QUERULOUS OR VEXATIOUS LITIGANTS, A DISORDER OF A MODERN LEGAL SYSTEM?

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1 QUERULOUS OR VEXATIOUS LITIGANTS, A DISORDER OF A MODERN LEGAL SYSTEM? by Yves-Marie Morissette, Court of Appeal of Quebec, Canadian Association of Counsel to Employers Banff Introduction Nature of the problem : Some self-represented litigants never let go. Not only do they resist any reasonable attempt to settle a dispute consensually, they never accept defeat and they continue to fight on, in any available forum, and especially in the courts, until they are forced to stop, which usually occurs when they experience financial selfannihilation. Whatever initial dispute they may have had with a spouse, a relative, a neighbour, an employer, a government agency, or any other person or institution, this initial dispute evolves and degenerates into an all-out war on every front, fought mostly if not exclusively in the courts, against one or several parties and, later, those parties lawyers, the lawyers partners, their professional regulators or their insurers, the court personnel, judges in person, or the judicial council if its decisions are subject to judicial review. And whenever possible, they apply for leave to appeal to the Supreme Court of Canada. Even among the numerous self-represented parties, these abnormally obdurate and belligerent litigants only account for a very small percentage of parties who go to court without representation. But they impose a real and threatening burden on all other participants in the administration of justice (be they lawyers, judges and court administrators or personnel). Worse still is the situation in which the parties they target in their initial dispute find themselves: more often than not, they face staggering legal costs, exhaustion through lengthy, repetitious and spurious proceedings, and despair in their encounters with the legal system. Legal and psychiatric perspectives on this problem : When dealing with litigants who present such a profile, lawyers and judges usually speak of vexatious litigants. As we shall see, there is a panoply of legal devices to restrain or prevent this form of behaviour; whether these devices are effective is a different question, but they do exist. Vexatiousness is also of interest to psychiatrists, for it is a recognized borderline personality disorder which can be diagnosed. A word also used by psychiatrists and psychologists to describe this behaviour is defined in two well-known dictionaries as follows: Querulousness: The state or condition of persons given to complaining, full of complaints, peevish. (Oxford English Dictionary first recorded occurrence in 1652) Quérulence: Tendance pathologique à rechercher les querelles et à revendiquer, d une manière hors de proportion avec la cause, la réparation d un préjudice subi, réel ou imaginaire. (Le Grand Robert first recorded occurrence in 1901) As a descriptive term, querulous is broader than the legal term of art vexatious but it gets to the root of the problem. For indeed, the querulous subject may be a vexatious litigant in court, but he may also be an abnormally difficult and disputatious person as a colleague at work, as a user of government services, as a citizen who attends city council meetings, as a church member, etc. The legal and psychiatric approaches to the problem share certain characteristics, notably with regards to the definition or depiction of this abnormal behaviour, but they differ markedly in other respects. If I were to describe in a nutshell the psychiatrist s perspective, I would say that it coincides with the lawyer s on several counts 1

2 particularly as to who may be considered or declared querulous or vexatious but that in most other respects the two perspectives are divergent. For a lawyer, the vexatious litigant s actions are abusive, disruptive of legal proceedings and a gross misuse of legal resources. 1 Such abuses are what alerts the lawyer to the problem. Containment, reparation and ultimately, repression, are therefore in order. For the psychiatrist, on the other hand, the querulous person has a serious personality disorder of the obsessive-compulsive kind (which, by the way, is not the same as a mental illness ). The only effective treatment of this disorder would be prolonged psychotherapy. Under normal circumstances, however, that scenario is unrealistic because the disorder is quintessentially egosyntonic, as opposed to egodystonic. 2 Except in the most extreme cases, bordering on actual paranoia and requiring immediate hospitalization, the best or most promising scenario for the subject and his entourage (his spouse, family, relatives, colleagues, neighbours, etc.) is to be allowed to use the court system freely. I do not wish to trivialize the issue, but in the presence of a diagnosed querulous individual, psychiatrists have a tendency to see the courtroom as one of a few substitutes for a couch. Structure of this paper : Five aspects of the topic merit special attention here. (I) As a starting point, it is convenient to use the typical profile of a vexatious litigant and the corresponding diagnosis of a querulous person in psychiatry; as I mentioned earlier, law and psychiatry share a fairly similar outlook here. (II) Another line of inquiry concerns the etiology of the disorder : what causes it and, in particular, what are there discernible organic (or medical) and societal factors that bring it about. (III) One narrower but interesting facet of the topic is how the legal profession usually reacts to this phenomenon and how the perception of the problem changes as the awareness of its scope increases. (IV) From a practical angle, one may ask: if this is the problem, what can be done about it, both from a legal and rule-bound angle, and from the point of view of psychiatry? (V) Finally, we may consider a final question and take a critical look at our response: in institutional terms, are there other ways of addressing the problem? If so, are they adaptable to the court system and are they more effective? I. Delineation of a profile and of a pattern of behaviour Querulousness and vexatiousness in the DSM-5 : Most readers will be familiar with the Diagnostic and Statistical Manual of Mental Disorders (the DSM), published by the American Psychiatric Association. Most will also have heard of the controversies which often surround the compilation and constant updating of this influential publication. It is now in its 5 th edition: DSM-5, as it has become known, succeeded DSM-IV on May 18, 2013, and information about the changes from the previous edition is freely available on the Internet. So far as I know, the words vexatiousness or querulousness do not appear as such in the DSM-5, nor did they appear in earlier editions. But there is no question that, depending on its degree of intensity, 3 the typical behaviour of a querulous litigant can fit the description of several diagnosable personality disorders 4 recognized in the DSM-5. 