Thomas J

3.68: Court options to deal with significant deficiencies
9.4: Signing judgments and orders
10.29: General rule for payment of litigation costs
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Court initiated a review of the Plaintiff, Biley’s, Action pursuant to the process set out in Civil Practice Note No. 7 (“CPN7”) which conducts a document based review of apparently vexatious or abusive proceedings to determine if they should be struck pursuant to Rule 3.68. Biley submitted written submissions in accordance with CPN7’s requirements through which he attempted to explain the allegations and remedies sought in his claim against the Defendants, as well as an Affidavit. The other parties also submitted written submissions.

Thomas J. noted that pursuant to Rule 3.68, the Court may not consider evidence in determining whether all or part of an Action should be struck under the Rule, and therefore declined to consider Biley’s Affidavit. His Lordship concluded that Biley had failed to rebut the presumption under CPN7 that his claim was abusive and hopeless, and therefore struck it out.

With respect to Costs, Thomas J. noted that pursuant to Rule 10.29, Biley’s claim presumptively fell under Column 5 of Schedule C, but also commented that lump-sum Costs awards are appropriate in abusive litigation situations to conclude the proceedings and send a message that such litigation will be “dealt with swiftly and decisively”. As such, His Lordship awarded $4,000 in Costs to be paid forthwith, and dispensed with Biley’s approval as to the form and content of his Order pursuant to Rule 9.4(2)(c).

View CanLII Details