Mcmeekin v. Alberta (Attorney General), 2012 ABQB 144

Court of Queen ’ s Bench of Alberta Citation: Mcmeekin v. Alberta (Attorney General), 2012 ABQB 144 Date: 20120308 Docket: 1203 01711 Registry: Edmonton Between: Greg Mcmeekin Plaintiff - and - Attorney General of Alberta/Crown Prosecutor ’ s Office Edmonton, A. Harriet, C. Lim, Tim Hurlburt, Kerry Whittaker, Counsel for the Crown and Attorney General ’ s Office of Alberta, Criminal and Civil Divisions, the Edmonton Humane Society, Shawna Randolph, Dr. Karen Lange, Lisa Callas, Deb Pope, Valerie E.

Kensett, Holy Mcbride, Carolee Hofman, S/Cst Grandysh, Stepanie McDonald and John Doe ’ s of the Edmonton Humane Society, Global T.V. Edmonton & National, CanWest Productions, Shaw Media, C.B.C. (Canadian Broadcasting Corporation) and its subsidiary C.B.C. Northbeat Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.P. Marceau _______________________________________________________

Introduction [ 1 ] This is an application by the Attorney General of Alberta and four lawyers, who are employees of the Attorney General of Alberta (the “ Applicants ” ), to strike out the Statement of Claim filed in action #1203 01711 (the “ Second Action ” ). There is a cross- application by the Plaintiff, Greg Mcmeekin, for what essentially is a

summary judgment in his favour. I have decided that a portion of the Statement of Claim is an abuse of the process of this Court and I will be directing that certain portions of it be struck. With respect to those claims that are not contained in the previous Statement of Claim in action #1103 12194 (the “ First Action ” ), I find that they disclose no reasonable cause of action and are frivolous or improper, and, as result, ought to be struck likewise. The cross-application by the Plaintiff is dismissed because, as far as what remains of the Statement of Claim, it is without any evidence to support it.

Facts [ 2 ] On July 29, 2011, the Plaintiff filed a Statement of Claim in the First Action against the following Defendants: Attorney General of Alberta, Crown Prosecutor ’ s Office Edmonton; A. Harriet & C. Lim, Counsel for the Crown and Attorney General ’ s Office of Alberta; and the Edmonton Humane Society, Shawna Randolph, Dr. Karen Lange, Lisa Callas, Deb Pope, Valerie E. Kensett, Holy Mcbride, Carolee Hofman, S/Cst Grandysh, and John Doe ’ s of the Edmonton Humane Society. [ 3 ] The Plaintiff made applications in the First Action for what is essentially a

summary judgment, and those applications are opposed. The Defendants have also cross-applied, seeking a

summary dismissal of the Plaintiff ’ s Statement of Claim in the First Action. [ 4 ] In the First Action, the Plaintiff sought remedies against the Edmonton Humane Society and several of its employees including “ John Doe ’ s of the Edmonton Humane Society ” . The Plaintiff alleged that the Edmonton Humane Society and its employees had given the prosecution false information which resulted in a charge against the Plaintiff of causing or permitting an animal to be in distress contrary to s 2(1) of the Animal Protection Act , RSA 2000, c A-41.

This charge was laid on June 6, 2006 and eventually resulted in a stay of proceedings filed by the Crown in July of 2011. [ 5 ] The complaint against Crown prosecutors Andrew Harriet and Christian Lim personally was basically one of malicious prosecution and, against the other Defendants, one of defamation resulting from the laying of the charges or the publicity surrounding the charges.

The cruelty alleged by the Edmonton Humane Society and eventually by the prosecution was that the Plaintiff had left his dog, Dreyfuss, locked up in a motor vehicle on a hot day with the windows closed, resulting in acute distress for the dog. [ 6 ] On December 21, 2011, Justice Gates of this Court ordered in the First Action as follows: 1. The Plaintiff ’ s appeal of Master Schlosser ’ s order dated November 10, 2011 is hereby dismissed. 2. The Defendants ’ applications for

Summary Judgment are hereby adjourned to Master ’ s Special Chambers scheduled to be heard on February 1, 2012 at 2:00 p.m. 3. The Defendants ’ applications for late service of their respective Affidavits of Records to no later than 90 days following the Court ’ s determination of the Defendants motions for