1 I first became aware of the problem many years ago, while I was working on a lengthy law review article about abuse of process in civil cases (see Y.-M. Morissette, «L initiative judiciaire vouée à l échec et la responsabilité de l avocat ou de son mandant» (1984), 44 Revue du Barreau 397). I noticed at the time that, in a small proportion of cases, absurd and obviously untenable arguments were occasionally offered in court by unrepresented litigants. It is only years later, however, that I connected this problem with the personality disorder of interest to psychiatrists (see Y.-M. Morissette, «Pathologie et thérapeutique du plaideur trop belliqueux» (2002), 32 Revue de droit de l Université de Sherbroke 252 et «Abus de droit, quérulence et parties non représentées» (2004), 49 McGill Law Journal 23). 2 I define these two terms later: see footnotes 15 and 16, infra. 3 Valery Fabrikant is still alive but imprisoned. Clifford Olson died on September 30, Both are convicted murderers and extraordinarily persistent vexatious litigants. In common parlance, they are also psychopaths (what the DSM calls antisocial personality disorder ). Clearly, very few vexatious litigants offer such a troubled profile. For a small sample of Mr. Fabrikant s activity in Quebec courts, see Fabrikant v. Bradette, [1996] A.Q. no 3274 (Q.S.C.), Fabrikant v. Swany, [1997] J.Q. no 4241 (Q.S.C.), Fabrikant v. Légaré, [1999] J.Q. no 1461 (Q.S.C.), Fabrikant v. Adolph, [1995] J.Q. no 285 (C.A.), and [1997] J.Q. no 1592 (C.A.), Fabrikant v. Concordia University, J.E (Q.S.C.), confirmed by Fabrikant v. Concordia University, J.E (Q.C.A.), Fabrikant v. Concordia University, [1997] J.Q 2

3 In this sense, the DSM-5 is a precise diagnostic tool which depicts reality with more nuances and from more different angles than the binary legal construct, vexatious or not vexatious. Indeed, on a number of occasions in my work as a judge, I, along with my colleagues. have observed actions which denoted an early propensity to querulousness in an unrepresented litigant perhaps something which would qualify as a mild personality disorder for a psychiatrist, but which cannot justify, under our existing rules, the issuance of a restraining order for vexatiousness. The psychiatrist s perspective in its context : The pattern of behaviour normally associated with vexatious litigants is obsessive-compulsive, a factor which may cause the subject to become aggressive and a danger to himself or to others. Querulousness shares this trait with several other known personality disorders, such as hypochondria (the subject believes, to the point of obsession, that he has a serious, even life-threatening disease that has yet to be diagnosed and the medical clinic is to the hypochondriac what the courthouse is to the querulous litigant), erotomania (the subject believes, to the point of obsession, that another individual, often a stranger of considerable prominence, is in love with him) or even the hoarding disorder 5 (which the DSM-5 describes in these terms : the persistent difficulty discarding or parting with possessions, regardless of the value others may attribute to these possessions ). The harassment of others by the subject is often a side effect of these disorders or conditions. In their most extreme form, they may cause the subject to engage in criminal activity. Thus, Osman v. Ferguson 6 involves an erotomaniac subject (a teacher) who had an obsession with one of his pupils. He shot the child and his father, injuring the first and killing the second. It seems plausible that a common denominator, perhaps the subject s very propensity to obsess compulsively about something, connects all these disorders. 7 At any rate, this appears to have been the view of Gaëtan Gatien de Clérambault ( ), a celebrated French psychiatrist and clinician, admired by Jacques Lacan, who was the head of the Infirmerie de la préfecture de police de Paris and who left no 1593 (Q.C.A.) and Fabrikant v. Adolph, [1998] R.R.A. 585 (Q.C.S.). Fabrikant is a named party in 21 judgments in the Court of Appeal of Quebec. He was successful in Fabrikant v. Swamy, 2010 QCCA 330, which resulted in a re-trial of the action and its ultimate dismissal in Fabrikant v. Swany, 2011 QCCS For a small sample of Mr. Olson s activity in the Federal Court, see Olson v. Canada, [1997] F.C.J. no 1849, Olson v. Canada, [1992] F.C.J. no 958, Olson v. Canada, [1991] F.C.J. no 339, Olson v. Canada, [1990] F.C.J. no 1123, Olson v. Canada, [1990] F.C.J. no 1121, Olson v. Canada, [1990] F.C.J. no 1120, Olson v. Canada, [1990] F.C.J. no 1118, Olson v. Canada, [1990] F.C.J. no 1045, Olson v. Canada, [1990] F.C.J. no 931, Olson v. Canada, [1990] F.C.J. no 1028 and Olson v. Canada, [1989] F.C.J. no Among them, paranoid personality disorder, antisocial personality disorder, borderline personality disorder, narcissistic personality disorder and obsessive-compulsive personality disorder. In my experience, based on collaborative with a number of psychiatrists and done over the years (such as joint publications and joint presentations made at professional, legal or medical, conferences), the category most often used is the borderline personality disorder. 5 Known in French as a compulsion de ramassage, or as the syndrome de Diogène (Diogenes syndrome, or senile squalor syndrome). 6 [1993] 4 All E.R. 344 (C.A.) see also Osman v. United Kingdom, (1998), VIII Cour Eur. D.H. (Sér. A) In Quebec, an early instance of a restraining order (an injunction, actually) against a vexatious litigant is the case of de Niverville c. Descôteaux, [1997] R.J.Q (Q.S.C.) involving Mr. Descôteaux, a disbarred lawyer who had founded an association devoted to providing (illegally) legal advice to prospective litigants see also Club juridique c. Lafrenière, J.E (Q.A.C., chamber motion). Descôteaux had earlier been disbarred for having engaged in criminal activity (harassment) that very clearly fits the description of erotomania: see the decisions of the Quebec Bar s disciplinary committee, Bernard c. Descôteaux, no of March 21, 1990, and no of May 23,

