frameworks that must be kept in mind in a discussion of vexatious litigants: one based on the inherent jurisdiction of a superior court that includes the power to protect the Court’s processes from abuse in relation to proceedings already commenced or arising out of a matter already decided (i.e., the Grepe v Loam authority); and a broader statutory jurisdiction which allows for not only the power to stop an existing proceeding of a vexatious litigant, but also the authority to prevent future vexatious litigation by a particular person. [ 42 ] Vexatious litigant legislation was first enacted in Manitoba in 1988 in what is now the Court of King’s Bench (see Bill 10, The Court of Queen ’ s Bench Act , 1st Sess, 34th Leg, Manitoba, 1988, clauses 73-75 (assented to 16 November 1988), SM 1988-89, c 4 ) and in 2008 in this Court (see Bill 39, The Court of Appeal Amendment Act , 2nd Sess, 39th Leg, Manitoba, 2008, clause 11 (assented to 12 June 2008), SM 2008, c 35 ).

This legislation was initially modeled on English legislation that was first introduced in 1896 (see the Vexatious Actions Act 1896 (UK), 59 & 60 Vict, c 51) that had been substantially adopted in some Canadian jurisdictions such as Ontario (see Shaward v Shaward , 1988 CarswellMan 116 at paras 3-5 (CA) ).

The most current form of statutory jurisdiction relating to vexatious litigants that was introduced in 2019 creates similarly worded statutory regimes to address vexatious litigants in the Court of King’s Bench (see sections 73 - 75 of the KB Act ) and this Court (see sections 31.1(1) to 31.3 of the CA Act ). [ 43 ] The statutory scheme regarding vexatious proceedings in the KB Act (as well as the CA Act ) has the objectives of preventing abuse in the court(

s) in question and “the broader purpose of protecting the integrity of the entire justice system” as “harm to one court is harm to all courts” ( Tupper v Nova Scotia (Attorney General) , 2015 NSCA 92 at para 31 ). [ 44 ] However, vexatious litigant legislation does not exist in a vacuum. It is part of a spectrum of remedies in addition to those arising from the Court’s inherent jurisdiction or under the rules of court to address varying degrees of abusive litigation.

Because a vexatious litigant order affects an individual’s fundamental civil right to access the courts, a careful balance must be struck before making such an order—particularly where a single focused remedy, such as some form of procedural order (i.e., case management) or a remedy against a party in default of their legal obligations, would be a more appropriate response than the “disproportionate reaction” of using vexatious litigant legislation as a tool for lesser matters ( Vuong Van Tai Holding v Alberta (Minister of Justice and Solicitor General) , 2020 ABCA 169 at para 9 ; see also Jonsson at paras 59-60 ; and Yashcheshen v Teva Canada Ltd , 2022 SKCA 49 at paras 96 , 107). [ 45 ] Striking this correct balance requires selection of a remedy that is “proportionate” ( Jonsson at para 12 ) or, put another way, “tailored to . . . the abuse in question” ( Yashcheshen at para 96 ) and not overbroad in light of other remedies that are reasonably available (see Feeney v Her Majesty the Queen in the Right of Alberta , 2021 ABCA 255 at para 21 ; Saskatchewan Health Authority v Patel , 2021 SKCA 140 at para 16 ; and Christofi v Jeffrey V Kahane Professional Corporation , 2022 ABCA 284 at para 7 ).

I will say more about this point later in my reasons. [ 46 ] As the Court expressed in Benson v WCB , given that universal access to the superior courts is a key attribute to the proper functioning of the rule of law, the personal remedy of declaring an individual to be vexatious and, thus, restraining their civil rights beyond just an existing proceeding, without leave of a judge, is a remedy that must be based on express statutory authority; it falls outside the inherent jurisdiction of a superior court (see paras 56-63; Shaward ; and Law Reform Commission of Nova Scotia, Vexatious Litigants: Final Report (Halifax: Law Reform Commission of Nova Scotia, 2006) at 7-11 ). [ 47 ] For completeness, it should be noted that the Benson v WCB view, as to the limits of a superior court’s jurisdiction to restrain a vexatious litigant being tied to whether there is an existing proceeding, is based largely on a passage of an influential academic

article from an English master and lecturer in law, Sir Jack I. H. Jacob (see IH Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Leg Probs 23 at 43; and Benson v WCB at para 56 ). Sir Jacob’s perspective in 1970 had been the orthodox view of English law on the parameters of the inherent jurisdiction of a superior court for about a century. His

article has been very influential generally in Canada and widely relied on (see Bojkovic v Rentz Bros Inc , 2010 MBCA 17 at paras 59-62 ). [ 48 ] The difficulty is that, in 1999, the English Court of Appeal, in Ebert v Venvil (1999), [2000] ChD 484, concluded that past decisions of courts in England, Australia and New Zealand, who had taken an approach similar to the one later adopted in Benson v WCB as to the limits of the inherent jurisdiction of a superior court to restrain a vexatious litigant, were incorrect.

Unfortunately, the commentary in Ebert was not addressed in 2008 when Benson v WCB was decided. [ 49 ] In Ebert , the Court favoured a “wider form of restraint” (at p 496) of vexatious litigants based on the inherent jurisdiction of a superior court than the historic orthodox view (i.e., the Grepe v Loam authority). The Court said it arrived at this new destination from the “standpoint of principle” (apparently based on six unreported cases from 1880 to 1894, drawing an analogy to an injunction to protect against anticipated harm and with the “considerable assistance” of Sir Jacob’s 1970

article read “as a whole”) ( ibid ). The Court distinguished the passage at page 43 of Sir Jacob’s 1970

article that this Court relied on in Benson v WCB (see para 56 ) for a narrower view of the inherent jurisdiction of a superior court to restrain a vexatious litigant by saying that a particular passage of the

article was in conflict with another part of the same

article on page 44 which, in the Court’s view, more clearly enunciated Sir Jacob’s view of the parameters of the inherent jurisdiction of a superior court to restrain a vexatious litigant (see pp 496-97). [ 50 ] This new statement of the enlarged limits of the inherent jurisdiction of a superior court to restrain a vexatious litigant

was stated this way (at p 496): . . . . . . [T]he starting point must be the extensive nature of the inherent jurisdiction of any court to prevent its procedure being abused.

