Executive Summary: Key Legal and Evidentiary Issues

• Appellate review of a vexatious litigant order made under s. 140 of the Courts of Justice Act against both a corporation and its directing mind.
• Evidentiary record showing a pattern since 2017 of misconceived, meritless proceedings, many with no realistic prospect of success.
• History of unpaid, substantial and substantial-indemnity costs awards and nuisance-level settlements on multi-million-dollar claims relied on to establish abuse of the court’s process.
• Use of a closely held corporation as the sole vehicle for litigation, effectively shielding the individual directing mind from personal accountability.
• Application judge’s reliance on the Lang Michener and Dobson factors to identify vexatious conduct, with the Court of Appeal finding no error in that analysis.
• Exercise of appellate discretion to dismiss the appeal and award the successful respondent law firm $5,000 in all-inclusive appeal costs.

Background and parties

The case arises from long-running commercial litigation activity by GlycoBioSciences Inc. (“Glyco”), an Ontario corporation with a history of pursuing claims in the Ontario courts. Over the years, Glyco retained litigation counsel and at times achieved settlements that may have been commercially advantageous. The more recent chapter, however, is marked by a significant change in how Glyco’s legal affairs were conducted. Starting around 2017, Kevin Drizen, the son of Glyco’s founder, took over the direction of Glyco’s litigation strategy and began representing the corporation in court himself. He is a shareholder, officer, and the company’s sole employee, effectively controlling all aspects of Glyco’s operations and its lawsuits. The respondent, Lenczner Slaght LLP, is a law firm that had previously acted for clients who were on the receiving end of Glyco’s litigation. At a certain point, Glyco brought an application seeking a remedy not only against one of the firm’s clients but also directly against Lenczner Slaght. In response, the law firm applied under s. 140 of the Courts of Justice Act to have both Glyco and Mr. Drizen declared vexatious litigants. That application was granted by a judge of the Superior Court of Justice, and Glyco and Mr. Drizen appealed to the Court of Appeal for Ontario.

Glyco’s litigation conduct and pattern of abuse

The appellate decision situates the dispute within Glyco’s extensive litigation history. While Glyco’s earlier cases may have reflected legitimate efforts to vindicate its rights, the court emphasizes that from at least 2017 onward the manner in which litigation was conducted changed materially. Under Mr. Drizen’s direction, Glyco began to bring repeated, misconceived proceedings that the courts found to have no real prospect of success. Judges in various matters increasingly criticized this pattern and awarded adverse costs, some on a substantial indemnity basis, many of which remained unpaid. The Court of Appeal notes that this is not a case of intemperate courtroom behaviour. The judges explicitly state that, in their experience, Mr. Drizen did not conduct himself uncivilly. The problem, instead, is the substance and volume of litigation: cases that are fundamentally untenable, imposed on opponents who must incur significant expense to respond and on a court system whose resources are finite. The record before the application judge, and accepted on appeal, also showed that Glyco pursued claims for very large sums—actions seeking millions of dollars in damages—that ended up resolving for nuisance-level amounts. At the same time, Glyco and Mr. Drizen failed to satisfy sizable costs awards “amounting to hundreds of thousands of dollars” while continuing to launch new proceedings. The judge also found a pattern of suing parties outside the court’s jurisdiction and levelling accusations of bias and misconduct against judges and court officials. These features collectively matched the classic indicators of vexatious litigation.

Legal framework: Vexatious litigants under s. 140

The core legal issue in the appeal was whether the application judge correctly applied s. 140 of the Courts of Justice Act, which authorizes the court to control abuse of process by declaring a person a vexatious litigant. Section 140 can apply both to those who institute proceedings and to those who conduct them, even if they are appearing on behalf of a corporation. The judge at first instance measured the evidentiary record against the well-known factors articulated in Lang Michener et al. v. Fabian and later applied in Dobson v. Green. Those factors provide a non-exhaustive list of hallmarks of vexatious litigation, including persistently unsuccessful proceedings, improper purposes such as harassment or nuisance settlements, repetitive or collateral attacks on prior decisions, disregard of jurisdictional limits, and chronic non-payment of costs. The application judge concluded that “nearly all” of these factors were present in the litigation Glyco and Mr. Drizen had pursued since 2017. That conclusion was central to the order requiring them to obtain leave from a Superior Court justice before starting or continuing any new proceeding. On appeal, it was not disputed that the judge used the correct legal test. The challenge focused instead on how that test was applied to the facts and whether the record supported such a strong remedial order.

Characterization of Glyco and Mr. Drizen as a single litigation actor

An important aspect of the case is how the court treated the relationship between Glyco and Mr. Drizen. The application judge found that there was “no practical distinction” between the two, describing Glyco as effectively Mr. Drizen’s “litigation arm,” with him “calling the shots.” The judge further concluded that Mr. Drizen had shielded himself from personal accountability by litigating in the name of the corporation, using Glyco as the formal party to the proceedings while he directed the strategy. On the evidence, Mr. Drizen himself acknowledged that he was Glyco’s only officer and employee, and that he ran its day-to-day operations and managed its litigation. The Court of Appeal endorsed this characterization as “apt” and held that s. 140 properly extends to a person in Mr. Drizen’s position because it applies not only to corporations or named parties, but also to those who conduct the proceedings. As a result, there was a sound legal foundation for making the vexatious litigant order jointly against both Glyco and Mr. Drizen. The appellate court saw the order as both within the scope of the statute and justified on the factual record.

Arguments advanced by Glyco and Mr. Drizen

On appeal, Mr. Drizen did not deny that Glyco frequently resorted to litigation. Instead, he argued that the actions were not frivolous and were brought to vindicate the corporation’s legitimate commercial and intellectual property rights. Glyco rejected the label of “patent troll” and denied operating a business model based on nuisance lawsuits yielding small settlements. The appellants sought to characterize their litigation history as a determined effort by a small company to protect its valuable technology and rights against larger commercial players. However, the Court of Appeal held that whatever the legitimacy of Glyco’s business history or underlying interests might have been, the record since 2017 made it “incontrovertible” that Glyco, acting through Mr. Drizen, had “serially engaged in litigation in a vexatious manner.” The court emphasized that the pattern of misconceived cases, repeated failures, unpaid costs, and aggressive litigation tactics far outweighed any claim to ordinary, good-faith recourse to the courts. There is no discussion in the appellate reasons of specific contracts, insurance policies, or detailed “policy terms” in the insurance sense; the decision is principally about litigation conduct and abuse of process rather than interpretation of substantive policy clauses.

Outcome of the appeal and monetary consequences

The Court of Appeal dismissed the appeal and upheld the order declaring Glyco and Mr. Drizen vexatious litigants under s. 140 of the Courts of Justice Act. This means that both the corporation and its directing mind are now subject to a leave requirement: they must obtain permission from a Superior Court judge before starting or continuing any proceeding in that court. This restriction is designed to protect opposing parties and the judicial system from further abusive or meritless litigation. In terms of monetary consequences in this appellate decision, the court ordered that Lenczner Slaght LLP, as the successful respondent, receive $5,000 in costs of the appeal on an all-inclusive basis, as agreed between the parties. The reasons refer to historical unpaid costs awards “amounting to hundreds of thousands of dollars” and to prior cases that settled for modest nuisance payments, but those figures are contextual and not quantified or re-ordered in this judgment. Accordingly, in this decision the successful party is Lenczner Slaght LLP, and the only specific amount ordered in its favour is $5,000 in appeal costs; any broader total for costs or damages across the litigation cannot be determined from the appellate reasons alone.