Wong v. Leung, 2011 ABQB 688

Court of Queen ’ s Bench of Alberta Citation: Wong v. Leung, 2011 ABQB 688 Date: 20111009 Docket: 0903 03126 Registry: Edmonton Between: V.W. Wong (V.W.W.) Plaintiff - and - David Hung-Chee Leung, Paul M.K. Leung, Martin Hattersley, Brent W. Mielke, Shtabsky & Tussman LLP, C.H. William Cheung, Public Guardian and Public Trustee of Government of Alberta, Monica Leung Defendants _______________________________________________________ Memorandum of Decision of L.A. Smart, Master in Chambers _______________________________________________________ I. Introduction [ 1 ] The Defendants Brent W.

Mielke, Shtabsky & Tussman LLP, and C.H. William Cheung (collectively, “ the Defendants ”) apply to strike the Plaintiff’s Statement of Claim on the grounds that it discloses no reasonable cause of action and is scandalous, frivolous, or vexatious, or otherwise constitutes an abuse of process. II. Facts

[ 2 ] This action arises out of a related proceeding previously commenced by Ms. Wong. In 2002, Ms. Wong sued the Defendant David Hung-Chee Leung in the Court of Queen’s Bench Action No. 0203 13525. Mr. Mielke acted as legal counsel for David Hung- Chee Leung in that action. [ 3 ] On March 2, 2009, Ms. Wong issued a Statement of Claim against multiple defendants, commencing this Action No. 0903 03126. [ 4 ] The parts of the Statement of Claim that pertain to the Defendants are as follows: 5.

After delivering a Statement of Claim to the Defendant, David Hung-Chee Leung (hereinafter referred to as the “Defendant David”)’s counsel, Mr. C.H. William Cheung (hereinafter referred to as the “Defendant Cheung”) of Shtabsky & Tussman LLP at Oxford Tower of Edmonton, Alberta, no Statement of Defence was filed by Defendant Cheung, or his legal agent Brent W. Mielke within 14 days. 7. Defendant Martin, Defendant Cheung, counsels for the Q.B. No. 0203 13525 had created unnecessary pain and suffering to the Plaintiff V.W.W. and Defendant David. 8. The Q.B.

No. 0203 13525 has been in the Court of Appeal since 2006 and has been until the current date, and mostly likely will continue to afterwards. The Plaintiff V.W.W. has suffered unnecessary pain and suffering regarding Defendant Martin, Defendant Cheung and his agent Brent W. Mielke to get money from dependant adult Plaintiff V.W.W. 9. Whenever the Plaintiff V.W.W. delivered any documents to the Defendant David’s lawyer’s law firm. The lawyers would call for two or three security guards to escort or insist that V.W.W. out from the building. 17.

The Defendant David was advised by his legal counsels to separate from the Plaintiff V.W.W. 19. On or about May 4 th , 2006, Defendant Brent W. Mielke (hereinafter referred to as “Defendant Mielke”) advised Paul Leung (hereinafter referred to as “Defendant Paul”), son of Defendant David, to evict V.W.W. from her own home. [ 5 ] Based on these allegations, Ms. Wong claims general damages of $380,000.00, along with out-of-pocket expenses of $1,800. III. Issue [ 6 ] Should the Plaintiff’s claim against Defendants Brent W. Mielke, Shtabsky & Tussman LLP, and C.H. William Cheung be struck? IV. Analysis 1.

Application of the New Rules of Court

[ 7 ] This Application was originally scheduled to be heard before the Alberta Rules of Court , Alta. Reg. 124/2010 [ New Rules ] came into force on November 1, 2010.

Due to the availability of the parties, the Application was not heard until December 10, 2010. [ 8 ] Under the Transitional Provisions of the New Rules , Rule 15.12 provides that: 15.12 Where these rules impose a new test, provide new criteria or provide an additional ground for making an application in an existing proceeding, these rules apply in respect of the application if the application was made but has not been heard prior to the coming into force of these rules. [ Emphasis added. ] [ 9 ] The Court’s authority to strike pleadings is now governed by Rule 3.68.

