ALBERTA LAWYERS INSURANCE ASSOCIATION v BOURQUE, 2018 ABQB 821
2.22: Self-represented litigants
2.23: Assistance before the Court
3.68: Court options to deal with significant deficiencies
3.75: Adding, removing or substituting parties to originating application
8.1: Trial without jury
8.2: Request for jury trial
9.4: Signing judgments and orders
10.29: General rule for payment of litigation costs
11.31: Setting aside service
14.5: Appeals only with permission
The Alberta Lawyers Insurance Association (“ALIA”) filed an Originating Application, which was subsequently amended, requesting that the Court declare Stephanie Bourque and her son, Stephen Bourque (collectively, the “Bourques”) as vexatious litigants, and to prohibit them from initiating or continuing litigation in Alberta. Subsequently, the Bourques filed two Applications, which included a request for an Order setting aside service of the Amended Originating Application pursuant to Rule 11.31(1)(a), an Order to strike out the Amended Originating Application pursuant to Rule 3.68(4), and in the alternative, a Trial by jury.
Mandziuk J. noted that the Bourques made “a difficult to understand argument that Rule 3.75... prohibits them from being ‘added’ to this action.” Finding that the parties were set by the Originating Application filed by ALIA, His Lordship maintained that there was no merit to the complaint. In relation to Rule 3.68, Mandziuk J. found that the Bourques did not raise valid grounds in support of their Application.
In relation to the request for a Trial by jury, Mandziuk J. noted that the Rules prohibited His Lordship from ordering a jury Trial. The Bourques did not acknowledge this as an impossible remedy and instead made excuses for seeking it. His Lordship found these excuses to be “after-the-fact fabrication… made in bad faith,” that were not believable. Further, Mandziuk J. held that the Bourques were aware of Rules 8.1 and 8.2 governing jury Trials, meaning that the Bourques “knowingly made a quixotic application”, which aggravated the Bourques’ litigation misconduct.
In the end, Mandziuk J. found that it was necessary to impose Court access restrictions on the Bourques. These included that the Bourques may be required to apply for permission to appeal under Rule 14.5(1)(j) if granted leave to commence an appeal by a single Appeal Judge. Pursuant to Rule 9.4(2)(c), Mandziuk J. held that the approval as to the form and content of the Order was not required by the Bourques. In addition, each of the Bourques was prohibited from acting as any form of representative in accordance with Rules 2.22 and 2.23, in any Alberta Court.
Finding that ALIA was entirely successful, Mandziuk J. noted that ALIA was presumptively entitled to Costs in accordance with Rule 10.29. Elevated Costs were warranted as the Bourques’ conduct was “abusive, in bad faith, and intended to frustrate this proceeding.” Further, Stephen Bourque had made late supplemental arguments and submitted late materials. At that time, he was warned that Costs may be awarded against him if those arguments and materials did not raise substantive issues. Mandziuk J. found that the additional arguments and materials had no merit, and parts of them were advanced in bad faith. Accordingly, His Lordship awarded additional Costs against Stephen Bourque. Finally, Mandziuk J. remarked that lump sum Cost awards may be appropriate in abusive litigation and chose to adopt the lump sum approach. Accordingly, His Lordship ordered that Stephanie Bourque pay $4,500 in Costs and that Stephen Bourque pay $7,000 in Costs.
Mandziuk J. dismissed the Bourques’ Applications and, under the Court’s own motion and inherent jurisdiction, declared the Bourques as vexatious litigants, subject to Court access restrictions in Alberta.View CanLII Details