The company’s self-represented employee said the dispute had a 'David and Goliath' nature
The Ontario Court of Appeal has affirmed a vexatious litigant order that litigation boutique Lenczner Slaght LLP sought against a pharmaceutical company and its sole employee, finding that the litigants repeatedly initiated proceedings “that are misconceived and have no prospect of success.”
According to the OCA’s Dec. 5 decision, this pattern began in 2017, when Kevin Drizen of GlycoBioSciences Inc., a pharmaceutical company founded by Drizen’s father, began directing the company’s legal affairs. Drizen represents the company in court himself.
The appellate court said that while Drizen does not conduct himself in an uncivil manner in court, his conduct of litigation “has increasingly drawn negative comment from the bench and adverse costs awards,” many of which remain unpaid. The court noted that repeatedly bringing poorly-conceived lawsuits “puts opposing parties to significant expense and uses up court resources that would be better deployed elsewhere.”
Lenczner Slaght asked a lower court to declare both Drizen and GlycoBioSciences vexatious litigants after the company took legal action against the law firm and one of its clients. The court granted the firm’s request.
The OCA sided with the lower court. While Drizen acknowledged that GlycoBioSciences had frequently initiated legal proceedings, he argued that the company had a legitimate aim of protecting its legal rights from other commercial entities that had infringed upon them. Drizen also rejected the notion that the company was a “patent troll,” a type of business model that involves suing other companies for patent infringement.
But the OCA rejected these arguments, noting that Drizen and GlycoBioSciences meet nearly all the criteria of a vexatious litigant identified by decades-old case law. These criteria include not paying awards of costs amounting to hundreds of thousands of dollars, bringing proceedings against parties outside of the court’s jurisdiction, and accusing court officials and judges of bias and misconduct.
In a statement on Tuesday, Drizen told Canadian Lawyer that while he understood the OCA’s decision, he emphasized the “David and Goliath nature of having counsel from one of Toronto’s top litigation firms, up against a self-represented litigant.”
He said the decision “will almost certainly be used to keep other self-represented litigants from representing themselves and their corporations.”
Drizen added, “It seems that instead of allowing more freedom to self-represented litigants to represent themselves in what is an extremely expensive legal system, the courts in Ontario have moved in recent years to make representing one self more difficult, and it seems Rule 15.01(2) [of Ontario’s Rules of Civil Procedure] that allows a non-lawyer to represent a corporation is becoming weakened.”
Lenczner Slaght associate Dan Malone, one of the lawyers representing the firm in the case, said the firm was pleased with the OCA’s decision, adding that the decision speaks for itself. He declined to comment further.
