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When Is Enough, Enough? Vexatious Litigants In Estate Litigation

Originally published in our March 2017 Newsletter

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Estate litigation often involves highly intense emotions. Sometimes (more often than not) the real issues have absolutely nothing to do with the law , but rather with childhood grievances or family issues. In a recent decision from the British Columbia Court of Appeal,[1] one son had much difficulty in accepting that several court decisions had ruled against him in relation to his father’s estate. Undeterred, he continued to start claims against family members and others involved in the estate. This case examines when it is time for a party to be declared a “vexatious” litigant and be barred from commencing legal proceedings without leave of the court.


The son was an executor of his father’s estate.  The father had been involved in a motor vehicle accident in 1994 and in or about 1995 he was diagnosed with dementia and required home support. The father’s sister and brother began to care for him and he executed a power of attorney appointing his sister as his attorney in 1996. He died in 2006.

After his father’s death the son commenced several lawsuits. First was a lawsuit he commenced against the sister and brother of the deceased in respect of ownership of property owned jointly with the deceased. The action was dismissed with costs against the son.

Then the son brought an action against his father’s lawyer with respect to registering his father’s siblings as joint tenants on the family property. This action was also dismissed after a no-evidence motion following a nine day trial. Double costs were awarded against the son.

Then, the son brought a fraudulent conveyance action against the same lawyer and the lawyer’s wife. This claim was also dismissed and resulted in a vexatious litigant order against the son in respect of further actions arising out of the facts alleged in the professional negligence and fraudulent conveyance action.  This vexatious litigant order was set aside on appeal however as the son was not present when the order was made and he had no opportunity to be heard.


In the current case the son brought another action against his father’s sister and brother, this time alleging a range of wrongful misconduct in connection with their care  of his father, including misconduct in accessing his assets to pay for his expenses.  He also alleged that they committed criminal fraud. The defendants applied for dismissal of his action and sought an order that he be declared a vexatious litigant.

The trial judge determined that the deceased’s sister accessed the deceased’s accounts only for his personal care expenses, and his residency and associated expenses. She was also “exceedingly conservative” in claiming expenses that she incurred personally when acting under the power of attorney. While there was no misconduct on the part of the sister while the father was alive, there was one minor issue: The sister made some expenditures after he died. She did not realize that the power of attorney expired upon his death. However, the trial judge excused any liability on her part as he found that those expenditures were made in “good faith” and without the defendants being enriched.

The trial judge dismissed the claim and declared the son to be a vexatious litigant in both his personal capacity and in his capacity as executor of his father’s estate. The trial judge also awarded special costs against him.  The son had failed to adduce any evidence in support of his “grave allegations” and his action was founded on nothing more than “suspicion, conjecture and speculation”. The lone argument that he advanced was that “the truth is out there”.


The son made several arguments on appeal that the appellate court tried to distill down to arguments of error in law and fact. All were dismissed. However, with respect to the sister accessing the father’s funds after he died, the appellate court did note that the trial judge provided no authority for the ability to excuse liability created under the Power of Attorney Act based on “good faith”. Nevertheless, any error made by the judge in this regard was immaterial in light of his finding that the defendants fully accounted for the expenditures.

As for the vexatious litigant declaration the trial judge focused on the son’s unhelpful approach to the litigation, his preoccupation with conspiracy theories, and that he instituted and maintained “vexatious legal proceedings habitually, persistently and without reasonable grounds”. Section 18 of the British Columbia Supreme Court Act, RSBC 1996, c.443 governs vexatious litigant orders in that province[2] and confers a board jurisdiction on the court to control its own process.

The Appellate Court noted that the trial judge made the vexatious litigant order based not only on the number of proceedings commenced in connection with the administration of his father’s estate, but also on the litigation strategy he adopted: making grave allegations without advancing any proof in support. The court chose not to interfere with the trial judge’s discretion under s.18. The son now cannot commence a legal proceeding in any court (in his own capacity or in his capacity as executor of his father’s estate) without leave of the court.


Courts have an inherent jurisdiction to control their own processes and to prevent abuses of that process by allowing the judicial restriction (in specific circumstances) of a litigant’s right to access the courts by making vexatious litigant orders. Such orders are not made lightly. Sometimes, however, enough is enough.


[1] Semenoff v. Semenoff 2017 BCCA 17(CanLII); http://canlii.ca/t/gww5p

[2] In Ontario see s.140(1) of the Courts of Justice Act RSO 1990 c.C43.


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