4 detailed diagnostic descriptions of erotomaniac or querulous inmates. 8 Evidently, the topic has long been of interest to some practitioners of psychiatry. The querulous person s profile : Various sources available in medical journals and psychiatric literature provide us with a generic image of the querulous subject. 9 Drawing from these and other sources, one can underscore the following points which emerge as defining features of querulousness (which, I reiterate, is a general state of mind and a diffuse phenomenon not confined to vexatiousness in litigation): Querulousness is a personality disorder of the affect, not of the subject s intellect; he or she usually demonstrates strong narcissistic tendencies but is often also of above-average intelligence and welleducated. 10 More often than not, the disorder appears during the subject s middle age, usually between the ages of 40 and Notably in his Œuvres psychiatriques, edited by Jean Fretet, Paris, Frénésie, A famous erotomaniac was Adèle Hugo, daughter of Victor, who for years pursued Albert Pinson, a British army officer, whom she followed to Halifax and later to the Caribbean islands. From 1872 until her death in 1915, she was hospitalized in a psychiatric institution. Her life inspired François Truffaut s 1975 film, The Story of Adele H. 9 See for example Paul E. Mullen and Grant Lester, Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous Paranoia to Querulous Behaviour (2006), 24 Behavioral Sciences and the Law 333; Grant Lester, Beth Wilson, Lynn Griffin et Paul E. Mullen, Unusually persistent complainants (2004), 184 British Journal of Psychiatry 352; A. H. T. Pang et C. K. Wong, Querulous Behaviour (1997), 37 Medicine Science and the Law 265; G.S. Ungvari et al., Querulous Paranoia in Chinese Patients : A Cultural Paradox (1996), 30 Australian and New Zealand Journal of Psychiatry 463; F. Caduff, Compulsive Querulousness - A Decreasing Behaviour Syndrome? (1995), 63 Fortschritte der Neurologie Psychiatrie 504; R. L. Goldstein, Paranoids in the Legal System: the Litigious Paranoid and the Paranoid Criminal (1995), 18 Psychiatric Clinics of North America 303; I. Feckelton, Querulent Paranoia and the Vexatious Complainant (1988), 11 International Journal of Law and Psychiatry 127; M. W. Rowlands, Psychiatric and Legal Aspects of Persistent Litigation (1988), 157 British Journal of Psychiatry 317; D. Miller et al., Litigiousness as a Resistance to Therapy (1986), 14 Journal of Psychiatry & Law 109; C. Astrup, Querulent Paranoia : A Follow-Up (1984), 11 Neuropsychobiology 149; R. Bolton, Differential Aggressiveness and Litigiousness : Social Support and Social Status Hypotheses (1979), 5 Aggressive Behaviour Case in point: the track record of Dr. Guillaume Kibale, the holder of a Ph.D. in economics. Quicklaw contains no fewer than 54 judgments, and perhaps more, on actions or motions instituted by Kibale as plaintiff or petitioner, proceedings by means of which he sued between 1987 and 2002 the Canadian Human Rights Tribunal (motion for a writ of mandamus dismissed on May 20, 1987, [1987] F.C.J. no. 465 (F.C.)), Transport Canada (motion for leave to appeal dismissed June 30, 1988, [1988] C.S.C.R. no. 216), the Department of the Secretary of State (costs adjudication, January 10, 1991, [1991] F.C.J. no. 15 (F.C.)), the National Energy Board (appeal dismissed with costs, December 8, 1992, [1992] F.C.J. no (F.C.A.), the Queen in right of the Province of Ontario (motion for leave to appeal dismissed with costs on March 18, 1999, [1998] C.S.C.R. no 578), the Queen (A.G. Can.) (motion for leave to appeal dismissed with costs, November 19, 1998, [1998] C.S.C.R. no 219, the University of Ottawa (appeal dismissed with costs, March 29 mars, 2000, [2000] O.J. no (Ont. C.A.)), OC Transpo (motion for leave to appeal dismissed with costs, August 22, 2002, [2001] C.S.C.R. no 538) and the Queen (A.G. Can.) (motion for leave to appeal dismissed, no mention of costs, May 15, 2003, [2001] C.S.C.R. no 500). Two complaints to the Public Service Commission of Canada and to the Canadian Human Rights Commission, described in Kibale v. Canada, [1994] F.C.J. no 161, 169 N.R. 217, appear to have been the initial dispute, that is, the origin of this barrage of proceedings, but Mr. Kibale also began some obviously unrelated proceedings against the Secretary of State in Kibale c. Canada (Secrétaire d état), [1990] F.C.J. no. 735 (F.C.) and against the Ottawa-Carleton Regional Police Services Board, in Kibale c. Ontario, [1998] O.J. no (Ont. C.A.). In Kibale v. Canada, [1997] F.C.J. no. 480, Mr. Justice Lufty (as he then was) wrote: L histoire de ce contentieux pourrait faire l objet d une requête en vertu de l article 40 de la Loi sur la Cour fédérale si la défenderesse croit que le demandeur agit de façon vexatoire en cette instance. Much earlier, in a judgment of Novembre 3, 1988, Mr. Justice Hugessen had observed, in Kibale v. Canada (Transport Canada), [1988] F.C.J. no (F.C.A.): The applicant is not a neophyte: on the contrary, he has great experience of arguing his own cases in the courts at all levels and knows quite well that he cannot always win. Furthermore, since March 25 and up to the date on which the application at bar was filed, the applicant has personally appeared and pleaded in the Supreme Court of Canada and the Federal Court of Appeal. During this same period, he made a written application to the Court of Appeal in two other cases and brought an action for damages in the amount of $800,000 in the Trial Division. It is apparent he was not unable to defend his rights; he admitted at the hearing that his alleged disability was "selective". Such a disability cannot be an excuse. As recently as July, 2008, the initial dispute resulted for Mr. Kibale in an adverse decision of the United Nations Human Rights Committee (CCPR/C/93/D/1562/2007). 4

