The Applicant had been previously declared a vexatious litigant under the Judicature Act, RSA 2000, c J-2 (the Judicature Act). The Case Management Judge in this Action granted an Order, on the Applicant’s application, that allowed him to visit his mother under specific conditions (the Visitation Order). The Applicant sought permission to Appeal the Visitation Order.

Justice Wakeling held that the appropriate test governing Applications for permission to Appeal made by a vexatious litigant is set out in the case law applicable to Rule 14.5(1) together with the statutory test embedded in s. 23.1(7) of the Judicature Act. As such, a single Appeal Judge hearing an Application by a vexatious litigant for permission to Appeal must ask the following questions:

1. Is the application for permission to Appeal an abuse of process?
2. Does the Applicant have reasonable grounds for applying for permission to Appeal? Is the likelihood a proposed Appeal will succeed roughly the same as the likelihood it will fail?
3. Does the proposed Appeal present an important question of law?
4. If permission to Appeal is granted, is there a reasonable chance of success on Appeal? is the likelihood a proposed Appeal will succeed roughly the same as the likelihood it will fail?
5. Will an Appeal unduly burden the progress of the action or cause the non-moving party undue prejudice?

Wakeling J.A. further held that an Applicant for permission to Appeal must clear each of the five hurdles and that the Applicant fell far short of meeting these tests.

In reaching his conclusion, Wakeling J.A. found that the Applicant did not identify an important question of law that underlined his dissatisfaction with the Visitation Order. The Applicant also failed to provide a valid reason for his dissatisfaction with the Visitation Order. Nor did the Applicant establish a reasonable chance of success if he were permitted to Appeal.

Based on the foregoing, Wakeling J.A. held that it would be a hopeless Appeal. An Appeal that is hopeless is an abuse of process. The Court of Appeal, having found no error of law or a factual determination that was clearly wrong, stated that it should not substitute its views for those of the Case Management Judge on the Visitation Order. The Application for permission to Appeal was therefore dismissed.