Summary Judgment to be heard on February 1, 2012 in Master ’ s Special Chambers if the Court ’ s determination is not in the Defendants ’ favour, or no later than 90 days following the final appeal, if any, is granted. 4. The Plaintiff shall not file any further applications or appeals in relation to this matter until the matters referred to above are heard in Master ’ s Special Chambers on February 1, 2012. [ 7 ] The applications referred to in the Justice Gates ’ order are set for Master ’ s Special Chambers on March 29, 2012. Some time after Justice Gates ’ order and before January 31, 2012, the Plaintiff sought to file a revised Statement of Claim in the First Action, but

was not allowed to do so because of paragraph 4 of the order of Justice Gates. The Plaintiff then struck out the word “Revised” and wasallowed to file a Statement of Claim, commencing the Second Action. [8] In the second action, the Plaintiff added as parties the lawyers who have defended the first action, Tim Hurlburt and KerryWhittaker, who are both employees of the Attorney General of Alberta. He also added Stephanie McDonald, an employee of theEdmonton Humane Society, as well as several members of the media whose role was to publicize the events surrounding the initialanimal distress charge. Analysis 1.

The Duplicitous Allegations [9] The Statement of Claim in this Action contains all the same allegations found in the Statement of Claim in the First Action.All paragraphs in this Statement of Claim that are identical to those in the Statement of Claim in the First Action must be struck outpursuant to Rule 3.68(2)(

d) of the Alberta Rules of Court, Alta Reg 124/2010 (“New Rules”) because they are duplicitous and thusconstitute an abuse of the process of the Court. [10] While the new Statement of Claim is not technically “an application or an appeal in relation to this matter”, which wereprohibited by the order of Justice Gates, making the same allegations in a second action certainly contravenes the spirit of the order. TheStatement of Claim in this action is nothing but a covert attempt to circumvent the effect of paragraph 4 of Justice Gates’ order.

Indeed,the Plaintiff himself reveals this at paras 28-29 of the very same Statement of Claim, where he accidentally refers to his new Statement ofClaim as “amended” and “revised.” [11] Even if I did not have the benefit of Justice Gates’ order, I would still strike the duplicitous pleadings on the basis that theyare vexatious. Although the word “vexatious” is gone from Rule 3.68 in the New Rules, the Courts have interpreted “vexatious” as beingbroadly synonymous with impropriety and abuse of process: Wong v Leung, 2011 ABQB 688 at para 33; Foy v Foy (1979), (ON CA), 102 DLR (3d) 342 (Ont CA).

As a result, vexatious pleadings can still be struck pursuant to Rule 3.68(2)(c)-(d). [12] In Dykun v Odinshaw, 2000 ABQB 548 at para 42, Lee J. stated that a proceeding is vexatious if it satisfies any of thefollowing tests: (

a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdictionconstitutes 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 canreasonably 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 bymultifarious 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 actionsand repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlierproceedings; (

e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether therewas 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 indetermining whether proceedings are vexatious; (

g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct oflegal proceeding. [Emphasis added.] [13] The Statement of Claim in this action is a textbook example of a situation described in paragraph (d), where “grounds andissues raised tend to be rolled forward into subsequent actions and repeated and supplemented.” Thus, the duplicitous allegations arevexatious and ought to be struck pursuant to Rule 3.68 of the New Rules. [14] Even if I did not have the benefit of Rule 3.68, there is ample authority for the proposition that this court’s inherentjurisdiction allows it to control its own process to prevent abuse: Mazhero v Yukon (Ombudsman), 2001 YKSC 520 at para 47; CanamEnterprises Inc v Coles (2000), (ON CA), 51 OR (3d) 481 (CA) at paras 55-56, aff’d 2002 SCC 63, [2002] 3 SCR307; Khadr v Canada (Minister of Foreign Affairs), 2004 FC 1145 at para 11; 155569 Canada Ltd v 248524 Alberta Ltd, at para 5 (Alta QB).

Instituting duplicitous proceedings needlessly consumes the Court’s time and constitutes precisely the type ofabuse this court’s inherent jurisdiction is intended to prevent: Canam Enterprises Inc, supra at para 56; Khadr, supra at para 11. [15] Having considered the authorities above, I have no difficulty finding that the duplicitous allegations against the Applicants inthe second Statement of Claim ought to be struck. 2.

