Ontario Superior Court of Justice

Court File No.: CV-24-0078-00
Date: 2025-02-05

Between

Lenczner Slaght LLP
Applicants
(M. Robbins and D. Malone, for the Applicant)

and

Glycobiosciences Inc. and Kevin Drizen
Respondents
(Kevin Drizen, self-represented for himself and Glycobiosciences Inc.)

Heard: February 3, 2025
Mandhane, J.

Reasons for Judgment

On Application under s. 140 of the Courts of Justice Act

Introduction

[1] Glycobiosciences Inc. (“Glyco”) is an Ontario corporation that licenses intellectual property for a medical product. Kevin Drizen is an officer and director of Glyco, and its principal and controlling mind.

[2] Glyco has a long history of bringing actions in Ontario and before this Court. Since 2017, Mr. Drizen—who is not a lawyer—has been granted leave to represent Glyco. In the intervening eight years, not one of Glyco’s many court actions have proceeded to a hearing on the merits. Instead, the matters have become mired in litigation about preliminary jurisdictional issues, with related reviews and appeals. Throughout, Mr. Drizen has accused various lawyers and judges of wrongdoing and bias, overwhelmed the court with his voluminous materials, and refused to pay the costs awarded against him.

[3] Lenczner Slaght LLP (“the firm”) now brings an application to have Glyco and Mr. Drizen declared vexatious litigants pursuant to section 140 of the Courts of Justice Act, RSO 1990, c C.43 (“section 140”). The firm represents some of the defendants in the ongoing Glyco matters, and Glyco has previously sued the firm for alleged wrongdoing.

[4] The firm says that Mr. Drizen and his corporate surrogate, Glyco, are vexatious litigants whose disproportionate use of the civil justice system is a barrier to access to justice for parties who have legitimate claims. If I am satisfied that Mr. Drizen and Glyco have persistently and without reasonable grounds instituted vexatious proceedings or conducted a proceeding in a vexatious manner, the firm asks me to order that they be barred from continuing their current actions or instituting new proceedings without leave of this court.

[5] For the purposes of this application, the parties agreed that Mr. Drizen could both represent himself and the corporation. He opposes the relief sought by the firm and filed a record that was more than one thousand pages long. He says that the Glyco lawsuits are not vexatious, and points to various confidential settlements as proof of their merit. While he admits that the settlements have rarely been monetary, he says that they include provisions that protect Glyco’s intellectual property. He says Glyco’s only asset is his deceased father’s intellectual property, which he is valiantly trying to protect as a self-represented litigant. Mr. Drizen explains that he has chosen to initiate proceedings in Ontario because Glyco is headquartered here, because Glyco does not have the funds to hire foreign counsel, and because Glyco has not been able to retain any US lawyers on a contingency-fee basis.

[6] The parties appeared before me for a hearing of the firm’s application. I had before me their application and motion records, along with cross-examinations and factums. Both parties each provided oral submissions of approximately one hour in length. I reserved my decision.

[7] To decide this application, I must answer two questions:

• Is Mr. Drizen and/or Glyco a vexatious litigant?
• If so, what orders should I make?

[8] For reasons that follow, I find that Mr. Drizen and Glyco are vexatious litigants that must be barred from continuing or initiating any proceedings in Ontario without leave of this court.

Is Mr. Drizen and/or Glyco a Vexatious Litigant?

[9] Declaring a person vexatious is an extraordinary power that must be exercised sparingly and with the greatest of care: Dobson v. Green, 2012 ONSC 4432, para. 6. Because a finding pursuant to section 140 is so extraordinary, it is subject to an automatic right of appeal: s. 140(2.3), Courts of Justice Act.

[10] That said, declaring a person vexatious does not take away their right to access justice. The person is still allowed to initiate and continue proceedings, so long as they can satisfy a judge that they have a prima facie case and that the proceedings are not an abuse of process: Foy v. Foy (No. 2). Section 140 strikes an appropriate balance between protecting the integrity of the civil justice system, on the one hand, and protecting the individual’s right to access justice, on the other. It does this by shifting the burden onto the vexatious litigant to establish that there is a reasonable basis for the proposed proceeding before allowing them to draw further on scarce justice-system resources: Dobson, para. 8.

[11] I may only make an order pursuant to section 140 where I am satisfied that a person has “persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner.” To determine whether a litigant is vexatious, the Court must look at the whole history and not just whether there was once a good cause of action. The inquiry is objective.

[12] Courts have identified the common tactics of vexatious litigants: Lang Michener et al. v. Fabian et al.; Dobson. Vexatious litigants are persons who:

• Bring actions that are obviously not going to succeed, without regard to the financial resources involved;
• Ignore adverse rulings and procedural setbacks, including costs awards;
• Bring actions for a purpose other than asserting their legitimate rights (for example, to harass, oppress, or wear down opponents);
• Bring multiple actions to re-litigate previously-decided issues;
• Bring actions in which the pleadings tend to be rolled forward, repeated, and supplemented into subsequent actions, often with actions brought against lawyers who have acted against them before;
• Bring unsuccessful appeals;
• File voluminous materials with the court; and
• Fail to pay the costs awarded against them previously.

