Fleischhaker v Fleischhaker: 2020 ONSC 6373, http://canlii.ca/t/jb5zl
If you are a fan of Halloween, you are most likely a fan of Halloween movies. From Ghostbusters to Beetlejuice to Dracula, Halloween movies can be scary and informative. For instance, Ghostbusters taught us how to save Time Square from paranormal activity. Similarly, to stop a vampire in its tracks, Halloween movies have taught us that all you need to do is string together a stinky necklace made of garlic. What Halloween movies have failed to teach us, however, is how to stop perhaps the scariest offender of them all: the vexatious litigant.
Luckily for you readers, Ryan Bell J.’s decision in Fleischhaker v Fleischhaker, came out just in time for Halloween. Although reading this decision may not be as fun as watching Gene Wilder in Mel Brooks’ Young Frankenstein, the decision offers a helpful summary of the law on declaring a party as a vexatious litigant.
The Respondent, Kevin David Fleischhaker (“Kevin”), is the son of the Applicant, David Allan Fleischhaker (“David”), and a brother of the other Applicant, Brian Fleischhaker (“Brian”). Kevin has a schizophrenia diagnosis. He was involuntarily hospitalized in 2010 and 2015. In 2015, Brian was named as Kevin’s representative to consent to or refuse treatment on his behalf under the Health Care Consent Act, 1996. There were a number of hearings before the Consent and Capacity Board.
Since 2015, Kevin has commenced five separate actions in the Small Claims Court against Brian, David, and his former psychiatrist. All of Kevin’s claims have been dismissed. Kevin then made complaints about the deputy judges who dismissed his actions in the Small Claims Court. Kevin also initiated complaints to the Law Society of Ontario concerning Brian and David’s lawyers.
Brian and David attributed Kevin’s actions to his schizophrenia. They maintained that Kevin was abusing the court system and using it to threaten and intimidate those trying to render assistance to him. Brian and David argued that they were concerned that unless Kevin was declared a vexatious litigant, he would continue to pursue them in the courts by initiating wholly unmeritorious proceedings.
Kevin argued that his litigation history did not merit a vexatious litigant declaration, as he suggested that he yielded mixed results and only filed a small number of claims.
Legal Principles: Vexatious Litigation Applications
Section 140(1) of the Courts of Justice Act directs that where a Judge of the Superior Court of Justice is satisfied that a person has “persistently and without reasonable grounds” instituted vexatious proceedings in any court, or conducted a proceeding in any court in a vexatious manner, the Judge may order that no further proceeding be instituted by the person in any court, or a proceeding previously commenced not be continued, except by leave of a Judge of the Superior Court of Justice.
In Peoples Trust Company v Atlas, Corbet J. stated that section 140(1) of the Courts of Justice Act embodies a three-part test:
- Has the impugned activity been persistent?
- Has the impugned activity been “without reasonable grounds”? and
- Has the impugned conduct been “vexatious”?
The characteristics of a vexatious proceeding were summarized by Henry J. in Lang Michener v Fabian:
- The bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;
- Where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
- Vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
- It is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
- In determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;
- The failure of the person instituting the proceeding to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and
- The Respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
The standard for determining whether a proceeding is vexatious is objective. 
Lastly, Ryan Bell J. explained that it is not a specific number of claims per year that will determine whether a vexatious litigant finding is warranted. Instead, “the respondent’s conduct as a litigant is in issue, and that includes their conduct in litigation, in administrative proceedings (including complaints to professional regulators), and in related extra-litigation conduct, such as harassment and incivility.”
Ryan Bell J. determined that a vexatious litigant declaration was warranted to protect not only Brian and David, but also the integrity of the judicial system.
Section 140(1) of the Courts of Justice Act is a powerful tool which Judge’s will use to protect the integrity of the judicial system. Once found to be a vexatious litigant, a party is prohibited from instituting a proceeding, directly or indirectly, in any court in Ontario unless and until he or she has obtained leave. While a person’s access to justice is a fundamental right, the court must be diligent to ensure that its processes are not abused by any particular litigant to the detriment of, not only those directly involved in the litigation, but also the system at large.
 2020 ONSC 6373 (“Fleischhaker”)
 2018 ONSC 58, at para 34
 (1987), 1987 CanLII 172 (ON SC)
 Supra note 2 at para 40
 Supra note 1 at para 25
 Dale Streiman & Kurz, 2007 CanLII 1902 (ON SC), at para 7
 P.R. v K.R., 2005 CanLII 44186 (ON SC), at para 1
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.