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March 27, 2017

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'Road map' on dealing with vexatious litigants? BY ALEX ROBINSON Law Times L awyers say a recent Federal Court of Appeal decision declaring a litigant vexa- tious will bring greater certainty to when and how law- yers should bring motions to curb frivolous litigation that is sucking up court resources. In Canada v. Olumide, Justice David Stratas called on litigants to bring applications to weed out vexatious litigants as early as pos- sible, saying every moment the courts devote to a vexatious liti- gant is a moment unavailable to a deserving one. ". . . Too often though, the ap- plicants do not start vexatious litigant applications for months, if not years, even many years," Stra- tas wrote in his decision. "In the meantime, much damage to many is done." The decision concerned a liti- gant, Ade Olumide, who "f louted" court orders and brought at least 47 matters before various courts in around three years, 18 of which were before the Federal Court and dismissed summarily. Lawyers say the decision pro- vides a good guideline as to when they should bring applications un- der s. 40 of the Federal Courts Act, which allows judges to bar vexa- tious litigants from bringing any further matters before the court without first obtaining leave. "It's great that a judge is taking the time to put together this play- book," says lawyer Michael Myers of Papazian Heisey Myers. Myers says the decision encour- ages lawyers not to wait to file an application under s. 40 when they find themselves up against vexa- tious litigants. "You can find yourself in a black hole-type spiral into noth- ingness dealing with vexatious litigants if you allow them to be vexatious," he says. "Don't get mired in the muck for a couple of years trying to fight your way out of a paper bag when CRIMINAL LAW OUT OF STEP HIV-related stigma and discrimination pervasive P7 FOCUS ON Class Actions P8 See Ruling, page 4 PM #40762529 $5.00 • Vol. 28, No.11 March 27, 2017 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M CHARGE STAYED Company in legal battle after workplace death P5 BY ALEX ROBINSON Law Times T he Licence Appeal Tri- bunal is still experien- cing growing pains a year into its mandate to adjudicate accident benefit dis- putes, lawyers say. As the LAT approaches the end of its first year conducting the Automobile Accident Benefits Service, lawyers are voicing con- cerns over how the new resolution system has operated so far. Among their concerns are the non-existence of costs awarded and the tribunal's adjournment process, as well as the conduct of case conferences and hearings. Some lawyers say the tribunal's procedures are being followed too strictly, affecting the fairness of hearings. "There needs to be common sense in any system. If parties agree to an adjournment, it should be granted," says Duncan Macgil- livray of White Macgillivray Les- ter LLP. "If a submission is slightly too long, that could be dealt with by ordering some costs against that party, not dismissing the claim on its merits." The LAT started hearing ac- cident benefit matters on April 1, 2016, when it took over from the Financial Services Commission of Ontario, with the intention of mak- ing the process more efficient and has so far rendered decisions in 63 disputes as of the end of February. The tribunal has received 5,819 applications in accident benefit matters, 3,540 of which were set- tled or withdrawn, according to data provided by a LAT spokes- woman. The LAT held case con- ferences in 2,526 of the applica- tions and hearings in 149. The tri- bunal also received 487 claims that were not accident benefit related. Of the decisions that were ren- dered, costs were awarded in only two, leading to concern that this might lead to more applicants representing themselves in the system or simply act as a barrier to some bringing an application. Lawyers say this has erected a bar- rier to access to justice. Catherine Zingg of Flaherty McCarthy LLP says the lack of costs is particularly hard on appli- cants' counsel. "I think the idea might be that people would represent them- See Tribunal, page 4 Heather Kawaguchi says there have been a number of growing pains for the Licence Appeal Tribunal, as it sorts out its procedures, and for lawyers trying to grasp the new system. Photo: Robin Kuniski Lawyers say LAT has issues one year in Michael Myers says a recent ruling encour- ages lawyers not to wait to file an application under s. 40 of the Federal Courts Act, when they find themselves up against vexatious litigants. 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