[13] Bearing these hallmarks in mind, I now turn to the facts before me. I start my analysis in 2017 because that is when Mr. Drizen started representing Glyco personally. That year, Justice McSweeney stayed Glyco’s action against Ansell Healthcare Product LLC (CV-132/17) on the grounds that Ontario was not a convenient forum and ordered Glyco to pay $22,000 in costs. Justice McSweeney’s order was eventually appealed, and the matter was settled out of court.

[14] In 2018, Justice Emery stayed Glyco’s action against DPT Laboratories Ltd. and Mylan Inc. (CV-30/18), and ordered $35,000 in costs, reasoning that Glyco was on notice as to the costs of civil litigation from the Ansell matter: Glycobiosciences Inc. v. DPT Laboratories Ltd., 2019 ONSC 1877. In Glyco’s factum seeking leave to appeal Justice Emery’s decision, it alleged that the judge was “heavy handed, and bias[ed]” towards Mr. Drizen as a self-represented litigant.

[15] In 2018, Glyco sued four corporate defendants for breach of contract and various torts, seeking over $35 million in damages (CV-18-137). Applying the factors set out in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Justice Shaw found that this Court had no jurisdiction over Glyco’s claim because it could not establish that there was a good arguable case that the defendants were domiciled in or carrying on business in Ontario, or that any tort was committed in Ontario: Glycobiosciences Inc. v. Fougera Pharmaceuticals et al., 2020 ONSC 2900, para. 100. Justice Shaw stated that, “there is no real and substantial connection between the action and Ontario,” and ordered Glyco to pay $25,000 in costs.

[16] In 2021, Glyco sued a Spanish law firm for damages for fraudulent or negligent misrepresentation in the handling of its foreign patents (CV-21-112). Applying the factors set out in Van Breda, Justice Miller found that this Court did not have jurisdiction to hear the claim because Glyco had not established a good arguable case that any tort was committed in Ontario: Glycobiosciences Inc. v. Herrero Associates, 2022 ONSC 3494, para. 34. Justice Miller ordered that Glyco pay costs in the amount of $50,000.

[17] Justice Miller’s decision was upheld by the Court of Appeal in Glycobiosciences Inc. v. Herrero and Associates, 2023 ONCA 331. In deciding to award costs against Glyco in the amount of $26,000, the Court of Appeal wrote that: “substantial indemnity award is warranted on this appeal for several reasons including the appellant’s reckless allegations that impugned the integrity of opposing counsel and the motion judge, the imposition of an improperly voluminous record, and the respondent’s offer to settle.”

[18] After losing at the Court of Appeal, Glyco sought leave to appeal to the Supreme Court of Canada; the leave application was dismissed: Glycobiosciences Inc. v. Herrero and Associates. Glyco then sought judicial review of Justice Miller’s costs decision before the Divisional Court. The Divisional Court dismissed the appeal because it was “frivolous, vexatious, or otherwise an abuse of process of the court”: Glycobiosciences Inc. v. Herrera and Associates, 2023 ONSC 4143. Glyco sought leave to appeal the Divisional Court decision to the Court of Appeal in CV-23-OM-0219.

[19] In 2023, Glyco sued a Mexican company, Andromaco, alleging breach of contract (CV-23-25). The firm represents Andromaco. When Justice Miller was assigned to hear Andromaco’s jurisdiction motion, Glyco brought a motion alleging that she was biased and seeking that she recuse herself. I heard that motion and dismissed it because it should have been brought before Justice Miller, and because Glyco was trying to relitigate issues already decided by the Court of Appeal. Glyco sought leave to appeal my decision to Divisional Court, but the appeal was rendered moot after another judge (Justice Miza) was assigned to hear the jurisdiction motion.

[20] Applying Van Breda, Justice Mirza found that this Court did not have jurisdiction over the Andromaco matter because there was no presumptive connecting factor to Ontario. All the agreements between the parties contained a choice of forum and choice of law clauses specifying jurisdictions other than Ontario. Justice Mirza also found Glyco’s conduct in relation to the bias motion “unreasonable” and awarded $50,000 in costs.

[21] In 2024, Glyco brought an application seeking a declaration that it was not properly served in Ontario with an action commenced by MAGNA Pharmaceuticals Inc. in Kentucky (CV-24-23). In response, MAGNA argued that Ontario did not have jurisdiction to decide the application, which was effectively a collateral attack on the Kentucky proceedings. Applying Van Breda, Justice Shaw agreed with MAGNA that the application was procedural in nature and not sufficiently connected to Ontario, noting that “the fact that Glyco is present in Ontario does not, on its own, create a sufficient connecting factor”: para. 26.

[22] Glyco has appealed both the CV-23-25 and CV-24-23 matters to the Court of Appeal. Huscroft J.A. refused to allow Mr. Drizen to represent Glyco in those appeals, noting that his performance in recent litigation and on procedural motions has been “problematic,” and ordering Glyco to pay each respondent $6,000 in costs. Glyco has sought a review of Huscroft J.A.’s decision by a three-person panel; Glyco’s other procedural motions were stayed by Wilson J.A. pending the panel hearing.

