Guidance on Interpreting Frivolous and Vexatious Provisions

Many regulators have a provision permitting them to not proceed with complaints that are frivolous, vexatious, made in bad faith, an abuse of process or moot. Ontario’s Divisional Court provided guidance on the interpretation and application of such a provision in Catford v. The Health Professions Appeal and Review Board, 2017 ONSC 7411. In that case, Dr. Catford, a physician, was involved in acrimonious litigation with her uncle. In the course of that litigation, Dr. Catford expressed concerns in a letter about her uncle’s conduct towards his own daughter as well as towards Dr. Catford herself. A complaint about the letter resulted in no action against Dr. Catford other than a warning about its wording. The uncle pursued the matter against a number of other individuals and then made a fresh complaint against Dr. Catford generally related to the same conduct. The regulator declined to process it and the review Board declined to consider it on the basis that the complaint “was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process”.

The Divisional Court found the Board’s decision to be reasonable. It made the following points that will be of interest to regulators:

  • The provision permits the regulator (and review Board) to decline to deal with a complaint that “clearly has no merit, seeks to re-litigate a claim already decided or is brought for an improper purpose”.
  • This authority to decline to deal with a complaint is “consistent with the court’s determination of when a proceeding is frivolous, vexatious or an abuse of power”.
  • Factors that are relevant to the determination include situations where the dispute in which the conduct occurred is a personal one, the relevance of the conduct to the practice of the profession, any other unsuccessful proceedings (including against third parties) in which similar issues are raised, whether there is a better forum for the complainant to have raised the concerns, and whether the complaint appears to be made for an ulterior or improper purpose.
  • The previous complaint does not have to be identical to fit the criteria; it is sufficient if the previous complaint is about essentially the same issue.

While declining to deal with a complaint will continue to be a rare and exceptional outcome, there are cases in which it is an appropriate decision for a regulator.

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