BISSKY v MACDONALD, 2020 ABQB 651
9.4: Signing judgments and orders
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award
14.5: Appeals only with permission
The Applicant was previously found to be a vexatious litigant, and was prohibited from initiating any Actions or Applications without prior leave from the Court. Subsequently, the Applicant filed a Notice to Attend Family Court naming her former spouse as the Respondent. The Court noted that by filing this Notice without seeking prior leave the Applicant was prima facie in Contempt of Court. His Lordship then considered the Applicant’s leave to file Application.
His Lordship applied the criteria for a leave to file the Application, dismissed the Application and rejected the filing on 3 separate grounds: (1) the materials did not satisfy the criteria set out in the Court access restriction Order for a valid Application; (2) the submissions exhibited indicia of abusive litigation, in conducting a collateral attack on issues settled 2017; and (3) the Applicant had provided false information, in this instance seeking sole custody of the child when she already had full custody.
The Court noted that, pursuant to Rule 14.5(4), there is no Appeal from an Order prohibiting a vexatious litigant from initiating or continuing proceedings. His Lordship stated that Costs are not ordinarily awarded in leave to file Applications, as the presumption in Rule 10.29 does not apply as there is no successful or unsuccessful party. The Court considered that the Applicant was in Contempt of Court by filing the Application without leave, and that the filed Application was therefore an abuse of process. Accordingly, His Lordship exercised the discretion conferred by Rules 10.31 and 10.33 to order that the Applicant pay $2,500 in Costs.
Finally, the Court found that paragraph 8 of the previously granted Court access restriction Order was unlawful pursuant to Jonsson v Lymer, 2020 ABCA 167, and that the wording therein should be modified to provide that the Applicant may not bring an Application without first posting Security for Costs for all unpaid Costs Orders against her. His Lordship directed counsel for the Respondent to draft this Order, and dispensed with the Applicant’s approval of the form and content thereof pursuant to Rule 9.4(2)(c).View CanLII Details