The Remaining Allegations [16] Stripped then of the repetitious allegations, the Plaintiff is left with allegations against the Attorney General and the twocounsel, Tim Hurlburt and Kerry Whittaker (the “Remaining Defendants”) employed by the Attorney General of Alberta to defendagainst the claim brought in the First Action. The allegations are summarized in paragraph 1(

a) of this Statement of Claim: “1. The Following Parties have been added to this Statement of Claim (

a) Crown Attorneys have been added to the Statement of Claim for abuse of Process, Abusing the Qualified Privages (sic) attachedto their offices, Falling (sic) to comply with the Rules of the Queens Bench of Alberta, Engaging in Judicial Misconduct, Miscarriage ofJustice, Acts of Malice and Voilations (sic) of the Charter of Rights and freedoms causing Further violations of the security and liberty ofMr Mcmeekin In action.” [17] The Applicants seek to strike the remaining allegations pursuant to Rule 3.68, contending that they disclose no reasonablecause of action, or are frivolous, irrelevant or improper, and constitute an abuse of process. [18] Before I proceed, I would like to address a point raised by the Plaintiff at para 5(

b) of his written submissions. Mr. Mcmeekin argues that “there is not (sic) rule that would allow the Master or a Justice of the Queen’s bench to strike the 2nd Statement of Claimbefore any pleadings are made or the Statement of Defence is filed.” With respect, Mr. Mcmeekin is mistaken. Rule 3.30 clearly providesa defendant with three non-mutually-exclusive options: 3.30 A defendant who is served with a statement of claim may do one or more of the following: (

a) apply to the Court to set aside service in accordance with rule 11.31;

(

b) apply to the Court for an order under rule 3.68; (

c) file and serve a statement of defence or demand for notice. [19] Thus, the Applicants are entitled to seek an order striking the Plaintiff’s Statement of Claim whether or not they have filed aStatement of Defence. [20] The argument advanced by the Remaining Defendants discloses two lines of attack (

i) the pleadings disclose no reasonablecause of action, and (ii) the pleadings are frivolous, irrelevant or improper, and constitute an abuse of process. As the two lines of attackinvolve slightly different tests, I will deal with each of them in turn. (

i) The Pleadings Disclose No Reasonable Cause of Action [21] To set out the principles governing striking of pleadings, I need only quote from Master Smart in Wong v Leung, 2011ABQB 688 at paras 16-18: [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. Montana AlbertaTie 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. SunshineVillage 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. [22] Even assuming the truth of the Plaintiff’s allegations, it is plain and obvious that the remaining paragraphs of the Statementof Claim disclose no reasonable cause of action against the Remaining Defendants.

[ 23 ] Paragraph 21 alleges that Master Schlosser acted improperly by acceding to the Remaining Defendants ’ request for an adjournment and setting the matter down for Special Chambers on a date to be agreed by the parties. My response to this would have been that the appropriate remedy for Mr. Mcmeekin is to seek an appeal of Master Schlosser ’ s decision in the First Action — except that it has already been done. Mr.

Mcmeekin and the Defendants appeared before Justice Veit on December 2, 2011, and she dismissed the Plaintiff ’ s appeal, finding that Master Schlosser had jurisdiction to make his order, and that his order was a reasonable one: Transcript of Decision at page 18, lines 32-26. Not only does the Plaintiff have an alternative remedy available in the First Action, he has unsuccessfully pursued this remedy and now seeks to re-litigate Veit J. ’ s decision in another action.

Given that this allegation can and should properly be resolved in the First Action, it has no chance of success in the Second Action, and pleading such an allegation amounts to an abuse of the process of this court. [ 24 ] Paragraph 22 essentially alleges that Mr. Hurlburt caused an unreasonable delay in setting a date for Special Chambers in accordance with Master Schlosser ’ s order in the First Action. In my opinion, this claim fails to disclose a reasonable stand-alone cause of action. Even if there is inordinate delay, it can and should be rectified via a costs award under Rule 10.33 in the First Action.

