3.68: Court options to deal with significant deficiencies
4.21: Involvement of judge after process concludes
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff/Appellant, Anderson, appealed a ruling by Mahoney J. of the Court of Queen’s Bench summarily dismissing her Statement of Claim against the Defendant/Respondent, Lee. The Statement of Claim was dismissed on the basis that it contravened an Order granted by Mahoney J. following a Judicial Dispute Resolution (the “JDR Order”). The Order stated that no further Actions would be brought by Anderson or her business against Anderson’s former partner or his friends and business associates. The Defendant/Respondent, Lee, was a friend and business associate of Anderson’s former partner.

Anderson had filed a Statement of Claim before the JDR Order which alleged that Lee conspired with Anderson’s former partner to divert funds owing to Anderson. Anderson then served it on Lee days after the JDR Order was made.

The issues before the Court of Appeal Panel were whether the Statement of Claim had been properly dismissed, and whether Mahoney J. should not have recused himself from the dismissal Application in given that His Lordship also oversaw the JDR.

The Panel ruled that the Court below did not err in striking Anderson’s Statement of Claim. The fact that Anderson had filed the Statement of Claim before the JDR Order prohibiting the bringing of further claims was irrelevant. By prosecuting the claim, Anderson was “bringing” it within the meaning of the JDR Order. The Statement of Claim was an abuse of process within the meaning of Rule 3.68, as the issues contemplated within the Statement of Claim were substantially the same as the issues resolved at the JDR. Therefore, Mahoney J. was correct to strike the Statement of Claim pursuant to Rule 7.3.

Moreover, the Panel ruled that there was no cause for Mahoney J. to recuse himself. Rule 4.21 allows a Judge overseeing a JDR to hear subsequent Applications in regards to the JDR if there is written agreement from the parties. The parties in this case specifically requested in writing that Mahoney J. hear the dismissal Application and they confirmed their consent on the record during the hearing. The Appeal was dismissed with Costs.

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