Ontario Superior Court Denies Vexatious Litigant Appeal Leave

Court finds proposed appeal was an abuse of process and lacked reasonable grounds The Ontario Superior Court of Justice has denied a vexatious litigant leave to continue an appeal arising from a discontinued personal injury action, finding the proposed appeal constituted an abuse of process and lacked reasonable grounds. In Yan v. Cornacchia and Aviva, 2026 ONSC 5360, the applicant sought leave under s. 140(3) of the Courts of Justice Act to appeal a December 2025 decision that struck her third-party claim and denied leave to amend her statement of defence to advance a counterclaim. The underlying litigation arose from a motor vehicle accident in which the applicant rear-ended another vehicle. The driver commenced a personal injury action in 2020, and Aviva Insurance Company of Canada insured the applicant. The applicant initially served a statement of defence while self-represented. Aviva later retained Dutton Brock LLP, which served another statement of defence and a jury notice without knowing about the applicant’s earlier defence. The action proceeded through discovery and settled at mediation without Aviva making a payment on the applicant’s behalf. A notice of discontinuance was served and filed in June 2025. After the action settled, the applicant sought leave to amend her defence to pursue a counterclaim. She also served Aviva with a draft third-party claim seeking damages for pain and suffering, aggravated damages and punitive damages. Before those steps, however, the Superior Court had declared the applicant a vexatious litigant in January 2025. The order prohibited her from instituting further proceedings, or continuing previously commenced proceedings subject to specified exceptions, without leave of a Superior Court judge. The court found that the applicant required leave to initiate any proceedings but brought the underlying motions to amend her pleadings without first obtaining leave. Under s. 140(4)(a) of the Courts of Justice Act, leave may be granted only if the court is satisfied that the proceeding is not an abuse of process and that there are reasonable grounds for it. The moving party bears the burden on both requirements. The Superior Court found the applicant failed to establish that the proposed appeal was not an abuse of process. It noted that she did not provide sworn evidence that she was unaware of the vexatious litigant order when it was made. The court also found no reasonable grounds for the appeal. The applicant alleged procedural unfairness, failure to consider material evidence, summary dismissal of properly pleaded claims, failure to apply the “plain and obvious” test under Rule 25.11 and an error in awarding costs. The court rejected those grounds. It found the applicant had received the motion materials, filed written submissions and made oral submissions. It also found that the documents she challenged were irrelevant to whether she could advance claims after the underlying action had been discontinued. The court further found that the earlier motion concerned whether the counterclaim and third-party claim could proceed after discontinuance, rather than their substantive merits. Rule 25.11 was therefore not engaged. The court denied the application and ordered the applicant to pay Aviva costs fixed at $2,500.