Action4 Canada v BC Attorney General 2022 BCSC 1507 involved a 391 page Notice of Claim that was struck in it’s entirety for prolixity.
The notice of claim was mostly covid anti vaccination “propaganda”.
The Oxford English Dictionary defines “prolix” as writing that is “tediously lengthy”. At 391 pages, the NOCC is clearly prolix.
Prolixity can warrant striking a claim pursuant to R. 9-5(1), which reads:
Scandalous, frivolous or vexatious matters
(1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that
(a) it discloses no reasonable claim or defence, as the case may be,
(b) it is unnecessary, scandalous, frivolous or vexatious,
(c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or
(d) it is otherwise an abuse of the process of the court,
and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.
[34] The defendants submit the NOCC’s prolixity renders it scandalous within the meaning of subrule 9-5(1)(b). The defendants also submit that prolixity falls under subrule 9-5(1)(c) and constitutes a further basis to strike:
a) Pleadings are embarrassing where they are prolix, contain argument, or fail to state the real issue in an intelligible way: Sahyoun v. Ho, 2015 BCSC 392 at para. 62 [Sahyoun].
b) Regardless of the subrule, the law is clear that prolixity can be a basis for striking where the pleadings are prolix and confusing or they render it impossible for the opposing party to know the case they must meet: The Owners, Strata Plan LMS3259 v. Sze Hang Holding Inc., 2009 BCSC 473 at para. 36.
c) In certain cases, the pleadings are so overwhelmed with difficulties that it will not be possible to categorize them into specific subparagraphs of R. 9-5(1): see, for instance, Sahyoun at para. 64.
The defendants submit that, more important than the length of the NOCC is the unlimited scope of the document. It is not a piece of legal drafting that complies with the Rules, or basic tenets, of pleading. It is not a document that can be properly answered in a response to civil claim. The defendants submit that those problems arise, in part, because there are multiple allegations against the defendants individually and jointly.
It would be extremely difficult, if not impossible, for any individual defendant to determine whether it is required to respond to any particular allegation. Were the action to proceed in its current form, individual defendants would not be in a position to know whether they were tasked with a burden of disproving or countering the myriad allegations. They would not know what case they were required to meet.
In Mercantile Office Systems Private Limited v. Worldwide Warranty Life Services Inc., 2021 BCCA 362 [Mercantile] wherein Voith J.A. wrote, in relation to the requirements of pleadings:
” Nevertheless, none of a notice of claim, a response to civil claim, and a counterclaim is a story. Each pleading contemplates and requires a reasonably disciplined exercise that is governed, in many instances in mandatory terms, by the Rules and the relevant authorities. Each requires the drafting party to “concisely” set out the “material facts” that give rise to the claim or that relate to the matters raised by the claim. None of these pleadings are permitted to contain evidence or argument.”
The Mercantile claim was only 5 pages and the counter claim 12 pages.
The NOCC also breached other tenets of pleading. Among other problems: it pleads evidence, includes non-justiciable claims and alleges criminal conduct by the defendants.
These deficiencies fall largely within the scope of R. 9-5(1)(a), in that they disclose no reasonable claim.
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