3.68: Court options to deal with significant deficiencies

Case Summary

The Plaintiff, Smith, filed a Statement of Claim for poor treatment of his tennis elbow while incarcerated at the Bowden Institution. The Statement of Claim was brought before the Court for review under Civil Practice Note 7 which provides procedural guidance in dealing with an Apparent Vexatious Application or Proceeding (“AVAP”).

Nielsen A.C.J. stated that the Court may strike the Statement of Claim when it is a clear case of abuse or has apparent defects. Nielsen A.C.J. first considered the quantum of damages appropriate to claim in the circumstance of poorly treated tennis elbow. The amount of damages claimed by Smith was excessive, and Nielsen A.C.J. noted that excessive or disproportionate claims are “a basis to conclude the action is an abuse of court processes.” Nielsen A.C.J. also noted that when a proceeding seeks a global correction of a government shortcoming, it is generally a proceeding with an improper purpose. For these reasons Associate Chief Justice Nielsen stayed the Action. Nielsen A.C.J. ordered that Smith had 14 days to provide no more than 10 pages of written submissions to defend his Action or the Court would strike the Action in whole or in part pursuant to Rule 3.68.

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