The Appellant, R.O., appealed two Orders of a Case Management Judge which declared the Appellant a vexatious litigant and held her in contempt of Court for failing to comply with two restricted Court Access Orders. The Appellant also brought three Applications to admit new evidence.

The Court of Appeal noted that, under Rule 10.52(3), a finding of contempt required that the person know that they had breached a Court Order with the burden of proof for such a finding being beyond a reasonable doubt. The Case Management Judge held that there was no evidence which raised a reasonable doubt that the Appellant was responsible for breaching the Restricted Access Orders. In response to this finding, the Appellant sought to adduce new evidence on appeal. In this instance, the bulk of the new evidence consisted of an Expert’s Report and the supporting Affidavits for that Report. The Court concluded that the Expert’s Report could not be admitted because it did not meet the criteria set out in R v Palmer [1980] 1 SCR 759, and no injustice would arise from a decision not to admit it. While the Appellant submitted that time and expense prevented her from obtaining the Report earlier, the Court noted that she did not request an adjournment of the Application and, further, the Report contained no new evidence. The purpose of the Report was to corroborate or bolster evidence that was before the Case Management Judge. The Court noted that the appellate process could not be “routinely used to augment the trial record”; therefore, the Applications to admit new evidence were dismissed. Further, the Court noted that the penalty imposed by the Judge in striking the Statement of Claim was a reasonable exercise of the Court’s discretion.

With respect to the Vexatious Litigant Order, the Court of Appeal noted that the reasons for granting the Order were focused on this Action against the Respondent. The Court of Appeal held that the Order was too broad in that there was insufficient evidence to support a finding that the Appellant had a history of “’persistently’ engaging in any of the prohibited actions” against anyone other than the Respondent. Based on this finding, the Court of Appeal varied the Order to specifically require that the Appellant seek leave to the Court before commencing or taking any steps in litigation against the Respondent and those associated with him.