Wesee no reason why, absent the intervention of a statute cutting down the jurisdiction, that jurisdiction should apply only in relation toexisting proceedings and not to vexatious proceedings which are manifestly threatened but not yet initiated. . . . [51] Ebert’s wider view of the inherent jurisdiction of a superior court to restrain a vexatious litigant was endorsed again bythe English Court of Appeal in 2003 in its decision in Bhamjee and further refined with the type of order, based on the inherentjurisdiction of a superior court, being described as “an extended civil restraint order” to address “the nuisance represented by vexatiouslitigants” (at para 41).

Unfortunately, the discussion in Bhamjee was also not addressed in Benson v WCB. [52] A similar view to Ebert/Bhamjee, allowing for a more wider form of restraint based on the inherent jurisdiction of asuperior court to restrain a vexatious litigant from commencing new proceedings, seems to have also been taken in Nova Scotia (seeTupper at paras 21-27) and in Saskatchewan (see Barth v Saskatchewan (Social Services), 2021 SKCA 41 at para 10). [53] This controversy about the breadth of a superior court’s inherent jurisdiction to restrain a vexatious litigant is of nomoment to decide this case but this timeless debate is important to keep in mind in the future because, in Manitoba, the inherentjurisdiction of a superior court in relation to a vexatious litigant is not necessarily “subordinate” to the Court’s statutory jurisdiction(Jonsson at para 46; see also para 42) because of the wording of the governing legislation. [54] I make that statement because it is a basic feature of our system of justice that each Legislature may structure the way inwhich courts exercise their powers as it sees fit (subject to constitutional limits) (see Ontario v Criminal Lawyers’ Association ofOntario, 2013 SCC 43 at para 23).

Accordingly, the wording of the governing legislation is important. As Professor Kennedy remarkedin his commentary on the recent trilogy of cases from the Alberta Court of Appeal dealing with vexatious litigants (Jonsson; Makis vAlberta Health Services, 2020 ABCA 168; and Vuong Van Tai Holding), “once a statute or regulation addresses an issue, that statuteshould be how the issue is addressed, with that only rarely being complemented (and never contradicted) by the court’s inherentjurisdiction.

This is essential to upholding the rule of law and the separation of powers” (Kennedy at p 739). [55] The nuance with the vexatious litigant legislation in Manitoba is that, unlike as is the case in Alberta under theJudicature Act, RSA 2000, c J-2, the Legislature in Manitoba has made clear that “[n]othing” in these vexatious litigant legislativeschemes “limits the authority of the court to stay or dismiss a proceeding as an abuse of process or on any other ground” (section 75 ofthe KB Act; and

section 31.3 of the CA Act). What this means is that, in order to show fidelity to the wording of the governinglegislation, when a superior court in Manitoba exercises its powers in relation to vexatious litigants, it should not view its statutoryjurisdiction as its primary source of authority or that its inherent jurisdiction is in some way subordinate to its statutory jurisdiction; to dootherwise would be contrary to the express wording of

section 75 of the KB Act or

section 31.3 of the CA Act. [56] Manitoba is not the only jurisdiction in Canada to have express language in its vexatious litigant legislation stating thatsuch legislation does not diminish a superior court’s inherent jurisdiction in any way (see Law Reform Commission of Nova Scotiareport at p 15). [57] The other side of the coin is that a superior court’s inherent jurisdiction cannot be exercised in a fashion that conflictswith or neuters the requirements for granting a vexatious litigant order under the KB Act or the CA Act (see Montreal Trust Co vChurchill Forest Industries (Man) Ltd (1971), (MB CA), 21 DLR (3d) 75 at 81 (MB CA)).

That is the practice thatwas warned against in Jonsson. It is a view that is consistent with the comments in Ebert. This approach ensures predictability of thelaw and respect for the separation of powers that underlie our democracy (see Kennedy at pp 748-50).

Such an approach is also inkeeping with the general rule that a superior court’s inherent jurisdiction should be “exercised sparingly and with caution” (R v Caron,2011 SCC 5 at para 30) and that “express grants of statutory powers” ought to be considered “before dipping into [the] im​portant butmurky pool of . . . inherent jurisdiction” (Endean v British Columbia, 2016 SCC 42 at para 24). [58] The upshot of these two forms of jurisdiction coexisting in the Court of King’s Bench and this Court is that the decisionto declare a litigant vexatious and restrain their right to institute or continue proceedings without leave of a judge should be decidedunder statutory jurisdiction—either the KB Act or the CA Act—absent some exceptional circumstance that the legislative schemes do notaddress.

Such cases require satisfaction of the relevant statutory requirements before the granting of a vexatious litigant order (seeJonsson at paras 31-34; and Vuong Van Tai Holding at para 8). [59] In a situation where there is an absence of the statutory requirement in Manitoba’s vexatious litigant legislation of“persistent” vexatious behaviour by a litigant in multiple proceedings, but an existing proceeding is being conducted in a vexatiousmanner, a superior court may make a Grepe v Loam style order pursuant to its inherent jurisdiction to restrain the litigant from advancingthe litigation without leave of a judge (see Pelisek v Pelisek, 2003 MBCA 145 at paras 44-45; and Benson v WCB at para 63).

A superiorcourt also has the inherent jurisdiction to summarily terminate a frivolous or vexatious proceeding that has been commenced (ibid atpara 56). This power exists separate and apart from the Court’s power to strike a pleading based on a motion pursuant r 25.11 of the KBRules. [60] If more proportionate lesser remedies to address the defective character of an existing proceeding or the abusiveconduct of a litigant can be made based on either the KB Rules or the CA Rules or the inherent jurisdiction of a superior court (forexample, see rr 2.04, 50.1(3) of the KB Rules).

