Giovanni Perri

May 14, 2024

Dry Wells and Dead-End Pleadings: CPN7's Selective Role in Striking Pleadings

In Wilyman v Cole, 2024 ABCA 41 (“Wilyman”), the Appellant commenced a medical malpractice Action in 2003 against the Respondents for harm suffered following a medical procedure conducted by the Respondent in 2000 (the “2003 Action”), which, in December of 2003, was struck out. In May 2022, the Appellant sought to revisit the 2003 Action by first seeking permission to file a late Appeal. When that Application was denied, the Appellant commenced a new Action against the Respondents (the “2022 Action”). 

The Respondents asked the Court of King’s Bench to strike the Appellant’s 2022 Action through the process set out in Civil Practice Note 7, the “Vexatious Application/Proceeding Show Cause Procedure” (“CPN7”). The Respondents argued that CPN7 was applicable on the basis that the 2022 Action sought “to re-litigate a decided issue or issues, [was] a collateral attack, and/or [was] a duplicate proceeding”. The Chambers Justice determined that the 2022 Action was a suitable candidate for the CPN7 procedure. The Chambers Justice reviewed the purpose of the CPN7 procedure, noting that it is not for close calls, and that it is only for matters where the deficiencies in pleadings are apparent on their face. Further, the Chambers Justice noted that the CPN7 process considers only “restricted forms of evidence”, which could include documents and records that show that the Apparently Vexatious Application or Proceeding is an attempt to litigate an issue that has already been decided.

The Chambers Justice concluded that the Appellant’s 2022 Action appeared on its face to be a collateral attack on the Court’s decision to strike the 2003 Action. The Chambers Justice concluded that it was not appropriate to consider additional evidence, in part because Rule 3.68(3) prohibits evidence in relation to whether a filing “... discloses no reasonable claim or defence to a claim ...”. Following the Chambers Justice’s decision, the Appellant appealed the striking of their Claim, and asked the Alberta Court of Appeal to consider new evidence.

Helpful direction from the Court of Appeal on the CPN7 process

The Court of Appeal clarified that CPN7 does not change the substantive law established by Rule 3.68, but rather, it changes the procedural entitlements of the party whose claim is impugned. Ordinarily, a party seeking to strike a Claim must file an Application and supporting Affidavit and serve it on the opposing party. Further, the matter is usually decided following an oral hearing in Civil Chambers, although the Court noted that Courts have the jurisdiction to resolve matters in writing.

Conversely, under CPN7, the Court of Appeal explained that a party seeking to strike a Claim may write to the Court asking that the CPN7 process be invoked. If a Court is satisfied that the matter is suitable for resolution through CPN7, it notifies the party with the impugned Claim that the Court is considering making an Order staying or dismissing their Claim. That party has fourteen days to file a response, to which the party who requested the CPN7 may then respond. The Court then makes its determination based on written materials. Under CPN7, little or no evidence is provided, no oral hearing is conducted and importantly, the burden of proof shifts from the party seeking to strike the Claim, to the party whose Claim is in jeopardy of being struck.

After reviewing the relevant jurisprudence, the Court of Appeal set forth a two-part test that must be satisfied when using CPN7, namely:

1. That CPN7 should only be used where the defect on the pleading is evident on its face; and

2. There is a reason to prefer CPN7 to the ordinary Court procedure under Rule 3.68.

As it pertains to the second element of the test, the Court of Appeal provided helpful examples of reasons to prefer CPN7 to Rule 3.68, including “cases where a litigant is at risk of using other procedures to abuse the Court’s process, or where the party’s pleading is so hopeless that the ordinary procedures would be an utter waste of time, money and resources.” Ultimately, the Court of Appeal stated that a Judge must decide whether the circumstances justify placing the burden of proof on the party who’s pleading is impugned and denying that party an oral hearing.

When the Court of Appeal applied the two-part test, they concluded that the Chambers Justice did not implement this approach and did not reflect on whether the CPN7 process was preferable to the ordinary process for considering an Application to strike pursuant to Rule 3.68. That said, the Court was nonetheless satisfied that they could not intervene as the Appeal raised questions of mixed law and fact. In holding so, however, the Court emphasized that CPN7 ought to be reserved for exceptional cases, particularly where the effect of the decision is to terminate a party’s Claim before the Court, and that CPN7 should not supplant the ordinary Rule 3.68 procedure.

Similar, but different

The Court of Appeal’s decision in Wilyman provides helpful guidance on the use of CPN7. Though the Court of Appeal noted the practically of CPN7, it was quick to note that procedural entitlements of the party whose Claim is impugned differ from when a Claim is at risk of being struck pursuant to Rule 3.68.  Therefore, CPN7 does not act as a substitute to Rule 3.68, but rather a separate avenue that can be pursued by Applicants, given the right circumstances.

Further, the Court of Appeal seemed to suggest that the default starting point for these types of cases should be an Application brought pursuant to Rule 3.68, and unless there is some justification for truncating the ordinary Court procedure, eliminating an oral hearing and shifting the burden of proof to the party whose Claim is at risk of being struck or dismissed, then CPN7 should not replace ordinary Court procedures. Simply put, the basis for using the CPN7 procedure must not be simply that an Order to strike may be available under Rule 3.68, and its use should be reserved for exceptional circumstances.

A summary of this case, as well as other recent Court decisions that consider the Alberta Rules of Court, will appear in the upcoming JSS Barristers Rules Newsletter. Further, the JSS Barristers Rules Database features current and past rules summaries, which can be searched and filtered based on specific criteria, including by specific rule, Justices/Applications Judges, and keywords.

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