Wilyman v Cole, 2024 ABCA 41

In the Court of Appeal of Alberta Citation: Wilyman v Cole, 2024 ABCA 41 Date: 20240205 Docket: 2201-0223AC Registry: Calgary Between: Christopher Allan Wilyman Appellant - and - Dr. Martin J. Cole and Martin J.

Cole Professional Corporation Respondents Corrected judgment: A corrigendum was issued on February 7, 2024; the corrections have been made to the text and the corrigendum is appended to this judgment. _____________________ The Court: The Honourable Justice Dawn Pentelechuk The Honourable Justice Bernette Ho The Honourable Justice Alice Woolley _______________________________________________________ Memorandum of Judgment Appeal from the Decision by The Honourable Justice J. D. Rooke, Associate Chief Justice

Dated the 24th day of August, 2022 Filed on the 25th day of August, 2022 ( 2022 ABQB 574 , Docket: 2201 07214) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: Introduction [ 1 ] On April 30, 2003, Mr. Wilyman commenced a medical malpractice action against the respondents for harm he says he suffered following a medical procedure performed by Dr. Cole in 2000. On December 12, 2003, that action was struck out, and costs were awarded against Mr. Wilyman. [ 2 ] In May 2022, Mr.

Wilyman sought to revisit his action against the respondents. He first sought permission to file a late appeal of the December 12, 2003 order striking out the claim. When that application was denied, he commenced a new action against the respondents. The 2022 action centres on the respondents’ alleged medical malpractice in 2000, but also details struggles experienced by Mr. Wilyman since 2003, and events that he suggests amount to a cover-up and interference with the fair administration of justice. [ 3 ] In a letter dated July 26, 2022, counsel for the respondents asked the Court of King’s Bench to strike Mr.

Wilyman’s claim through the process set out in Civil Practice Note 7, the “Vexatious Application/Proceeding Show Cause Procedure” (CPN7). They attached copies of the 2003 claim, the 2003 order striking out the claim and the transcript of the decision denying the late appeal. They asked that CPN7 be used on the basis that the 2022 claim “seeks to re-litigate a decided issue or issues, is a collateral attack, and/or is a duplicate proceeding”. [ 4 ] On July 28, 2022, the chambers justice determined that Mr. Wilyman’s claim was a suitable candidate for the CPN7 procedure: Wilyman v Cole , 2022 ABQB 514 .

The chambers justice reviewed the purpose of the CPN7 procedure, noting that it is not for close calls; it is only for matters where the deficiencies in pleadings are apparent on their face. The CPN7 process considers only “restricted forms of evidence”, including “documents and records that are evidence that the AVAP [Apparently Vexatious Application or Proceeding] is an attempt to litigate an issue that has already been decided”. [ 5 ] The chambers justice said that Mr.

Wilyman’s 2022 action appeared on its face to be a collateral attack on the decision to strike the 2003 action; collateral attacks subvert the orderly functioning of the administration of justice, and “should be terminated, immediately”. He identified the relationship between the 2003 and 2022 actions, as well as the differences between them, concluding that while “the downstream consequences described in the First and Second Action Statements of Claim are different, each starts from the same alleged events and negligence of Dr. Cole”. He gave Mr.

Wilyman fourteen days “to indicate why the Second Action is not prohibited and abusive re-litigation and collateral attack upon the outcome of the First Action”. [ 6 ] After receiving submissions from Mr. Wilyman and the respondents, the chambers justice struck Mr. Wilyman’s action. He reviewed the submissions from Mr. Wilyman and the respondents, and agreed with the respondents that Mr. Wilyman’s 2022 action was a collateral attack on the decision to stay the 2003 action.

He said that it was not appropriate to consider additional evidence, in part because of Rule 3.68(3) of the Alberta Rules of Court , AR 124/2010 , which prohibits evidence in relation to whether a filing “... discloses no reasonable claim or defence to a claim ...”: Rule 3.68(2) (b). He said that “Mr. Wilyman's statements surrounding the circumstances of his alleged injury, and events that followed, [are] entirely excluded as a basis for Mr. Wilyman to establish a reason why his litigation is valid”. [ 7 ] In the chambers justice’s view, Mr.

Wilyman’s 2022 action “is clearly an abuse of process as a prohibited collateral attack on the now concluded” 2003 action. Mr. Wilyman did not rebut its prima facie defects, and the claim “is struck out as hopeless, and an abuse of this Court and the Defendants”. He ordered Mr. Wilyman to pay $2500 in costs.

