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Civil Litigation Cases - Frivolous and Vexatious (8). Sui v. Ontario (Attorney General)
In Sui v. Ontario (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal considers that where a party is under a 'vexatious litigant orders' that the court's denial of leave to commence proceedings may not be appealed [by virtue of CJA 140(4)(d)], and recent R2.2 amendments giving the court authority to "grant a vexatious litigant order against a party in an ongoing proceeding on the judge’s own initiative":[15] Moreover, and also as observed by Thorburn J.A., Mr. Sui has twice been declared a vexatious litigant, once by order of the Divisional Court, and once by order of the Superior Court. Those orders require Mr. Sui to obtain leave before commencing any proceedings in either of those courts. Neither of those orders has been appealed and nor has leave to commence any proceeding been granted. As noted by Thorburn J.A., no appeal lies from a refusal to grant leave: Hart v. Fullarton, 2021 ONCA 438, at para. 15, citing Chavali v. The Law Society of Upper Canada, 2007 ONCA 482, at paras. 4-5, leave to appeal refused, [2007] S.C.C.A. No. 465.
[16] That would have been the end of the matter, but for the effective date of the new r. 2.2.
[17] Both of the orders declaring Mr. Sui a vexatious litigant predated the new r. 2.2, promulgated under O. Reg. 322/24 which came into effect in October 2024. That rule provides that a judge may grant a vexatious litigant order against a party in an ongoing proceeding on the judge’s own initiative.
[18] However, because the orders in question here were made prior to r. 2.2 coming into effect, they were not made pursuant to s. 140 of the Courts of Justice Act, or following the process provided for therein. Thorburn J.A. therefore raised the question of whether s. 140(4)(e) applied to render Mr. Sui’s proposed appeal meritless.
[19] Accordingly, and since a determination under r. 2.1 to stay or dismiss a proceeding must be done by a panel of this court (Damallie v. Ping, 2016 ONCA 603, at para. 17), Thorburn J.A. directed that a r. 2.1 notice be issued to the parties advising them that a panel of this court would consider whether the appeal should be dismissed on the basis that it is frivolous, vexatious or an abuse of process, and that they be given an opportunity to respond as has now occurred.
[20] Mr. Sui submits that Thorburn J.A., sitting as a single judge in chambers, lacked the jurisdiction to invoke the r. 2.1 process, and that such a process can be invoked only by a panel. We disagree. To be clear, and as contemplated in r. 2.1, Thorburn J.A. made no determination about whether the appeal ought to be dismissed as being frivolous, vexatious or otherwise an abuse of process. Rather, the Registrar was directed to issue notices to the parties of the intention of the court to consider the matter, in order that they could make submissions if they wished to do so. Moreover, Thorburn J.A. expressly directed that the determination should be made by a panel of this court, as has now occurred. All of that accords with the process contemplated in r. 2.1.
[21] For all of these reasons, the appeal is dismissed as frivolous, vexatious or otherwise an abuse of process pursuant to r. 2.1. No further motions by Mr. Sui on this matter are to be accepted for filing unless leave has been granted by a judge of this court. . Grillone (Re)
In Grillone (Re) (Ont CA, 2026) the Ontario Court of Appeal considers the indicia of frivolous vexatious litigation:[8] After reviewing the judicial findings in these Prior Decisions, the motion judge found that Mr. Grillone’s behaviour met virtually all the indicia of vexatious litigation as set out in Re Lang Michener et al. and Fabian et al. (1987), 1987 CanLII 172 (ON HCJ), 59 O.R. (2d) 353 (H.C.), including:(a) proceedings without reasonable grounds;
(b) attempts to re-litigate resolved matters;
(c) persistent unsuccessful appeals;
(d) failures to comply with court orders;
(e) proceedings brought for improper purposes; and
(f) refusal to accept final judicial outcomes. . Nahirny v. Liquor Control Board of Ontario [reply submissions]
In Nahirny v. Liquor Control Board of Ontario (Div Ct, 2026) the Divisional Court considered the allowing of reply submission on a R2.1 'frivolous and vexatious' motion:[3] The court denied the Applicant’s request to deliver reply submissions, which, as he acknowledged in his email request, are not prescribed as part of the process for issues addressed pursuant to r. 2.1. The court has jurisdiction to permit reply submissions, as part of its jurisdiction to control its own process, but generally reply submissions will not be required or permitted: the test to dismiss a proceeding pursuant to r. 2.1 is a very high bar, and if there is an arguable basis for the proceeding it will not be summarily dismissed. In this case, it is crystal-clear that the LCBO’s decision to terminate the Applicant’s employment is not subject to judicial review before this court, and none of the 11 issues raised by the Applicant in his email requesting a right of reply could possibly bring this conclusion into question. . Parimoo v. Amin
In Parimoo v. Amin (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought against "an order declaring the appellant ... a vexatious litigant under s. 140 of the Courts of Justice Act":[5] The motion judge declared the appellant a vexatious litigant. After citing the factors described in Lang Michener et al. v. Fabian et al. (1987), 1987 CanLII 172 (ON HCJ), 59 O.R. (2d) 353 (H.C.), the motion judge found that “[a]n individual with [the appellant]’s track record before the courts is, by definition, a vexatious litigant”, and that the appellant’s “disproportionate use of the civil justice system is a barrier to access to justice for parties who have legitimate claims.”