This rule imposes a slightly different set of criteria than its predecessor, Rule 129. [ 10 ] Since this Application was not heard until after November 1, 2010, Rule 15.12 leaves no doubt about the application of the New Rules .

The New Rules apply. [ 11 ] Counsel for the Defendants submits, however, that I should exercise my power to suspend the application of the New Rules and apply the test from Rule 129 of the former rules. [ 12 ] This power arises under Rule 15.6, which provides as follows: 15.6 If there is doubt about the application or operation of these rules to an existing proceeding or if any difficulty, injustice or impossibility arises as a result of this Part, a party may apply to the Court for directions or an order, or the Court may make an order, with respect to any matter it considers appropriate in the circumstances, including: (

a) suspending the operation of any rule and substituting one or more former rules, with or without modification, for particular purposes or proceedings or any aspect of them; [ 13 ] I find that the circumstances of this Application do not warrant exercising this power. As I stated above, Rule 15.12 leaves no doubt about the application of the New Rules to this proceeding. Further, there is no injustice to the Defendants in applying new Rule 3.68.

Since this Application was heard, the courts have repeatedly confirmed that the new Rule 3.68 has not modified or lessened the test for striking out pleadings: Donaldson v. Farrell , 2011 ABQB 11 at paras. 9 , 30; Martin v. General Teamsters, Local Union No. 362 , 2011 ABQB 412 at para. 6 ; Reece v. Edmonton (City) , 2011 ABCA 238 at nn. 14, 54. 2. The Test for Striking out Pleadings [ 14 ] Rule 3.68, which now governs applications to strike, provides as follows: 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim or defence be struck out; (

b) that a commencement document or pleading be amended or set aside; (

c) that judgment or an order be entered;

(

d) that an action, an application or a proceeding be stayed.

(2) The conditions for the order are one or more of the following: (

a) the Court has no jurisdiction; (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; (

e) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim. [15] The Defendants rely on the grounds set out in Rule 3.68(2)(b), (c), and (

d) in advancing their Application. [16] The general test for striking pleadings was summarized by the Alberta Court of Appeal in Tottrup v. Alberta (Minister ofEnvironment), 2000 ABCA 121, 186 D.L.R. (4th) 226 at 234: The principles governing an application to strike a statement of claim for failure to disclose a cause of action are relatively settled. Inbrief, the Court must assume that the allegations of fact made by the plaintiff are true. The Court then determines whether those factsdisclose a cause of action in law. The test set out by the Supreme Court in Hunt v.

Carey Canada Inc. (SCC), [1990] 2S.C.R. 959 at 980, is whether it is “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action.Caution is required before concluding that the plaintiff has no chance of success. The plaintiff is entitled to a broad reading of thepleadings. Although the pleadings should be liberally interpreted, the Court has a duty to apply the Rule as it is intended. If the alleged facts,examined in light of the existing law, do not disclose a cause of action the claim should be struck.

Needless litigation should be avoided. [Emphasis added.] [17] Decisions rendered under the New Rules have confirmed that this authority continues to apply: Van Giessen v. MontanaAlberta Tie Ltd., 2011 ABQB 219 at para. 4; Chevalier v. Sunshine Village Corporation, 2011 ABQB 544 at para. 5; Martin v. GeneralTeamsters, Local Union No. 362, 2011 ABQB 412 at para. 6; Donaldson v. Farrell, 2011 ABQB 11 at para. 30. [18] However, pleading deficiencies will not necessarily result in an action being struck.

As this court noted in Chevalier v.Sunshine Village Corporation, 2011 ABQB 544 at para. 18: An action may be struck if no amount of amendment could save the action. A pleading will not be struck if the flaws in it are capable ofamendment: Hunt v. T.& N (Carey Can.), , [1990] 2 S.C.R. 959. [19] This echoes the comments made earlier by Graesser J. in Donaldson v. Farrell, 2011 ABQB 11 at para. 14, where he foundthat an application to strike must be considered in light of the proportionality requirement set out in foundational Rule 1.2(4), whichstates that:

(4) The intention of these rules is that the Court, when exercising a discretion to grant a remedy or impose a sanction, will grant orimpose a remedy or sanction proportional to the reason for granting or imposing it.