As Rooke ACJ explained in Unrau v National Dental Examining Board, 2019 ABQB283, such orders can (at para 346): . . . prohibit a party from taking a step, or require permission to take a step, until a “milestone” is met. For example:

1. a time period has elapsed; 2. a scheduled or planned hearing occurs; 3. one or more parties have completed a litigation step, such as filing an affidavit, disclosing financial or tax records, or have completed discoveries; 4. a case management process by a judge or case management counsel has been completed; 5. a decision has been issued; or 6. an outstanding costs award is paid. [ 61 ] In jurisdictions outside Manitoba, other types of more esoteric orders based on a superior court’s inherent jurisdiction have been made when the party has become a “lifestyle litigator” ( Lochner at para 34 ).

For example: • prohibiting a proceeding from being advanced save by a member in good standing with the Law Society—see Houweling Nurseries Ltd v Houweling , 2010 BCCA 315 , and Lochner ; or • restricting the manner in which a litigant communicates with the Court or the registry on their proceeding due to disruptiveness— see S (

D) c D (C) , 1996 CarswellQue 784 (CA) , and Lochner . [ 62 ] The key part of the legislative framework under the KB Act on which the judge’s vexatious litigant order was based is as follows: Order restraining vexatious litigant 73(1) If a judge is satisfied that a person has persistently instituted vexatious proceedings or conducted proceedings in a vexatious manner, the judge may order that (

a) the person must not institute a further proceeding; and (

b) any proceeding already instituted by the person must not be continued; except with leave of a judge. Obtaining order 73(2) An order under subsection (1) may be made (

a) on the judge’s own motion; or (

b) on application by (

i) a party against whom the alleged vexatious proceedings have been instituted or conducted, or (ii) any other person, with leave of a judge. [ 63 ] The term “proceeding” is defined in

section 1 of the KB Act as meaning “an action or application commenced or made in the court”.

[64] The term “vexatious” is not defined in section 73(1) of the KB Act. In Foy v Foy (No 2) (1979), (ONCA), 102 DLR (3d) 342 (ON CA), Blair JA dissenting, the Court, while divided on the result, was in agreement as to the meaning of“vexatious” under Ontario’s then vexatious litigant legislation. The Court made two important statements that have been followed bycourts across Canada. [65] First, “vexatious” is a familiar term in the law and, as mentioned previously, is synonymous with the concept of abuseof process.

Ascertaining vexatiousness requires the Court to take a broad view of proceedings, looking at the whole history of the matterand not just one particular episode (ibid at pp 348-49, 359-61).

In Green 2018, this is what Steel JA referred to as the “holistic” approach(at para 27). [66] Second, ascertaining vexatiousness is to be determined by “objective rather than subjective standards” (Foy at p 349;Mascan Corp v French (1988), (ON CA), 49 DLR (4th) 434 at 440 (ON CA); and Green 2018 at para 27). [67] Like an abuse of process, the situations of vexatiousness can vary; “it is best not to be precise” (Canada v Olumide,2017 FCA 42 at para 32). While the “categories of vexation are never closed” (Mascan Corp at p 439), the jurisprudence has identifiedcommon hallmarks.

The leading statement in this regard was made in Re Lang Michener and Fabian (1987), (ON SC),37 DLR (4th) 685 (ON H Ct J), where Henry J provided a non-exhaustive list (at p 691): . . . (

a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdictionconstitutes a vexatious proceeding; (

b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person canreasonably expect to obtain relief, the action is vexatious; (

c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties bymultifarious proceedings brought for purposes other than the assertion of legitimate rights; (

d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequentactions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlierproceedings; (

e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether therewas originally a good cause of action; (

f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered indetermining whether proceedings are vexatious; (

g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conductof legal proceedings. . . . [68] This Court has repeatedly accepted that the factors mentioned in Re Lang Michener may be considered to ascertain avexatious litigant order (see Winkler at para 32 (affirmed on appeal); Green 2018 at para 29; Olumide v Manitoba (Human RightsCommission), 2020 MBCA 15 at para 6 (Olumide MBCA); and Penner v Montcalm (Rural Municipality), 2021 MBCA 52 at para 19). [69] As Kalmakoff JA noted in Patel, the factors mentioned in Re Lang Michener are “not a checklist or a list of pre-conditions” for a vexatious litigant order “but, rather, a non-exhaustive roster of relevant considerations to be weighed and balanced indetermining whether a litigant has crossed the line” (at para 20; see also Lindsay v Canada (Attorney General), 2005 BCCA 594 at para26). [70] There are clear safeguards to the vexatious litigant legislation that are worth pointing out.

At the outset, as HowlandCJO explained in Foy, that vexatious litigant legislation alters as opposed to extinguishes an individual’s civil rights. It is a limitedremedy. He stated (at p 348): . . . Vexatious proceedings legislation does not take away an individual’s right to redress. Rather it provides that if an order is made againsthim under the legislation, he cannot seek redress until he has satisfied the proper authority that the proposed legal proceedings are not anabuse of the process of the Court and there is [a] prima facie ground for them.

. . . [71] In a similar vein, Blair JA noted in his dissent on the merits that “the vexatious litigant is not deprived of the right tobring proceedings. Rather, the burden is shifted” by the legislation (at p 364). In Jonsson, the Alberta Court of Appeal stated that, whilea vexatious litigant order is a “barrier to access to the courts,” it does not “bar all access”; it is “merely a screening mechanism” (at para11; see also Yashcheshen at para 60). [72] A person governed by an order under section 73(1) of the KB Act (or

section 31.1(1) of the CA Act) may apply for leaveto institute or continue proceedings on a case-by-case basis (see section 74(1)(

a) of the KB Act; and

section 31.2(1)(

a) of the CA Act). Leave may be granted if the Court is satisfied that the proposed legal proceeding is not an abuse of the Court and there is a prima facieground for it (see Foy at pp 348, 364).