[ 8 ] Mr. Wilyman appeals the striking of his claim, and asks this Court to consider new evidence in relation to its merits. Grounds of Appeal [ 9 ] Mr. Wilyman submits that his claim ought not to have been struck as a collateral attack, and that the CPN7 process was not fair. Analysis [ 10 ] On September 4, 2018, the Alberta Court of King’s Bench adopted CPN7 as a “new way to implement” the procedure through which a claim may be struck pursuant to Rule 3.68 of the Alberta Rules of Court : Ubah v Canadian Natural Resources Limited, 2019 ABQB 347 at para 25 .

It focuses not on a pattern of litigation, but on whether a “single document and its content” ought to be struck as “frivolous, vexatious or otherwise an abuse of process”; CPN7 is intended as a “fair and proportionate mechanism to respond to apparently abusive litigation”: Ubah at para 28 ; CPN7, para 1. [ 11 ] CPN7 does not change the substantive law established by Rule 3.68 and cases that have applied that Rule: De’Medici v Wawanesa Mutual Insurance Company , 2023 ABKB 210 at para 10 . Rather, it changes the procedural entitlements of the party whose claim is impugned.

Ordinarily, a party seeking to strike a claim must file an application and supporting affidavit, and serve it on the opposing party: Alberta Rules of Court , Rule 6.3 . That party may file a response affidavit (Rule 6.6), and the parties may question on the filed affidavits (Rule 6.7).

The matter will be decided following an oral hearing in civil chambers, although the Court has the jurisdiction to resolve a matter in writing (Rule 6.9). [1] The burden of proof is on the party seeking to strike the claim: Alberta Adolescent Recovery Centre v Canadian Broadcasting Corporation , 2012 ABQB 48 at para 29 . [ 12 ] Under CPN7, a party seeking to strike a claim may write to the Court asking that the CPN7 process be invoked.

If the Court is satisfied that the matter is suitable for resolution through CPN7, it notifies the party with the impugned claim that the Court is considering making an order staying or dismissing their claim. That party has 14 days to file a response, to which the party who requested the CPN7 may respond. The Court then makes its determination based on the written materials. [ 13 ] Under this process little or no evidence is provided: De’Medici at para 44 ; Ubah at para 32 . There is no oral hearing.

And, importantly, the burden of proof shifts from the party seeking to strike the claim, to the party whose claim is in jeopardy of being struck. [ 14 ] In De’Medici , ACJ Nielsen identified the three key differences between CPN7 and the usual process for considering an application to strike pursuant to Rule 3.68, noting both the reversal in the burden of proof and the elimination of an oral hearing: Generally speaking, the procedure set out under CPN7 differs from a standard Court Application in three significant ways.

First, the procedures under CPN7 are initiated by the Court itself, although it may do so on written request from a party to the litigation, from the Clerk, or from the Court’s legal counsel. Second, the procedure takes the form of a “show cause” hearing, which requires the litigant subject to CPN7 to justify their pleading, effectively reversing the normal onus of proof for a Court Application. Finally, the procedure under CPN7 is entirely based on written submissions without an oral hearing.

On the whole, this means the procedure is significantly limited in comparison with a normal Court Application, as it is meant to provide a way of dealing quickly and efficiently with litigation that is clearly futile or abusive: De’Medici at para 9 . ACJ Nielsen also noted earlier Alberta decisions suggesting that CPN7 ought not to be used for close calls, but requires that “the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading”. He said, however, that this benchmark was insufficient for determining when the CPN7 process was appropriate.

In his view, CPN7 should only be used when “there is a reason to prefer it to other procedures”. Such a preference could arise, for example, where a litigant “might use those other procedures to perpetuate an abuse of the Court’s process”, or where 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”.

He concluded that there must be a “justification” for an abridged procedure, which, when added to the requirement that “the defect in the pleading should be evident on its face”, will ensure that the “Court is using a fair and proportionate process to evaluate the pleadings that are being reviewed”: De’Medici at para 28 . [ 15 ] This Court has upheld King’s Bench decisions striking or staying claims through the CPN7 procedure: Uttl v Rensonnet , 2023 ABCA 322 ; Parenteau v Spencer , 2023 ABCA 268 ; Raimondi v TD Bank , 2023 ABCA 31 ; Joshi v Saskatchewan , 2022 ABCA 372 ; Feeney v Alberta , 2022 ABCA 253 ; Rana v Baker , 2022 ABCA 180 , leave to appeal to SCC refused, 40403 (9 March 2023); Quaye v Law Society of Alberta , 2021 ABCA 167 , leave to appeal to SCC refused, 39840 (17 February 2022).

