thomas j

3.68: Court options to deal with significant deficiencies

Case Summary

Justice Thomas reviewed the Applicant’s Originating Application pursuant to Civil Practice Note No. 7 (“CPN7”) as being an Apparently Vexatious Application or Proceeding (“AVAP”). The CPN7 protocol was initiated by counsel for the Respondents writing to the Court to indicate that the Originating Application was an AVAP.

Justice Thomas noted that the CPN7 protocol is designed to manage litigation which on its face appears to be unmeritorious, has no prospect of success, or is otherwise abusive and vexatious. The CPN7 protocol provides a mechanism for an AVAP to be reviewed by the Court which, if convinced that the pleading may be subject to be struck pursuant to Rule 3.68, will initiate a “show cause” procedure which provides the respondent with 14 days to provide written submissions to the Court to demonstrate why the AVAP is a legitimate action and should be permitted to continue. Justice Thomas noted that the CPN7 protocol is reserved for “clearer cases of abuse”.

Justice Thomas concluded that on its face, the Originating Application disclosed three issues which suggested that it was an AVAP which could be struck pursuant to Rule 3.68. First, the Application’s pleadings were incomplete, as the only stated ground for the Application was “For all the basis’s outlined” in the Applicant’s Affidavit. Rule 3.68 requires pleadings to be evaluated without reference to external evidence, and thus, Justice Thomas concluded that the pleading itself was fatally incomplete.

Second, Justice Thomas concluded that even if the Affidavit was considered (“in an excess of caution”) the Application did not provide a basis for a meaningful response as it requested the Court to “strike down” the legislation and regulation behind government programs without specifying which legislation or provisions should be struck down, and did not provide a factual foundation or legal basis for why those provisions should be struck down. The Affidavit also disclosed an intention to pursue expanding and escalating litigation, itself an indicia of abusive litigation.

Third, Justice Thomas found that the Application appeared to seek impossible remedies directed at remedying perceived governmental shortcomings, rather than enforcing the Applicant’s individual rights. Justice Thomas noted that requesting the Court to operate outside its proper authority and to acknowledge perceived government shortcomings is an improper purpose.

Justice Thomas concluded that the Originating Application was an AVAP, and initiated the show cause procedure for the Applicant to provide a written response justifying why the proceeding should not be struck in whole or in part pursuant to Rule 3.68.

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