An Alberta Response To The Rise In Vexatious And Abusive Litigation: Civil Practice Note 7 – Vexatious Application/Proceeding Show Cause Procedure (General Powers To Stay Or Dismiss A Frivolous, Vexatious, Or Abusive Application Or Proceeding)

The number of self-represented litigants ("SRLs") is on the rise in Canada. Data collected by the National Self-Represented Litigants Project in 2017 indicates that approximately 70% of SRLs are plaintiffs or petitioners (Kaila Scarrow et al, "Tracking the Trends of the Self-Represented Litigant Phenomenon: Data from the National Self-Represented Litigants Project, 2017). As such, Courts across the country are increasingly dealing with pleadings filed by individuals who have no legal training - some of whom are vexatious litigants.

To be clear, many plaintiff/petitioner SRLs bring legitimate claims before the Courts. In such instances and assuming there is no prejudice to the defendant, it is entirely appropriate that the Clerks, the Court, and counsel accord these SRLs some degree of leeway in respect of their pleadings.

However, Canadian Courts are increasingly confronted by abusive litigation brought by SRLs. Some have mental health issues, while others have become fixated on issues that consume them as "querulous paranoiacs" (see Unrau v National Dental Examining Board, 2018 ABQB 874 at para. 7 ["Unrau"]). Defendants who were served with such pleadings were often dragged into lengthy and costly litigation. In most instances, these defendants attempted to end the litigation by way of motions to strike the abusive pleadings, summary dismissal or have the SRLs declared to be vexatious litigants.

Until recently, the rules of civil procedure in most provinces lacked a timely and cost-effective procedure to weed out vexatious pleadings early on in lawsuits. However, with the introduction of Civil Practice Note No. 7 - Vexatious Application/Proceeding Show Cause Procedure (General Powers to Stay or Dismiss a Frivolous, Vexatious, or Abusive Application or Proceeding) ("Practice Note 7") on September 4, 2018, Alberta has taken a step towards ending vexatious or abusive litigation before it has a chance to start.

In short, Practice Note 7 (which is modelled on Rule 2.1 of the Ontario Rules of Civil Procedure, RRO 1990, Reg 194) puts in place a document-based "show cause" procedure (the "Procedure") under Rule 3.68 to assist in the timely and resource-effective management of potentially unmeritorious and abusive litigation.

There are approximately six reported decisions in Alberta considering applications brought pursuant to Practice Note 7. The first was the October 24, 2018 decision in Unrau v National Dental Examining Board, 2018 ABQB 874...