2. Do the Pleadings Disclose a Reasonable Claim? [20] The Statement of Claim pleads a number of disparate facts, which, taken together, do not appear to disclose any reasonablecause of action. At para. 5 of the Statement of Claim, the Plaintiff pleads that the Defendants represented Mr. Leung in the 2002 actionand that they did not file a Statement of Defence within 14 days. Without any explanation, the Plaintiff then immediately proceeds toallege, at paras. 7 and 8, that she has suffered “unnecessary pain and suffering” at the hands of the Defendants.

Even on the mostgenerous reading, taking into account that the pleadings were drafted by a self-represented litigant, these disparate statements cannotpossibly disclose any cause of action. [21] The law with respect to the required essentials of pleadings was succinctly summarized by the Alberta Court of Appeal inTottrup at para. 11 and confirmed to apply to the New Rules in Martin v. General Teamsters, Local Union No. 362, 2011 ABQB 412 atpara. 10: In my view, it is not the allegation of a duty at law that is critical, but the facts alleged supporting such a duty.

For example, a Statementof Claim alleging only that “A” breached a duty owed to “B” thereby causing damage does not, in my view, disclose a cause of action.Pleadings are allegations of fact and, in my view, where negligence is alleged, that allegation must be supported by facts capable ofsustaining a determination that a duty was owed, that

an act or omission occurred breaching that duty, and that damages resulted. On aMotion to Strike it is the allegations of fact that must be examined to determine whether a cause of action exists. [Emphasis added.] [22] The only relationship between the Plaintiff and the Defendants that can be gleaned from the Statement of Claim is that theDefendants acted as legal counsel for David Hung-Chee Leung in the 2002 Action.

This relationship is utterly incapable of sustaining adetermination that the Defendants owed any duty to the Plaintiff. [23] There can be absolutely no legal duty of care owed by a Defendant’s counsel to a Plaintiff. If such duty were to exist, it wouldstrike at the very heart of the adversarial system, which forms the very foundation of litigation under the common law.

In Lawrence v.Sandilands, 2003 BCSC 211, Wedge J. summarized the law as follows at paras. 79-80: While a solicitor may owe an ethical duty to the court to be candid and fair, the only party to whom a solicitor owes an actionable duty ishis or her client (Jensen v. MacGregor, (BC SC), (1992), 65 B.C.L.R. (2d) 224 at p. 228 (BCSC)).

The court in Jensen found that in the absence of a contractual obligation and any duty of care owed between counsel for one party andthe party adverse in interest, there was no recognizable cause of action, no plausible argument and no triable issue raised on thepleadings. [Emphasis added.] See also: Old Willoughby Realty Limited v. Mathews Southwest Developments Limited, (Ont. Sup. Ct. J.) at para.7. [24] The conclusion from Jensen alone would be sufficient to strike Ms.

Wong’s claim against the Defendants in its entirety. [25] However, even if any duty existed, the Plaintiff’s pleadings fail to disclose any act or omission by the Defendants that wouldhave breached that duty. The Statement of Claim cuts straight from alleging the relationship between the parties to claiming that thePlaintiff has suffered “unnecessary pain and suffering.”

[ 26 ] Finally, the Statement of Claim pleads no factual nexus between the Defendants and the damages of $380,000.00. There are no facts that tend to establish how these damages arose. [ 27 ] In sum, assuming the truth of every statement pled in the Statement of Claim, it is beyond all doubt that there is no duty, no breach of the said duty, and no nexus between the breach and the injury alleged arising on the facts. [ 28 ] No amount of amendment can possibly save this action.