This is a “double-barrelled test” requiring both elements to be satisfied before leave can begranted (Falardeau v Owen Sound Police Service Board, 2021 ONSC 6180 at para 69; see also para 70). [73] Also critical to the balance that vexatious litigant legislation seeks to strike is that someone subject to a vexatiouslitigant order has the general remedy of seeking rescission of that order when they can convince a court that conditions have materiallychanged such that the order is no longer necessary (see section 74(1)(

b) of the KB Act;

section 31.2(1)(

b) of the CA Act; and Green vUniversity of Winnipeg, 2023 MBCA 67 at para 35). [74] A final important feature of the statutory scheme in the KB Act is that there is a right of appeal to this Court if an orderis made against an individual (unsuccessful applications for a vexatious litigant order cannot be appealed (see section 74(4))). Given thewording of sections 25.1 and 25.2 of the CA Act, a preliminary question arises as to whether an appeal of a vexatious litigant order isinterlocutory as opposed to final, in which case leave to appeal is required pursuant to

section 25.2 of the CA Act for the appeal toproceed. [75] In my view, the order appealed from here is a final order as it “finally [determines] the rights of the parties” as to theapplication filed—whether the appellant’s right of access to the Court of King’s Bench should be restrained permanently vis-à-vis therespondent and its agents without leave of a judge (Hendrickson v Kallio, (ON CA), [1932] 4 DLR 580 at 582). Thereis no dispute that the order the judge made substantively disposed of the question raised by the application on its merits.

The respondentconcedes that, because the appeal is about the existence of the order itself, the order is final—not interlocutory—and the appellant has anappeal as of right for the purposes of sections 25.1 and 25.2 of the CA Act.

This concession is consistent with how the Ontario Court ofAppeal has dealt with similar appeals of vexatious litigant orders and strikes me as the correct approach for an order made pursuant tosection 73(1) of the KB Act (see Kallaba v Bylykbashi (2006), (ON CA), 265 DLR (4th) 320 at paras 27-34). [76] The appellant’s concerns about the correctness of the decision of Green v University of Winnipeg, 2020 MBCA 2(Green 2020), are of no moment as that was not a case involving an appeal of a vexatious litigant order under the KB Act and rights ofappeal arising from the operation of sections 25.1 and 25.2 of the CA Act.

While similarly worded, the vexatious litigant statutoryregimes in the Court of King’s Bench and this Court operate separately and the issues decided in Green 2020 regarding appeal rights thatarise from a vexatious litigant order made by a chambers judge of this Court do not arise here. The Standard of Review [77] In terms of the standard of review, a vexatious litigant order pursuant to section 73(1) of the KB Act is a discretionaryorder that is entitled to considerable appellate deference.

It will not be disturbed on appeal absent demonstration of a material error infact or law or the decision is so clearly wrong as to amount to an injustice (see Canadian National Railway Co v Benson, 2005 MBCA 12at para 1 (Benson CA); Bloomfield CA at para 8; and WCB v Leganchuk, 2020 MBCA 104 at para 3). The Judge’s Consideration of the Appellant’s Conduct Inside and Outside the Courtroom [78] I am not persuaded by the appellant’s first contention that the judge erred in law by looking at events that occurredoutside the courtroom or legal proceedings where the respondent was not a party to the litigation.

This argument runs contrary to theobligation of a judge in a vexatious litigant proceeding of looking at events broadly, mindful of the overall context, as explained in Foyand other cases. [79] Rather than the artificial boundaries the appellant is attempting to construct by who the named parties are in the 2021action, the jurisprudence makes clear that assessing evidence on the question of vexatiousness is a contextual matter such that thecontrolling question for the Court is one of relevance. It is useful to recall exactly what is “relevant” in deciding a dispute.

KarakatsanisJ put it this way in British Columbia (Attorney General) v Provincial Court Judges’ Association of British Columbia, 2020 SCC 20 (atpara 57): Evidence is relevant when it has “some tendency as a matter of logic and human experience to make the proposition for which it isadvanced more likely than that proposition would be in the absence of that evidence”: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, atpara. 36, quoting D. M. Paciocco and L. Stuesser, The Law of Evidence (5th ed. 2008), at p. 31.

Put another way, [TRANSLATION] “afact is relevant, in particular, if it is a fact in issue, if it contributes to rationally proving a fact in issue or if its purpose is to help the courtassess the probative value of testimony”: J.-C. Royer and C.

Piché, La preuve civile (5th ed. 2016), at para. 215. (See also R v Schneider, 2022 SCC 34 at paras 38-45.) [80] It is well accepted that, in determining vexatiousness, a judge may consider the entire history of a litigant’s conduct inother courts or tribunals—even in other jurisdictions—provided the evidence is relevant as it assists in deciding the vexatious litigantorder in the court in which it is sought (see Wood v Yukon (Public Service Commission), 2018 YKCA 15 at paras 9-12; Olumide MBCAat paras 9-11; and Jonsson at para 40). [81] The appellant’s reliance on the comments of the Alberta Court of Appeal in Makis to the effect that the judge’s orderimproperly transcended the four corners of the dispute between her and the respondent is unconvincing.

What was before the judge was

not an attempt to obtain a “boilerplate vexatious litigant order” ( Makis at para 22 ) based on the Court’s inherent as opposed to statutory jurisdiction. The appellant’s suggestion that the respondent has no business seeking a vexatious litigant order on the basis of the 2021 action because she chose not to name them as a defendant in that action is absurd.

Her 2021 action is largely based on apparent misdeeds of the respondent (repeating the claim that was struck in the 2020 action or allegations rejected in administrative proceedings) and she seeks relief against the respondent. [ 82 ] I also see no difficulty in the judge seeing as relevant to his decision the appellant’s “behaviour and conduct outside the courtroom” (at para 58).

Provided such evidence assists in deciding the vexatious litigant order in the court in which it is sought, it may be considered as relevant (see CNR v Benson , 2004 MBQB 210 at para 44 ( Benson QB ), aff’d Benson CA , leave to appeal to SCC refused, 30798 (18 August 2005); Roskam v Jacoby-Hawkins , 2010 ONSC 4439 at para 25 ; and Bishop v Bishop , 2011 ONCA 211 at para 8 ). [ 83 ] The judge described the record before him as “voluminous” (at para 11); it was. The judge made the following findings of fact as to the relevance of the appellant’s conduct to the question of vexatiousness: (

i) The appellant is contemptuous of the authority of the respondent to govern the nursing profession and is prepared to harass the respondent with unfounded civil claims such as her 2020 and 2021 actions. (ii) The appellant’s conduct towards representatives of the respondent has been at times “abusive, harassing and unacceptable” (at para 80): for example, uncivil communications, attending to private homes unannounced to serve materials relating to the respondent despite a service protocol and filing groundless claims against representatives of the respondent in the 2020 action. (iii) The appellant seeks to “punish all lawyers involved” (at para 89).

