The Appellant appealed a Decision to strike the Appellant’s Statement of Claim pursuant to Rule 3.68 as an “abuse of the Court”. The Respondents all sought to have the Action against them struck by invoking the Apparent Vexatious Application or Proceeding (“AVAP”) procedure under Court of King’s Bench Civil Practice Note 7 (“CPN7”).

The Court noted that it interpreted the underlying Decision as striking the Appellant’s Statement of Claim solely under Rule 3.68(2)(d) for constituting an abuse of process as opposed to Rule 3.68(2)(b) where the “pleading discloses no reasonable claim”. The Court found that this was consistent with recent jurisprudence which noted that the CPN7 procedure should be limited to Rules 3.68(2)(c) and 3.68(2)(d). The Court set out that although no evidence may be submitted on the issue of whether a “reasonable claim” has been plead under Rule 3.68(2)(b); under Rule 3.68(2)(d), evidence may be admitted and there is no presumption that the facts plead are true. Further, the Court noted that the admission of evidence is strongly curtailed under the “summary procedures” in CPN7 based on the rational that CPN7 should only apply where the “the frivolous, vexatious, or abusive nature of the proceeding” is “apparent on the face of the pleading”.

The Court additionally noted that the Appellant’s submissions in respect of the Respondents did not establish a proper claim for her negligence claim and the questions she sought to have answered had little, if anything, to do with the Respondents. The Court accordingly dismissed the Appeal as no reviewable error had been found in the Court’s decision to strike the Appellant’s Statement of Claim.

The Court additionally set out several observations and concerns regarding CPN7:

(1) CPN7 was implemented “to better manage litigation that, on its face, appears to be unmeritorious, has no chance of success, or is otherwise abusive and vexatious” resulting in parties being able to avoid having to file an Application to strike a Pleading under Rule 3.68 and the resulting delays in securing a chambers date, as the review is entirely in writing;

(2) Although CPN7 seeks to enforce Rule 3.68, it makes no reference to “vexatious” proceedings or Pleadings and on this basis alone, the inclusion of “vexatious” language in CPN7 is troublesome;

(3) The propriety of attaching the “vexatious” label to the overall process outlined in CPN7 is questionable as it does not follow that all Actions amounting to an abuse of process are necessarily vexatious;

(4) The phrase “Apparent Vexatious Application or Proceeding” contained in CPN7 is provocative and can have long-term implications for the party whose Application or proceeding is being challenged, as the distinction between a vexatious proceeding contemplated by CPN7 and a person being declared a vexatious litigation is often not apparent to the litigant; and

(5)  The ordinary course is for Defendants to make Applications under Rule 3.68 which CPN7 does not supplant as many Actions and Appeals are not vexatious  (as concerns about vexatious proceedings can be dealt with separately under the Judicature Act, RSA 2000, c J-2), but are completely unmeritorious and born from unfamiliarity with applicable legal principles, rules of evidence and rules of procedure.