5 The disorder is consistently more prevalent among men than it is among women. This observation is borne out by statistics from the court system: only about 25 % of the vexatious litigants subjected to a court restraining order are women. 11 It is a common characteristic of querulous subjects to appear coldly rational (an expression which is frequently used in French to describe their posture is that of a monstre froid). In its most extreme form, the subject may display the same acute symptoms as a person suffering from paranoia. As was previously noted, similar patterns of behaviour are observable in obsessive-compulsive subjects suffering from disorders formerly classified as hypochondria or erotomania. Querulousness is a borderline personality disorder which can be diagnosed by a psychiatrist 12 and which may result in a work disability; 13 it is doubtful, however, that it would qualify as mental illness for the purposes of criminal liability 14. As a general proposition, the prognosis for a person diagnosed with this particular borderline personality disorder is rarely positive: the disorder is egosyntonic 15 (as opposed to egodystonic 16 ), which curtails the effectiveness of a psychotherapy, a treatment which could otherwise work and is by far preferable to medication More on this topic below: see infra, Appendices B and C. 12 Thus, see U.S. v. Riggin, 732 F. Supp. 958 (1990), p. 960: «Dr. Small concluded that Mr. Riggin suffers from a rare form of Paranoid Personality Disorder. He further considered that Mr. Riggin may be suffering from delusional disorders of a persecutory type and further reported that Mr. Riggin behaves in a rigid, inflexible way and that he does seem to have the problem querulous paranoia. Ominously, Dr. Small concluded his report by stating that there is no good treatment for this condition». See also Guzman v. Lamarque, 2009 U.S. Dist. LEXIS 26804, p. 33, Carr v. Woodward, 2009 U.S. Dist. LEXIS 10708, p and U.S. v. Salley, 2004 U.S. Dist. LEXIS 536, p See for example Roussel v. Canada, [1998] 3 C.T.C (T.C.C.) (Mr. Roussel, a provincial civil servant, was placed on long term disability for this reason : il s est insidieusement développé chez monsieur Roger Roussel un trouble mental caractérisé par un délire de revendication qui l amène à totalement s investir dans des litiges sans fin. Cette pathologie correspond à ce que l on appelle la paranoïa querulans de type processif. ) See also Roussel v. Canada, [2001] C.T.C. 35 (F.C.A.). The case of F.L. v. Lesage, 2010 QCCS 117, J.E , to which I shall return, is an oddity: the Superior Court of Quebec holds that the plaintiff, a member of the local legal profession who was placed on long term disability by reason of her querulousness, is also a vexatious litigant because of the proceedings she instituted in person against the physician who had diagnosed her personality disorder; appeal dismissed, 2012 QCCA 1288, application for leave to appeal dismissed (with costs), [2012] S.C.C.A. No. 460). 14 As far as I know, R. v. Walsh (1990), N.S.R. (2d) 126 (N.S.Co. Ct.), where a querulous person was charged with assault, is the only case where the issue was considered, although the case is inconclusive on the specific question of whether this disorder could ever amount to mental illness in criminal law. 15 That is, consistent or consonant with the ego, in harmony with the subject s ideal self-image, who therefore has no awareness of his problem. The querulous subject typically considers that he is in the right and that everybody else is in the wrong. 16 That is, dissonant with the ego, in conflict with the subject s ideal self-image, and therefore perceived by him as something that must be corrected. 17 Medication (such as Haloperidol or Pimozide) can be prescribed but practitioners are reluctant to do so because of the severe side effects of these antipsychotic drugs. 5

6 The plasticity of the diagnosis may give rise to what psychiatrists call the apprehension of overinclusive diagnosis, as typified by the history of sluggish schizophrenia in Soviet psychiatry 18. By definition, the querulous subject is a contrarian, persistently argumentative and critical of others, but it goes without saying that not all persons with these traits have a personality disorder recognized in psychiatry. Clues for lawyers and judges : This description is largely and perhaps entirely consistent with what legal practitioners will observe in vexatious litigants. In addition, however, the following elements are sure signs of a querulous disposition morphing into vexatiousness in court proceedings: The litigant is unrepresented and (virtually always 19 ) acting in person. Vexatious litigants form but a very small subset of a much larger reality, that of the litigant in person or pro se litigant. Judicial statistics in Quebec show that, in family law matters heard in the Superior Court between 2004 and 2010, the percentage of cases involving at least one unrepresented party grew year by year as follows: 31,8 %, 33,7 %, 34,0 %, 34,3 %, 34,3 %, 35,7 %, 36,4 % (with an overall caseload varying between a low of cases commenced in 2009 and a high of cases commenced in 2004). 20 It is generally believed that the causes of this surge in self-representation are primarily economic in nature: a party is not entitled to legal aid but cannot or will not afford the cost of professional legal services. These causes affect courts all over North America and they call for corrective measures 21 that have nothing in common with the institutional responses appropriate for dealing with vexatious litigants. The fact remains, however, that a distinctive feature of vexatious litigants is that they appear without counsel. The vexatious litigant s attitude is characterized by his pronounced obduracy: settlement is impossible and any concession made in his favour may result in his upping the ante. The persistent reiteration and amplification of the same claims is a an almost universal characteristic of vexatious proceedings. 18 Paul Chodoff and Walter Reich offer a telling account of this aberration in Sidney Bloch, Paul Chodoff and Stephen A. Green (ed.), Psychiatric Ethics, 3 rd ed., New York, Oxford University Press, In a chapter entitled Misuse and Abuse of Psychiatry : An Overview, at p. 58, Chodoff writes on psychiatry in the former USSR:... the Snezhnevsky system made it easy to classify dissenters as suffering such illnesses as sluggish schizophrenia, a diagnosis not disqualified by seeming normality and absence of symptoms, or, as is illustrated by the case of General Grigorenko, by a panoply of human characteristics mislabelled as symptoms. Reich, at pp. 196 and fol. in a chapter entitled Psychiatric diagnosis as an ethical problem, explains : In its definitions of the schizophrenic disorders this system employed such broad and loose criteria that it permitted the diagnosis of schizophrenia in cases in which, in the West, there would be no finding of any mental illness. A list of these criteria, or symptoms, includes (p. 203) originality, ideological formulations, fear and suspiciousness, religiosity, depression, ambivalence, guilt, internal conflicts, and behavioural disorganization, intensity, attention to detail, poor adaptation to the social environment, shift of interests, reformism. 19 I say virtually always because one would like to think that virtually all members of the legal profession will decline to take part in proceedings conducted in a vexatious manner. I know of one case, however, where a member of the Quebec Bar who belonged to a sect engaged in behaviour on behalf of this group which fits the description of vexatious conduct: see the judgment of the Chief Justice of Quebec in Bohémier c. St-Onge, 2009 QCCA 1371, particularly at par According to a recent report cited below, infra, note 47, the inordinate costs of litigation have led to a massive increase in the number of litigants who represent themselves [in family law disputes] now as much as 70 or 80 per cent. 21 See for example Alicia M. Farley, «An Important Piece of the Bundle: How Limited Appearances Can Provide an ethically Sound Way to Increase Access to Justice to Pro Se Litigants» (2007) and the Canadian Judicial Council s Statement of Principles on Selfrepresented Litigants and Accused Persons, 2006, available on line. 6

