rooke acj

3.68: Court options to deal with significant deficiencies

Case Summary

The Defendants initiated a review process as set out in Civil Practice Note 7 (“CPN7”), alleging that the Statement of Claim in the Action was an Apparently Vexatious Application or Proceeding (“AVAP”). The CPN7 process was initiated by sending correspondence and the Statement of Claim to the Court. The Defendants asserted that the Action was an attempt to initiate a collateral attack on two Provincial Court of Alberta proceedings which were currently under Appeal to the Court of Queen’s Bench (“PC Claims”), and should therefore be struck pursuant to Rule 3.68.

Rooke A.C.J. reviewed the Defendants’ correspondence along with the Statement of Claim and concluded that the Action appeared to advance claims which were properly within the jurisdiction of the Alberta Human Rights Commission, and that the balance of the Action appeared to be a collateral attack on the PC Claims. Pursuant to CPN7, Rooke A.C.J. provided the Plaintiff with notice of the apparent defects and gave until March 18, 2019 to provide up to 10 pages of argument as to why the claims had merit and should not be struck for being vexatious or abusive. Rooke A.C.J. also imposed interim Court access restrictions, pending resolution of the CPN7 process. The Plaintiff initially responded to the initial review decision by challenging the legitimacy of the CPN7 procedure and the interim Court access restrictions. The Plaintiff subsequently provided 10 pages of argument along with 157 pages of evidence.

Rooke A.C.J. noted that the CPN7 process is a form of Application under Rule 3.68, and as such, no evidence is admissible to consider whether the Statement of Claim is, on its face, an abuse of process. The Associate Chief Justice indicated that the correspondence to initiate a CPN7 process can include and make reference to: i) briefly stating that the Court does not have jurisdiction for the subject matter, including specific authorities; and/or ii) Court materials to establish that the Action is a collateral attack on other proceedings, in breach of Court access restrictions, or blocked by a binding legal agreement. Rooke A.C.J. noted that if argument or reference to additional materials are necessary for the Court to understand why an Action is an abuse of process then it is not a “clearer case of abuse… on its face” and is thus outside of the proper scope of the CPN7 process.

Rooke A.C.J. held that the Plaintiff’s response to the initial review decision was itself evidence that the Action was being pursued in a manner which is abusive and vexatious. Rooke A.C.J. noted that the Plaintiff acknowledged that certain elements of the claim were properly matters within the jurisdiction of the AHRC and that the balance of the claim was premised on the PC Claims, with certain additions. Rooke A.C.J. held that the Statement of Claim was in fact a collateral attack on the PC Claims and therefore an abuse of process which should be struck pursuant to Rule 3.68.  

Rooke A.C.J. noted that the CPN7 process permits the immediate imposition of indefinite Court access restrictions without further steps or submissions, however, noted that further submissions were appropriate as to whether indefinite Court access restrictions on the Plaintiff were appropriate. Rooke A.C.J. invited submissions from the parties as to whether such further access restrictions were appropriate. The Application to strike the claim pursuant to Rule 3.68 was granted.

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