I also find it perplexing that Mr. Mcmeekin faults Mr. Hurlburt for allegedly violating Master Schlosser ’ s order right after he accuses Master Schlosser of “ Judicial Misconduct ” and “ Miscarriage of Justice ” in making that very same order. It seems to me that Mr. Mcmeekin wants to “ have his cake and eat it too. ” [ 25 ] Paragraph 23 likewise fails to disclose an independent cause of action. It complains that the Remaining Defendants have fabricated an order that did not reflect the order handed down by Master Schlosser. Even if this allegation is true, Mr.

Mcmeekin can apply to settle the terms of the order pursuant to Rule 9.3 of the New Rules. Again, the New Rules supply an alternative remedy that Mr. Mcmeekin can avail himself of in the First Action. A dispute over the terms of an order in one action cannot form the basis for a separate action. This allegation likewise discloses no reasonable standalone cause of action. [ 26 ] Paragraph 25 broadly alleges some form of conspiracy between the Remaining Defendants and members of this Court that has resulted in this Court ignoring the Plaintiff ’ s application in the First Action to note the Defendants in default.

In fact, the Plaintiff was not trying to note the Defendants in default of filing a Statement of Defence — which they did — but rather in default of complying with what he thought were the procedural rules the Defendants had to follow. Paragraph 25 contains nothing more specific than sweeping allegations against the Remaining Defendants and the judiciary.

I find that it discloses no reasonable cause of action against the Remaining Defendants. [ 27 ] Finally, Paragraph 26 alleges that the Remaining Defendants “ continue to abuse the process by adding applications to the Feb 1 20112 (sic) Hearing in order to avoid dealing with the original default proceedings. ” I have already noted at paras 16-17, supra , that Rule 3.30 entitles the Defendants to bring an application to strike the Plaintiff ’ s Statement of Claim under Rule 3.68. Accordingly, paragraph 26 discloses no reasonable cause of action. [ 28 ] No amount of amendment can possibly save this action.

The claims advanced at paras 21-23 and 25-26 against the Remaining Defendants all relate to the First Action. Some are factually hopeless in their entirety. Others allege procedural violations in the conduct of the First Action. As discussed above, the New Rules provide ample procedural remedies the Plaintiff can pursue in the First Action.

Whatever procedural defects the Plaintiff complains of, they cannot form a basis for a separate action. (ii) The Pleadings are Frivolous, Irrelevant or Improper, or Constitute an Abuse of Process [ 29 ] 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 .

Put differently, 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 . [ 30 ] The analysis above already demonstrates that the remaining Plaintiff ’ s claims are factually hopeless. They can neither succeed in, nor form a basis of, an independent action. Accordingly, I have no difficulty finding the remaining pleadings against the Remaining Defendants to be frivolous. [ 31 ] To assess whether the remaining pleadings are also improper, I again turn to the indicia of vexatious proceedings in Dykun , supra .

The indicia that are relevant to the remaining pleadings are:

(

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; (

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; [ 32 ] The remaining allegations exhibit all hallmarks of being vexatious. I have already determined that paragraph 21 attempts to re-litigate an unsuccessful appeal before Justice Veit. This engages paragraph (

a) above. I have also determined that the remaining allegations disclose no reasonable cause of action and cannot succeed. This engages paragraph (

b) above. Finally, the history of this litigation, while less than a year long, is already marked with numerous improper allegations, attempts to re-litigate settled issues, and general abuse of the process. In light of this, I have no difficulty finding the remaining allegations to be vexatious. [ 33 ] Paragraph (

d) above warrants a separate discussion in light of the nature of the Second Action. This is an action against government lawyers who acted on behalf of the Attorney General in the First Action. This is precisely what paragraph (

d) captures. This Court has recently confirmed this behaviour to be improper in Koerner v Capital Health Authority , 2011 ABQB 462 at para 21 where Shelley J. held that serious allegations of misconduct, fraud, malice, perjury and deceit against both lawyers acting for the Defendants and against the Court constituted inappropriate courtroom behaviour.

Likewise, in Wilson v Canada (Revenue) , 2006 FC 1535 at para 31 , 305 FTR 250, cited with approval in Mazhero v Fox , 2011 FC 392 at para 40 , Barnes J. essentially confirmed Dykun by holding that: Other indicia of vexatious behaviour include the initiation of frivolous actions or motions, the making of unsubstantiated allegations of impropriety against the opposite party, legal counsel or the Court , the refusal or failure to abide by rules or orders of the Court, the use of scandalous language in pleadings or before the Court , the failure or refusal to pay costs in earlier proceedings and the failure to pursue the litigation on a timely basis[.] [Emphasis added.

