Koerner v. Capital Health Authority, 2011 ABQB 462

Court of Queen ’ s Bench of Alberta Citation: Koerner v. Capital Health Authority, 2011 ABQB 462 Date: 20111102 Docket: 0803 01510 Registry: Edmonton Between: Lisa Koerner Applicant - and - Capital Health Authority, Royal Alexander Hospital, University of Alberta Hospital, Grey Nuns Community Hospital, Missericordia Community Hospital, Dr. Walter Yakimets, Dr. Todd Mcmullen, Dr. Doug Davey, Dr. D. San Agustin, Dr. Kata Matic, Dr. G. Sandha Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L.

Shelley _______________________________________________________ Introduction [ 1 ] In my last of many decisions on this matter, I granted the Defendants’ application to find Ms. Koerner in contempt for failing to comply with Court orders (to complete the Defendants’ questioning of her and to produce psychological and psychiatric records). As a result of the contempt finding, I struck Ms. Koerner’s Statement of Claim. Ms. Koerner unsuccessfully appealed that decision to the Court of Appeal ( Koerner v. Capital Health Authority , 2011 ABCA 289 ).

[ 2 ] The Defendants now apply for an Order declaring that Ms. Koerner, her Estate, or anyone acting on her behalf, may not commence or pursue any new actions against the Defendants in relation to the claims advanced in the Statement of Claim without leave of this Court; that any new proceedings commenced without leave will constitute vexatious proceedings within the meaning of the Judicature Act , RSA 2000, c. J-2 (the Act ); and that any application for leave be heard only on confirmation of sworn evidence of service upon all affected parties.

Facts [ 3 ] The Statement of Claim in this action was for damages arising from alleged malpractice by the Defendant Doctors and Hospitals. In general, Ms. Koerner's claim alleged many examples of doctors and hospitals failing to provide her with adequate care. The Claim initially named the “Queen in right of Alberta as represented by the Minister of Health” as a party, but I dismissed the action against the Crown on June 19, 2009. Ms. Koerner appealed that order, but her appeal was struck as abandoned. [ 4 ] Ms. Koerner is self-represented and has struggled with the litigation process.

As an example, she has claimed that she is extremely ill and must seek health care outside Canada because the Canadian medical system has failed to assist her.

She has repeatedly made applications in this action for funding for out-of-province health care, despite having been told by me (both orally and in written decisions) that the Province, the Minister of Health, and the Out-of-Country Health Services Committee are not parties to this action and that such an application cannot be brought in this action. [ 5 ] I have attempted to explain appropriate procedures and practice, in case management meetings, in correspondence, and in written decisions. Ms.

Koerner has been told on numerous occasions that, if she disagrees with a court order, it must be appealed, that affidavits must contain facts in either her personal knowledge or based on information she has received and that she believes, that exhibits in affidavits must be appropriately identified, that printed internet pages do not constitute expert evidence, and that medical evidence in support of an application for an adjournment because she is too sick to continue must consist of more than partial copies of unattributed lab results.

However, in the course of case management she continued to re-visit previous orders, without appealing them, filed inappropriate affidavits that make broad allegations of fact without support, and appended exhibits with unattributed “evidence” and materials. Her affidavits, notices of motion, and oral argument use extreme and emotional language, are often disparaging of the Defendants and Defendants’ counsel, and have often reflected a lack of respect for this Court. [ 6 ] There have been several notable applications in this file, including: 2010 ABQB 518 : Ms.

Koerner applied for an order for “out of country tests, cancer treatments and surgeries.” I refused the application since neither the Out-of-Country Health Services Committee or the Minister of Health and Wellness were parties to this action, and because, even if her motion was tangentially related to the original action, she was effectively seeking damages before her case was proven at trial. 2010 ABQB 557 : The Defendants applied to have Ms. Koerner found in contempt for failing to complete her examinations for discovery of the Defendants by the deadline. Ms.

Koerner submitted that she was physically unable to continue discoveries, and continued to argue that she was entitled to payment of out-of-country health expenses, and that if I did not order them, I should step down as case management justice; that I should appoint a lawyer to represent her while she was outside Canada seeking medical care; that it was not a breach of a court order if the court order in question is unfair or the person in breach is not able to comply; and that I was in contempt of Court. 2010 ABQB 590 : The Defendants applied (under R. 217) to have Ms.

