DIGGS v WEIR

This decision concerned a review of a Statement of Claim (the “Claim”) under Civil Practice Note 7 (“CPN7”) and Rule 3.68. The Plaintiff, Anthony Diggs (“Diggs”), commenced an Action against James Weir (“Weir”), the Administrator of the Motor Vehicle Accident Claims Act, RSA 2000, c M-22 (the “Administrator”), and Peter Tesi (“Tesi”), challenging the enforcement of a Consent Judgment arising from a motor vehicle accident.

Associate Chief Justice Nixon noted that CPN7 permits an abbreviated review of proceedings that appear on their face to be frivolous, vexatious, or an abuse of process. Nixon A.C.J. held that the CPN7 process is appropriate where the abusive nature of the proceeding is apparent and summary review is preferable to ordinary Court procedures.

Applying Rule 3.68(2)(d), Associate Chief Justice Nixon held that the claims against Weir and the Administrator were an abuse of process, as they amounted to a collateral attack on the underlying Consent Judgment and related enforcement proceedings. The Court further noted that Diggs had not pursued available remedies, such as an Application to Set Aside the Noting in Default pursuant to Rule 9.15, or the statutory remedies available under the Traffic Safety Act, RSA 2000, c T-6.

Nixon A.C.J. rejected Diggs’ argument that Rules 1.2 and 1.3 imposed obligations on Weir and the Administrator to facilitate a fair and timely resolution while protecting Diggs’ rights. Further, the Court found that Alberta (Attorney General) v Moloney, 2015 SCC 51, was distinguishable since Diggs had not been discharged from bankruptcy and remained subject to the Consent Judgment.

With respect to Tesi, the Court held that, although Diggs relied on Rules 1.2, 1.4, 9.13, and 10.49, those Rules govern the Court’s processes rather than create causes of action. Nevertheless, Associate Chief Justice Nixon found that the Claim pleaded facts capable of supporting claims in negligence, breach of fiduciary duty, and breach of contract. Accordingly, it was not plain and obvious that the claims against Tesi were frivolous, vexatious, or an abuse of process for the purposes of Rule 3.68(2)(c) and (d).

In the result, the Court ordered the portions of the Claim against Weir and the Administrator be struck pursuant to Rule 3.68(2)(d) but permitted the Claim against Tesi to proceed. Rule 9.4(2)(c) was invoked for the Defendants to prepare the resulting Order.