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Stopping anti-vaccination debate from entering legal system | David Frenkel

Monday, February 22, 2021 @ 12:33 PM | By David Frenkel


David Frenkel %>
David Frenkel
In A.P. v. L.K. 2021 ONSC 150, one parent decided that her children should not be vaccinated while the other disagreed.

Various legal issues were discussed and debated in the initial arbitration and appeal dealing with experts, fresh evidence and procedural fairness, among others. However, what was more alarming was that the mother was able to start her case to begin with. Her position not to vaccinate went against modern science and still the justice system gave her the platform to advance her case.

But were there steps that could have been taken to stop such an unreasonable position from the beginning? Were there legal avenues that may have served as checks and balances early on in the process?

The answer is not so simple.

On the one hand the Law Society of Ontario (LSO) states that the lawyer has a duty to the client to “raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.” (LSO Rules of Professional Conduct, s. 5.1.)

On the other hand, is it fair for unreasonable positions to continue being litigated at the expense of the time and money of others? In family law, we are mainly dealing with middle class individuals with limited resources trying to find enough time to parent and save money all while a COVID pandemic rages on.

One may argue that the threat of a cost award is enough of a deterrent. However, it is not. The reality is that the vast majority of cases are settled prior to trial and in those situations, litigants just want the bleeding to stop regardless of how it started. As a result, the individuals starting the frivolous cases are rarely penalized.

And if the case does go to trial, the amount of the cost award almost never covers the expenses incurred and time lost.

So is there an alternative? There may be, but it would take courage and resolve to challenge the status quo in a thoughtful manner.

First, it would require a qualification to the LSO rules. For example, some judges have made it clear that if a client’s position is baseless, then it is for the “lawyer to put a stop to it” and “stop wasting the court’s time.” Justice Earl Wilson in Shum v. Mitchell 2000 ABQB 323 made such a statement when addressing the issue of costs in a case that was made more expensive by the assertion of a baseless theory coupled with the calling of unnecessary experts.

In Sowa v. Babic 2016 ONSC 7257, Justice Gregory Campbell was not pleased with clients that acted unreasonably over the life of the proceeding and lamented “What a waste of their lawyer’s time, talent and energy and their own financial resources.”

Also, in Hunt v. Worrod 2018 ONSC 2133, Justice Edward Koke made it clear that the mother’s claims were meritless and he was not happy with how Legal Aid supported her case:

Legal Aid … can withdraw … funding at any time on the basis that the person who has been granted the certificate is acting unreasonably or taking an unreasonable position. In my view, the facts which are before this court point to no other conclusion but that Legal Aid failed to properly and conscientiously monitor these lengthy and costly proceedings. In failing to do so, it contributed significantly to the hardships and challenges which Mr. Hunt and his family faced after his devastating accident, not to mention the needless waste of judicial resources.

With that in mind, let us consider s. 140(1) of the Courts of Justice Act.

According to s.140(1), a judge may order a person can no longer bring a further proceeding in any court or that a proceeding previously instituted by the person not be continued except by leave. The criteria that would need to be met is that the person would have persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner.

In Bernard v. Fuhgeh 2020 ONSC 235, Justice Frederick Myers writing for the Divisional Court provided the accepted definitions of (a) “vexatious” to be a proceeding instituted without any reasonable ground, and (b) “frivolous” to be “lacking a legal basis or legal merit; not serious; not reasonably purposeful.”

Furthermore, there is Rule 2.1.01 of the Rules of Civil Procedure that came into force on July 1, 2014. It permits a court on its own initiative to stay or dismiss a proceeding if it appears on its face to be frivolous or vexatious or otherwise an abuse of process. But how do we use such a rule effectively? There are several examples.

In Scaduto v. Law Society of Upper Canada 2015 ONCA 733, the court wrote that Rule 2.1.01 should be interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious or an abuse of process.

In T.F.B. v. Office of the Children’s Lawyer [2016] O.J. No. 3024, Justice Jamie Trimble clarified how Rule 2.1 would be applied and indicated that the rule allows the court, through a truncated process, to limit the material that the parties may submit. This limitation ideally would prevent “the truncated procedure from being used by the plaintiff to engage in further frivolous, vexatious conduct or conduct that is an abuse of process.”

Similarly, in Madadi v. Nichols 2021 BCCA 10, the British Columbia Court of Appeal defined a frivolous issue as one that “that does not go to establishing the cause of action, does not advance a claim known to law, or serves no useful purpose and would be a waste of the court’s time and public resources.”

In light of the above, there appears to be sufficient opportunity for judges and other officers of the court to be gatekeepers to frivolous cases early on in the process.

The question then becomes, who will be the courageous among us to put a stop to claims such as anti-vaccination and other positions that clog up the courts?

We all can do it, if we approach the issues in a brave, honest and thoughtful manner to not just the legalities but also the merits of each claim being argued. We need to think about the bigger picture and the ramifications of arguing frivolous issues. These ramifications extend to the parties and their depleting bank accounts and the children who now will have less savings originally allocated for them and their future.

Furthermore, the time saved from removing such issues would allow an already fragile justice system the extra time and resources to help individuals that are truly in need.

We must not be afraid to call out certain claims for what they really are: empty, nonsensical and a waste of all of our time.

To quote the apropos decision of Justice Andrea Himel in Schieder v. Gajewczyk 2021 ONSC 635: “The case is indicative of the culture of unreasonableness that plagues the Court. This culture is particularly problematic given the current challenges and delays faced by litigants in gaining access to justice.”

“Enough is enough.”

David Frenkel is a partner at Frenkel Tobin LLP and co-founder of www.divorceaide.ca. Frenkel has practised exclusively in family law since 2008. He can be reached at dfrenkel@frenkeltobin.ca.

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