After the Plaintiff filed a Statement of Claim which made bald allegations without specifically referencing any of the eleven named Defendants, the Court initiated a Rule 3.68 “show cause” procedure under Practice Note 7, which required the Plaintiff to provide a basis for the Action. The Plaintiff did not reply, and his Statement of Claim was struck. This Decision considered whether the Plaintiff should be declared a vexatious litigant and subject to Court access restrictions. Rooke A.C.J. took the opportunity to review the way that Courts deal with abusive litigants.

Rooke A.C.J. explained that the Rule 3.68 “show cause” procedure is a new method used by the Court to evaluate potentially abusive Court filings. It was initially used to divert seemingly abusive habeas corpus Applications, but through Civil Practice Note No. 7, it now generally applies to “hopeless and abusive civil proceedings”. His Lordship also explained that the Court’s approach to abusive litigation has shifted, and its gatekeeping functions should be applied prospectively, rather than reactively. Rooke A.C.J. also explained that Judges are obliged to facilitate the process, and in fact, Rules 1.2(1) and (2) direct that function should “trump pure formality”. However, this does not mean that self-represented litigants may skirt the rules of procedure. Rather, the management of abusive claims is a critical part of the “culture shift” created by the new Rules.

His Lordship next emphasized that “frivolous”, “vexatious”, and “abusive” litigation is already recognized as requiring Court intervention through Rules 1.4(2)(b), 3.68, 5.3, 5.19, 14.74, and 14.92. However, in many senses, these definitions overlap. As such, Rooke A.C.J. commented that the terms “vexatious” and “frivolous” can be misleading, and should be avoided. The focus should be on the effect of the litigation as abusive, not the intentions of the litigant. Rooke A.C.J. then reviewed the connection between abusive litigation and mental health, and noted that early intervention is likely “the best opportunity to assist abusive litigants with psychiatric issues”. As such, proportionate steps should be imposed when signs of abuse first appear.

Next, Rooke A.C.J. categorized various “types” of abusive litigants, and reviewed typical abusive conduct such as “procedural nitpicking”, which may include the aggressive pursuit of penalties for late-filed Affidavits of Records under Rule 5.12.

Rooke A.C.J. also noted that the term “vexatious litigant” is not defined in the Rules, but it is mentioned in Rule 14.5 with respect to prohibiting or limiting access to Appeals. Given Rule 14.5, the Justice emphasized that one aspect of the definition is clear: a “vexatious litigant” is one that requires “permission to institute or continue proceedings”. His Lordship therefore defined the term “vexatious litigant order” functionally, as referring to “an [O]rder that imposes prospective [C]ourt access restrictions on future [C]ourt activity based on anticipated future litigation misconduct”. His Lordship defined “vexatious litigant” as “a person subject to a “vexatious litigant order”, with no special meaning beyond its functional identification.

Rooke A.C.J. noted that two types of Court access restrictions are available to Judges: procedural Orders which may prohibit parties from taking steps in an Action until certain milestones have been met; and “vexatious litigant” Orders, which may extend to unrelated or future litigation. There are also two sources of authority to impose Court access restrictions: legislation, and the Courts’ inherent jurisdiction. His Lordship explained that the Rules complement the Court’s inherent jurisdiction, and noted that many Rules simply codify the Court’s inherent powers. However, Rooke A.C.J. suggested that inherent jurisdiction is a more flexible, proportionate, and responsive tool to impose access restrictions. His Lordship also described the processes through which it may be determined that restrictions are appropriate, and endorsed a document-only procedure authorized by Rule 6.9(1)(c) for doing so.

Rooke A.C.J. also explained that there is a difference between a “vexatious litigant”, and “vexatious litigation”. Vexatious litigation concerns whether a claim should be struck pursuant to Rule 3.68, or summarily dismissed as having no merit pursuant to Rules 7.2 and 7.3. In contrast, making a vexatious litigant Order evaluates the individual litigant and his or her past conduct. After reviewing the indicators of abusive litigation, and the factors that Courts should consider in determining whether access restrictions should be imposed, Rooke A.C.J. noted that imposing pre-filing leave requirements may actually shield abusive litigants from having to pay Costs for wrongfully filed materials under Rule 10.29, or from having to pay enhanced Costs pursuant to Rule 10.33. His Lordship also noted that pursuant to Rule 10.49, monetary sanctions may be imposed in response to repeated, unsuccessful leave Applications.

Next, Rooke A.C.J. discussed the contents of Court access restriction Orders. Directions about the mechanism for seeking leave are particularly important to include in vexatious litigant Orders, especially where there is no Appeal, such as for decisions denying permission to initiate or continue the litigation as directed in Rule 14.5(4). His Lordship also emphasized that Court access restriction Orders should prohibit the abusive litigant from preparing Court documents, communicating with the Court on behalf of another person, or acting as an agent or next friend of another person pursuant to Rules 2.22 and 2.23.

His Lordship then explained that the Court’s ability to review defective filings is limited as a result of legislative choice. Rule 14.92 provides a summary process to review defective filings at the Court of Appeal, but no analogous rule exists for the lower Courts. As such, narrower restrictions may be more effective and easier to enforce. That said, through Rule 14.5(j), access restrictions imposed in one Alberta Court are recognized in another, meaning that restrictions imposed by one Court “will inevitably expand to have a global scope at the Alberta Court of Appeal”. His Lordship characterized this as a legislative effort to streamline Court processes.

Ultimately, Rooke A.C.J. imposed Court access restrictions on the Plaintiff, and dispensed with the Plaintiff’s approval of the Order pursuant to Rule 9.4(2)(c).