Our rights in the Charter are set out in terms of what our government – including the legislature, any government agency, or any person or body acting at the behest of the government – cannot do to us. We know many of these well. What can we not do to our government, though? Wood v Yukon, a recent Yukon Court of Appeal case, shows us one answer: drag vexatious claims through various courts and tribunals.
Juanita Wood was “rejected on probation” (fired during the probation period) from her job at Yukon’s Department of Highways and Public Works in February of 2015. Later that month she appealed the decision to the Deputy Minister of that Department, who dismissed it, finding her “conduct and behaviour” were indeed causes for concern. The next month (March 2015), Ms. Wood brought a complaint to the Worker’s Compensation Health and Safety Board, claiming she had suffered retaliation for “raising safety concerns,” which led to a safety officer looking into the matter and determining, in November 2015, that a safety-based prosecution was not warranted. In February 2016, Ms. Wood appealed the Safety Board’s decisions not to prosecute, and the appeal was dismissed. In May 2016, Ms. Wood sought a reconsideration of the Safety Board’s decision but withdrew the appeal. She sought another reconsideration of the matter in June 2017 but withdrew the action in December 2017. In April of 2016, Ms. Wood filed a complaint with the Yukon Human Rights Commission on grounds of alleged sex-based discrimination. The Director of that Commission terminated the appeal in October 2016, stating that “the human rights complaint system cannot be used as simply another forum in which to pursue what is essentially the same complaint as has been brought in other forums, in the hopes that a different outcome will be achieved.” Ms. Wood brought forth another claim against her former employer for her firing in May 2016, this time to Yukon’s Supreme Court. That Court dismissed the appeal, finding that no reasonable claim was made. An appeal to the Yukon Court of Appeal was quashed because Ms. Wood’s claim was “devoid of merit.” Two further actions were brought by Ms. Woods, the first being a petition to review her termination filed in April 2017 (dismissed by consent in May 2018), and the second being a petition to review the Worker’s Compensation Health and Safety Board’s earlier decision to not prosecute Ms. Wood’s former employer filed in January 2018, which eventually was dismissed by the Yukon’s Court of Appeal.
The tangled mess of proceedings above is a lot to take in. There is, unbelievably, one more proceeding, this one from March of 2018. This was a petition to “set aside the decision of the Human Rights Commission to terminate their investigation into her complaint” which, to remind the reader, was about sex-based discrimination. A crucial concept in civil liberties is the ability for everyone – rich or poor, young or old – to be able to enforce their rights against unconstitutional government action. With this right, however, comes a corresponding duty: don’t abuse the process. Wood v Yukon concerns the duty side of civil liberties, which is not to vex the government with spurious “rights” claims where no right was infringed. The Government of Yukon applied for Ms. Wood to be declared a “vexatious litigant,” and the Court’s allowance of this declaration is the subject of this case.
What is a Vexatious Litigant?
Translated into plain English, a vexatious litigant is someone who annoys by way of legal action. While here the government applied for Ms. Wood to be declared a vexatious litigant, Regular Joes can apply for this declaration if someone is legally harassing them through repetitive, meritless legal action. Re Lang Michener and Fabian, a 1987 Ontario case, is cited Wood v Yukon as good law for a brief list of what would get one classed as a vexatious litigant. I set out the factors in full:
(a) 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
(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 can reasonably 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 by multifarious 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 subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(e) 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;
(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;
(g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
The remedy for the victim of the vexatious litigant is set out in Section 7.1 of Yukon’s Supreme Court Act. If the allegedly vexatious litigant – who gets a hearing on the matter – is found by the court to in fact be a vexatious litigant, this person “must not institute a proceeding on behalf of themselves or another person” and/or “a proceeding previously instituted by the person must not be continued.” This is in effect unless the vexatious litigant obtains leave of the Court, which would allow them to bring a meritorious action like anyone else.
Ms. Wood’s Case and Vexatious Litigation
In our case here, the government is asking for Ms. Wood to not be allowed to bring any more legal actions against them for her termination from the Department of Highways and Public Works. Overturning the lower court’s ruling would mean that Ms. Wood could continue unabated in bringing her actions against her former employer. Upholding the lower court’s judgment would prevent her from doing so, unless she obtained leave of the Court.
Recalling Ms. Wood’s laundry list of actions above, they all had the same aim in mind: addressing her termination from government employment. The Court of Appeal held that Ms. Wood repeatedly brought various legal proceedings to “determine an issue that was already determined,” that were “bound to fail,” that repeated “the same issues in different forms in subsequent proceedings and [were] seeking superficially different remedies,” and took these claims before various courts and tribunals, and was therefore a vexatious litigant. Attentive readers will notice that these findings correspond directly to items (a), (b), (e), and (g) of the Re Lang Michener checklist above.
Often lost in the discussion of rights is the idea of a corresponding duty. The most common illustration of this, familiar to most, is the right to enjoyment of your property and the duty to not use your property in such a way as to harm another’s enjoyment of their property. Liberty is not license, responsibility is the essence of freedom, and our rights in Canada are not to be abused. Instead, they are to be understood, jealously protected, and cherished, which is a big part of what this and other organizations do. Put another way, the government is comprised of public servants, but the fact that they are the servants of the people does not give the people license to abuse them. The processes in place to protect the rights and liberties of Canadians need not be cheapened by spurious claims and action. Our rights in Canada afford us protection from numerous government actions, and our government has a corresponding duty to refrain from these actions. If the government fails to observe this duty, we assert our rights in court and hold the government accountable. This is a wonderful power held by every citizen in Canada. Our corresponding duty is to use it responsibly.