MCDERMOTT v ZBRODOFF

The Court issued an Apparent Vexatious Application or Proceeding Notice (“AVAP Notice”) pursuant to Civil Practice Note 7 (“CPN7”) and Rule 3.68. The Statement of Claim on its face appeared to the Court to be frivolous, vexatious, or otherwise an abuse of process. The Statement of Claim alleges defamation but does not properly plead particulars as required pursuant to Rule 13.7.

The Defendant argued that, per Rule 3.68(2), the Statement of Claim demonstrated no reasonable claim, represented a collateral attack on previous decisions, provided uncertain and impossible statements for the Defendant to respond to, and offended the Defamation Act, RSA 2000, c D-7 and the Limitations Act, RSA 2000, c L-12. The Defendant also sought that the Applicant be prohibited from filing any further Actions against the Defendant without first obtaining leave of the Court and a legal opinion.

Associate Chief Justice Nixon first considered if the Statement of Claim was frivolous and concluded that based on the Plaintiff’s responses to the AVAP Notice, the Statement of Claim was brought in bad faith and was vindictive.

Second, Nixon A.C.J. considered if the Statement of Claim was vexatious, and held that the Plaintiff used the litigation to raise grievances against anyone connected to the Defendant and to blame the Defendant for his life’s circumstances.

Third, the Court considered if the Statement of Claim also appeared to be an abuse of process and concluded that it did. Associate Chief Justice Nixon refused to consider the limitations arguments advanced by the Defendant on the basis that the CPN7 process is not designed to consider evidence, but rather the defects of the pleading in question must be clear on its face.

The Court directed that the Statement of Claim be struck pursuant to Rule 3.68(1). Nixon A.C.J. also implemented a process for the parties to make written submissions regarding whether further intervention in the Plaintiff’s litigation activities is appropriate.