The Alberta Court of Appeal’s Vexatious Litigant Order Trilogy: Respecting Legislative Supremacy, Preserving Access to the Courts, and Hopefully Not to a Fault

Abstract

This article analyzes three recent decisions by the Alberta Court of Appeal concerning vexatious litigant orders. By and large, the decisions should be lauded for recognizing that, once a statute or regulation addresses an issue, that statute should be how the issue is addressed, with that only rarely being complemented (and never contradicted) by the court’s inherent jurisdiction. This is essential to upholding the rule of law and the division of powers. The decision also protects a party’s constitutional right to access the courts. Nonetheless, one hopes that the decision does not disincentivize the courts from using other aspects of civil procedure, short of vexatious litigant orders, to proactively address challenging litigation coming from a small number of persons who waste a disproportionate amount of resources. If the decisions can be criticized, it can be for understating the real damage that abusive litigation can do to the justice system, and the need for novel solutions to nip such litigation in the bud. Fortunately, other mechanisms exist to address such litigation that do not pose the same issues concerning statutory interpretation and the division of powers as issuing vexatious litigant orders pursuant to the Court's inherent jurisdiction.

Keywords: Civil Procedure, Access to Justice, Vexatious Litigant Orders