[23] Finally, I note that the matters I have reviewed are only some of the actions that Glyco has initiated before this and other Canadian courts. The firm is aware of at least 32 proceedings initiated by Glyco in Ontario Superior Court since 2017. Some matters are outstanding, some have been dismissed on jurisdictional grounds, while others have been dismissed on consent of the parties.

[24] Taking a wholistic view of Mr. Drizen’s litigation history, nearly all of the factors identified in Lang Michener and Dobson are present in the litigation that he has commenced since 2017. Mr. Drizen is:

• An individual who puts an inordinate burden on the civil justice system in Ontario,
• An individual who is impervious to the financial implications of his litigation because he sues on behalf of his corporation and then represents the corporation in court,
• An individual who initiates multiple proceedings against various defendants, and repeatedly asserts the jurisdiction of this court despite contrary court findings,
• An individual who repeatedly appeals the summary dismissal of his actions,
• An individual who does not hesitate to sue opposing law firms who stand in his way,
• An individual who instinctively accuses judges of bias and bad faith, including when appealing or reviewing their decisions, and
• An individual who steadfastly refuses to pay costs awarded against him.

[25] An individual with Mr. Drizen’s track record before the courts is, almost by definition, a vexatious litigant. The fact that Mr. Drizen has managed to settle a majority of his claims does not mean that they are meritorious. Despite claiming millions of dollars in damages since 2017, Glyco has received a grand total of just over $50,000 in settlement monies from two defendants. This dismal record speaks to a litigant who is engaged in nuisance litigation without any regard to the cost.

[26] Finally, I have no trouble concluding that both Mr. Drizen and Glyco must be declared vexatious litigants. This is because there is no practical distinction between the two: Glyco is effectively Mr. Drizen’s litigation arm, with Mr. Drizen calling all the shots. Moreover, Mr. Drizen has effectively shielded himself from personal accountability for his litigation conduct by suing under the guise of a corporation. There is no merit to Mr. Drizen’s argument that I must “pierce the corporate veil” before I can find Mr. Drizen to be a vexatious litigant. Section 140 refers to “persons,” which includes corporations and individuals, while Lang Michener makes it clear that I can make orders against both the vexatious litigant and his corporate personality.

What Orders Should I Make?

[27] I am prepared to make the orders sought by the firm, without the need for Mr. Drizen/Glyco to approve the order as to form and content.

[28] I agree with the firm that Mr. Drizen and Glyco’s ongoing litigation is problematic and calls out for the court’s immediate intervention. For example, I am aware of at least one other motion currently outstanding before the courts in which the moving party, Capital One, asks the court to find Mr. Drizen to be a vexatious litigant. I am also aware of other ongoing matters before this Court and the Court of Appeal.

[29] Mr. Drizen, or any corporation he controls, including Glyco, are prohibited from instituting or continuing any proceeding in any court in the Province of Ontario, except and until such time as leave is granted by a judge of the Superior Court of Justice, pursuant to s. 140(3) of the Courts of Justice Act.

[30] All proceedings previously instituted by Mr. Drizen, or any corporation he controls, including Glyco, in any court in the Province of Ontario, which are not yet finally disposed of, are hereby stayed except and until such time as leave is granted by a judge of the Superior Court of Justice pursuant to s. 140(3) of the Courts of Justice Act.

[31] Kevin Drizen, or any corporation he controls, including Glyco, shall deliver my reasons for decision and accompanying order to any person or body against whom they institute or continue any proceeding in any court, administrative body and/or tribunal, regulatory body, the police, and the Crown.

[32] Any proceeding instituted by Mr. Drizen, or any corporation he controls, including Glyco, without leave of a judge of the Superior Court of Justice and in violation of this order shall be a nullity ab initio.

[33] Mr. Drizen/Glyco do not require leave of this court to appeal my order declaring them vexatious pursuant to subsection 140(2.3) of the Courts of Justice Act.

Costs

[34] The firm is entitled to costs. If the parties cannot agree on the quantum of costs:

• The firm shall serve, file and upload to Case Centre its Bill of Costs, Costs Outline, any offers to settle, and submissions on costs (max 5 pages, double-spaced, 12-point font) on or before February 10, 2025.
• Mr. Drizen shall serve, file and upload to Case Centre his submissions on costs (max 5 pages, double-spaced, 12-point font) on or before February 14, 2025.
• There shall be no right of reply.

[35] I remain seized of this matter pending determination of costs.

Kawthar Mandhane
Released: February 5, 2025

Addendum

[1] The parties agreed that this application should proceed pursuant to rules 38 and 39 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rather than rule 2.1. The latter rule came into force after the application was commenced by the firm and has different notice requirements.

[2] Rather than responding to this application, Mr. Drizen brought a “countermotion” to have the application struck. There was no basis upon which to strike the application since it was not plain and obvious that it could not succeed: Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141, para. 27. However, because it was in the interest of justice to resolve this matter on the merits, I considered Mr. Drizen’s materials on the “countermotion” as constituting his substantive response to the firm’s application to have him declared vexatious.