Further, it has held that while practice notes do not have the full force of law, they should generally be followed: Huitt v Huit , 2021 ABCA 235 at para 7 . [ 16 ] It has also, however, held that CPN7 ought not to be used in relation to an application for habeas corpus : Heiser v Bowden Institution, 2022 ABCA 300 at para 34 . [ 17 ] In addition, this Court has questioned the language of CPN7 and in particular its description of the party with the impugned pleading as “apparently vexatious”, since CPN7 expressly deals only with the character of a pleading, not the character of the litigant: Parenteau at para 18 . [ 18 ] The Court in Parenteau went on to caution against using CPN7 to replace ordinary court procedures: CPN7 itself refers to the person filing the AVAP as an “Apparently Vexatious Litigant” or “AVL”.

This casts too wide a net. Many actions (and appeals, for that matter) are completely unmeritorious and are born from unfamiliarity with applicable legal principles, rules of evidence and rules of procedure. That does not make those proceedings, or the people filing them, vexatious. And in any event, the ordinary course is for defendants to make applications under Rule 3.68 itself, which CPN7 should not supplant.

Concerns about vexatious proceedings can be dealt with separately under the Judicature Act , RSA 2000, c J-2 : Parenteau at para 19 . [ 19 ] As this critique suggests, the basis for using the CPN7 procedure must not be simply that an order to strike may be available

under Rule 3.68. Rather, as ACJ Nielsen explained in De’Medici , there must be some justification for truncating the ordinary court procedure, eliminating an oral hearing and shifting the burden of proof to the party whose claim is at risk of being struck or dismissed. [ 20 ] We agree with ACJ Nielsen’s conclusion in De’Medici , that 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.

That includes, as he suggested, cases where a litigant is at risk of using other procedures to abuse the Court’s process, or where the party’s pleading is so clearly hopeless that the ordinary procedures would be an utter waste of time, money and resources. Ultimately, the judge must decide whether the circumstances justify placing the burden of proof on the party whose pleading is impugned and denying that party an oral hearing. [ 21 ] In this case the chambers justice did not take this approach.

He did not reflect on whether the CPN7 process was preferable to the ordinary process for considering an application to strike. He identified the defect apparent on the face of Mr. Wilyman’s pleading, but he did not also assess whether the circumstances justified placing the burden of proof on Mr. Wilyman and denying him an oral hearing. [ 22 ] We are nonetheless satisfied we cannot intervene on the facts of this case. The chambers justice’s decision to employ the CPN7 procedure, and his characterization of Mr.

Wilyman’s claim as a collateral attack, raise questions of mixed fact and law reviewed for palpable and overriding error: Housen v Nikolaisen, 2002 SCC 3 at para 36 ; Feeney at para 12 . This is a very high standard. [ 23 ] The original action was struck nearly twenty years ago. The relationship between the original 2003 action and the 2022 action was obvious; Mr. Wilyman acknowledged before us that both claims turn on his allegations of medical malpractice against the respondent Dr. Cole. Mr.

Wilyman had already attended at morning chambers seeking to appeal the striking of the 2003 action and had been denied that relief. This was, in other words, within the category identified by ACJ Nielsen, of a claim so “clearly hopeless that an Application under the Alberta Rules of Court would be an utter waste of time, money and resources”. [ 24 ] In so holding, however, we emphasize that CPN7 ought to be reserved for exceptional cases, particularly where the effect of the decision is to terminate a party’s claim before the Court.

As was stated in Parenteau , CPN7 should not supplant the ordinary Rule 3.68 procedure. [ 25 ] The appeal and the new evidence application are dismissed. While we find that we cannot intervene on the facts of this case, we nonetheless find that in these circumstances all parties will bear their own costs: Parenteau at para 21 . Appeal heard on January 18, 2024 Memorandum filed at Calgary, Alberta this 5th day of February, 2024 “Pentelechuk J.A.” Pentelechuk J.A. “Ho J.A.” Ho J.A “Woolley J.A.” Woolley J.A. . Appearances: Appellant, C. Wilyman

D.R. McKinnon A.T. Yowart for the Respondent _______________________________________________________ Corrigendum of the Memorandum of Judgment _______________________________________________________ The sentence “The appeal and the new evidence application are dismissed.” has been added at the beginning of Paragraph 25.