Beyond a general proclivity of rudeness to counsel, the appellant has embarked on a deliberate pattern of vindicative and outrageous accusations in court filings and specious professional complaints against numerous lawyers and the LSM.

These include legal filings displaying a “current of paranoia and conspiracy” by her suggestion that there is a “web of conspiracy” (at para 90) among the respondent, its representatives, the LSM, and various lawyers and law firms. (iv) Similar to the approach taken against the respondent, while the 2021 action does not name the LSM as a party, the appellant seeks declaratory and injunctive relief against it and seeks to curtail any actions the LSM may take with which the appellant does not agree. (

v) The appellant engages in a repetitive pattern of filing similar claims only to have them struck or abandoning them just prior to a scheduled hearing. (vi) The 2020 action was brought for an “improper purpose” and was an instrument of “harassment and oppression” (at para 93). (vii) The 2021 action “cannot succeed” against the Government of Manitoba (at para 86); it is an “unrealistic, abusive and unsupported” claim (at para 87).

Moreover, “no reasonable person could possibly expect to obtain the relief” in such a claim against the respondent and the LSM (at para 88). (viii) The appellant’s inappropriate conduct inside and outside the courtroom is not primarily a function of being self-represented and/or episodes of deteriorating mental health.

Rather, she has engaged in “abusive and simply unacceptable” behaviour (at para 100) largely by her own choice. [ 84 ] I am not persuaded the judge erred in law by taking into account all of the litigation related to the appellant’s professional discipline by the respondent and her conduct inside and outside the courtroom in relation to her dispute with the respondent. [ 85 ] When considered as a whole, there was admissible evidence to support the inferences the judge drew and I am satisfied each of his findings are reasonably supportable on the record.

The judge also rejected the appellant’s suggestion that her conduct should be attributed to her personal limitations (being self-represented and suffering from mental illnesses) and/or a sincere exercise of democratic, expressive or other constitutional rights to challenge public authorities such as the respondent, the LSM and the Government of Manitoba. I have not been convinced that he made any palpable and overriding error in rejecting these counter narratives to his finding of vexatiousness.

The Weighing of the Circumstances [ 86 ] There is no merit to the appellant’s characterization that the judge “failed to consider” both her mental health and her self-represented litigant status as relevant factors in his vexatiousness analysis. The judge clearly took both circumstances into account but did not give them the weight or significance that the appellant thought they deserved. [ 87 ] The role of this Court is not to rehear the application or reweigh the evidence or the relative importance of relevant factors to come to a different conclusion than the one the judge reached.

That is outside the proper scope of appellate review of a discretionary decision (see Canada (Transportation Safety Board) v Carroll-Byrne , 2022 SCC 48 at para 41 ). [ 88 ] It is well accepted that many self-represented litigants are “confused or overwhelmed” by the legal system (Kennedy at p 742).

There is, however, a qualitative difference between an unrepresented litigant who needs “extra attention and assistance” ( Simon v Canada (Attorney General) , 2019 FCA 28 at para 13 ) from the courts to allow them to meaningfully participate in the process and have a reasonable opportunity to present their case, and those who are “ungovernable” (at para 14) or “simply harmful” (at para 15) in their approach and therefore open to a finding of being a vexatious litigant. [ 89 ] The Canadian Judicial Council’s Statement of Principles on Self-represented Litigants and Accused Persons (Canadian Judicial Council, “Statement of Principles on Self-represented Litigants and Accused Persons” (September 2006), online (pdf): <cjc- ccm.ca/sites/default/files/documents/2020/Final-Statement-of-Principles-SRL.pdf> (date accessed 22 August 2023)), which has been

endorsed by the Supreme Court (see Pintea v Johns , 2017 SCC 23 at para 4 ), makes several comments about vexatious litigants that are helpful (at pp 5-6, 9): . . . Self-represented persons, like all other litigants, are subject to the provisions whereby courts maintain control of their proceedings and procedures. In the same manner as with other litigants, self-represented persons may be treated as vexatious or abusive litigants where the administration of justice requires it. The ability of judges to promote access may be affected by the actions of self-represented litigants themselves. . . .

Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable effort to prepare their own case. . . . Self-represented persons are required to be respectful of the court process and the officials within it. Vexatious litigants will not be permitted to abuse the process. . . . [ 90 ] The judge did not consider the appellant to be a vexatious litigant merely because she had been largely self-represented historically.

He was careful in his analysis, stating that “[c]ourt rules and procedures can be difficult to comprehend and self-represented litigants are provided greater latitude in the way they conduct themselves.

However, some conduct is abusive and simply unacceptable” (at para 100). [ 91 ] The judge came to his conclusion, looking at, as he put it, “the whole history of this matter” (at para 99) and noting that there were several features as to the manner in which the appellant had conducted her litigation in relation to the respondent that dispelled any reasonable debate that she was conducting ordinary litigation but making understandable errors due to a lack of sophistication or procedural understanding.

The judge cited the following features of the history of this matter: • The appellant has a “pattern of passive aggressive behaviour” (at para 101) with the Court and the respondent, often abruptly disengaging if she does not get her way in the process. • The appellant is repeatedly discourteous and fails to observe basic civility. • The appellant is prone to making “spurious allegations against counsel” (at para 103). [ 92 ] The appellant’s submission focuses exclusively on her status as a self-represented or pro se litigant and ignores that, as such, she had a positive legal obligation to act responsibly, including “ to familiarize [herself] with the relevant legal practices and procedures pertaining to the case and to ‘prepare [her] own case’ ” ( Dewing v Kostiuk , 2017 MBCA 22 at para 21 ).

