HICKS v GAZLEY, 2020 ABQB 740
3.68: Court options to deal with significant deficiencies
4.31: Application to deal with delay
The Plaintiff brought an Application for an Order severing divorce from corollary relief; an Order permitting the divorce to proceed via desk Application; a declaration that the Plaintiff had completed their Undertakings; dismissal of the Defendant’s claim for spousal support due to delay pursuant to Rule 4.31; and Costs.
This was essentially the Plaintiff’s fourth Application to sever divorce from the corollary relief, and his third severance Application in less than 5 months. The Plaintiff acknowledged that his previous Applications were unsuccessful. The Defendant’s position was that the Application should be dismissed as the attempts to re-litigate the same matter were an abuse of process, a waste of resources, and bordered on vexatious. Justice Manderscheid noted that the issue estoppel branch of res judicata applied, and that per Rule 3.68(2), when attempts to re-litigate decided issues go beyond res judicata and into vexatious litigation they constitute an abuse of process.
Justice Manderscheid noted that it is only be appropriate to re-litigate issues where the first proceeding was tainted by fraud or dishonesty, when fresh evidence that was previously unavailable impeached the original results, or when fairness dictated that the original result should not be binding in the new context. His Lordship determined that the previous hearings were not tainted by fraud or dishonestly and that the Plaintiff had not submitted new evidence that had was previously unavailable. Undertakings within the Action had not been fulfilled and severing divorce from corollary relief would eliminate the Plaintiff’s incentive to advance spousal support and matrimonial property claims; as such, Justice Manderscheid dismissed the Application to sever the divorce from the corollary relief and further dismissed the Application to permit the divorce to proceed by way of desk Application.
His Lordship’s office did not receive confirmation from the Defendant that the Plaintiff’s outstanding Undertakings were complete. Justice Manderscheid declined to make the declaration the Plaintiff sought.
Pursuant to Rule 4.31, if the Court found that there had been an inordinate and inexcusable delay in the Action, the delay would be presumed to result in significant prejudice to the party bringing the Application and could be dismissed. His Lordship found that any delay on the Defendant’s part was neither inexcusable, inordinate, or exceptional. The Defendant had been unable to advance her claim as the Plaintiff has not provided complete responses to his Undertakings. Justice Manderscheid declined to dismiss the Defendant’s claim for delay.
The Defendant argued that due to the ongoing re-ligation of the same issue by the Plaintiff, enhanced Costs of $5,000 were justified as the Plaintiff had wasted judicial resources by repeatedly initiating proceedings that were an abuse of process. His Lordship noted that where there had been litigation misconduct, enhanced Costs could be awarded. Justice Manderscheid was satisfied that the Plaintiff had engaged in litigation misconduct and wasted judicial resources due to his re-litigation of the same issue, and due to his unsubstantiated allegations against the Defendant’s counsel.View CanLII Details