1.2: Purpose and intention of these rules
1.4: Procedural orders
3.68: Court options to deal with significant deficiencies
4.22: Considerations for security for costs order
6.9: How the Court considers applications
7.2: Application for judgment
7.3: Summary Judgment (Application and decision)
7.4: Proceedings after summary judgment against party
10.29: General rule for payment of litigation costs
10.33: Court considerations in making costs award

Case Summary

The Plaintiff brought an Action against 12 Defendants. Seven of the Defendants applied to strike the Statement of Claim pursuant to Rule 3.68; five of them further applied for Summary Dismissal pursuant to Rules 7.2-7.4; three of them further applied for Security for Costs pursuant to Rules 4.22 and 4.23; and one Defendant applied for dismissal of the proceeding pursuant to Rule 1.4(2)(a).

While the seven Defendants filed written Briefs, the Plaintiff failed to appreciate that he had to provide materials in advance of the Application and that the Application would deal with all of the Defendants. In addition, the Plaintiff advised that he resided in British Columbia. In light of all of this, and having regard to Rule 1.2, Justice Mandziuk exercised discretion to proceed with the Application “by a process involving documents only” pursuant to Rule 6.9(1)(c).

Ultimately, Mandziuk J. allowed the Application to strike the Statement of Claim as it did not disclose a reasonable claim and parts of it were an abuse of the Court’s processes. As such, the Application was decided under Rule 3.68 and Mandziuk J. did not address arguments relating to the other remedies sought by the Defendants.

Mandziuk J. held that there are two branches to Rule 3.68: 3.68(2)(b), which considers that the litigation is futile, and 3.68(2)(c-d), which considers that the litigation is abusive. The first branch centres on the question of whether the Action has “a reasonable prospect of success”, and the second focuses “impropriety and abuse of process”, which includes vexations litigation. Justice Mandziuk noted that in considering a Rule 3.68 Application, there is a presumption that the facts pleaded by the Plaintiff are true. However, the facts pleaded may be rejected, for example when they are “‘patently ridiculous or incapable of being proven’…‘bald allegations’…conclusory statements…” “[or] run contrary to a legal presumption.”

Mandziuk J. also held that where the parties cannot be identified, the pleadings may be struck.

His Lordship further held that that an abuse of process may be found where pleadings are deficient, include bald allegations and incomplete claims, and allegations are not supported by evidence.

In the end, Mandziuk J. maintained that the Statement of Claim should be struck under Rule 3.68. At minimum, His Lordship held that the Plaintiff’s litigation exhibited two indicia of abusive litigation, each of which constituted a separated basis for striking out the Statement of Claim: “1) hopeless proceedings, and 2) unsubstantiated allegations of conspiracy, fraud and misconduct”.

Considering Rules 10.29 and 10.33, Mandziuk J. held that a successful litigant is presumptively due Costs, which may be varied “depending on the circumstances of the litigation, degree of success, and the conduct of parties,” noting that elevated Costs are an effective tool to discourage abusive litigation. Concluding that the Plaintiff’s claims were hopeless, and vexatious and abusive in many respects, Mandziuk J. awarded the Defendants elevated Costs.

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Related to 1.2

Related to 1.4

Related to 3.68

Related to 4.22

Related to 6.9

Related to 7.2

Related to 7.3

Related to 7.4

Related to 10.29

Related to 10.33