7 Substantively, the arguments raised by the vexatious litigant are often unintelligible or highly confused; when they are not, they tend to be characterized by their legal incongruity. 22 The style of written submissions in pleadings, factums and the like by vexatious litigants is quite distinctive. In 2004, Dr. Grant Lester and his co-authors identified the following highly characteristic features 23 : o o o o o Opaqueness and excessive length of written complaints or submissions. Faulty terminology and syntax. Emphatic tone reinforced by the use of bold, underlined, highlighted words and differentiated fonts. Multiple appendices and supporting documents. The expression of a keen desire for moral vindication. All adverse judgments are followed by the systematic exhaustion of all rights of review, appeal or revocation of judgment. 24 Unsustainable allegations of bias, groundless demands for recusal, and gratuitous complaints against lawyers, the Bar, the Law Society, adjudicators, judges and judicial councils eventually result from the initial dispute. Often, the cycle comes to an end when the vexatious litigant is unable to pay legal (court) fees and costs, and is eventually forced to file for personal bankruptcy. At a conference of the British and Irish Ombudsman Association held in April of 2005, a workshop on persistent complainants produced a document which presents a gradation in the severity of querulous behaviour (see Appendix A). It accurately describes the levels of severity in vexatious behaviour. II. Plausible causal factors Historical traces of abusiveness in legal proceedings : A view commonly held among Quebec judges 25 is that the problem which vexatious litigants pose for the courts has grown steadily in magnitude in the last fifteen years. I agree up to a point, but we must be careful not to overstate things. 22 The case of Fabrikant v. Adolph, [1995] J.Q. No. 285 (Q.C.A.) provides a good illustration. In his action for defamation against the Montreal Gazette, Mr. Fabrikant pressed the view that he was entitled to proceed without paying any of the legal fees provided for in the relevant tariff. The argument was rejected in the Superior Court. Mr. Fabrikant appealed and asked the Court to AFFIRM the applicability of the Henry VIII Statute of A.D in Canada; AFFIRM the general right of poor people to proceed in forma pauperis upon showing the appearance of right and the inability to afford payment of legal fees in all courts of the Province of Quebec and in all kinds of litigation. (The statute he invoked was actually passed during the reign of Henry VII, not Henry VIII.) The appeal was unsuccessful. 23 Grant Lester, Beth Wilson, Lynn Griffin and Paul E. Mullen, Unusually persistent complainants (2004), 184 British Journal of Psychiatry One troubling consequence of this state of affairs is that, paradoxically, vexatious litigants are over-represented in appellate jurisdictions. In Quebec, they occupy a sizable amount of court time in hearings for leave to appeal where leave is necessary and in hearings on motions to dismiss brought by respondents, when the vexatious litigant appealed as of right. 25 But, it would appear, not only among Quebec judges: see the comments of Mr. Justice David W. Stratas, of the Federal Court of Appeal in «Federal judges take steps to curb nuisance lawsuits», The Globe and Mail, 14 novembre 2012, p. A-15. 7

8 On the one hand, there is solid evidence that querulousness, as a personality disorder, has existed for quite a long time. There are traces of it in old documents and in ancient literature. 26 The notion of vexatious proceedings itself made its official appearance in English common law in 1887 with the judgment of the English Court of Appeal in Grepe v. Loam 27. Grepe appeared in person in this case, his pattern of behaviour then and before showed in all likelihood that he was a querulous individual, and he was subjected to the first restraining order of its kind, which later became known as a Grepe v. Loam order. But there is more. The existence at common law, and for a long period, of the offences and torts of maintenance, champerty and barratry shows that repressing vexatious litigation and indemnifying victims of such acts was a concern early on in the development of the law. Barratry, defined as the act or practice of bringing repeated and spurious legal actions solely to harass, could earn the offender a fine, and as a tortfeasor he could also be condemned to pay damages. The rationale for a tort of maintenance may have evolved over time but it was always grounded in a concern about dishonest or abusive litigation. 28 In most common law systems, these offences and torts have now been abolished by statute, though not so long ago in some jurisdictions: for example, in New South Wales, the Maintenance and Champerty Abolition Act was passed in On the other hand, it is a fact that, in Quebec, many of the procedural devices used to prevent or control vexatious proceedings were created recently. The Grepe v. Loam type of ruling was introduced in Quebec by a judgment of the Superior Court, Yorke c. Paskell-Mede, 29 less than twenty years ago. 30 The rules, specifically aimed at comportement vexatoire ou quérulent/vexatious or quarrelsome conduct, only made their appearance in the Code of Civil Procedure on June 4, 2009, though some earlier amendments to the Rules of practice of the Superior Court and the Court of Appeal had been made to address the same problem. 