It is self-evident from the record that she completely ignored her legal obligations as a self-represented litigant to act responsibly. [ 93 ] I see nothing in the judge’s reasons that demonstrates clear error as to how he addressed the appellant’s self-represented status. [ 94 ] On the question of the appellant’s mental health, there is no question she suffers from mental illnesses.

This Court noted in its 2021 decision that the appellant “ suffered significant deterioration in her psychological functioning as a result of the discipline hearing process ” ( 2021 MBCA 20 at para 15 ). [ 95 ] I disagree with the appellant’s view that a court deciding a question of vexatiousness should make an analogy to the criminal law’s approach to assessing moral culpability for an offence and view a mental illness as a “mitigating” factor as to the assessment of vexatiousness.

While the judge rejected this submission on the facts before him, he unfortunately used the language of mental health being a “mitigating factor” (at paras 107, 116) as an analytical tool. [ 96 ] The state of an individual’s mental health is neither “mitigating” nor “aggravating” to the question of vexatiousness. I see no utility in a proceeding such as this, and the potential for great mischief, to drawing an analogy as to how the criminal law ascertains moral culpability for offenders suffering mental illness.

Vexatious litigant orders “are not punitive, they are protective and prospective” ( Jonsson at para 21 ). [ 97 ] The state of an individual’s mental health and any relevance of a mental illness to the question of vexatiousness is a matter for a court to weigh, in light of the given facts, in its contextual analysis. [ 98 ] In assessing the evidence, the Court is not tasked with “[a]ttempted medical diagnoses of the litigant” ( ibid at para 40).

In approaching evidence of mental illness, the Court should be sensitive to the reality that persons with disabilities, such as mental illness, often face “stereotyping, exclusion, and marginalization” ( Ontario (Attorney General) v G , 2020 SCC 38 at para 62 ).

The existence of a mental illness should not be conflated with a likelihood of vexatiousness. [ 99 ] While a litigant’s civil rights should not be lightly curtailed, suffering from a mental illness does not entitle a litigant to “institute vexatious proceedings and obligate the court to tolerate . . . abusive behaviour towards other parties” ( Hodder v Lindhorst , 2016 ONCA 42 at para 3 ).

[ 100 ] The record before the judge contained a 2016 report from a clinical psychologist, Dr. Stambrook.

In his report, he advised that, while there was no evidence of cognitive impairment, the appellant’s mental health had deteriorated likely as a result of “a Generalized Anxiety Disorder, complicated bereavement, a Major Depressive Disorder with anxious distress, and with an aggravation of trust and complex trauma issues, in the context of sleep disturbance, difficulty settling, and over inclusive and somewhat sticky ideation.” [ 101 ] The judge also had reports from 2020 and 2021 (and supporting notes) from the appellant’s former physician, Dr.

Saint- Hilaire, confirming that the appellant continued to manifest similar mental health challenges as identified by Dr. Stambrook, but with the added complication of the distress and grieving arising from her brother’s recent death. Dr.

Saint-Hilaire described the appellant’s conditions of anxiety, PTSD, insomnia and fatigue as “chronic” with “no improvement since 2017.” [ 102 ] Neither party adduced more current evidence as to the state of the appellant’s mental health and her prognosis for the purposes of the vexatious litigant proceeding. [ 103 ] A careful reading of the judge’s reasons confirms he was acutely aware of the mental health challenges the appellant has faced, including “anxiety, depression, [and] post-traumatic stress disorder” (at para 108), as well as the reality that a person’s mental health “ can fluctuate depending on the context ” ( Klippenstein v Manitoba Ombudsman , 2015 MBCA 15 at para 36 ).

As he put it in his decision, “mental health can be extremely fragile, it can change day to day” (at para 116). [ 104 ] I am satisfied the judge displayed appropriate sensitivity to the question of the appellant’s mental health and its relevance to a vexatious litigant order. In his reasons, he reviewed the appellant’s mental health challenges and life events negatively impacting that mental health, such as the death of her brother in 2020 and the loss of her career.

He also noted that, despite these negative life events, the appellant had the “energy and focus” (at para 109) to mount an aggressive and relentless litigation strategy that has significantly taxed the resources of the respondent and others. The judge observed that, while it was obvious that the appellant’s thinking was affected by paranoia and conspiratorial thoughts, there was not sufficient medical evidence to say that her mental health at that time significantly impaired her cognitive ability or decision-making functions.

I have not been persuaded the judge made any clear error. [ 105 ] A common thread in the case law regarding vexatious litigants is that defendants should not be put to the repeated cost and effort of responding to claims that are repetitive or otherwise without merit (see, for example, Green 2018 at paras 55-57).

That is the situation here. [ 106 ] As the judge noted in his reasons, the appellant’s failed litigation strategy had resulted in considerable costs orders against her (costs orders against the appellant arising from judicial and administrative proceedings to date exceed $50,000), none of which had been paid. He found the appellant’s failure to pay any of the costs orders against her to be an important factor in his decision to declare her a vexatious litigant. It was entirely within his discretion to do so as mentioned in Re Lang Michener .

He stated as follows (at para 97): It is clear that unpaid and ongoing costs defending unmeritorious actions are a real burden. Cost awards are meant to help defray the cost of litigation for the successful party. Costs are also meant to give pause to all litigants to consider the merits of their case.

Litigation is very expensive and all parties should assess their case knowing that they may be subject to paying costs to the other party. [ 107 ] It was well within the judge’s discretion for him to look at this pattern of the appellant filing (and often abandoning) claims of dubious merit, racking up large costs orders against herself and not paying same, and expressing an intention that this will never end until she says so, and conclude that the appellant had crossed the line with the unfettered exercise of her civil rights; enough is enough. [ 108 ] It is also noteworthy that this vexatious litigant proceeding took the better part of a year to be heard.

The appellant had plenty of time once she retained counsel to remedy her defective pleadings, settle her outstanding costs orders, and take responsible efforts to demonstrate she was a serious litigant and not a vexatious litigant. The fact that none of that occurred only reinforces the conclusion made by the judge. [ 109 ] Most, if not all, of the hallmarks of a vexatious litigant, as discussed in Re Lang Michener , were in the record before the judge.

