Category Archives: Civil Procedure

What Happens when a Self-Rep Steps on a Procedural Landmine during Judicial Review

By: Sarah Burton

PDF Version: What Happens when a Self-Rep Steps on a Procedural Landmine during Judicial Review

Case Commented On: Raczynska v Alberta Human Rights Commission, 2015 ABQB 494

The Alberta Court of Queen’s Bench recently rejected an application to judicially review the dismissal of a meritorious human rights claim. Why? The self-represented applicant did not name and serve the correct respondent on time. The fatality of this misstep would have been reasonably evident to any lawyer familiar with the Rules of Court, Alta Reg 124/2010 and case law governing judicial review. For self-represented litigants, however (and particularly those coming from the relatively forgiving forum of the Alberta Human Rights Commission) this is just one of the endless procedural landmines that can destroy their claim.

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Sources of Superior Courts’ Jurisdiction to Declare Litigants to be Vexatious

By: Jonnette Watson Hamilton

PDF Version: Sources of Superior Courts’ Jurisdiction to Declare Litigants to be Vexatious

Case Commented On: Sikora Estate (Re), 2015 ABQB 467 (CanLII)

This decision indirectly raises a question about the jurisdiction of Alberta’s Court of Queen’s Bench and Court of Appeal to declare that a person cannot start or continue court proceedings without first obtaining the court’s permission, i.e., to declare that a person is a vexatious litigant. Section 23.1 of the Judicature Act, RSA 2000, c J-2 grants the courts that authority, whether on their own motion or on an application by a party to the proceedings, if notice is given to the Minister of Justice and Solicitor General. But what if notice has not been given to the Minister of Justice and Solicitor General? Does the court have inherent jurisdiction to make such a declaration? If they do, how far does it extend? Can the court enjoin only further applications without its permission in the case before it, or can the court prohibit any and all future court actions in the province without its leave? This issue was explicitly raised, but not decided, by the Alberta Court of Appeal in Pawlus v Pope, 2004 ABCA 396 (CanLII), and the issue does not appear to have been resolved in the intervening ten years. The decision in Re Sikora Estate suggests it needs to be.

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Kaddoura v Hanson : The Alberta Rules of Court Regarding Disclosure Work; Delay Tactics Sourced In Old Rule Logic and Old Rule Opinion Do Not

By: Brett Code, Q.C.

PDF Version: Kaddoura v Hanson: The Alberta Rules of Court Regarding Disclosure Work; Delay Tactics Sourced In Old Rule Logic and Old Rule Opinion Do Not

Case Commented On: Kaddoura v Hanson, 2015 ABCA 154

In Kaddoura v Hanson, 2015 ABCA 154, the Alberta Court of Appeal eliminated from current and future consideration several old arguments regularly advanced under the old Rules of Court by parties wanting to avoid complete record disclosure and wanting to use the available motions process and its concomitant rights of appeal to delay the discovery process. In a case concerning the record disclosure obligations of third-partied lawyers alleged by straw buyers in mortgage fraud schemes to bear concurrent or exclusive responsibility for the plaintiff bank’s losses, the Court of Appeal solidified an understanding that the “new” Rules were meant to improve efficiency and reduce cost, in particular by limiting the delay and avoidance tactics previously available and oft-used by litigants under the old Rules. The message to litigants in Alberta is that the new Rules are unambiguous, and they work. Recycled arguments previously used to limit the application of the Rules to current discovery obligations will fail.

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A Vexatious Litigant After Only Two Applications

By: Jonnette Watson Hamilton

PDF Version: A Vexatious Litigant After Only Two Applications in One Proceeding

Case Commented On: Re FJR (Dependent Adult), 2015 ABQB 112 (CanLII)

Although the Alberta law giving the courts more power to deal with “vexatious litigants” in a simplified process has only been in effect a little more than five years — since October 30, 2009 — the law is quite well settled. Under section 23.1(1) of the Judicature Act, RSA 2000, c J-2, on application or the court’s own motion, and with notice to the Minister of Justice and Solicitor General, if a Court is satisfied that a person is instituting vexatious proceedings or is conducting a proceeding in a vexatious manner, then the court may order that the person not commence or continue proceedings without the court’s permission. Section 23(2) provides a non-exclusive list of examples of vexatious proceedings and conduct. These provisions have been considered in approximately 70 cases over the past five years. Recently and helpfully, in Chutskoff v Bonora, 2014 ABQB 389 (CanLII) at paras 80-93, Justice Michalyshyn undertook a comprehensive review of this case law. As a result of all of this consideration, most vexatious litigant proceedings now simply involve application of the established principles to the particular facts of each case. Nonetheless, the occasional new legal issue arises, as it does in Re FJR. This post considers a case in which the person found to be a vexatious litigant had only made two applications, and both of them were made in only one court proceeding.

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Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment

By: Shaun Fluker

PDF Version: Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment

Case Commented On: Ernst v Alberta Environment, 2014 ABQB 672

This short comment adds to the recent posts on ABlawg by Professor Martin Olszynski (here and here) and myself (here) on the Ernst litigation against Alberta Environment, the Alberta Energy Regulator (AER) and Encana Corporation concerning allegations of groundwater contamination from hydraulic fracturing. Readers interested in more details on the substance of the litigation will find it here. My focus in this comment is on how Chief Justice Neil Wittmann applies the law on a motion to strike under Rule 3.68 and for summary judgment under Rule 7.3 of the Alberta Rules of Court, Alta Reg 124/2010 (the Rules) to dismiss Alberta’s application. I also ask how we reconcile this decision from the motion to strike initiated by the AER/ERCB and the decision by Alberta courts to grant that application.

Recall that Ernst alleges that Alberta Environment and the AER owe her a duty of care and were negligent by failing to meet that duty. The AER successfully applied to have the Ernst proceedings struck for failing to disclose a reasonable cause of action (Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285 (Ernst II)). Ernst has applied to the Supreme Court of Canada for leave to appeal this Court of Appeal decision (See here).

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