Koerner attend for an independent medical examination (IME) by a psychiatrist and a psychologist. I determined that a psychiatric assessment was necessary as the Court has an obligation to ensure that all relevant evidence is available for trial and that it has the authority to order an independent medical examination. 2010 ABQB 753 : Ms.

Koerner applied for an order “dismissing” my previous order regarding service of documents (the service order); an order “dismissing” my order to provide “irrelevance reports” (the document production order); an order that the IME assessments be videotaped (video order); and an order to change the order of testing (testing order). I refused the application regarding the service order, noting that her remedy, if she was unhappy with the order, was to appeal. I noted that Ms.

Koerner had not appealed the document production order and that I had no jurisdiction to reverse the order, but that, with the Defendants’ consent, the order could be varied. I sought further submissions on the IME issues.

2010 ABQB 761 : This was a continuation of the previous application. Ms. Koerner submitted an affidavit that consisted primarily of argument, and which attached a number of documents that were not sourced and were incomplete. On the basis of this affidavit, she attempted to attack the validity of one of the tests proposed for the IME, and to argue that only the expert has a right to view her personal reports and that the defence was not entitled to any previous reports. I noted that Ms.

Koerner’s concerns about the reliability of the MMPI were not relevant and that the order to undergo testing had not been appealed and remained in effect. 2011 ABQB 191 : The Defendants’ application to find Ms. Koerner in contempt for failing to comply with Court orders was granted. As a result of the contempt finding, I struck Ms. Koerner’s Statement of Claim. Ms. Koerner once again sought an order requiring the Minister of Health to pay for out-of-country health care. As well, the Defendants, in the course of oral submissions, asked for an order requiring Ms.

Koerner to seek leave of this Court before commencing any new action in relation to these matters, but Ms. Koerner had no notice of the application. Therefore, I refused that application, noting that it should be brought on proper notice. [ 7 ] I note that in Koerner v. Capital Health Authority , 2011 ABCA 131 , Ms. Koerner again applied, this time to the Court of Appeal, for an order compelling the Minister of Health to pay immediately for her to obtain medical and hospital care outside Canada.

Berger, J.A. dismissed that application on the basis that Alberta and the Minister of Health had been struck from the claim and the appeal of that decision abandoned. He refused to restore the appeal. This Application [ 8 ] The Applicants rely on s. 23.1 of the Act , which provides: 23.1(1) Where on application or on its own motion, with notice to the Minister of Justice and Attorney General, a Court is satisfied that a person is instituting vexatious proceedings in the Court or is conducting a proceeding in a vexatious manner , the Court may order that (

a) the person shall not institute a further proceeding or institute proceedings on behalf of any other person, or (

b) a proceeding instituted by the person may not be continued, without leave of the Court.

(2) An application under subsection (1) may be made by a party against whom vexatious proceedings are being instituted or conducted, a clerk of the Court or the Minister of Justice and Attorney General or, with leave of the Court, any other person. ...

(6) Subject to the right to appeal an order made under subsection (1) or (4), the Court of Appeal or the Court of Queen’s Bench may make an order made under subsection (1) or (4) binding on any one or more of the other Courts referred to in section 23(1)(b), but an order under subsection (1) or (4) made by the Provincial Court is binding only on that Court.

(7) A person against whom an order has been made under subsection (1) or (4) may apply to a Court for leave to institute or continue a proceeding in that Court and the Court may, subject to any terms or conditions it may impose, grant leave if it is satisfied that the proceeding is not an abuse of process and that there are reasonable grounds for the proceeding. [ 9 ]

Section 23 of the Act is also relevant:

