Canada: An Alberta Response To The Rise In Vexatious And Abusive Litigation: Civil Practice Note 7 – Vexatious Application/Proceeding Show Cause Procedure (General Powers To Stay Or Dismiss A Frivolous, Vexatious, Or Abusive Application Or Proceeding)

Last Updated: March 13 2019
Article by Laura Bracco-Callaghan

The number of self-represented litigants ("SRLs") is on the rise in Canada. Data collected by the National Self-Represented Litigants Project in 2017 indicates that approximately 70% of SRLs are plaintiffs or petitioners (Kaila Scarrow et al, "Tracking the Trends of the Self-Represented Litigant Phenomenon: Data from the National Self-Represented Litigants Project, 2017). As such, Courts across the country are increasingly dealing with pleadings filed by individuals who have no legal training – some of whom are vexatious litigants.

To be clear, many plaintiff/petitioner SRLs bring legitimate claims before the Courts. In such instances and assuming there is no prejudice to the defendant, it is entirely appropriate that the Clerks, the Court, and counsel accord these SRLs some degree of leeway in respect of their pleadings.

However, Canadian Courts are increasingly confronted by abusive litigation brought by SRLs. Some have mental health issues, while others have become fixated on issues that consume them as "querulous paranoiacs" (see Unrau v National Dental Examining Board, 2018 ABQB 874 at para. 7 ["Unrau"]). Defendants who were served with such pleadings were often dragged into lengthy and costly litigation. In most instances, these defendants attempted to end the litigation by way of motions to strike the abusive pleadings, summary dismissal or have the SRLs declared to be vexatious litigants.

Until recently, the rules of civil procedure in most provinces lacked a timely and cost-effective procedure to weed out vexatious pleadings early on in lawsuits. However, with the introduction of Civil Practice Note No. 7 – Vexatious Application/Proceeding Show Cause Procedure (General Powers to Stay or Dismiss a Frivolous, Vexatious, or Abusive Application or Proceeding) ("Practice Note 7") on September 4, 2018, Alberta has taken a step towards ending vexatious or abusive litigation before it has a chance to start.

In short, Practice Note 7 (which is modelled on Rule 2.1 of the Ontario Rules of Civil Procedure, RRO 1990, Reg 194) puts in place a document-based "show cause" procedure (the "Procedure") under Rule 3.68 to assist in the timely and resource-effective management of potentially unmeritorious and abusive litigation.

There are approximately six reported decisions in Alberta considering applications brought pursuant to Practice Note 7. The first was the October 24, 2018 decision in Unrau v National Dental Examining Board, 2018 ABQB 874, where Associate Chief Justice Rooke described the Procedure in detail.

In that case, the Plaintiff, Bernie Unrau, filed a Statement of Claim against multiple entities, including: the National Dental Examining Board, the Canadian Human Rights Commission, the City of Calgary, the US Department of Justice and the FBI. The body of the Statement of Claim made no reference to any of the individual Defendants and referred to, among other things: defamation, libel, slander, wrongful imprisonment, theft, "loss of gainful employment", malicious prosecution, obstruction of justice and "theft of 30 yrs IP – copy, pasted, hacked, keystrokes monitored."

Mr. Unrau sought damages in the amount of "$5 million + damages-writing credit, respect, security (from hackers et al)", as well as "apologies, respect, ethical integrity, more open-mindedness, amendment of boards' rules et al."

On an application by one of the Defendants pursuant to Practice Note 7, Associate Chief Justice Rooke noted that the Procedure has two steps:

  1. The Court first evaluates the sufficiency of the pleadings at issue by applying the Rule 3.68 test – whether the pleading provides a sufficient basis for the Court and other parties to respond. The Court then notifies the "Apparently Vexatious Litigant" ("AVL") who filed the Apparently Vexatious Application or Proceeding ("AVAP") that the Court is considering an order to stay or dismiss the AVAP. The AVL then has 14 days to "show cause" with a written response of no more than 10 pages.
  2. After that period, the Court will issue a second decision as to whether the AVAP should be stayed or dismissed. If the AVL has not rebutted the defect(s) identified in the first Court decision, then the AVAP will be dismissed in whole or in part.

At the first step, pleadings are to be read generously to allow for drafting deficiencies (Unrau at para. 26). However, "bald allegations" and claims that do not provide sufficient detail that permit a responding party to make a substantial response are not an adequate basis for an action. Similarly, Courts and parties have no obligation to respond to an action or application where the facts and issues are not identified or discernible, or where the document is simply gibberish (Unrau at para. 27).

