Rule 2.04: An Underutilized Rule in Manitoba Civil Procedure?

Written by Gerard Kennedy

Effective January 1, 2018, many amendments were made to the Manitoba Court of Queen’s Bench Rules (the “QB Rules”), designed to resolve cases more proportionately, and thus more in accordance with access to justice. One of these, Rule 2.04 of the QB Rules, has rarely been used. But after the Manitoba Court of Appeal recently approved of its use, it is possible that that will change.

Rule 2.04 prescribed an ability to dispense with the QB Rules to address instances where a person acts in a vexatious and/or abusive manner. It reads:

If a person acts in a vexatious, evasive, abusive or improper manner or if the expense, delay or difficulty in complying with a rule would be disproportionate to the likely benefit, a judge may, on motion by any party or on his or her own motion, without materials being filed, do one or more of the following:

(a) modify or waive compliance with any rule;

(b) make a costs award or require an advance payment against costs payable, or both;

(c) make any other order respecting a proceeding that the judge considers appropriate in the circumstances.

This bears similarity to Rule 2.1 of the Ontario Rules, which also provides a very summary procedure to dispose of an action or motion that “on its face” appears frivolous, vexatious, or abusive. This combats the phenomenon of parties using the Rules to act in an abusive and wasteful matter, and where a traditional motion (to cure the inappropriate action) would “cause a fresh outbreak of the disease” (as Myers J noted in Raji v Borden Ladner Gervais LLP) that is vexatious behaviour.

For its first three years, few reported decisions invoked Rule 2.04. In Stambuski v Stambuski, Thomson J held that he would have considered using the rule had there been evidence (which there was not) that a party was evading service. Steel JA did stall an appeal in Green v University of Winnipeg et al for vexatious proceedings; however, she declined to use Rule 2.04 despite its potential aptness, instead disposing of it as she could have prior to Rule 2.04’s enactment. This comparatively limited use differs from Rule 2.1 in Ontario, as I have analyzed before. To be sure, the need for Rule 2.04 may not be great: vexatious litigants do not appear plentiful in Manitoba, and the ones who exist appear to have been dealt with appropriately by the courts, as Steel JA did in Green.

However, a recent case appears to be the Court of Appeal’s first explicit blessing of a trial judge’s use of Rule 2.04. In Berscheid v Government of Manitoba, the plaintiff raised 63 grounds of appeal. Many were related to case management orders that the trial judge made. In one of these, Broad J explicitly cited Rule 2.04 in refusing to schedule a hearing, or mandate that the defendant file materials, pending an interlocutory appeal. In a per curiam decision, the Court of Appeal rejected the plaintiff’s argument that this was an error. After citing Rule 2.04, the panel held that “the judge’s management of this litigation was appropriately focussed on reaching a final determination without motions that did not meaningfully advance the litigation, and she had the power to order that the motions not proceed” (para 88). This is not a methodical discussion of how Rule 2.04 may be used going forward. It is, however, an invitation. It will be interesting to see how this rule is used in the future to further access to justice.

The views expressed in these blogs do not necessarily reflect the views of the Faculty of Law at the University of Manitoba and should not be construed as legal advice or endorsement.

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