Regulators have noted an increase in complaints generally including complaints which are sometimes referred to as “frivolous” or “vexatious”. Examples of the latter complaints are those made by the same party or parties systematically against all staff and/or counsel involved in the litigant’s matter on the regulator’s end, or new and repeated complaints about the same factual situation.

The courts have mechanisms for dealing with parties who pursue these types of claims in the court system, notably: vexatious litigant orders and Civil Practice Note 7 (CPN7) procedure. We have previously written about the use of the CPN7 procedure as it relates to claims against regulators. But what can regulators do themselves in similar situations? What powers does a regulator have to control its own internal process as it relates to vexatious complaints or complainants?

The authority of a regulator to deal with vexatious complaints comes from its governing legislation. Some statutes allow the regulator simply to refuse to accept complaints that are vexatious, frivolous, made in bad faith, or otherwise an abuse of process.   Once the complaints director identifies the complaint as one that falls within the description in the statute, the complaints director can simply refuse to accept and review it. Other statutes may provide that this type of claim can be dismissed, and others may be silent as it relates to vexatious complaints. Where the only option under statute is dismissal, this does not address the two main reasons why regulators’ resources are strained as a result of vexatious complaints:  first, this option still requires the regulator to review the complaint in detail and provide cogent reasons for dismissal, and second, most statutes allow for those dismissals to be appealed. 

How to determine if a complaint is frivolous or vexatious?

The terminology used to describe these types of unmeritorious complaints varies from one statute to another, but the wording that is consistently used is “trivial”, “frivolous”, “vexatious”, “made in bad faith”, “abuse of process”, or some combination of those terms.  The terms overlap and may be interpreted slightly differently in different jurisdictions but as general guidance:

• “Frivolous” and “trivial” are both terms that relate to the importance, seriousness, or legal or factual basis for a complaint. Ask yourself: is the matter so minor that it does not warrant any of the regulator’s resources be spent on it?
• “Vexatious”, “bad faith” and “abuse of process” tend to relate to the purpose or intent of the complaint. They generally describe complaints that are motivated by ill-will, animosity, improper purposes and intended to vex, harass, or seek to relitigate the same issue hoping for a different result. Ask yourself: is the complaint intended to annoy or embarrass? Has this issue been adjudicated before? Is the complainant knowingly asking for an outcome that is not possible?

Vexatious complaints often clearly lack a factual basis. That alone, however, is not sufficient to render them vexatious. It is important for the regulator to properly assess whether it is simply a case of the complaint not containing sufficient evidence of unprofessional conduct, and deal with it on that basis.

In Catford v. The Health Professions Appeal and Review Board, the Court identified a few factors that are relevant to the determination of whether a claim is frivolous or vexatious, and they include:

• whether the situation where the dispute in which the conduct occurred is a personal one,
• whether the conduct complained of relates to the practice of the profession,
• whether there are any other unsuccessful proceedings (including against third parties) in which similar issues were or are raised: “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.”
• 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.

In Catford, the Complaints Committee of the College of Physicians and Surgeons of Ontario (the “Committee”) decided not to proceed with reviewing a complaint for the following reasons: the behaviour complained of did not relate to the practice of medicine, there was no reasonable prospect of the Committee taking action, and the Committee was not the appropriate forum to undertake the review. The complainant appealed the Committee’s decision to the Board, who confirmed the Committee’s decision, relying on a provision of the Health Professions Procedural Code (Schedule 2 to the Regulated Health Professionals Act of Ontario), which allowed the Board to refuse to review a complaint if it found to be “frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process”. The complaint in this case was described as clearly having no merit, seeking to relitigate a claim already decided and having been brought for an improper purpose.

What to do when you’ve deemed a complaint frivolous or vexatious?

Once a regulator decides that a complaint might fall under one or more of these categories, the best course of action to take depends on the regulator’s statutory authority. As indicated at the outset, some regulators’ statutes permit them to refuse to accept frivolous or vexatious complaints altogether, saving them the time and expense involved in providing reasons for dismissal and from being caught in a potentially never-ending loop of requests to have their dismissals reviewed. As an example, the legislation in Catford (cited above) gave the Complaints Committee (and the Review Board) the power to refuse to accept a complaint that is “frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process”, with some procedural safeguards: if the committee considers a complaint to fall under that category, it must give the complainant and the member notice that it intends to take no action with respect to the complaint and give them the right to make written submissions with 30 days after receiving the notice. If the panel is satisfied, after considering the written submissions, that a complaint was unmeritorious, the panel shall not take action with respect to the complaint.  

Other statutes limit a regulator’s ability to refuse to accept or deal with a complaint even if it is frivolous or vexatious. That is the case in the Health Professions Act (HPA) in Alberta, for example, as section 55(2)(e) only allows regulators to dismiss complaints that are trivial or vexatious. A complaints director operating under the HPA may choose to dismiss a complaint which is potentially trivial or vexatious on the basis of insufficient evidence of unprofessional conduct rather than finding the complaint trivial or vexatious, to avoid the risk of a review committee finding that characterization unreasonable or to take into consideration complainant sensitivities and other contextual factors.

Even where regulators are constrained by their legislation in this way, one possible recourse for the regulator is to seek assistance from the courts by, for example, requesting that a court issue a “vexatious litigant” order requiring a repeat complainant to seek leave from the court before filing any new complaints or appeals with the regulator. The court has said that such assistance is available where it is “essential to the proper administration of justice” (to “avoid an injustice”), where the body in question is “powerless to act” in relation to the injustice, and so long as the court intervention does not contravene existing legislation: Carter v Alberta (Ministry of Justice and Solicitor General), 2019 ABQB 491. The success of such a request to the courts will depend on the wording of the specific statute and the actions that the regulator can show it has taken to try and protect its own process from abuse. Where a regulator has exerted all of its authority as granted to it by statute, and is still not able to adequately shield itself and protect its resources from abusive complaints and complainants, the option of seeking assistance from the courts (albeit potentially costly and somewhat cumbersome) is worth exploring.

The last category of statutes are those that can be unclear or silent as to how the regulator can and should deal with vexatious complaints under its complaints process. In those cases, depending on the language of the statute as a whole, a regulator could explore an argument that it has implied authority to enact measures to quickly dispose of complaints that are deemed vexatious. An example of a statute that while silent on the treatment of vexatious complaints, grants a statutory delegate broad powers to control its process is the Alberta Human Rights Act (The Human Rights Commission is not a regulator, but as an administrative tribunal whose powers are also delegated by statute, its governing statute serves as a relevant example). Section 17(1)(a) of the Human Rights Act empowers the Commission to make bylaws respecting “procedural matters related to the handling of complaints”. The Court commented that there was “no reason to read that power narrowly, so as to exclude an ability to control vexatious complaints¹".

Regulators have noted an increase in complaints overall, including those sometimes labelled as “frivolous” or “vexatious.” Since these complaints often consume a disproportionate amount of resources, regulators are encouraged to seek guidance on managing their impact on the complaints process. Contact Vivian Stevenson, KC, Francesca Ghossein, or any member of Field Law’s Professional Regulatory Group for assistance in determining the scope of authority to address such complaints and exploring creative solutions to streamline complaint management.