DE’MEDICI v WAWANESA MUTUAL INSURANCE COMPANY , 2023 ABKB 210
3.68: Court options to deal with significant deficiencies
14.46: Application to reconsider a previous decision
14.72: Binding precedents
In this Action, the Defendants requested the use of Civil Practice Note 7 (“CPN7”).
The Court reviewed the substantive law surrounding CPN7, which includes legal tests and limitations outlined in Rule 3.68. These conditions dictate the types of Orders that may be granted and the conditions for making such an Order, including a document being frivolous, irrelevant, or improper; constituting an abuse of process; or having an irregularity that is so prejudicial that it is sufficient to defeat the claim.
The Court examined the limitations of CPN7 and its applicability to specific types of Orders, emphasizing that CPN7 should not rely on Rule 3.68(2)(b), which deals with a document that discloses no reasonable claim or defense to a claim. However, such documents may still be considered frivolous, vexatious, or abusive of process and subject to CPN7.
Furthermore, the Court stated that CPN7 should only be used in clear cases where the defect in the pleading is obvious on the face of the document. The Court endorsed the Ontario jurisprudence on the subject, which suggests that CPN7 should not be used unless there is a reason to prefer it over other procedures available under the Rules. The Court also provided guidance on initiating CPN7, stating that a written request for an Order to stay or dismiss the proceeding should be a brief explanation, limited to one or two lines, without arguments or indirect references to facts.
The Court emphasized that CPN7 is intended to deal with a commencement document or pleading that is frivolous, vexatious, or otherwise an abuse of process on its face, and is not a venue for dealing with an allegedly vexatious litigant. The Court highlighted that even when a litigant was previously determined to be vexatious, that would not automatically dictate that the present Pleading would be considered vexatious, as each Pleading must be assessed in its own right.
The Court declined to consider the detailed litigation history provided by the Defendants because it was not supported by any Pleadings. Additionally, the Court held that a Pleading or commencement document must be problematic on its face to be captured by CPN7, and therefore declined to consider the Defendants’ legal submission.
Accordingly, the Court declined the Defendants’ request to dismiss the proceeding under CPN7.View CanLII Details