MCMEEKIN v ALBERTA (ATTORNEY GENERAL), 2012 ABQB 456
1.2: Purpose and intention of these rules
1.5: Rule contravention, non-compliance and irregularities
3.65: Permission of Court to amendment before or after close of pleadings
3.68: Court options to deal with significant deficiencies
4.16: Dispute resolution processes
4.7: Monitoring and adjusting dates
7.3: Summary Judgment (Application and decision)
8.4: Trial date: scheduled by court clerk
13.12: Pleadings: denial of facts
13.7: Pleadings: other requirements
The Defendants applied to strike the unrepresented Plaintiff’s Action and the Plaintiff applied to strike the Statements of Defence. Citing case-law under the new Rules, the Court confirmed that Rule 7.3(1) applies the same criteria and analysis as Section 159(b) under the former Rules. The Court also concluded that there was nothing to support the Plaintiff’s allegation of malicious prosecution by some of the Defendants.
The Crown Defendant also asserted that an allegation of defamation by the Plaintiff was not detailed as required by Rule 13.7(f), and that the potential defamatory speech would have occurred at a point in time falling outside the two year limitation period for civil litigation. The Court did not strike this allegation, determining that the Pleading deficiencies could be cured by an amendment to the Statement of Claim, which might reveal a different alleged defamation that could still be a potential subject for litigation.
The Defendants further requested dismissal of the Action based on categorizing the Plaintiff as a vexatious litigant, pursuant to Rule 3.68. Shelley J. indicated that the Court could strike a Claim or dismiss an Action if the Statement of Claim was frivolous, irrelevant, improper, or an abuse of process. Referring to pre and post new-Rules case law, Shelley J. stated that a pleading is frivolous if its substance indicates bad faith or is hopeless factually; a frivolous plea is one so palpably bad that the Court needs no real argument to be convinced of that fact. The Court later referred to the hallmarks of a vexatious litigant specified in Dykun v Odinshaw, 2000 ABQB 548.
Her Ladyship pointed out that Canadian Courts generally provide litigants, particularly self-represented litigants, with very significant leeway with respect to Rules 3.68(2)(c-d), since there are both good policy and equity bases for this approach. By way of example, Justice Shelley remarked that it would not be surprising for a self-represented litigant to misunderstand or misapply elements of civil law procedure. The Court indicated that the Rules provide broad authority to address issues that might arise in such circumstances. Shelley J. noted that the Court’s response is contextual and that not all unrepresented parties warrant the same treatment.
Shelley J. found that the Plaintiff: (1) followed Court procedure only when it was in his interest to do so; (2) conducted himself in an abusive and hostile way in Court; (3) alleged bias of legal professionals and the judicial system, on a repetitive basis in this and other proceedings; and (4) applied for Summary Judgment – the exact same strategy he had taken in four reported Decisions, all of which failed. Shelley J. noted that the Plaintiff engaged in repeated litigation on the same issue, including Appeals, and that the Plaintiff did not engage in the kinds of mediation or negotiation that indicate a sincere litigant. The Court also indicated that there was no evidence that the Plaintiff conformed to the general litigant obligations in Rule 1.2(3). Justice Shelley struck the Plaintiff’s Claim as being vexatious for all of these reasons.
The Plaintiff, on the other hand, had three arguments in support of Summary Judgment against the Defendants. The first assertion was that the Defendants failed to enter into a dispute resolution process pursuant to Rule 4.16. Her Ladyship, referring to Rule 8.4(3)(a), pointed out that a Trial cannot be scheduled unless the parties have engaged in a Rule 4.16(1) dispute resolution process or had that obligation waived via Rule 4.16(2). Shelley J. noted, however, that Rule 4.16 does not set any kind of timeline other than litigants are required to attempt good faith dispute resolution procedures at some point prior to Trial. The Court indicated that the Plaintiff had no right to demand compliance at this point of the Proceeding, and that the Plaintiff had not discharged his own obligation under Rule 4.16 to attempt resolution in good faith.
The Plaintiff’s second assertion was that the Statements of Defence did not have a detailed, point by point denial of his allegations. Shelley J. concluded that this point was irrelevant, since both Statements of Defence included categorical denials of any facts not admitted, which satisfies Rule 13.12(2).
Finally, the Plaintiff contended that the Defendants served their Statements of Defence late. The Court rejected this argument because an Affidavit of Service indicated that service occurred within the required period.View CanLII Details