Abusive litigation has been on the rise lately in Alberta. In June of 2018, the Alberta Court of Queen's Bench published a civil practice note on "frivolous, vexatious, or abusive applications or proceedings" to be dealt with by Courts under Rule 3.68 of the Alberta Rules of Court. Until recently, not much judicial ink had been spilled on the subject until 3 weeks ago, when a rash of abusive litigation across Alberta prompted Associate Chief Justice Rooke to carefully outline how the new procedure should be applied to vexatious litigation.
The test proceeds in two parts with multiple steps: 1. If a party to litigation, a member of Court personnel, or the Court itself has identified an application or proceeding that is on its face an abusive piece of litigation, it will notify the litigant that it intends to stay or dismiss the application or proceeding and on what grounds it intends to do so. 2 a) Within 14 days of notice, the litigant may "show cause" to proceed by providing the Court, and every other party to the litigation, with a written response of no more than 10 pages of materials. 2 b) Parties to the action may serve a written reply to the submission of the litigant. 2 c) Once the later of the period to reply to the notice or the period to reply to the submission is up, the Court issues a decision as to whether the proceeding or application should be stayed or dismissed based on the submission and responses put forward by the litigant and parties.
This test was applied in the cases of Bruce v Bowden Institution and Gagnon v Core Real Estate Group. In Gagnon, the plaintiff sued the University of Alberta, Field Law, Core Real Estate, Western Union, and a few other parties, issuing claims that contained averments the likes of "GUILTY of ... THREATENING BEHAVOIUR, [foisting] First-Time Defamation, FRAUDULENT CONCEALMENT" among many others. Justice Michalyshyn, deemed these pleadings hopelessly deficient and issued his decision under part one of the two stage test outlined by ACJ Rooke in Unrau.
In Bruce, Justice Henderson concluded that although the Applicant had previously obtained leave from the Chief Justice of Alberta's Queen's Bench, that his claim disclosed no unlawful detention or loss of residual liberty which could give rise to a habeas corpus claim. The fact that the application could have no possibility of success, coupled with the fact that Bruce complained of completely irrelevant treatment in his application lead to the Court to deem his application an abuse of court processes and issued a notice pursuant to Unrau/Civil Practice Note No. 7 and had those materials attached to his decision.
I applaud the Courts for taking a stand against vexatious litigation, but I also worry that the new show cause proceeding might be another nail in the access to justice coffin for self-represented litigants. We should strive not only to make court processes fair, but also to be clear and procedurally manageable for normal people who have disputes. I can imagine that although this new test will catch all kinds of previously unaddressed civil actions, that many under-educated and marginalized people will find their legitimate claims struck off because they don't have the tools or wherewithal to respond to an allegation by a Justice of the Court of Queen's Bench that they are merely vexatious or abusive litigants.
I am reminded of the Milgram experiment on the effect of authority and worry that laypersons are more likely to capitulate to Justices wearing the trappings of a modern court than a mere stranger in a white coat. Will valid litigants with poorly constructed claims merely cow to a notice by a judge that their claim is abusive? Only time will tell.
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