Citations omitted . ] [ 34 ] Indeed, this type of conduct tends to be a common feature of vexatious proceedings. In Big Bear Hills Inc v Bennett Jones Alberta LLP , 2010 ABQB 764 , 507 AR 21 , the plaintiff was sued for breach of contract. The plaintiff, apparently being unhappy with the progress of the action against him, sued the six lawyers who were pursuing the contractual claim against him, alleging defamation and conspiracy to commit unlawful interference. On an application by the lawyers and their firm, I struck the plaintiff ’ s claim as frivolous, vexatious, and an abuse of process.

The same situation occurred in the sister cases of Wong v Leung , 2011 ABQB 687 and Wong v Leung , 2011 ABQB 688 . [ 35 ] In the end, I find that the remaining claims against the Remaining Defendants disclose no reasonable cause of action and are frivolous, improper, and constitute an abuse of process. As a result, they are struck pursuant to Rule 3.68. [ 36 ] Before I conclude, I would like to consider whether this court should prohibit Mr. Mcmeekin from bringing further applications without leave pursuant to s 23.1 of the Judicature Act , RSA 2000, c J-2.

As s 23.1 states, this can be done on my own motion, but, in my opinion, there are four reasons why I should not do so.

[ 37 ] First, the application before me is only brought by the Attorney General and four lawyers. There are many other parties who have not brought any applications in this action. I would prefer that, if such an order were made, it would be made at the behest of all of the parties involved. [ 38 ] Secondly, the Plaintiff received no notice that an application would be made to prevent him from bringing any actions at all without leave of the Court. I would prefer that Mr.

Mcmeekin be given an opportunity to make submissions if a vexatious litigant order were sought against him. [ 39 ] Third, given that there is an application to strike pending in the First Action before the Master, it does not seem to be an appropriate time to complicate the proceedings in the Second Action when proceedings are going forward in the First Action. [ 40 ] Finally, s 23.1 of the Judicature Act requires that notice be given to the Attorney General if either myself or the defendants pursue a vexatious litigant order.

No such notice has been given yet. [ 41 ] Accordingly, I choose not to make a vexatious litigant order pursuant to s 23.1 of the Judicature Act at this time. 3. The Plaintiff ’ s Cross-Application [ 42 ] At the same time as this Statement of Claim was filed (January 31, 2012), the Plaintiff filed an affidavit which made no allegations of misconduct against Tim Hurlburt or Kerry Whittaker in the conduct of the defence of the first Statement of Claim. The application to strike out this Statement of Claim was filed on February 10, 2012. On February 16, 2012, the Plaintiff filed an application seeking essentially a

summary judgment and findings of contempt of court against the Defendants. The Plaintiff in his motion relies on the application filed by the Applicants and the New Rules. Without evidence of misconduct by Tim Hurlburt of Kerry Whittaker, I cannot conclude that any interim remedy or

summary judgment is available to the Plaintiff. A finding of contempt involves a very high evidentiary threshold; it requires proof beyond reasonable doubt of an intentional failure to comply: Koerner v Capital Health Authority , 2011 ABQB 191 at paras 43-44 . [ 43 ] Moreover, the Plaintiff ’ s cross-application in this action should be considered within the context of the pleadings. As I have struck both the duplicitous and the remaining portions of the Statement of Claim vis-a-vis the Applicants, there is no longer anything a

summary judgment in this action can be based on. [ 44 ] Accordingly, the Plaintiff ’ s cross-application is dismissed. Conclusion [ 45 ] The Statement of Claim in action #1203 01711, as it relates to the Applicants, is struck in its entirety pursuant to Rule 3.68. The Plaintiff ’ s cross-application is dismissed. [ 46 ] The Applicant Defendants are granted costs of this application, which I fix at $2,500.00 plus disbursements. Heard on the 17 th day of February, 2012. Dated at the City of Edmonton, Alberta this 7 th day of March, 2012.

R.P. Marceau J.C.Q.B.A. Appearances: Greg Mcmeekin, on his own behalf Marta Burns, Alberta Justice for the Applicants, Attorney General of Alberta, A. Harriet, C. Lim, Tim Hurlburt and Kerry Whittaker