In a prior Decision, an Order declaring the Appellant a vexatious litigant and imposing sanctions for contempt was issued against the Appellant. Although the vexatious litigant Application was brought under the Judicature Act, RSA 2000, c J-2 (the “Judicature Act”), the Case Management Judge instead considered the Application under the Court’s inherent jurisdiction to control its proceedings. The Appeal addressed the scope and breadth of the Court’s jurisdiction to restrain vexatious litigants and the related principles of access to justice.

The Court of Appeal considered the  Rules and the Court of Queen’s Bench inherent common law jurisdiction in concluding that although the Court does have the inherent jurisdiction to make vexatious litigant Orders, that process should be the exception. The preferred route is for the litigants to bring an Application under the Judicature Act with notice to both the Respondent and the Attorney General. The Court noted that pursuant to Rules 6.4(b), notice would not be required if the Applicant would suffer undue prejudice by giving notice, but that was not the case in this matter.

The Court of Appeal noted that Rule 1.1(2) states that all persons who come to the Court (whether self-represented or represented by counsel) are subject to the Rules, and held that there is no excuse for abuse of Court procedures. In considering the whether the Court has the appropriate authority to issue vexatious litigant Orders, the Court cited Rules 1.4, 1.6 and 4.14, which allow the Court to direct and impose procedural Orders. Although these Rules exist, the Court of Appeal held that the primary jurisdiction for vexatious litigant Orders arises from the Judicature Act, Part 2.1, and such Orders should first be assessed pursuant to that statute.

The Court of Appeal held that the vexatious litigant Order was not the appropriate response to the Appellant’s behaviour and the Case Management Judge should have instead granted a “carefully crafted case management order, and possibly a litigation plan” pursuant to Rule 4.5.