D’ABADIE v HER MAJESTY THE QUEEN, 2018 ABQB 438
2.22: Self-represented litigants
2.23: Assistance before the Court
3.68: Court options to deal with significant deficiencies
9.4: Signing judgments and orders
10.29: General rule for payment of litigation costs
10.33: Court considerations in making costs award
14.5: Appeals only with permission
The Applicant’s Originating Application was struck under Rule 3.68 (“Application 1”) as it was an example of “Organized Pseudolegal Commercial Arguments” (“OPCA”) as defined in Meads v Meads, 2012 ABQB 571 (CanLII) (“Meads”).
Ashcroft J. considered the Applicant’s liability for Costs, and whether the Applicant should be subject to Court access restrictions. Ashcroft J. noted that the Respondent Crown was “entirely successful” in Application 1, and as such was presumptively entitled to Costs calculated on Schedule C, in accordance with Rule 10.29(1).
Justice Ashcroft also found that the Applicant’s Action “was hopeless, conducted for an ulterior motive, and was an abuse of the Court’s processes.” In this context, Ashcroft J. held that an elevated Costs award was appropriate pursuant to Rule 10.33. Ashcroft J. noted that elevated Costs are ordered frequently in unsuccessful OPCA litigation, as it is “inherently abusive”, and that in many cases, Courts have endorsed the approach in Meads, in which the Court held that litigants who are subjected to OPCA strategies should bear minimal or no Costs. Justice Ashcroft further remarked that OPCA litigation has previously attracted a lump sum award of Costs. Adopting this approach, Ashcroft J. found it appropriate to award the Respondent $3,500 in Costs.
Ashcroft J. observed that “the Court’s inherent jurisdiction to control its processes provides the authority to implement court access restrictions”. Justice Ashcroft noted the relevant indicia of abusive litigation, reviewed jurisprudence on how the Court is to evaluate such indicia, and ultimately held that the “critical question” in considering whether to implement a Court access restriction, is whether the Court anticipates future litigation abuse.
Ashcroft J. found that several of the indicia of abusive litigation applied to the Applicant, and that the Applicant had a “problematic litigation history”. Based on this, Ashcroft J. held that “broad court access restrictions” should be placed on the Applicant, and that the Applicant should obtain leave to initiate or continue litigation in Alberta. However, Ashcroft J. held that the Applicant’s access to the Court of Appeal should not be restricted and found that Rule 14.5(1)(j) should apply, whereby the Appellant would need to obtain permission to appeal.
Accordingly, Ashcroft J. held that the Applicant was a vexatious litigant and made an Order to that effect. The Order included a prohibition on the Applicant acting as an agent, next friend or McKenzie Friend pursuant to Rules 2.22 and 2.23. Finally, Ashcroft J. directed that the Court would prepare the Order, and pursuant to Rule 9.4(2)(c), directed that the Applicant’s approval of the form and content of the Order was not required.View CanLII Details