....
[11] We see no basis for this court to interfere with the order of the motion judge. As this court has recently noted, a vexatious litigant order is discretionary and fact-specific. We owe deference to the motion judge unless the appellant can persuade us that she made an extricable and material legal error or a palpable and overriding error of fact, or failed to exercise her discretion judicially: UM Financial Inc. v. Central 1 Credit Union, 2026 ONCA 475, at para. 31.
[12] Turning to the appellant’s first ground of appeal, we reject the appellant’s submission that the motion judge erred by failing to abide by the statutory scheme in s. 140 of the CJA.
[13] The motion judge recognized that declaring a person a vexatious litigant is significant, and the court’s power to do so must be exercised sparingly and with great care. At the outset of her reasons, the motion judge noted that she could only make an order pursuant to s.140 if she was satisfied that the appellant had “persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner”. The motion judge then concisely and faithfully applied the correct test as set out in the jurisprudence. We see no error in her analysis.
....
[23] .... The purpose of a vexatious litigant order is aptly described in McLean v. Connell, 2025 ONCA 495, at para. 17:Vexatious litigant orders prevent litigants from harassing others and forcing them to incur unnecessary legal costs, and protect the interests of society as a whole by limiting the needless diversion of finite court resources to private vendettas that do not give rise to any genuine cause of action. This order does not deprive the appellant of access to justice; rather, it gives the court the ability to ensure that no party to the litigation is prejudiced through disorderly conduct in litigation. . Sui v. Ontario (Attorney General) [f&v orders on J's initiative]
In Sui v. Ontario (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal considered the interaction of the rules that no appeal lies from a vexatious litigant's denial of leave to commence new proceedings [CJA s.140(4)(e)], and new R2.2.04 rules that allow frivolous proceedings to be commenced at the judge's own initiative [under Reg 322/24]:[14] Mr. Sui has twice been declared a vexatious litigant.
....
[19] Mr. Sui must seek leave before initiating a new proceeding, leave was denied, and no appeal lies from a refusal to grant leave. This is a bar to any appeal from a refusal to grant leave: Hart v. Fullerton, 2021 ONCA 438, at para. 15, citing Chavali v. The Law Society of Upper Canada, 2007 ONCA 482, at paras. 4-5, leave to appeal refused, [2007] S.C.C.A. No. 465.
[20] The two orders declaring Mr. Sui a vexatious litigant were made before the new rule 2.2 under O. Reg. 322/24 came into effect in October 2024.
[21] The new rule 2.2 enables a judge to issue a vexatious litigant order against a party in an ongoing proceeding on the judge’s own initiative and provides a comprehensive framework including a process to receive submissions from the potential subject of a vexatious litigant order.
[22] Because the orders were made before rule 2.2 came into effect, they were not made pursuant to s. 140 of the Courts of Justice Act nor did they follow the formal procedure allowing a judge to undertake the orders as set out in rule 2.2 of the Rules of Civil Procedure.
[23] In these circumstances, there is some question as to whether s. 140(4)(e) of the Courts of Justice Act, which bars an appeal of a refusal of leave, applies or renders Mr. Sui’s proposed appeal meritless.
[24] In my view, whether the statutory bar to appealing technically applies or not, this appeal should be the subject of a review process by a panel of this court, pursuant to the rule 2.1, to consider whether this appeal should be dismissed on the grounds that it is frivolous, vexatious or an abuse of process. It appears, on its face, to constitute a continued effort by Mr. Sui to continue a vexatious proceeding.
[25] In this court, a determination under rule 2.1 to “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” must be done by a panel of this court: Damallie v. Ping, 2016 ONCA 603, at para. 17.
[26] I therefore direct the Registrar of this court to give notice in Form 2.1A to commence the rule 2.1 review process pursuant to which Mr. Sui will be permitted to file submissions to explain why his appeal should not be dismissed.
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