The Alberta Court of Queen’s Bench recently struck a proposed class proceeding as an abuse of process, refused to allow the proposed representative plaintiff (a non-lawyer) to represent the proposed class, declared the plaintiff to be a vexatious litigant, and restricted his future access to the Court. In Biley v Sherwood Ford Limited, 2019 ABQB 95, the Court considered three separate actions by a self-represented plaintiff, including a $11 million proposed class action. Justice Kendell rejected the plaintiff’s argument that “[s]elf represented class actions may be the only realistic way this large class of vulnerable people receives justice” and held that the class action was “futile, abusive litigation” and the plaintiff was a “busybody” litigant with no legitimate interest in the proposed class action.
The plaintiff launched the proposed class action against his former employer, an Edmonton car dealership, alleging that it had unlawfully withheld commissions from its sales employees, including himself. However, he had already commenced an individual civil claim against his former employer based on the same alleged conduct. This led the Court to find that the plaintiff had no legitimate interest in the class action, and it was merely “duplicate collateral attack litigation” and evidence of the plaintiff’s abusive intent.
Also problematic was the plaintiff’s attempt to represent other class members, despite being self-represented, as section 106 of the Legal Profession Act (Alberta) prohibits non-lawyers from engaging in the practice of law. The plaintiff attempted to rely on exceptions in section 106(2) that allow a person to represent themselves in court on matters in which they are a party. The Court followed the 2012 Alberta Queen’s Bench case of Champagne v Sidorky and rejected the plaintiff’s argument, noting that section 106(2) does not allow a non-lawyer to represent any other person, even if the non-lawyer is also a party in the same matter.
Interestingly, the plaintiff seems to have been aware of the novelty of his self-representative-plaintiff application because he also argued that self-representation on behalf of a class was a necessary step in the evolution of the legal system in order to provide adequate access to justice. The plaintiff attempted to frame his class action suit as “Public Interest Litigation”, citing Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society. Justice Kendell discussed the numerous problems with this approach, including that the class action was based on claims in tort and contract rather than constitutional challenges and that the class members could commence their own individual claims if they felt that the defendant had withheld commissions.
The Court took into consideration the entire suite of litigation – including an earlier class action against another car dealership - in its detailed analysis of abusive litigation and vexatious litigants. It struck the class action under Rule 3.68 of the Alberta Rules of Court and used its inherent jurisdiction to declare the proposed representative plaintiff to be a vexatious litigant, imposing broad restrictions on his future access to Alberta courts.
This case not only confirms that self-represented litigants cannot be representative plaintiffs in class actions, but underscores the importance of guarding against the misuse of class proceedings. The procedural mechanisms of class actions are intended to enhance judicial efficiency and access to justice, not to be abused for vexatious purposes.