Browne J

3.68: Court options to deal with significant deficiencies
4.22: Considerations for security for costs order
6.11: Evidence at application hearings
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff alleged that the Defendants had conspired to sell a foreclosed property owned by the Plaintiff at an artificially reduced price. The Defendants applied to have the Action struck pursuant to Rule 3.68, or for Summary Judgment against the Plaintiff pursuant to Rule 7.3. The Defendants also applied for a declaration that the Plaintiff’s corporate representative was a vexatious litigant and should be restricted from engaging in further litigation. If the Action was not terminated, the Defendants sought a direction that the Plaintiff be represented by counsel, and sought a Security for Cost payment into Court by the representative personally, pursuant to Rule 4.22.

The Defendants sought leave to file pleadings from other related Actions in accordance with Rule 6.11. Browne J. allowed the related pleadings to be filed for the purposes of the Application because many of the same parties were named in the other Actions, and the related proceedings were relevant to place the present Action in its proper context. The Defendants argued further that the Action was an example of vexatious and abusive litigation that satisfied the criteria in Rules 3.68 and 7.3 (1)(b). The Court observed that an Action may be struck under Rule 3.68 where it is plain and obvious, or beyond reasonable doubt, that the Action cannot succeed. A frivolous plea is one that is so palpably bad that the Court needs no real argument to be convinced of that fact. A Pleading is frivolous if its substance indicates bad faith or is factually hopeless. A Court may strike a proceeding that is an abuse of process on that basis, and vexatious litigation may be struck under either Rule 3.68(2)(c) or (d); the term “vexatious” is synonymous with impropriety and abuse of process.

Justice Browne further noted that the current Summary Judgment Rule, Rule 7.3(1), applies the same legal test as the former Rule 159(b), and the bar on a motion for Summary Judgment is high. The Defendant who seeks Summary Dismissal bears the evidentiary burden of showing that there is no genuine issue of material fact requiring Trial. In a Summary Judgment Application, evidence may be entered in Affidavit form or by other evidence pursuant to Rule 7.3(2). Browne J. observed that the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7 had recently emphasized an enhanced role for Summary Judgment proceedings since the modern reality of civil litigation places a focus on early resolution of issues in dispute by preliminary procedures rather than at Trial.

Justice Browne found that the record of the Action and the other related litigation provided many examples of vexatious litigation, and found several separate bases to conclude that the Action was an example of vexatious litigation pursuant to Rule 3.68. Her Ladyship held further that there were grounds for Summary Judgment pursuant to Rule 7.3. The entire Action was struck. Browne J. found the Plaintiff’s litigation representative to be a vexatious litigant, and restricted him from filing or continuing actions in all Alberta Courts.

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