Thomas j

3.68: Court options to deal with significant deficiencies

Case Summary

The Applicant, who had been detained at the Edmonton Remand Centre, filed an Originating Application for a writ of habeas corpus. Justice Thomas first noted that Courts are required to place special priority on habeas corpus Applications and to immediately review and evaluate their substance.

In this case, Henderson J. had initially reviewed the Applicant’s Originating Application and concluded that it was vexatious and an abuse of process. He therefore implemented Civil Practice Note No. 7 (formerly the Accelerated Habeas Corpus Review Procedure), which is a “document-based ‘show cause’ procedure” to evaluate whether the Application should be struck pursuant to Rule 3.68 for disclosing no reasonable claim or for being an abuse of process. Pursuant to Civil Practice Note No. 7, the Applicant was given 14 days to submit a written submission, and did so. The Respondent then filed a written reply, and a Hearing was scheduled.

At the Hearing, the Applicant’s counsel argued that the Court had “no jurisdiction to initiate a Rule 3.68 procedure” on its own, without another party bringing an Application. Thomas J. disagreed, holding that “there is no statutory requirement” that the process must be initiated by Application. In doing so, His Lordship referred to previous case law holding that the Court has the authority to “evaluate apparently defective pleadings on its own motion”, and emphasized the Court’s inherent jurisdiction to “terminate abusive and futile litigation”.

Next, Thomas J. reviewed the Applicant’s Originating Application and Affidavit. His Lordship held that the Applicant had “not identified any deprivation of liberty that is subject to potential review by habeas corpus”; sought an “impossible remedy” that was a collateral attack on previous Court decisions; and that the Applicant’s pleadings failed to explain why the Applicant believed his incarceration was arbitrary, procedurally unfair, or otherwise unlawful. His Lordship concluded that the Application was vexatious, and an abuse of process.

The Applicant’s counsel also argued that Civil Practice Note No. 7 is unfair to lawyers, because it does not provide for advanced notice to be given when the Court proceeds with the Civil Practice Note No. 7 process. Thomas J. disagreed with this argument and emphasized that lawyers are “responsible for what they file with the Court”, and the Civil Practice Note No. 7 process should not come as a surprise.

With respect to Costs, Thomas J. noted that “abuse of habeas corpus is a very serious form of litigation misconduct given its disruptive effect on Court function”. Given that the Applicant’s pleadings were vexatious and an abuse of process, he rejected the Applicant’s submissions that reduced Costs should be awarded, and instead ordered that the Applicant pay $1,500.00 in Costs to the Respondent.

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