Frivolous, vexatious, or abusive applications or proceedings: The Court of King’s Bench clarifies (and limits) the use of Civil Practice Note 7

Introduction

On April 12, 2023, Associate Chief Justice Nielsen provided much needed clarity on the purpose of Alberta’s Civil Practice Note 7 (“CPN7”) entititled “Vexatious Application/Proceeding Show Cause Procedure (General Powers to Stay or Dismiss a Frivolous, Vexatious, or Abusive Application or Proceeding).” [1]

In De’Medici v Wawanesa Mutual Insurance Company, 2023 ABKB [De’Medici], Justice Nielsen rejected the defendant’s request to dismiss a proceeding using the CPN7 process, taking the opportunity to define (and limit) when the CPN7 procedure should be used, and how to properly apply for it.

Background

A. The purpose of CPN7

CPN7 came into effect in September 2018 in an attempt to deal with potentially abusive court filings in a more efficient and cost-effective manner.[2] It set out summary procedures, relying on Rule 3.68 of the Alberta Rules of Court, Alta Reg 124/2010 [ROC], which allows the Court to order a stay or dismissal of an “Apparent Vexatious Application or Proceeding.”[3] Prior to CPN7, Courts already had authority under Rule 3.68(1) of the ROC to order a stay or dismissal if applications met one or more of the following conditions set out in Rule 3.68(2): [4]

1. the Court has no jurisdiction;
2. a commencement document or pleading discloses no reasonable claim or defence to a claim;
3. a commencement document or pleading is frivolous, irrelevant or improper;
4. a commencement document or pleading constitutes an abuse of process;
5. an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim.

However, CPN7 gave more flexibility to applicants and the Court to address these types of pleadings. In particular, CPN7 permitted (a) the review procedure to be initiated by any party to a proceeding;[5] (b) the procedure to take the form of a “show cause” hearing, requiring the plaintiff to justify their pleading; and (c) the process to be based on written submissions alone.[6] This added flexibility provided the Court and defendants with an expedited process for dealing with “futile or abusive” litigation.[7]

Underlying the purpose of CPN7, being to to promote efficiency, was the Supreme Court of Canada’s call for a “culture shift,” requiring Courts to consider proportionate, timely and affordable remedies (beyond trials) at early stages of litigation.[8]  Early applications made under CPN7 appeared to advance that purpose, with significant benefit to defendants resulting from shortened timelines and fewer resources expended to have a pleading dismissed.

B. A need for clarity

The clear advantages of the CPN7 procedure resulted an increase in written requests to engage the CPN7 procedure.[9] However, the form and length of the written requests varied greatly, with some including written arguments, unsworn evidence, and various supporting documents.

Given the progressively substantive submissions made by counsel when relying on CPN7, as evidenced in De’Medici, the Court took the opportunity to clarify when use of the procedure under CPN7 is appropriate.

The Decision

In De’Medici, defendants’ counsel requested a dismissal of the proceedings, pursuant to CPN7, based on the plaintiff’s history of allegedly vexatious behavior. Their 10-page submission argued that the current pleading was vexatious and included a review of the case law on vexatious litigants. The submissions also referred to 8 previous pleadings filed by the plaintiff, however copies of these pleadings were not appended to the letter.

Justice Nielsen declined to consider the previous pleadings and took issue with the suggestion that a history of vexatious pleadings was conclusive of the current litigation being vexatious. In his view, each impugned pleading must be assessed on it’s own. [10]

In reaching this conclusion, Justice Nielsen considered a limitation to the powers of CPN7 recently imposed by the Alberta Court of Appeal in Johnson v. Lymer, 2020 ABCA 167, and confirmed that CPN7 cannot be used to declare someone a vexatious litigant,[11] only the process under Part 2.1 of the Judicature Act, RSA 2000, c J-2 can do so. Justice Nielsen found that CPN7 is meant to deal with potentially vexatious pleadings, not litigants, despite the occasional overlap between the two.[12]

Justice Nielsen also declined to consider the defendant’s legal arguments, stating that “a pleading or commencement document must be problematic on its face” [13]  in order to invoke the CPN7 process. Justice Neilsen found that he was not able to make such a determination since the impugned Statement of Claim was missing from the submissions.

Finally, he acknowledged that CPN7 itself is silent on what is to be included in or along with the written request required under paragraph 2(b).[14]  He noted that recent decisions have impacted the applicability of CPN7 in certain cases[15] and, in an effort to bridge this gap, Justice Neilsen provided the following guidance regarding (a) when the CPN7 procedure is appropriate and (b) the requirements for applying for it.