31 These indications tend to confirm that, at least in terms of the awareness of the problem, and of the need to take effective measures to correct it, a recent intensification of vexatious behaviour by litigants in person is what spurred the courts and the legislature into action. An intriguing explanatory hypothesis : Ian Hacking is one of the very few living Canadians who have achieved considerable international recognition and stature as a philosopher (Charles Taylor is perhaps the other name that 26 When Jean Racine ( ), the great French classical playwright, wrote his comedy Les plaideurs in 1668, he staged as his two main characters the commoner Chicanneau and the countess Pimbesche, both of whom would undoubtedly be declared vexatious today. In Descarreau c. Voyer, a judgment of the Conseil souverain in New France rendered on April 11, 1740, a party received a hefty fine for having filed a spurious appeal ( un fol appel, as the phrase went in those days). 27 (1887), 37 Ch.D A fourth edition of John G. Flemming s The Law of Torts, Melbourne, The Law Book Company, 1971, states at p. 548 (footnotes omitted): The promotion or support of contentious legal proceedings by a stranger, who has no direct concern in them, is a wrong actionable at the suit of the other party, in the absence of justifying circumstances. This tort, known as maintenance, stems from a time when officious interference in litigation was a wide-spread evil, practiced by powerful royal officials and nobles to oppress their vulnerable neighbours. But after the Tudors had crushed the baronage and purged the judiciary, the prevalence of maintenance as an engine of oppression rapidly diminished, and later cases reveal it rather as a deplorable mode of paying off a score against an adversary. Its survival in modern law, though in greatly attenuated form, must be attributed to a persisting, if perhaps exaggerated, fear that it is still a needed safeguard against blackmail and speculation in lawsuits prone to increase litigation. And naturally, on a parallel course, a defendant could also sue for malicious prosecution and for abuse of legal process. 29 [1996] R.J.Q Two or three years before 1996, there were a couple of orders that effectively replicated the Grepe v. Loam ruling, but it is only in 1996 that the Superior Court of Quebec made explicit in a reasoned judgment why such orders would be made in appropriate cases. 31 Namely Rules 94 and 95 of the Rules of the Court of Appeal of Québec in Civil Matters, and Rules 84 to 90 of the Rules of Practice of the Superior Court of Québec in civil Matters. 8

9 immediately comes to mind). 32 Although much of Hacking s work is in the domain of logic, mathematics and analytical philosophy, 33 his research interests are eclectic. In 2001, he was the first Canadian ever, as far as I know, to take up a research chair at the prestigious Collège de France in Paris, a Chaire de philosophie et histoire des concepts scientifiques. The scope of his enquiries under that general theme is apparent from his inaugural lecture 34 at the Collège de France and at the time of this lecture, he had already published a few titles in which he explored the looping effect of classifications of people and their behaviour. Not long before his election to this chair, Hacking had published two books critical of certain aspects of modern psychiatry as a scientific discipline, Mad Travellers: Reflections on the Reality of Transient Mental Illnesses 35 and Rewriting the Soul: Multiple Personnality and the Sciences of Memory 36, in which he offered case studies of what he calls transient mental illnesses. In The Social Construction of What?, 37 in a chapter entitled Madness: biological or constructed?, Hacking explains what he means by that phrase transient mental illnesses : I now turn to a quite different field of conflict, also couched in terms of construction. Mental illness provides the most pressing example. It is easy to be sceptical about many entries in contemporary diagnostic manuals. How about Intermittent Explosive Disorder? Certainly, some people fly off the handle all too easily, but do they suffer from a mental illness, IED? Or is this just some construct concocted by psychiatrists? We suspect that IED has to do with medicalizing disagreeable patterns of behaviour. It is easily argued that IED is not a diagnosis but a disciplinary device. If someone said that Intermittent Explosive Disorder is a social construct, I might wince at the overuse of social-construct talk, but would understand roughly what was meant. Other mental illnesses are what I call transient. I do not mean that they last only for a time in the life of an individual. I mean that they show up only at some times and some places, for reason which we can suppose are connected with the culture of those times and places. The classic example is hysteria in late-nineteenth-century France. There is multiple personality disorder in recent America. There is anorexia of which young women can die which is quite local in its history; at present it is more virulent in Argentina than anywhere else. It is all too tempting to call these social constructs. 32 Both have had stellar academic careers, Hacking at Cambridge, Stanford and the University of Toronto, Taylor at Oxford and McGill, both have received much admired international awards, Hacking the Holberg International Memorial Prize in 2009 (two years after Ronald Dworkin), Charles Taylor the Templeton Prize in Their interests differ, however, for Hacking is essentially a philosopher of science, who trained first in mathematics and physics. 33 I am thinking here of Logic of Statistical Inference, Cambridge, Cambridge University Press, 1965, The Emergence of Probability, Cambridge, Cambridge University Press, 1975, The Taming of Chance, Cambridge, Cambridge University Press, 1990, Probability and Inductive Logic, New York, Cambridge University Press, 2001, but also of The Social Construction of What?, Cambridge Mass., Harvard University Press, Ian Hacking, Inaugural Lecture: Chair of Philosophy and Scientific Concepts at the Collège de France, 16 January 2001 (2002), 31 Economy and Society Charlottesville, University of Virginia Press, Princeton, Princeton University Press, Supra, note 33, p

