Halting Vexatious Litigants in Their Tracks
Perspectives for the Professions
November 2021 - 3 min read
Many regulators have to deal with vexatious litigants. Some complainants or registrants commence baseless legal proceedings against the regulator if they disagree with its decisions. Responding to these proceedings is time-intensive and expensive, especially if the regulators’ insurance doesn’t cover the allegations that are made.
The Alberta Court of Queen’s Bench’s Civil Practice Note No. 7 (“CNP7”) created a new tool for litigants, including regulators, to deal with vexatious litigation. Under CPN7, a legal proceeding that appears to be frivolous, vexatious, or an abuse of process can be brought to the Court’s attention. No formal court application or court appearance is necessary, and the process is conducted entirely in writing. All that is required is a letter asking the Court to review the legal proceeding under CPN7.
If the Court reviews the pleadings and determines that the proceeding appears to be without merit, to have no prospect of success, or to be vexatious or abusive, the proceeding is deemed an Apparent Vexatious Application or Proceeding (“AVAP”). The Court will then give the Apparently Vexatious Litigant (“AVL”) who commenced the proceeding an opportunity to explain why their proceeding should not be struck out. After reviewing the AVL’s explanation and the regulator’s response, the Court may strike the proceeding or allow it to proceed.
The following are some stereotypical features of vexatious litigation1:
- escalating proceedings, where issues in one proceeding are repeated in subsequent proceedings, sometimes resulting in simultaneous active overlapping proceedings;
- seeking forms of relief that cannot be obtained;
- advancing incomprehensible arguments and allegations;
- bringing proceedings for improper purposes, such as retaliation;
- persistently taking unsuccessful appeals which were intended to incur costs and cause delay; and
- unsubstantiated allegations of conspiracy, fraud, and misconduct.
A recent decision from the Alberta Court of Queen’s Bench used CPN7 to strike a lawsuit advanced against a regulator by a complainant. In Freeman v Association of Professional Engineers and Geoscientists of Alberta, Freeman filed a Statement of Claim against The Association of Professional Engineers and Geoscientists of Alberta (APEGA). It was one of several lawsuits he had filed against various defendants based on the same set of circumstances. APEGA referred the proceeding to the Court under CPN7, and the Court concluded the proceeding had several indications of vexatious proceedings and was a likely AVAP. After considering Freeman’s submission that his claim should be allowed to proceed, as well as APEGA’s response that it should not, the Court struck his claim.
This entire process was done using three letters to the Court over a short time period. The alternative would have been a summary dismissal application, a relatively costly and time-consuming formal process. A summary dismissal application would involve a filed court application, the preparation of one or more affidavits, potentially cross-examinations on affidavits and an appearance in Court usually scheduled many months in advance.
In this case, the CPN7 process also suspended APEGA’s obligation to prepare its Affidavit of Records while the Court considered the matter. This enabled APEGA to avoid a time-consuming and expensive litigation step. In essence, the CPN7 process saved APEGA from significant litigation steps and was an efficient and cost-effective method to deal with the vexatious claim made against it.
Earlier this year, the Alberta Court of Appeal confirmed that CNP7 can also be applied to strike out Originating Applications for Judicial Review. In Quaye v Law Society of Alberta, the Court dismissed Quaye’s application for Judicial Review as an AVAP because he had filed several claims regarding the same matter, and he was asking for remedies that the Court could not provide. In Doniger v Law Society of Alberta, the Court struck Doninger’s application for Judicial Review as an AVAP because she was attempting to judicially review proceedings of the Law Society of Alberta’s Conduct Committee before the matter had been resolved.
Alberta’s CPN7 provides a relatively simple and efficient method to deal with frivolous, vexatious, or abusive claims or that otherwise demonstrate features of vexatious litigation. Regulators now have a tool that may be used to halt vexatious litigants in their tracks. Field Law’s Professional Regulatory Group is here to assist regulators with all types of litigation and at every level of Court.
1 Al-Ghamdi v Alberta, 2017 ABQB 684 at para 124.