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

In May 2020, the Court of Appeal of Alberta decided three cases concerning vexatious litigant orders: Makis v. Alberta Health Services; 1 Vuong Van Tai Holdings v. Alberta (Minister of Justice and Solicitor General); 2 and Jonsson v. Lymer 3 (collectively, the Vexatious Litigant Order Trilogy).The Court of Appeal held that the "inherent" jurisdiction of the Court of Queen's Bench of Alberta to issue a vexatious litigant order is narrow.Rather, vexatious litigant orders are generally to be sought pursuant to prescribed statutory criteria, and granted only if those criteria are met.Moreover, other mechanisms should be pursued to manage challenging litigation before the drastic step of issuing a vexatious litigant order.This was a clear rebuke of Court of Queen's Bench decisions that had denigrated statutory criteria and procedure for issuing vexatious litigant orders, and instead issued broad vexatious litigant orders pursuant to the Court's inherent jurisdiction.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 separation of powers.The decisions also protect a party's constitutional right to access the courts.Nonetheless, one hopes that these decisions do 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.Part II of this article summarizes the cases and the holdings.In summarizing Lymer, the primary decision, the nature and purpose of vexatious litigant orders will also be explained.Part III notes how the decisions properly prioritize statutory provisions to address an issue over a court's inherent jurisdiction.This is the decisions' strongest dimension, upholding the rule of law and recognizing the limited role of the courts vis-à-vis the legislatures in Canada's constitutional order.Part IV notes how the decisions can also be justified on policy grounds, protecting parties' right to access to the courts.Part V nonetheless expresses concerns that the decisions could chill other proactive management of challenging litigation.This need not be the result of these decisions which, on their own, are to be commended.It

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