10 His point, as I understand it, is not that anorexia is a social construct, but that the culture of a time and place makes possible and reinforces, for a limited period of time, the emergence of a real mental disorder or illness. 38 And that observation usually points to a looping effect. 39 Hacking s notion of a looping effect focuses on medical or psychiatric classification: the classification hysterical expresses a cultural predisposition in late-nineteenth- century France to taking note of particular symptoms and as such, it brings to light and reinforces a particular disorder. But there is no reason why only psychiatric classifications should be able to beget a looping effect. Any social practice ought logically to have that potential. My own point here is certainly not that the borderline personality disorder which even psychiatrists sometimes call querulousness and vexatiousness is mere social construct whose existence can be attributed to some diagnostic classification. On the contrary, I consider that it is very real indeed. In my current occupation, I have plenty of opportunities to conduct in situ empirical investigations (a manner of field work ), and I would never dispute that this reality exists. My point, simply put, is rather that there is a looping effect at work here, which reinforces the disorder and expands the magnitude of the phenomenon. Societies which value and take seriously individual rights, particularly what I would call inchoate individual rights such as quite a few of those found in charters and in human rights legislation, 40 and societies which value and take access to justice seriously, are fertile ground for these disorders. Let me pursue this idea a little further with a few additional pieces of information: A former student of mine, Mathieu Beauregard, entered law school after completing an award-winning thesis in sociology which he published in Paris under the title La folie de Fabrikant. 41 In it, he developed an argument on the basis of Durkheim s concept of anomie. This concept refers to a lack of social norms, either because of a normative vacuum or because of broad areas of normative indeterminacy. Beauregard argued, quite persuasively, that prior to the four murders of 1992 for which he was convicted, Fabrikant s enduring and severe querulousness, evolving in the context of a large urban university where he practically never encountered normative boundaries, or any resistance from the administration (no closure), ensured that his anger would feed upon itself and grow in intensity. Regrettably, that is what seems to have happened. 38 Obsidional fever, mad travelling (fugue pathologique, automatisme ambulatoire), hysteria, dipsomania, neurasthenia, megalomania, homosexuality, anorexia, bulimia, multiple personality disorder, hyperactivity, the Stockholm syndrome, the post-traumatic stress syndrome, the recovered memory and the false memory syndromes are all confirmed or potential candidates for transience. 39 In his inaugural lecture, supra, note 34, p. 10, Hacking provides the following clarifications on this concept: Systematic and institutionalized social sciences have their retinues of statistical data and computer analyses that work with classifications of people. It is taken for granted that these classifications work in the same way as those in the natural sciences. In fact the classifications in the social sciences aim at moving targets, namely people and groups of people who may change in part because they are aware of how they are classified. [ ] The medical sciences have a peculiar position. They are not quite natural sciences, not quite social sciences. [ ] it may be claimed that current systems of diagnosis and treatment themselves help to produce the kinds of disturbed behaviour characteristic of the illness. Thus the classification and diagnosis is constructed, and this very construction interacts with troubled people and helps to produce their behaviour, which in turn confirms the diagnosis. 40 I mention these, not because I am suspicious of such rights, but because I frequently observe in court how vague, open-textured and abstract notions (for example, a right to dignity ) are easier to invoke, particularly for unrepresented litigants, than rights carefully circumscribed as precise legal entitlements. That is not to say that human rights are not to be taken seriously, but they frequently call for cautious interpretations by the judiciary. That was the point I was trying to make in the recent case of Calego International inc. v. Commission des droits de la personnne et des droits de la jeunesse, 2013 QCCA Mathieu Beauregard, La folie de Fabrikant [literally, Fabrikant s insanity ], Paris, L Harmattan,

11 The theme of access to justice tends to be a recurring preoccupation for governments. In 1994 and 1996 in England, Lord Woolf, who at the time was Master of the Rolls, made public an interim and a final report on civil justice. The reports contained a range of sweeping recommendations, some of which could be implemented quickly and administratively, while others would require new Civil Procedure Rules. The Blair government was favourable to these changes and there is every reason to think that, indeed, access to justice was substantially improved in England. If one looks at the incidence of restraining orders in the High Court of Justice of England and Wales before, during and after the period of these major reforms, it is difficult to resist the conclusion that better access to justice entails more activity by vexatious litigants (see Appendix B). A process of reform of civil procedure, inspired at least in part par the Wolf Reports, began in 2001 with what became known as the Rapport Ferland, followed in 2002 by legislation which came into effect in January of Again, a tabulation of restraining order in Quebec from 1993 to today leads to a conclusion similar to that drawn from the English experience (see Appendix C). I shall return to these appendices for they also provide other revealing data. There can be little doubt, in my view, that the Web is a powerful tool for the facilitation of access to justice. But it also facilitates access to the courts for vexatious litigants. It makes legal information and other sources available to them to which access used to be difficult. It facilitates crowd sourcing and the dissemination of dubious information. One relatively recent but disturbing development, which may owe its very existence to the ease with which anyone can access virtually any information via the Internet, is what Associate Chief Justice Rooke of the Alberta Court of Queen s Bench called in a recent case OPCA litigants. 