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Vexatious Litigants- an Alberta Case

The Alberta Court of Appeal looked at the issue of court oversight of vexatious litigants in the case of Jonsson v Lymer, 2020 ABCA 167. Vexatious litigants are those who bring what are frivolous cases without merit- often those with no legal justification or basis in established law. The Court said at paragraph 44:

{44} ....Just because the court can initiate vexatious litigant proceedings on its own motion does not mean that it should routinely do so. A primarily court-initiated process risks undermining the neutrality of the court.

[45] As noted, the Court of Queen’s Bench has adopted a policy of diverting vexatious litigant proceedings. Even when proceedings are brought by litigants under the Judicature Act, the Court routinely converts the application to an invocation of the court’s inherent jurisdiction: see Alberta Lawyers Insurance Association v Bourque, 2018 ABQB 311 at paras. 14-15. Where a litigant brings an application for relief under the Judicature Act, the application should be dealt with under the statute. If the court seizes the agenda and diverts the application to any process based on a residual inherent jurisdiction, then the judge has entered the fray. This may give the appearance of the judge siding with the applicant. Further, the courts should generally not decide issues or grant relief outside the scope of the pleadings, if only because the respondent is entitled to notice of the case he or she has to meet.

[46] Further, as noted, even if there is an inherent jurisdiction to control vexatious litigation, that inherent jurisdiction is subordinate to the statutory jurisdiction. The former should not routinely be used to displace the latter.

[47] That being said, the Judicature Act does recognize that sometime the court must take the lead in controlling abuses. There is a public aspect to the use of court resources. As it was put in Olumide at paras. 17-19: “. . . Courts are community property that exists to serve everyone . . [and] . . . have finite resources that cannot be squandered”. Nevertheless, the courts should initiate vexatious litigant proceedings with caution, and should rarely assume the prosecution of such applications commenced by the parties.

[48] In summary, even though the court has the jurisdiction to institute vexatious litigant proceedings on its own motion, that should be the exception. The litigation should still be left in the hands of the litigants. If the litigants find behaviour to be vexatious, but do not bring an application for a vexatious litigant order, they must not expect the court to take the initiative. The court should only act where the parties have for some reason failed to act, and the broader interests of the administration of justice are compromised.

The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.

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