Even if the Plaintiff were able to plead the facts tending to establish a breach of duty and some link to the purported injury, the Defendants have never owed any actionable duty to the Plaintiff. Any advice they have given to David Hung-Chee Leung and Paul Leung cannot possibly be the grounds for bringing an action against these Defendants. [ 29 ] The Plaintiff also pleads at para. 9 that security guards were called to escort her from or insist that she leave the offices of Shtabsky & Tussman LLP. Again assuming the truth of this allegation, the Statement of Claim alleges no tort or wrongdoing.

The pleadings contain no allegation of any imprisonment or bodily contact whatsoever. [ 30 ] I find that the Statement of Claim discloses no reasonable claim. 3. Is the Statement of Claim Frivolous, Irrelevant, Improper, or an Abuse of Process? . [ 31 ] A pleading that is frivolous is one that is indicative of bad faith or is hopeless factually: Donaldson v. Farrell , 2011 ABQB 11 at para. 20 . In other words, a frivolous plea is one so palpably bad that the Court needs no real argument to be convinced of that fact: Haljan v.

Serdahely Estate , 2008 ABQB 472 at para. 21 . [ 32 ] The discussion above clearly establishes that Ms. Wong’s pleadings are indeed factually hopeless. There is no basis on which her claim against the opposing party’s lawyers can succeed, even if the pleadings were amended to include additional facts. Accordingly, I find that the pleadings against the Defendants are frivolous. [ 33 ] Under the former rules, a Court could strike the pleadings if they were “vexatious”.

Although this wording is now gone from Rule 3.68, I find that vexatiousness of proceedings remains a hallmark of an improper claim that constitutes an abuse of process. This is consistent with this Court’s observations that new Rule 3.68 does not substantially alter the test for striking pleadings. [ 34 ] In Dykun v. Odinshaw , 2000 ABQB 548 at para. 42 this Court stated that a proceeding is vexatious if it satisfies any of the following tests: (

a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding; (

b) where it is obvious that an action cannot succeed , or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious; (

c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights ;

(

d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings ; (

e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action; (

f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; (

g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceeding [ Emphasis added. ] [ 35 ] I have already determined that it is plain and obvious that this action cannot succeed. That satisfies the criteria under test (b). [ 36 ] There is strong indication that this action was brought for an improper purpose, namely the harassment of lawyers acting on behalf of David Hung-Chee Leung. I pause to note that Ms.

Wong has sought, unsuccessfully, to consolidate this claim with the 2002 Action, apparently for the purpose of creating a conflict that would force Mr. David Leung’s counsel to withdraw. Ms. Wong has also made a number of unsubstantiated and inappropriate remarks against Mr. David Leung’s legal counsel throughout various steps in this proceeding, including this Application before me. In my view this satisfies the criteria under test (c). [ 37 ] Test (

d) does not require any elaborate discussion. This proceeding is clearly aimed at lawyers who have acted against the litigant in earlier proceedings (namely, the 2002 Action). [ 38 ] Further to the above, Ms. Wong has a long and consistent record of failing to pay costs of unsuccessful proceedings. As a result of her persistent failure to pay costs, the Court of Appeal has recently ordered Ms. Wong to post $5,000 as security for costs in another proceeding: see Wong v. Giannacopoulos , 2011 ABCA 156 . This further supports the conclusion that the present proceeding may be vexatious. [ 39 ] Ms.

Wong’s claim satisfies not one, but arguably four tests enunciated in Dykun v. Odinshaw . Only one is required for a proceeding to be found vexatious. Ms. Wong’s claim against the Defendant is vexatious, that is, both frivolous, improper, and constitutes an abuse of process. V. Conclusion [ 40 ] The Application is allowed. The claim against the Defendants Brent W. Mielke, Shtabsky & Tussman LLP, and C.H. William Cheung is struck with costs. Dated at the City of Edmonton, Alberta this 9th day of November, 2011.

L.A. Smart M.C.C.Q.B.A. Appearances: V.W. Wong Self-represented for the Respondent S.M. Stepchuk Fraser Milner Casgrain LLP for the Applicants Brent Mielke, Shtabsky & Tussman LLP