The following principles are to be applied when considering an application seeking that proceedings and persons be declared vexatious: (a) “Vexatious” is broadly synonymous with the concept of abuse of process developed by the courts in the exercise of their inherent right to control proceedings. (b) Limiting access to the justice system pursuant to section 73(1) should rarely be done and only for the clearest and most compelling of reasons. Even greater restraint is called for in the exercise of this discretion when it comes to family law litigants and in particular those pursuing custody and access claims. Family law orders are subject to variation, often frequently, provided there are valid grounds. (c) In determining whether an action is vexatious, the court must look at the history of the matter, not just whether there was originally a good cause of action. (d) A failure of the person instituting proceedings to pay costs is one factor to consider. (e) Even domestic litigants should not be able, within impunity, to harass the other party or bring repetitive motions before the court with little or no prospect of success. (f) While the categories or circumstances constituting vexation are never closed, an action is vexatious if: (i) It is obvious it could not succeed, or would lead to no possible good, (ii) No reasonable person could possibly expect to obtain relief, or the court cannot grant the relief sought, (iii) An applicant has no status to pursue the remedy or no proper authority to do so, (iv) The same relief might be sought in a subsisting action, or the same purpose might have been affected in a previous action, or a party brings one or more actions to determine issues already determined by the court, (v) There is a lack of bona fides, as where there is no cause of action at all, or where it is brought for an improper purpose, including harassment and oppression of the other parties and for purposes other than the assertion of legitimate rights, (vi) Grounds and issues tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions against the lawyers who had acted for or against the litigant in the past, and/or (vii) Persistent unsuccessful appeals are taken. (See Lockwood v. Lockwood, supra)
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