September 9, 2020

Author: Kevin Stenner

Practice Note No. 7 Limited, But Still Effective

The Alberta Court of Appeal recently came out with a trilogy of cases (the “Trilogy”) on the issue of vexatious litigant orders, Jonsson v Lymer, 2020 ABCA 167, Makis v Alberta Health Services 2020 ABCA 168 and Vuong Van Tai Holding v Alberta (Minister of Justice and Solicitor General), 2020 ABCA 169.  The Trilogy is, partially, in response to the Court of Queen’s Bench of Alberta’s Civil Practice Note No.7 which, as of September 4, 2018, gave the Court the ability to, on its own initiative, make an order:

• To stay or dismiss an apparent vexatious application or proceeding; or
• To prohibit an apparent vexatious litigant from making any further applications in any proceeding, except with leave of the Court.

Practice Note 7 gives defendants and respondents a powerful tool to have matters struck that, on their face, are vexatious. Although the Trilogy does not specifically limit this portion of Practice Note 7, it severely limits the Court’s ability to make broad vexatious litigant orders, including those prohibiting a vexatious litigant from making any further applications in any proceeding.

Applications for Vexatious Litigation Orders through the Judicature Act

The Court of Appeal stresses that Practice Note 7 applications for vexatious litigant orders should be brought through the Judicature Act, RSA 2000, c J-2 and states that any reliance on a Court’s residual common law jurisdiction to regulate vexatious conduct outside of the Judicature Act (if any residual jurisdiction remains), should only be applied where:

• The provisions of the Judicature Act are clearly inadequate to answer the problem; and
• There are compelling reasons to step beyond what the statute provides for.

The Judicature Act, sets out that a litigant’s conduct must be persistently vexatious before a Court can make a vexatious litigant order. The Judicature Act also indicates that notice must be given to the Minister of Justice and Solicitor General.

Difference Between Litigants

In stressing that a vexatious litigant order should be measured against the requirements in the Judicature Act, the Court of Appeal emphasises the difference between litigants who:

• Are “vexed” by the court system and who make procedural mistakes or who do not understand the court system and bring meritless applications; versus those who persistently bring actions that cannot proceed or that have no reasonable expectation of relief. In this situation, the Trilogy advises that litigants who do not persistently bring meritless applications should be dealt with through Rule 3.68 (addressing deficiencies) instead of through vexatious litigant orders; and
• Bring numerous and potentially abusive applications in a single action or who act in a potentially vexatious manner in a single action; versus those who persistently bring numerous abusive applications and act in a potentially vexatious manner across a number of actions. In this situation, the Trilogy advises that litigants who act in an improper manner in a single action should be dealt with through case management or court restrictions with respect to that single action instead of through vexatious litigant orders that limit any further applications in any proceeding.

When Courts Should Make Vexatious Litigant Orders

Based on the above, the takeaway from the Trilogy is that a Court should only make a vexatious litigant order where

• the improper action is persistent,
• where the improper action cannot be dealt with through other means (i.e.: Rule 3.68 or case management) and,
• if a vexatious litigant order is made, such an order should be as narrow as possible and relate only to the improper conduct in question and not to potential future conduct.

Although the Court of Appeal cautions against making vexatious litigant orders under Practice Note 7 that would act to broadly limit a litigant’s access to the Court, Practice Note 7 is still an effective and cost-efficient to deal with specific applications and claims that are, on their face, vexatious.

If you are having issues dealing with a difficult litigant, contact one of the experienced lawyers at Carbert Waite LLP for assistance.