The Appellant commenced a medical malpractice action against the Respondents for harm suffered following a medical procedure performed by the Respondent (the “2003 Action”). The 2003 Action was struck out. In May 2022, the Appellant sought to revisit the 2003 Action, first seeking permission to file a late Appeal. When that Application was denied, he commenced a new Action against the Respondents (the “2022 Action”). 

Counsel for the Respondents asked the Court of King’s Bench to strike the Appellant’s 2022 Action through the process set out in Civil Practice Note 7, the “Vexatious Application/Proceeding Show Cause Procedure” (“CPN7”). They asked that CPN7 be used on the basis that the 2022 Action sought “to re-litigate a decided issue or issues, is a collateral attack, and/or is a duplicate proceeding”. It was determined that the 2022 Action was a suitable candidate for the CPN7 procedure. The Chambers Justice reviewed the purpose of the CPN7 procedure, noting that it is not for close calls; it is only for matters where the deficiencies in Pleadings are apparent on their face. The CPN7 process considers only “restricted forms of evidence”, including “documents and records that are evidence that the Apparently Vexatious Application or Proceeding is an attempt to litigate an issue that has already been decided”.

The Chambers Justice concluded that the Appellant’s 2022 Action appeared on its face to be a collateral attack on the decision to strike the 2003 Action. The Chambers Justice concluded that it was not appropriate to consider additional evidence, in part because Rule 3.68(3) prohibits evidence in relation to whether a filing “... discloses no reasonable claim or defence to a claim ...”. Thus, the Appellant appealed the striking of his Claim, and asked the Alberta Court of Appeal to consider new evidence.

The Court of Appeal went on to state that CPN7 does not change the substantive law established by Rule 3.68 and cases that applied the Rule. Rather, it changes the procedural entitlements of the party who’s claim is impugned. Ordinarily, a party seeking to strike a claim must file an Application and supporting Affidavit and serve it on the opposing party. The matter is usually decided following an oral hearing in civil Chambers, although the Court has the jurisdiction to resolve a matter in writing. Conversely, under CPN7, a party seeking to strike a claim may write to the Court asking that the CPN7 process be invoked. If the Court is satisfied that the matter is suitable for resolution through CPN7, it notifies the party with the impugned claim that the Court is considering making an Order staying or dismissing their claim. That party has 14 days to file a response, to which the party who requested the CPN7 may respond. The Court then makes its determination based on written materials. Under this process little or no evidence is provided, no oral hearing is conducted and importantly, the burden of proof shifts from the party seeking to strike the claim, to the party who’s claim is in jeopardy of being struck.

After reviewing the relevant jurisprudence on the matter, the Court agreed that CPN7 should only be used where the defect on the Pleading is evident on its face and there is a reason to prefer CPN7 to the ordinary Court procedure under Rule 3.68. That includes cases where a litigant is at risk of using other procedures to abuse the Court’s process, or where the party’s Pleading is so clearly hopeless that the ordinary procedures would be an utter waste of time, money and resources. Ultimately, a Judge must decide whether the circumstances justify placing the burden of proof on the party who’s pleading is impugned and denying that party an oral hearing.

When the Court applied this to the facts before them, the Court concluded that the Chambers Justice did not implement this approach and did not reflect on whether the CPN7 process was preferable to the ordinary process for considering an Application to strike.

That said, the Court was nonetheless satisfied that they could not intervene as the Appeal raised questions of mixed fact and law reviewed for palpable and overriding error, which is a very high standard. In so holding, however, the Court emphasized that CPN7 ought to be reserved for exceptional cases, particularly where the effect of the Decision is to terminate a party’s claim before the Court, and that CPN7 should not supplant the ordinary Rule 3.68 procedure.