GOERTZ v JOHN, 2019 ABQB 350

Rooke ACJ

3.68: Court options to deal with significant deficiencies
7.2: Application for judgment
7.3: Summary Judgment (Application and decision)

Case Summary

Rooke A.C.J. received a letter from the Defendant’s counsel requesting that the Plaintiff’s claim be subject to review pursuant to Civil Practice Note No. 7 (“CPN7”), as an “Apparent Vexatious Application or Proceeding” on the basis that it was an abusive attempt to re-litigate an issue that was previously decided. His Lordship explained that the CPN7 is a summary, document-based process used to manage abusive litigation through Rule 3.68. The intention of CPN7 is “to examine whether a specific filing, on its face, is without merit, or is an abuse of process” as described in Rule 3.68. It is an “extremely blunt instrument” to be applied in “the clearest of cases of abuse”, not those involving questions of fact which relate to the merits of a proceeding. In this case, the letter from the Defendant’s counsel contained details which “in effect depose[d] facts” and contained argument.

Rooke A.C.J. disregarded the facts and argument contained in the letter and evaluated the Plaintiff’s Statement of Claim independently. His Lordship determined that the Statement of Claim appeared to include separate issues that were different from the prior proceeding, and that the two proceedings did “not fully overlap”. As such, it was not appropriate to use CPN7 to strike the claim. Additionally, His Lordship noted that the Defendant had made submissions in response to the CPN7 request, but that they were premature: “CPN7 would have permitted [him] the opportunity to make submissions after I had conducted my review”.

Lastly, Rooke A.C.J. commented that no negative inference should be drawn against either party as a result of his Decision, as the scope and operation of CPN7, a new procedure, was still being defined through Court decisions. His Lordship also clarified that the Decision had no implications for other steps available to the Defendant, including bringing a full Rule 3.68 Application or applying for Summary Judgment in accordance with Rules 7.2 and 7.3.

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