3.68: Court options to deal with significant deficiencies

Case Summary

The Appellant appealed Associate Chief Justice Rooke’s decision (the “Decision”) to strike out the Appellant’s Originating Application under Rule 3.68 as an Apparently Vexatious Application or Proceeding (“AVAP”) after following the procedure in Civil Practice Note No 7 (“CPN7”).

In 2006, the College of Physicians and Surgeons of Alberta (the “College”) struck the Appellant’s father from the College register for failing to upgrade his skill level. The Appellant later commenced a private prosecution against the College and the Registrar in place at the time, which the Chief Crown Prosecutor stayed.

After the Chief Crown Prosecutor stayed the proceedings, the Appellant filed an Application for Judicial Review and filed a complaint against the Chief Crown Prosecutor with the Law Society of Alberta (the “Law Society”). The Law Society dismissed the Appellant’s complaint and the Appellant appealed to the Law Society of Alberta Appeal Committee (“Appeal Committee”), which dismissed the Appeal. The Appellant then filed an Originating Application seeking Judicial Review of the Appeal Committee’s decision, which Rooke A.C.J. struck as an AVAP in the Decision.

On Appeal, the Appellant argued that the Decision erred in failing to recognize that the Respondents’ invoking CPN7 was itself abusive and failing to consider an alleged Charter breach. The Appellant also applied to admit new evidence filed concurrently with his Originating Application as part of his CPN7 response.

The Alberta Court of Appeal dismissed the Appeal. The Court determined that there was nothing improper about the Respondents’ relying on the CPN7 process. The central issue below was whether the Originating Application failed to set out a “reasonable claim” such that it could be struck under Rule 3.68(2). The Court noted that no evidence is permitted on this question as Rule 3.68 is “not about evidence, but the pleadings” (R v Imperial Tobacco Canada Ltd., 2011 SCC 42). The Court noted that the Appellant failed to set out any facts in his Originating Application.

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