The appellant’s argument that other litigants in reported cases were allowed to conduct abusive litigation for a much longer time than she has and inflict greater chaos before a vexatious litigant order was granted is not a persuasive submission in the post- Hryniak world—particularly in light of the importance of taking both an ex post and an ex ante analysis. [ 110 ] In

summary, when the whole history of this matter is looked at, objectively mindful of the factors discussed in Re Lang Michener , there was ample evidence to support the judge’s exercise of discretion to make a vexatious litigant order against the appellant pursuant to section 73(1) of the KB Act . The Question of Remedy [ 111 ] The appellant makes a tailoring argument suggesting a less restrictive form of restraint should have been imposed on her than a vexatious litigant order.

The concept is well-described by Morissette in the following manner (at p 19): . . . . . . [A]s a general proposition, the practice of the courts is to modulate the terms of these [restraining] orders so as to adapt them to the problem at hand: in the most severe cases, a party may require prior authorization before commencing any action in any tribunal or court of first instance. In other, less serious cases, authorization may be required for additional proceedings in a specified court file and against a specified party, etc. This flexibility is an advantage. (See also Kennedy at p 755.)

[ 112 ] The appellant contends that the judge should have declined to make a statutory order declaring her to be a vexatious litigant pursuant to section 73(1) of the KB Act and, instead, addressed the situation by an alternative type of procedural order which would have been better tailored to the situation and had case management, directions, sanctions for failure to comply and targeted striking of documents in accordance with the KB Rules (presumably some order pursuant to rr 2.04, 25.11 and/or 50.1(3) of the KB Rules ). [ 113 ] In Jonsson , the Alberta Court of Appeal noted that court rules provide for a wide variety of procedural orders, case management orders and sanctions for failure to comply to ensure that litigation is conducted in a proportionate manner short of resort to a vexatious litigant order (see para 12).

In light of the wording of the KB Rules , the same can be said for the situation in Manitoba. [ 114 ] That said, the issue of tailoring relief as an alternative to a vexatious litigant order raises a question of procedure. Judges should be careful about granting alternative relief in a section 73(1) KB Act proceeding without proper notice to the parties of the case they have to meet (see Jonsson at para 45 ).

The wording of section 73(1) does not contemplate alternative remedies if the Court is satisfied that the person who is the subject of the application is a vexatious litigant. [ 115 ] Procedural fairness requires that, if the Court is of the view that a more tailored remedy than what section 73(1) of the KB Act provides would be a more proportionate remedy in the circumstances (for example, the Court relying on a KB Rule or its inherent jurisdiction to order alternative lesser relief), then the parties must be given notice of that possibility and the opportunity to address that option before the Court makes such an alternative order.

In the case of an alternative order—for example, case management—the applicable rules of court must be followed. [ 116 ] The difficulty for the appellant and her argument in favour of a lesser alternative order is that her situation is entirely different than the ones in Jonsson , Makis and Vuong Van Tai Holding where the vexatious litigant orders were a disproportionate remedy. [ 117 ] The starting point is that, not only was the appellant’s 2021 action entirely unmeritorious, it was also repetitive of her 2020 action that was struck and her administrative proceedings that had been dismissed.

This dispels any suggestion that this is a “‘one off’ misstep” ( Jonsson at para 41 ). [ 118 ] There was also a basis for the judge to reasonably conclude that what was before him was not just a legal proceeding that needed case management or some form of procedural order to fix it, or a legal proceeding that could just be struck because it had no merit. The appellant had loudly and unambiguously stated that she would not take no for an answer (see Bhamjee at para 4).

Through her conduct, she made clear that she had “future litigious intentions” ( Tiveron v Collins , 2017 ONCA 462 at para 18 ) to relitigate her baseless allegations ad infinitum in an abusive way and at great expense to the respondent and the courts. That feature of this case was a clear basis for the judge to conclude that the appellant had crossed the line to become a vexatious litigant. [ 119 ] It was reasonably open to the judge to see the 2021 action as nothing more than a “ roundabout way ” to litigate disputes that the courts had already decided ( Benson WCB at para 35 ).

Such conduct, together with a refusal to ever pay the sizeable costs orders made against her in multiple legal proceedings, is strongly supportive of a vexatious litigant declaration. Moreover, her litigation conduct historically includes a feature that lawyers who act for parties opposite and other professionals find themselves targeted for a groundless personal legal action or a frivolous professional complaint.

This conspicuous litigation habit of the appellant is a clarion call that she is a vexatious litigant (see Benson QB at para 43 ). [ 120 ] Finally, the judge did not fall into the trap of declaring the appellant to be a vexatious litigant for all purposes in the absence of evidence to support such a sweeping order; rather, he “tailored [his order] to address the offending conduct in issue” ( Yashcheshen at para 107 )—collateral litigation relating to the professional discipline proceedings already decided.

By restraining the appellant only from instituting or continuing proceedings against the respondent and its agents without leave of a judge (and creating an exemption for future administrative proceedings), the judge’s order was properly modulated and cannot be said to be overbroad. [ 121 ] In

summary, there is no basis to interfere with the judge’s choice of remedy; he made no material error in his decision and his decision cannot be said to be unjust in the circumstances. Claims of a Miscarriage of Justice [ 122 ] Permission to file post-hearing materials on an appeal under reserve pursuant to r 39.1(

c) of the CA Rules requires the demonstration of exceptional circumstances (see Jhanji v The Law Society of Manitoba , 2022 MBCA 78 at para 30 ). As was explained in Jhanji , “[a] party to an appeal is expected to put their ‘best foot forward’ on the first occasion; r 39.1 is not ‘an invitation for litigation by instalment’” (at para 29; see also Aquila v Aquila , 2016 MBCA 33 at paras 33-34 ; and 2021 MBCA 20 at para 74 ).