43 This case makes for riveting reading The acronym OPCA litigants stands for Organized Pseudolegal Commercial Argument litigants. It describes groups of litigants such as Detaxers, Freemen or Freemen-on-the-Land, Sovereign Men or Sovereign Citizens, as well as members of movements known as the Church of the Ecumenical Redemption International (CERI) or Moorish Law a few years ago, we had in Quebec a version of this aberration, which may also exist elsewhere, Fathers 4 Justice, who took family law as a personal affront. These are groups with extreme libertarian or subversive inclinations, who simply resist the application of the law by any available means, including the filing in courts of verbose, absurd and incendiary pleadings. What is especially disturbing here is that the Internet federates these groups and exposes the colleagues, employers, neighbours, their members exspouses, etc, of their members to what could legitimately be described as compulsory injustice, the polar opposite of access to justice. Vexatiousness thus becomes the vector of an ideology for a class of the actors in the legal system. One must be careful to draw a clear distinction, here, between self-represented litigants and vexatious litigants. The latter, I believe, are a very small subset of the former. They cause problems for the legal system, and specifically to the courts, which for the most part are quite different from the systemic issues raised by the multiplication of nonvexatious self-represented litigants. It must also be acknowledged that most legitimate attempts to resolve some of these last issues, by means of various measures facilitating access to the courts, may actually aggravate the problems posed by vexatious litigants. At the very least, anyone engaged in research on these topics, and wishing to recommend certain changes to improve access, should bear in mind that such a connection, or such a negative trade off, does exist. There may be, and there most probably are, serious reasons for criticizing the failure of the court system to more effectively accommodate the needs of self-represented litigants and for looking at ways of improving their 42 I described this process and some of the impacts this reform had on civil justice in Quebec in Gestion d instance, proportionnalité et preuve civile : état provisoire des questions (2009), 50 Cahiers de Droit Meads v. Meads, 2012 ABQB

12 situation. To date, however, I note that the connection I mention in the last paragraph is rarely taken into consideration. The Canadian Judicial Council did so, in a manner of speaking, in its Statement of Principles on Self- Represented Litigants and Accused Persons, released in September But academic research on selfrepresented litigants tends to ignore the problem and to blame the courts for inadequate 45 or even discriminatory 46 responses to the needs of self-represented litigants. According to a news report, a major and very recent effort 47 at improving policy on access to justice contains no more than a passing mention to what is perhaps the most extreme form of obstacle to justice (as opposed to access to justice ) : having to face a vexatious litigant, in full orchestral form, who stops at nothing to destroy you, financially and emotionally, by abusing the often passive instrumentality of the courts. III. Changing perceptions of the problem The Prato Conference : In 2006, Monash University of Victoria, Australia, organised an international and multidisciplinary conference on vexatious litigants which was held in Prato, Italy. The conference was attended by lawyers, judges, ombudsmen, psychiatrists and civil servants from several Commonwealth and European countries. One paper, presented by Mr. Walter Merricks, who at the time was the Financial Services Ombudsman in the UK, was particularly interesting and I shall return to it later in my presentation. But another speaker was the Master of the Rolls at the time, Sir Anthony Clarke (now Lord Clarke of the Supreme Court of the United Kingdom), who traced the history of Grepe v. Loam orders and the subsequent Vexatious Actions Act 1896 from the last quarter of the XIX th to the present. He attributed the rise of vexatious proceedings to the movement for reform and 44 The Statement contains three mentions of vexatious litigants, including the following one: Self-represented persons, like all other litigants, are subject to the provisions whereby courts maintain control of their proceedings and procedures. In the same manner as with other litigants, self-represented persons may be treated as vexatious or abusive litigants where the administration of justice requires it. The ability of judges to promote access may be affected by the actions of self-represented litigants themselves. 45 The self-represented litigants perspective naturally predominates in Professor Julie Macfarlane National Self-Represented Litigants Project, which led to the release in May 2013 of a 147 page report currently available on line : The word vexatious appears once, at p. 125, where it is recommended that additional training to enable the identification and management of vexatious and disruptive SRL s should also be provided. But several of the other recommendations could have powerful enabling effects for vexatious litigants. And this observation suspiciously sounds to me like an exhortation to educate the judges in order to cause the problem go away. In my respectful view, things are not that simple. 46 That appears to be the perspective of Professor Didi Herman in her Hopeless cases: race, racism and the vexatious litigant (2012), 8 International Journal of Law in Context 27. In an abstract of her article, she writes: the fourth and main part of the article explores some questions raised by observing judicial narratives of vexatiousness in decisions involving not-white and/or immigrant litigants. I argue that we can understand vexatious litigation as being about a passionate search for justice, as opposed to or at least as well as an obsession. That, rather than suffering from delusions, many vexatious litigants may, instead, be very well aware of reality but simply not prepared to accept or succumb to it. I argue that while vexatious litigants appear to be unable to get over their old injuries, we can reconceptualise these dynamics in a way that acknowledges how such melancholic attachments can underpin human agency and social change. 47 In August 2012, the Chief Justice of Canada, in a speech to the annual meeting of the Canadian Bar Association, expressed serious concerns about access to justice (see The Lawyers Weekly, August 24, 2012 issue on the Web) and referred to the work of the national Action Committee on Access to Family and Civil Justice, chaired by her colleague, Mr. Justice Thomas Cromwell. An article by Kirk Makin in The Globe and Mail of March 27, 2013, gave some indications of what the still unreleased report will say. According to this article, [t]he ground-breaking report also recommends the imposition of painful cost awards against litigants who behave badly or impede settlements, an encouraging sign. 12