With respect to Mr. Unrau's Statement of Claim, Associate Chief Justice Rooke found that it was a suitable candidate for review via the Procedure as, on its face, the pleading exhibited critical deficiencies. For example, Associate Chief Justice Rooke found that the pleading was composed entirely of bald allegations and did not provide a basis for the Defendants to make a meaningful response. In the circumstances, that was prima facie evidence that the Statement of Claim was an abuse of the Court process and should be struck out (Unrau at para. 28).

In addition, Associate Chief Justice Rooke found that the pleading exhibited a number of abusive litigation indicia, including: global but unsubstantiated complaints of conspiratorial and abusive conduct; apparently unwarranted relief claims (such as $5 million in damages); and, impossible claims such as "more open mindedness" and "respect". In this regard, he found that these were a separate basis upon which the Statement of Claim could be struck out as abusive.

Given that he had concluded that the Statement of Claim appeared to be an abuse of the Court process, Associate Chief Justice Rooke stayed the action until further notice. He then proceeded to the second step of the Procedure:

  1. Unrau had until 14 days after the decision was filed and served to prepare a Written Submission of no more than 10 pages, to be filed and served on all of the parties.
  2. If no Written Submission was received by the Court by that deadline, the Court would proceed to render its final decision on whether the Unrau Statement of Claim should be struck out in whole or in part, per Rule 3.68.
  3. If Unrau provided and served a Written Submission, then the remaining Defendants to the action would have seven days to make a Written Reply of up to 10 pages in length.
  4. After receipt of Unrau's Written Submission and the Defendants' Written Replies, if any, the Court would render its final decision on whether the Unrau Statement of Claim should be struck out in whole or in part, pursuant to Rule 3.68 (Civil Practice Note No. 7, para 3(e)).

There are no further reported decisions in respect of the Unrau matter, so it is not known whether Mr. Unrau was able to rebut the deficiencies identified in his Statement of Claim.

However, it appears that since coming into effect on September 4, 2018, Practice Note 7 has effectively halted vexatious or abusive litigation. In this regard, in addition to Unrau, the Alberta Court of Queen's Bench has stayed the litigation at the first step of the Procedure in all of the reported decisions considering Practice Note 7 to date (see: Gagnon v Core Real Estate Group, 2018 ABQB 913; Labonte v Alberta Health Services, 2019 ABQB 41; Wilcox v Alberta, 2019 ABQB 60 and Bruce v Bowden Institution, 2018 ABQB 903).

In the only reported decision to date where the Court has considered the second step of the Procedure after initially staying the action (Bruce v Bowden Institution, 2018 ABQB 970), Mr. Justice J.T. Henderson began his analysis by considering the Written Submission of the Applicant (an inmate who filed an Originating Notice of habeus corpus from the Bowden Correctional Institution alleging that he was being unlawfully detained). Justice Henderson then advised the Respondent that no Written Reply was required; he would proceed directly to issue his final decision on whether the Applicant's habeus corpus application had potential merit or should be struck out pursuant to Rule 3.68. Having found that the Applicant's habeus corpus application had no basis in law, Justice Henderson found that it should be struck out forthwith.

Mr. Justice Henderson also issued an Order pursuant to Practice Note 7 (which provides that, upon making an Order to stay or dismiss an AVAP under its summary procedures, the Court may also make an Order prohibiting the AVL from making any further applications in any proceeding, except with leave of the Court) requiring the Applicant to obtain leave from the Court to file any further applications in any Court in Alberta.

Finally, it should be noted that not only can Practice Note 7 be used to stop vexatious proceedings at the outset of litigation, it can also be used to make interim orders during the course of ongoing litigation. For example, in a vexatious litigant application argued by Alan S. Rudakoff, Q.C. and Laura Bracco-Callaghan of Scott Venturo Rudakoff LLP on February 14, 2019, Madam Justice Marriott (on her own motion) referred to the Unrau decision and invoked Practice Note 7 to impose a comprehensive interim Order on the Respondent restricting his ability to commence or proceed with any litigation in the province of Alberta pending her final ruling with respect to the vexatious litigant motion.

While Practice Note 7 is reserved for "clear cases of abuse" where "... the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading" (Unrau at para. 22), from a review of the case authorities to date, it appears that Alberta Courts have embraced the Procedure and are keen to implement it, along with further court access restrictions, where appropriate. As such, when faced with an apparently vexatious pleading, counsel should consider whether an application pursuant to Practice Note 7 might be able to bring a swift and cost-effective end to the litigation.

About Mackrell International - Canada - Scott Venturo LLP is a full service business law firm in Calgary, AB and a member of Mackrell International. Mackrell International - Canada is comprised of four independent law firms in Alberta, British Columbia, Ontario and Quebec. Each firm is regionally based and well-connected in our communities, an advantage shared with our clients. With close relations amongst our Canadian member firms, we are committed to working with clients who have legal needs in multiple jurisdictions within Canada.

This article is intended to be an overview and is for informational purposes only.

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