Written By David McKinnon, Ciara Mackey and Alicia Yowart

Civil Practice Note 7, entitled “Vexatious Application/Proceeding Show Cause Procedure” (CPN 7), is a useful tool to manage hopeless litigation quickly and efficiently. Introduced in 2018, it is a summary procedure under Rule 3.68 of the Alberta Rules of Court that may be used to address a “claim, defence, action, application, or proceeding that appears on its face to be frivolous, vexatious, or otherwise an abuse of process.” It is intended as a “fair and proportionate mechanism to respond to apparently abusive litigation”.

The Alberta Court of Appeal in Wilyman v Cole, 2024 ABCA 41 [Wilyman] renewed recent caution about the use of CPN 7 and confirmed that the abridged procedure is only appropriate where: (1) the frivolous, vexatious, or abusive nature of the proceeding is apparent on the face of the pleading; and (2) there is also “a reason to prefer CPN7 to the ordinary Court procedure”.

Background

Wilyman concerned a medical negligence action revived twenty years after dismissal. The original action was struck in December 2003. In May 2022—19 years later—the Plaintiff sought permission to file a late appeal. The application was denied. The Plaintiff then commenced a new action against the same Defendants, centering on the same allegations.

The Defendants requested a review of the second action pursuant to CPN 7 as apparent abusive re-litigation. Following the CPN7 process, the Chambers Justice struck the new proceeding as an abuse of process and a collateral attack. The Plaintiff appealed.

The Court of Appeal Clarifies the Appropriate Scope of CPN 7

The Court of Appeal dismissed the appeal, satisfied that it could not intervene.

Referencing other recent cautions about CPN 7, it noted the abridged nature of the process. Unlike an ordinary Chambers application, CPN 7 involves little to no evidence, no oral hearing, and a burden of proof that shifts from the party seeking to strike the claim to the party whose claim is in jeopardy of being struck. As such, the Court of Appeal held that to use the process, there must be some added justification beyond an order to strike under Rule 3.68 being available.

The Court of Appeal set out a two-part test: “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.” The Court offered two examples of when this second element may be met:

1. If a litigant “might use those other procedures to perpetuate an abuse of the Court’s process”; or
2. If a pleading “is so clearly hopeless that an application under the Alberta Rules of Court would be an utter waste of time, money and resources”.

On the facts, the Plaintiff acknowledged that both Actions turned on the same allegations, now more than 20 years old. The Court of Appeal accepted that the case was so “clearly hopeless that an Application under the Alberta Rules of Court would be an utter waste of time, money, and resources” and resorting to the CPN 7 process was justified in the circumstances.

Takeaways

1. The CPN 7 process takes away many of the usual procedural entitlements of a party whose claim is impugned as frivolous, vexatious or abusive.
2. Even a clear defect on the face of a pleading is insufficient, by itself, to support the use of CPN 7. There must also be a reason to prefer the CPN 7 process, possibly because of a concern about litigation conduct or because any longer process would be a clear waste of time, money and resources.
3. Wilyman appears to leave open in what other types of circumstances the CPN 7 process might be preferred to address defects on the face of a pleading. However, the cautions and new directions from the Court of Appeal will likely continue to chill the use of CPN 7 outside of very clear cases and those cases involving potentially vexatious litigants. 

David McKinnon and Alicia Yowart of Bennett Jones LLP were counsel for the successful Defendants/Respondents.

If you have any questions, please contact a member of the Bennett Jones Litigation group.

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