“There is no established test under r. 2(5) of the FLR, or by analogy under r. 37.16 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), which must be applied in considering requests for leave required by court orders made pursuant to these provisions.
The Respondent correctly identifies that he has never been declared a vexatious litigant, pursuant to s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”). As such, the test found in s. 140(c), of the CJA, which provides that “leave shall only be granted if the court is satisfied that the proceeding is sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding”, is informative in nature only: see Huang v. Braga, 2020 ONCA 645, at para. 16.
Courts tasked with determining leave motions, hold a gate-keeping function. In the context of limitations placed on litigants pursuant to procedural powers under r. 2(5) of the FLR, leave motions should be viewed as screening mechanisms – alive to the important balance between the right to be heard and the prevention of misuse of the court process. Leave should be granted where it is in the overall interests of justice to do so. Determination of the interests of justice should include consideration of the context and merits of the motion, and an overall balancing of interests. More specifically, the court should consider:
1. The offensive or targeted litigation conduct that compelled the requirement for leave and the need to discourage that conduct;
2. A preliminary or threshold assessment of the merits of the relief sought by the moving party; and
3. A balancing of the individual interests of the litigants and the interests of public.”
Kim v. McIntosh, 2024 ONSC 7257 (CanLII) at 12-14