Vexatious Litigation Is Not A Protected Kind Of Expression – Litigation, Mediation & Arbitration

In the Catholic District Board of London v. Mikhail1, the Ontario Supreme Court considered a motion under S.137.1 of the Courts of Justice Act (commonly referred to as “anti-SLAAP provisions”) in the context of a motion for a statement by an angry litigator under Section 140 of the Courts of Justice Act. The matter was heard through Zoom.

The lessons learned from this decision include:

• Legal proceedings are a form of “expression” within the meaning of S.137.1 (2) of the Courts of Justice Act;
• The Court of Justice will not treat angry litigation as a protected form of expression. and
• Proceedings under Section 140 of the Courts of Justice Act are not covered by s. 137.1 (3) of the Courts of Justice Act, since the relief requested under Section 140 is of a procedural nature and is unable to “choke” or suppress protected statements.

This decision is also among the earliest cases based on the recent decision of the Supreme Court of Canada of 1704604 Ontario Limited v Pointes Protection Association et al2 in which the test was interpreted under s. 137.13.

Facts

The complainant, the London District Catholic School Board (“LDCSB”), filed a motion for injunction stating that the Respondent, Ms. Michail, was an angry trial lawyer under Section 140 of the Courts of Justice Act. In response to this, Ms. Mikhail submitted a proposal according to p. 137.1 of the Courts of Justice Act, alleging that LDCSB’s motion was a strategic action against public participation (a “SLAAP”).

Ms. Michail used to work as a high school teacher at LDCSB. Between 2011 and 2019, Ms. Michail initiated numerous legal proceedings against or involving LDCSB, including allegations of discrimination on the basis of disability, the illicit act of willful mental distress and a violation of the duty of fair representation.

Ms. Michail’s trial included union complaints and filings with the Ontario Human Rights Tribunal, the Ontario Labor Relations Board, and the Workplace Safety and Insurance Board. She also filed multiple petitions, motions, and appeals to the Supreme Court, Divisional Court, and Court of Appeal, and pursued requests for permission to the Supreme Court of Canada. This procedure formed the basis for the LDCSB’s application.

On the application, LDCSB applied for an order:

1. That Mrs. Michail will not initiate or continue any further proceedings, except with leave; and
2. Ask Ms. Michail to send a copy of the annoying process decision and all written decisions that result from the application to a person or body for whom she is initiating or continuing a complaint.

In view of Ms. Michail S.137.1’s motion, Judge Mitchell remained in the LDCSB’s motion until the motion was established.

analysis

Justice Mitchell reviewed the policy objectives in a motion under p. 137.1, including the reasonable framework established by the Supreme Court of Canada in 1704604. Ontario Limited v Pointes Protection Association et al. This provision contains a threshold test that will initially charge the moving party to demonstrate that the proceeding results from a statement made by the person relating to a matter of interest.

In the case of applications under Section 137.1, the threshold burden must be borne by the relocation party before the court can proceed with the later part of the examination and the final decision on dismissing the proceedings.

Regarding the trial before the court in which LDCSB attempted to be angry, Ms. Mikhail argued that the various trials concerned issues of public interest, including the constitutional rights of unionized workers in Canada, the rule of law, and the upkeep and maintenance of one open justice system.

In her remarks, Ms. Mikhail argued that LDCSB tried to unjustly silence her as a dismissed employee and to intimidate and censor her statements on public issues and participation in public affairs.

Judge Mitchell noted that Ms. Mikhail’s trial had a pattern of litigation as she appealed every decision she had failed, including re-examining a decision in the Supreme Court of Canada.

Applying the definition of “expression” in S.137.1 (2) of the Courts of Justice Act, Justice Mitchell noted that all legal proceedings (angry or otherwise) initiated by Ms. Mikhail are a form of “expression”. Justice Mitchell also stated that every aggravating lawsuit brought by Ms. Michail is causally linked to the underlying application by LDCSB.

Judge Mitchell concluded that Ms. Michail had failed to meet the threshold burden set out in S.137.1 (3), according to which Ms. Michail had to satisfy the court with regard to the balance of probabilities. This annoying litigation as a form of expression related to a matter of public interest.

Among their reasons, Justice Mitchell stated:

The court cannot be considered an advocate of angry litigation by treating angry litigation as a protected form of expression. Ms Mikhail seems to associate the terms that form the basis of the proceedings she has launched to date – allegations of the constitutionality of the legislation, violation of her charter rights, discrimination on grounds of disability and other human rights violations – with the term attempted by LDCSB To be “suppressed” in this motion – the initiation and continuation of annoying legal proceedings. The former is a protected term, the latter clearly not.

Inclusion of the under s. 140 CJA as caught by s. 137.1 (3) CJA would provide the protection afforded by s. 140 and granted meaningless to those against whom angry legal disputes are being led. Relief for an application that is submitted in accordance with the statutory authority in p. 140 is procedural (ie the appointment of the court as “porter”) and therefore incapable of “choking” or suppressing protected expression5.

Upon reviewing the evidence submitted by LDCSB, Justice Mitchell found that LDCSB had not prevented or attempted to suppress Ms. Mikhail’s statements. Instead, the application by LDCSB arose from the unsuccessful procedure by Ms. Michail. It was not Ms. Michail’s statements or allegations that were prejudicial in the interests of LDCSB that gave rise to the motion.

Judge Mitchell denied Ms. Michail’s request and made it unnecessary to proceed with the analysis under Section 137.1 (4). Justice Mitchell, however, left the success of the LDCSB motion for another day.

Conclusion

This decision suggests that if the relief requested in a proceeding is of a procedural nature, such matters are not eligible for requests under Section 137.1 of the Courts of Justice Act.

Footnotes

1.2020 ONSC 7331

2. 2020 SCC 22.

3. Click for another discussion of the Courts of Justice Act’s AntisLAAP Filing Test.

4. 2020 SCC 22.

5. In section 21.

Rogers Partners LLP is a seasoned civil litigation firm based in Toronto, Ontario. The company represents insurers and self-insured companies in a wide variety of areas, including automotive negligence, occupant liability, product liability, professional negligence, construction claims, statutory accident benefits, disability benefits, municipal liability, medical negligence, sexual abuse, and insurance coverage disputes.

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