MCKAY v SOUTHERN ALBERTA COMMUNITY LIVING ASSOCIATION

The Defendants brought an Application for an Apparent Vexatious Application or Proceeding (“AVAP”) review under Civil Practice Note 7 (“CPN7”). Nixon A.C.J. explained that CPN7 incorporates Rule 3.68 and establishes summary procedures for identifying proceedings that appear to be frivolous, vexatious, or an abuse of process. Associate Chief Justice Nixon noted that the Statement of Claim (the “Claim”) advanced broad and unparticularized allegations, including defamation, fabrication and distribution of illegal documents, breach of contract, blacklisting, and physiological and financial harm. The Court also observed that the Claim sought excessive or impossible monetary relief.

Nixon A.C.J. found that the Claim, on its face, appeared frivolous, vexatious, or an abuse of process within the meaning of Rule 3.68. The Court emphasized that despite the Defendants’ demand for particulars under Rule 3.61, the Plaintiff failed to provide any particulars or amend the Claim to address the deficiencies raised. Associate Chief Justice Nixon further noted that the Action may constitute a retaliatory or collateral attack on an Originating Application filed by Southern Alberta Community Living Association and acknowledged that the Defendants’ contended that the Claim was statute barred.

As a result, Associate Chief Justice Nixon issued an AVAP Notice (the “Notice”) directing the next procedural steps. The Notice gave the Plaintiff 14 days to file a written submission addressing the identified deficiencies, including the factual basis for the alleged harms, the contractual terms and breach, the justification for the damages sought, the status of any privacy complaints, and explanations as to why the Claim was neither a collateral attack nor limitation barred.

Associate Chief Justice Nixon stated that if the Plaintiff did not respond to the Notice, the Court would determine whether the Claim should be struck in whole or in part under Rule 3.68. Further, the Defendants would have 7 days to reply to any response of the Plaintiff to the Notice before the Court issued its final decision. The Court also directed the Defendants to prepare and serve an Interim Order to stay the Action pending completion of the CPN7 process.