23(1) In this Part, ... (b) “Court” means ... (ii) the Court of Queen’s Bench,

(2) For the purposes of this Part, instituting vexatious proceedings or conducting a proceeding in a vexatious manner includes, without limitation, any one or more of the following: (

a) persistently bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction; (

b) persistently bringing proceedings that cannot succeed or that have no reasonable expectation of providing relief; (

c) persistently bringing proceedings for improper purposes; (

d) persistently using previously raised grounds and issues in subsequent proceedings inappropriately; (

e) persistently failing to pay the costs of unsuccessful proceedings on the part of the person who commenced those proceedings; (

f) persistently taking unsuccessful appeals from judicial decisions; (

g) persistently engaging in inappropriate courtroom behaviour. [ 10 ] The Applicants allege that Ms. Koerner has repeatedly failed and/or refused to comply with the Rules of Court to advance her action in a timely manner, and has refused to comply with Court Orders, including costs orders. Further, the Applicants note that Ms. Koerner has consistently attempted to broaden the scope, nature and content of her claims against the Defendants, and has attempted to re-litigate matters that were subject of previous orders that she did not appeal.

She also attempted to re-litigate the claim against Her Majesty in Right of Alberta despite that claim having been dismissed and her appeal of that decision abandoned, and attempted to introduce a new claim regarding the Out-of-Country Health Services Committee, never a party to this action. [ 11 ] The Applicants assert that to allow Ms. Koerner to bring new proceedings in relation to the dismissed claim would be to permit frivolous and vexatious proceedings. They note the significant resources expended by the Court, the Defendants, and their legal counsel during the course of the action. [ 12 ] Ms.

Koerner brings a cross-application on two grounds: 1. This Court does not have jurisdiction to hear the Defendants’ application, and it should be addressed by the Court of Appeal, and 2. This Court dismissed the Defendants’ similar application in its previous decision and the Defendants have not introduced any new evidence.

[ 13 ] Ms. Koerner lists numerous grounds for her application, many of which raised new and unrelated issues. For example, she argued that the Defendant Hospitals had placed a DNR wristband on her, knowing that she was facing ‘end of life issues’; that the Defendants have not applied to have Dr.

Todd McMullen removed from the action; and that the Defendants failed to provide conduct money for examinations for discoveries and failed to provide a complete Affidavit of Records. [ 14 ] Further grounds included broad generalizations, such as: “The Defendants are liable for all medical conditions pertaining to their Negligence. Everyone is equal under the law.”; “The Defendants have no respect for the Plaintiff’s life. Justice is for all. You can’t put a price on A Human beings life.

The Plaintiff has endured financial debt to this action, The Plaintiff is not A multi million dollar law firm.” [ 15 ] Slightly more germane to the application, Ms. Koerner argues that the Executor of her Estate has not been served and that the Executor is not a party to the action. Counsel for the Defendants respond that Ms. Koerner’s argument that her Executor must be served fails, because there is no Executor until Ms.

Koerner’s death. [ 16 ] Further, in response to the Defendants’ allegations that she has attempted to re-litigate matters that were subject to prior Court orders, she argues that she was fighting for her life and that “The Plaintiff has had an unfair advantage with very little guidance.” Analysis [ 17 ]

Section 23.1 of the Act requires that notice of an application under this

section be given to the Minister of Justice and the Attorney General. Initially, the Defendants did not provide notice to the Attorney General, but that was remedied. The Attorney General has indicated that he does not take a position with respect to this application and will not be making any representations to the Court. [ 18 ] As I have noted, Ms. Koerner, as a self-represented litigant, has struggled with the litigation process.

She has, as noted by the Defendants and this Court, often raised issues that have already been dealt with by the Court, in particular the claim for the payment of out-of-country health care expenses and this Court’s orders to produce certain records. She has also continually added new issues not raised by her Statement of Claim. [ 19 ] Ms. Koerner has, however, demonstrated that she is aware of appropriate court procedures, as noted by Watson, J.A. in Koerner v.

Capital Health Authority , 2011 ABCA 146 (at para. 7 ): On the other hand, the appellant appeared to be an intelligent and thoughtful person who had acquired significant understanding of the legal process after her many appearances in court and interactions with counsel for the defendants. She has not only represented herself orally but in writing, filing motions on her own behalf and so forth. [ 20 ] Of the major applications heard in the course of case management, three of the five were made by the Defendants and two by Ms. Koerner. Ms.

