Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

British Columbia (Attorney General) v. Andrews, 2016 BCCA 361

AREAS OF LAW: Injunctions; Vexatious litigants; Access to courts

 ~The terms of an order dealing with a vexatious litigant must not be so restrictive that it lacks a suitable mechanism for the individual to attend a courthouse for a legitimate purpose.~

BACKGROUND: On January 9, 2009, the Respondent Attorney General of British Columbia filed a statement of claim seeking an interlocutory and permanent injunction, as well as a vexatious litigant order under s. 18 of the Supreme Court Act, in relation to the Appellant, Michael Andrews. The Respondent indicated that the Appellant was a serial litigant who persistently harassed and verbally abused Provincial and Supreme Court registry staff in Nelson and Nakusp, BC. An interim injunction was pronounced a few days later, and a second injunction, pronounced in May 2009, further enjoined the Appellant from attending at or near Salt Spring Island, BC. The Appellant was later found in contempt of these injunctions, but from December 2009 on abided by their terms. On January 17, 2014, the Appellant’s application to set aside the injunctions was dismissed. However, the second interim injunction was varied with the Respondent’s consent to remove the Salt Spring Island restriction. On June 4, 2015, the Respondent applied for a permanent injunction order and a declaration that the Appellant was a vexatious litigant. The chambers judge reviewed the Appellant’s history with registry and court staff, and concluded that there was ample evidence to support the allegations in the statement of claim. The judge found it particularly troublesome that many of the documents filed in the past by the Appellant were unintelligible and served no legal purpose. The Appellant’s former activities had interfered with court staff performing their functions, and the chambers judge granted the application for a permanent injunction on the basis that it was necessary to protect the public interest. He also concluded that the Appellant was a vexatious litigant, and made an order requiring that the Appellant obtain leave before filing any legal proceeding or legal document. The order also required that all contact be through one counsel in the Respondent’s Civil Litigation branch.

APPELLATE DECISION: The appeal was allowed in part. The Appellant, who was self-represented, argued that the judge erred in granting a continuing injunction where the behaviour enjoined was historical and had not recurred since 2009. He further submitted that the judge erred in finding that there was a reasonable apprehension of harm based on the evidence. Finally, he argued that the terms of the order were unreasonable. The Court of Appeal did not allow the first two grounds of the appeal. It found that the Appellant had not identified any basis upon which it could be said that the judge misapprehended the evidence, and accepted as reasonable the chambers judge’s conclusion that the absence of recent occurrences of disruptive behaviour was due to the injunction itself. The chambers judge’s decision not to lift the injunction based on this conclusion was discretionary and entitled to deference. The Court of Appeal expressed concern, however, with the requirement in the order that all contact be through one counsel with no alternative arrangements in place, and with the absence of any provision addressing the course of action in the event that the Appellant be required by summons or other court process to attend a courthouse or registry. The Court of Appeal largely accepted a revised form of order drafted by the Respondent to address these concerns, adding that a clause must be included permitting the Appellant to appear at any court in the province, in a criminal proceeding, in response to any process requiring him to appear, without having to contact the sheriff’s office first. The Court also specified that the order must provide supervising counsel with the ability to authorize the Appellant to direct correspondence to a lawyer in the Civil Litigation branch other than the one named in the order.

Counsel comments provided by Lisa Lee, Counsel for the Respondent:

“The Attorney General of British Columbia (“AG”) sought a permanent injunction enjoining Andrews (the appellant) from activities he had engaged in while accessing court services. The appellant had sought various court orders by filing unintelligible documents. He made extensive demands of registry staff. He filled the voice mail box of the executive assistant to the Chief Justice of the Court of Appeal with messages left in the middle of the night. His actions, although without ill will, worked real disruption and hardship on court services and judicial staff.

Interim injunction orders made against the appellant in 2009 contained several terms. The one that most affected the appellant’s access to court services was a term requiring him to contact Sheriff Services to make an appointment before attending a Provincial or Supreme Court.

The AG sought a permanent injunction in 2015 on terms similar to those in the interim injunction (except terms limiting access to geographic locations). Specifically, the AG sought declarations that the appellant was vexatious; had caused a public nuisance; had abused the court process; and had compromised the administration of justice.

The AG succeeded at the summary trial. The court granted a permanent injunction. The decision was appealed.

The Court of Appeal agreed that the appellant’s grounds of appeal had no merit but they were concerned with the breadth of the injunction. The injunction wording had the potential to limit the appellant’s access to Provincial and Supreme Court if legally required to attend (e.g. in criminal proceedings.). The Court of Appeal was also concerned that the term identifying a contact for communication within the Legal Services Branch of the AG, was too narrow. On the appeal, the court requested the AG’s counsel to revise the wording in lower court’s order. Revisions were made to address the appellant’s access to the courts and his contact with the AG – the revised, proposed order was provided to the division in advance of judgment.

In written reasons, the Court of Appeal agreed the appellant was a vexatious litigant; had caused a public nuisance; that the AG had standing to seek an injunction to prevent the public nuisance from continuing; that the court had inherent jurisdiction to control its own process; and that the activities of the appellant interfered with the administration of justice. However, they were not satisfied that the language was explicit enough regarding the appellant’s ability to, when required, attend a courthouse. Nor were they satisfied the proposed language regarding communication with the AG was sufficient. Specific language to this effect was provided in the Reasons for Judgment.

The practical lesson is that injunction orders, in particular, must be both extremely clear and must anticipate relevant possibilities. They must require little if any interpretation. They are orders to be used mainly by the enjoined respondent, police or sheriffs. The order is not merely the confirmation of a past event (i.e. a hearing or trial), but is a document to control decisions and conduct by non-lawyers on a “go forward” basis.

The Court of Appeal was not displeased with the spirit of the order despite requiring revisions. In fact, on its own volition, the division added a term that the injunction would apply to the Court of Appeal as well as the Provincial and Supreme Court.

The court’s ability to control its own process is a well-established principle. In most instances, the courts have exercised that ability in relation to more overt activity such as physical actions that might deter or impede a member of the public from entering a courthouse. Examples include cases like ‘tent city’ or a picket line in front of the courthouse. In this instance, the interference caused by the appellant was less direct, but equally harmful. Whether the appellant caused a redirection of sheriff services, redirection of registry staff, or simply clogged the court system with endless unintelligible documents, his activities had a direct and harmful impact on the management and operation of courthouses in the province.”