I am satisfied that, if a party has an arguable case that a miscarriage of justice has occurred during the course of an appeal, that would be good reason to grant leave under r 39.1(c). [ 123 ] Unfortunately, the record before the Court on the claims of a miscarriage of justice occurring during the appeal is confusing and difficult to make sense of. The appellant has completely ignored the correct procedures in the CA Rules and simply engaged in an electronic letter-writing campaign with the registry and members of the judiciary. [ 124 ] Much of what the appellant complains of can be disposed of summarily.

Most of the appellant’s post-hearing written submissions attempt to impugn findings made against her in the professional discipline process, resulting appeals and the 2020 action that was struck. Those decided issues are now res judicata . They cannot be addressed in this appeal. The appellant has also written to the registry to complain about “witness intimidation/threats, reprisal” arising from litigation filed against her in Ontario over a year ago.

Leaving aside the fact that the correspondence is nearly unintelligible, I fail to see how it provides any arguable case that a miscarriage of justice has occurred during the appeal process in this case. [ 125 ] In terms of the appellant’s claim of receiving the ineffective assistance of counsel, there is no supporting affidavit from the appellant to provide the necessary evidentiary foundation to support such a claim which invites an adverse inference against the

validity of the claim (see R v M (DJP), 2023 MBCA 21 at paras 10-11). Having heard and read the oral and written submissions of theappellant’s former counsel, as well as reading the record, I have no concerns as to the sufficiency of the legal representation that theappellant has had in this vexatious litigant proceeding.

The appellant’s former counsel had a difficult brief which he handled in the besttraditions of the bar. [126] As to the appellant’s broader assertion that her lack of counsel has not been properly accommodated in the past, I wouldnote that, in this vexatious litigant proceeding, the judge (and other members of his Court (see paras 41-48)) took great care toaccommodate the appellant despite her repeated rudeness and lack of civility. These patient efforts are commendable and they ensuredthat the appellant had competent counsel to resist the respondent’s application.

There is no merit to this submission. [127] The background to the allegation of judicial bias is as follows. [128] When the appellant notified the registry of her application for leave to file post-hearing materials, the registry set a “strictdeadline”, which the appellant accepted in writing, that all her materials would be submitted by May 29, 2023. In the materials theappellant filed on May 29, 2023, she made a bald claim of bias but provided no particulars of what the allegation was.

Counsel for therespondent provided a written response on June 1, 2023, taking no position on the application for leave to file post-hearing materials asthe respondent did not wish the matter to be delayed any further by argument. [129] Two weeks later, on June 14, 2023, the appellant privately sent an email to one of the members of this panel (the email). The subject line of the email was “CONFIDENTIAL - request for recusal”. In the email, the appellant advised: 1. The judge’s spouse provided professional services to the appellant at some unspecified date in the past.

The appellantdescribed her relationship with the judge’s spouse this way: “We have nothing whatsoever against [the judge’s spouse]; I found [them]to be an excellent [professional service] provider.” 2. According to the appellant’s research into the financial affairs of the judge and their spouse, the family has used the legalservices of three law firms for corporate services relating to personal and business matters. The appellant advises that each of these threelaw firms has been involved in civil proceedings against her in the past.

The appellant stated: “We were not informed by the court thatyour family members’ . . . corporations and businesses are represented by” the three law firms. [130] The appellant also stated in the email: “We respectfully request that you please recuse yourself from our matters withoutfurther delay . . . and thank you for your consideration.” [131] The same day, the appellant forwarded the email to the Chief Justice of Manitoba (the Chief Justice) with the addedmessage: “We are bringing this matter forward in the interest of transparency and accountability, and for fear of reprisals as has toooften been our experience when we object to a reasonable apprehension of bias or conflict, perceived or actual.” [132] The other members of the panel were made aware of these communications.

To my knowledge, the respondent has notbeen made aware of what has happened. [133] The Court has taken the unusual step of not asking for the respondent’s views on what has occurred because therespondent made the succinct submission that the appellant’s position on her post-hearing application was entirely meritless and therespondent did not want “this matter delayed further by argument”. [134] One of the dangers of dealing with a vexatious litigant is giving them “a platform from which to repeat all of [their]vexatious conduct” (Gao v Ontario WSIB, 2014 ONSC 6497 at para 8).

In my view, it would be adding unnecessary fuel to the fire andwould provide the appellant with a platform to advance vexatious submissions if this process was extended further by invitingsubmissions from the respondent about the appellant’s clandestine email transgressions.

In my view, there is nothing for the respondentto respond to and this matter can be disposed of without its input without jeopardizing its interests. [135] Should the respondent wish to receive copies of the two emails the appellant sent to members of the judiciary on June 14,2023, it can request same from the registry but any copies provided should be redacted so as not to disclose any internal discussions ofthe Court in relation to the emails as that is a matter of judicial privilege (see MacKeigan v Hickman, (SCC), [1989] 2SCR 796). [136] I would say at the outset of my analysis on the claim of judicial bias that the record is entirely unsatisfactory.

There is acomplete absence of a proper record based on admissible evidence to support the claim. There is also no proper explanation from theappellant as to why the alleged bias of the judge was not raised at the first reasonable opportunity which would have been at the hearingof the appeal.

The lack of a timely objection may be informative as to the materiality of the concern (see R v Samaniego, 2022 SCC 9 atpara 47). [137] While the inference from the emails seems to be that the appellant only recently learned of the judge’s family memberusing the professional services of three law firms (who have no role in this appeal), she knew full well of her dated benevolentprofessional relationship with the judge’s spouse long before this appeal was heard and chose not to raise the allegation of bias when shehad counsel.

That is a tactical decision she cannot lightly retreat from now. [138] The relevant legal principles to consider are not in dispute. [139] Communicating with a judge about a decision under reserve without the express consent of the other parties is highlyinappropriate (see Canada (Minister of Citizenship and Immigration) v Tobiass, (SCC), [1997] 3 SCR 391 at para 74).

Not only did the appellant violate the terms of the “strict deadline” set by the registry for her perfecting her application for leave to filepost-hearing materials, which she agreed to, she engaged in conduct that skirts close to the borders of contempt (see R v Gillespie, 2000MBQB 149 at para 14). To make matters worse, the appellant attempted to manipulate

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