A. When is the CPN7 show cause procedure appropriate?

According to Justice Neilsen, the CPN7 procedure should be limited to cases where defects in the impugned pleading are evident on its face. The process can be employed “where a pleading is so bad that no argument is necessary to show how bad it is or where a pleading is oppressive or vexatious and violates the principles of justice or is unfair to the point of being contrary to the interests of justice.”[16]

Justice Nielson further emphasized that CPN7 should only be used when there is “a reason to prefer it to the other procedures available under” the ROC, which already include substantive legal tests developed for determining whether a commencement document or pleading is frivolous, vexatious, or an abuse of process.[17] To ensure that the process is “fair and proportionate,”  there must be some reason which justifies the use of the abridged procedures under CPN7.[18]

B. How to apply for CPN7 review

Adopting precedent from Ontario and Alberta, Justice Nielsen set out the following three guidelines for written requests, intended to reflect the abridged nature of the CPN7 review process:[19]

1. A letter requesting CPN7 should be no more than a line or two.[20] As the CPN7 procedure is generally limited to cases were the defect in the pleading is evident on its face, there should be no need for an extensive explanation of the request. [21] If further explanation is required, the parties may want to consider other procedures available under the ROC.[22] Submissions should not “contain arguments or indirectly depose to facts.”[23]
2. A letter requesting CPN7 should include a copy of the impugned pleading or commencement document.[24]
3. If a party is alleging that a pleading is defective, because it is a collateral attack or res judicata, then the party may also include a copy of any previous written decision that shows the collateral attack or issue that has already been decided.[25] The party may also choose to include another filed document, such as a pleading or a Court Order. That said, if a party attaches more than a couple of decisions or other filed documents, the defect may not be evident on its face, and therefore CPN7 may not be the appropriate procedure.[26]

Practical Implications

De’Medici defines – and limits – the scope of CPN7 to proceedings that are problematic on their face. The decision also imposes significant constraints on the length of written submissions and appended materials and clarifies that any submission exceeding the stated limits is likely better addressed through alternative means.

Before pursuing the CPN7 process it is necessary for defendants to evaluate the strength of their claim based on the impugned pleading alone. If the pleading is not frivolous, vexatious or abusive on its face, it is likely better to seek a stay or dismissal under the Alberta Rules of Court or the Judicature Act.

If you believe you are the target of a frivolous, vexatious or abusive claim and want to know what options might be available to you, please contact a member of Miller Thomson’s Commercial Litigation group.

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[1] Civil Practice Note 7  “Vexatious Application/Proceeding Show Cause Procedure” [CPN7] published by the Court of King’s Bench of Alberta.

[2] De’Medici v Wawanesa Mutual Insurance Company, 2023 ABKB 210 [De’Medici] at para 5, citing Unrau v National Dental Examining Board, 2018 ABQB 874 at para 18 [Unrau].

[3] De’Medici, supra note 2 at para 6.

[4] Alberta Rules of Court, supra note 3 r 3.68(2)(c) and r 3.68(2)(d).

[5] De’Medici, supra note 2 at para 6.

[6] Ibid at para 9.

[7] Ibid.

[8] Hryniak v. Mauldin, 2014 SCC 7 at paras 2, 5, 27, 28, 50, 66, 67; referred to in subsequent decisions relating to CPN7 including Unrau, supra note 2 at para 13.

[9] De’Medici, supra note 2 at para 2.

[10] Ibid at paras 43–44.

[11] Ibid at para 8 citing Johnson v Lymer, 2020 ABCA 167 [Lymer] at paras 42, 85.

[12] De’Medici, supra note 2, at para 44.

[13] Ibid.

[14] CNP7, supra note 1 at para 2(b); De’Medici, supra note 2, at para 29;

[15] De’Medici, supra note 2, at para 44.

[16] Ibid at para 23.

[17] Ibid at paras 18, 23.

[18] Ibid at para 28.

[19] De’Medici, supra note 2, at para 40.

[20] De’Medici, supra note 2, at para 37.

[21] Ibid at paras 31-32 citing Ubah v Canadian Natural Resources, 2019 ABQB 347 at paras 47–48 and Goertz v John, 2019 ABQB 350 at paras 14–15.

[22] De’Medici, supra note 2, at para 37.

[23] Ibid at paras 31-32 citing Ubah v Canadian Natural Resources, 2019 ABQB 347 at paras 47–48 and Goertz v John, 2019 ABQB 350 at paras 14–15.

[24] De’Medici, supra note 2, at para 38.

[25] De’Medici, supra note 2, at para 38.

[26] De’Medici, supra note 2, at para 35, citing Covenoho v Ceridian Canada, 2015 ONSC 2468 at para 7