3.30: Defendant’s options
3.68: Court options to deal with significant deficiencies
10.33: Court considerations in making costs award

Case Summary

The Defendants applied to strike out the pleadings in a second Action. The Defendants had been served with a Statement of Claim in that Action, which had been commenced before all of the Defendants had filed defences to a Statement of Claim brought by the same (self-represented) Plaintiff in the first Action. Both Statements of Claim made the same allegations, the difference being that additional Defendants (the “Remaining Defendants”), which included lawyers who had provided defences on behalf of Defendants in the first Action, had been added to the second Action.

In response to an argument by the Plaintiff that the Court could not strike the second Action before a Defence had been filed in the first Action, Marceau J. referred to Rule 3.30, which “clearly” provides a Defendant with “three non-mutually-exclusive options”, including the ability to make a Rule 3.68 Application.

The Plaintiff alleged in the second Statement of Claim that the Defendants had fabricated a previous Order of the Court in the first Action that did not reflect the Order handed down by a Master. Marceau J. found that a dispute over the terms of an Order in one Action cannot form the basis for a separate Action. Such an allegation disclosed no reasonable Cause of Action. The Court noted that the Plaintiff could have applied to settle the terms of the Order pursuant to Rule 9.3.

Marceau J. indicated that, notwithstanding that the word “vexatious” which was present in the “old” Rules is absent in Rule 3.68, Courts have interpreted “vexatious” as being broadly synonymous with impropriety and abuse of process. As a result, vexatious Pleadings can still be struck pursuant to Rules 3.68(2)(c) and (d). The Court referred to Dykun v Odinshaw, 2000 ABQB 548, which listed a number of specific tests to determine whether a proceeding was vexatious. His Lordship noted that making unsubstantiated allegations against a Party, legal counsel, or the Court, tends to be a common feature of vexatious proceedings. In this case, the Court found that the allegations were vexatious and ought to be struck, as should be the claims against the Remaining Defendants.

Marceau J. cited Donaldson v. Farrell, 2011 ABQB 11, for the proposition that a Pleading is frivolous when it is indicative of bad faith or is factually hopeless. His Lordship then referred to Haljan v. Serdahely, 2008 ABQB 472 for the proposition that a frivolous plea is one so palpably bad that the Court needs no real argument to be convinced of that fact. The Court found that the Claims against the Remaining Defendants were frivolous, disclosed no reasonable Causes of Action, and were an abuse of process.

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