Koerner responded to each of the Defendants’ applications with cross-applications. Review of my reasons in her applications and cross-applications demonstrate that these were undoubtedly proceedings that could not succeed or had no reasonable expectation of providing relief ( s. 23(2) (

b) of the Act ) and relied on previously raised grounds and issues inappropriately (s.23(2)(

d) of the Act ). [ 21 ] Ms. Koerner has also, in both oral and written submissions, made serious allegations of misconduct, fraud, malice, perjury and deceit against the Defendants, both lawyers acting for the Defendants and against this Court (see for example Koerner v. Capital Health Authority , 2010 ABQB 518 at para. 8 ; Koerner v. Capital Health Authority , 2010 ABQB 557 at paras. 28-29 ; and Koerner v. Capital Health Authority , 2010 ABQB 590 at paras. 14-15 and 48 ). In my view, this constitutes inappropriate courtroom behaviour ( s.23(2) (

g) of the Act ).

[ 22 ] Ms. Koerner has been advised on numerous occasions that she cannot re-litigate issues already decided, but she continues to do so. She often contends that her situation is unique and not subject to the same rules as everyone else, because she is ill, because she cannot afford a lawyer, because the Defendants have access to more money, and because justice requires it. Her arguments in opposition to this application and in support of her cross-application reflect that same approach. She was “fighting for her life” and so re-litigation was justified. [ 23 ] Moreover, Ms.

Koerner had often attempted to expand the grounds of her applications and cross-applications to areas outside of the scope of the Statement of Claim. This is also inappropriate.

Section 23 lists a number of persistent activities that constitute conducting a proceeding in a vexatious manner, but that list is not exhaustive. I find that vexatious litigation may include conducting a proceeding by inappropriately and repeatedly attempting to expand and broaden the scope, content and nature of a claim beyond those set out in the Statement of Claim. [ 24 ] There is no merit to Ms. Koerner’s claim that this Court does not have jurisdiction to grant the Order sought. Section 23(1) (b) (ii) of the Act clearly gives this Court jurisdiction to do so.

Moreover, I denied the Defendants’ earlier application for a similar order because Ms. Koerner had not received notice of the application. This is not the same thing as re-litigating an issue, because the substantive issue was never addressed by the Court, only the procedural requirement to give notice. Ms. Koerner has now had notice and an opportunity to respond. There is no requirement that the Defendants produce “new evidence”. [ 25 ] I conclude that Ms. Koerner has persistently conducted these proceedings in a vexatious manner and I therefore grant the Defendants’ application.

Conclusion [ 26 ] I order that: 1. Ms. Koerner, her Estate, or anyone else acting on her behalf, may not commence or pursue any new actions against the Defendants named in these proceedings in relation to the claims and allegations advanced in the Statement of Claim, in any other materials filed by or on behalf of the Plaintiff in this Action, or in any sworn evidence given by the Plaintiff, without first obtaining leave of this Court to bring any such action or actions; 2. Any application by or on behalf of Ms.

Koerner, or her Estate, to seek leave to commence or pursue any new actions in relation to the dismissed claims, may only be heard upon confirmation by sworn evidence that all affected parties were properly and sufficiently served with notice of the application. A copy of any new claim for which leave is sought must also be served on all affected parties. [ 27 ] I declare that the commencement of new proceedings in pursuit of the claims in this Action constitutes vexatious proceedings within the meaning of the Judicature Act . [ 28 ] I further order Ms.

Koerner to pay the costs of this application. [ 29 ] In regards to Ms. Koerner’s submission that she was not paid conduct money for her appearances for Questioning, and given the Defendants’ admission that they failed to pay the appropriate conduct money, I order that the conduct money be offset from the costs Mr. Koerner has been ordered to pay. In other words, the costs payable by Ms. Koerner will be reduced by the amount owed by the Defendants for conduct money. Heard on the 2 nd day of May, 2011.

Dated at the City of Edmonton, Alberta this 2 nd day of November 2011. D.L. Shelley J.C.Q.B.A. Appearances: Lisa Koerner Self-represented Plaintiff S. Roberts J. Janz for the Defendants