Jens Peter Elmgreen v. J. William Evans

(Ontario) (Civil) (By Leave)


Law of professions - Barristers and solicitors, Breach of fiduciary duty, Professional liability.


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Civil procedure – Powers of courts and judges – Power to impose sanctions for improper use of procedure – Applicant declared vexatious and quarrelsome litigant – Whether Court of Appeal erred in confirming motion judge’s declaration that applicant is vexatious and quarrelsome litigant – Code of civil procedure, R.S.Q., c. C-25, art. 54.1.

The applicant, Hanna Engel, is the executor of her mother’s Estate. In 2008, she filed an action for damages against the respondents, alleging poor administration of her mother’s affairs and estate. Each of the respondents had, at one time or another, been overseeing the affairs and estate of Ms. Engel’s mother. The respondents sought the dismissal of the action and a declaration that Ms. Engel is a vexatious and quarrelsome litigant, pursuant to art. 4.1, 4.2, 46, 54.1 and 165 of Code of Civil Procedure, R.S.Q., c. C-25. The motion judge granted the respondents’ motion to quash the action and issued an order declaring Ms. Engel a vexatious and quarrelsome litigant. He held that the action against the respondents was barred by both the statute of limitations and the doctrine of res judicata. The Court of Appeal allowed the appeal in part. While it maintained the vexatious litigant declaration, it found that the motion judge erred in his other conclusions. Indeed, the Court of Appeal found that the requirements of art. 2848 of the Civil Code of Quebec (res judicata) had not been met and that, based on the evidence, it could not be said that the action was time-barred. The applicant’s motion for rectification of that decision was dismissed by the Court of Appeal.