Allen v. Gray, 2012 ABQB 66

Court of Queen ’ s Bench of Alberta Citation: Allen v. Gray, 2012 ABQB 66 Date: 20120207 Docket: 1101 04369 Registry: Calgary Between: Rhona Allen Plaintiff - and - Alison Gray, Linda Van Esch, Terry Prociuk and Tam Alpha 2009, George Botros, Ved Madan, Timothy Spielman, John Doe, University of Lethbridge Students ’ Union, University of Lethbridge Defendants Corrected judgment: A corrigendum was issued on February 7, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Judgment of the Honourable Mr.

Justice G.C. Hawco _______________________________________________________ [ 1 ] The Defendant, the University of Lethbridge Students ’ Union ( “ Students ’ Union ” ) seeks an order declaring the Plaintiff to be a vexatious litigant or, alternatively, an order requiring her to post security for costs.

[ 2 ] Ms. Allen has commenced eleven lawsuits in this Court, of which nine remain active. This is now the twelfth action. It is necessary to briefly review the nature of the lawsuits. [ 3 ] In Allen v. The University of Calgary et al , Action 0101-13893, Ms. Allen sought a judicial review of a human Rights tribunal decision regarding transfer credits of teachers from the Carribean. Justice Brooker dismissed her application. She appealed that and does not appear to have pursued that appeal. [ 4 ] Ms. Allen ’ s basis for making the complaint initially was discrimination.

She raised allegations of bias on the part of the tribunal and the part of Justice Brooker on the review. [ 5 ] Her allegations against the Human Rights Commission included allegations of incompetence, dishonesty, criminal behaviour and a contemptuous attitude towards her. She accused opposing counsel of preventing her from presenting facts and making constant misrepresentations of the facts to the court. [ 6 ] In Allen v. Alberta Finance , Action 0501-15251, she brought a claim for damages arising from a six-month term of contract employment.

Her allegations against the Defendants included allegations of harassment and intimidation, as well as incompetence and dishonesty. [ 7 ] In Allen v. Calgary Police Service et al , Action 0701-06860, the claim was for an assault on the Calgary Stampede grounds by a Stampede volunteer. She alleged failure of the Calgary City Police to take action. She was seeking judgment in the sum of $1 million or greater. Her allegations included discrimination and unfair treatment, bias on the part of the police and racism.

During the course of the action, she accused defence counsel of putting something on the court record which was not true. In that action, there were a number of failures on her part to produce documents and to provide undertakings as well as failure to attend court appearances and comply with court orders. [ 8 ] In Allen v. Bow Valley College , Action 0701-07462, she seeks damages for termination of her employment of less than four weeks. That proceeding was stayed due to Ms.

Allen ’ s failure to obey an order respecting costs. [ 9 ] The allegations included harassment, intimidation, fraud, incompetence and dishonesty. [ 10 ] In Allen v. Aomega Group et al , Action 0801-04110, Ms. Allen and her mother allege that the Defendants were unwilling to have her mother placed in a nursing home. Allegations of kidnapping, discrimination, sexual and physical assault as well as theft of funds are set forth. Once again, she claims incompetence and dishonesty as well as criminal behaviour, discrimination and unfair treatment. [ 11 ] Allen v.

Bethany Care Centre , Action 0801-11831, is another claim by Ms. Allen and her mother against a nursing home alleging the Defendants were unwilling to have her mother placed in a nursing home. There are further allegations of sexual and physical assault, discrimination and theft of funds. That action has been stayed because of Ms. Allen ’ s failure to pay costs for not filing an Affidavit of Record. [ 12 ] Once again, Ms.

Allen alleges inappropriate behaviour against both the Defendants and counsel and once again alleges abusive conduct by the Defendants and staff members so that staff may take over resident ’ s affairs. Costs were ordered against her for failing to file an affidavit of records. The cost award remains unpaid. [ 13 ] In Allen v. James Fowler et al , Action 0801-14022, Ms. Allen sought reinstatement and damages for her daughter who was expelled as a result of a brawl between her daughter and others on the school grounds. After having a large part of the Statement of Claim struck, Ms.

Allen appealed the matter to the Court of Appeal and then sought to seek leave from the Supreme Court of Canada. She was denied leave and costs were assessed, which costs remain unpaid.

[ 14 ] In that action, Ms. Allen sought judgment of no less than $1 million. Once again, she alleged acts of harassment, intimidation, incompetence and dishonesty, as well as discrimination and unfair treatment. In particular, she again queried the ethics of the defence counsel and accused him of provoking unnecessary fights and inciting hostility. [ 15 ] In Joni Von Thompson Allen v All-state Insurance , Ms. Allen claims that her daughter was struck by a car and injured. She has made allegations of harassment and intimidation.

She again alleges that counsel for the Defendants is “ either misinformed or is willfully attempting to mislead this court ” . Her affidavit of December 8, 2009 is an example of her allegations of misbehaviour and lying on the part of people who file affidavits. She accuses defence counsel of displaying a contemptuous attitude to the Court and criticizes his professional behaviour. [ 16 ] In Allen v. Van Held et al , Action 0901-06654, Ms. Allen claims that a student yelled at her in class and that such action constituted an assault.

She alleges that there was a conspiracy amongst professors and administrators to thwart her academic success. [ 17 ] Allen v. Alberta Human Rights Commission , Action 1101-18565, is an appeal of another Human Rights Commission decision. This involved allegations against the Calgary Catholic School Board having not acted in the best interests of children. That claim was struck. [ 18 ] In the action with which we are concerned, the Plaintiff alleges that a fellow student yelled at her, which she claims constituted an assault. She further alleges that the University, through a conspiracy between Ms.

Allen ’ s instructors and some of the administrators, had worked together to thwart her academic success.

In addition, she seeks orders that would: “ prevent the Defendants putting the Plaintiff at a disadvantage at any time; prevent the instructors from having unfair or unreasonable test items in an exam; and an order that the Dean of her faculty to be barred from accessing her academic records, ” and so on. [ 19 ] She claims that the Students ’ Union has failed to come to her assistance during certain disciplinary hearings, has failed to resolve certain issues she had concerning the course calendar and has failed to assist her with respect to obtaining a refund for certain courses.

She is seeking damages in the amount of $1.5 million plus punitive and special damages. [ 20 ] Mr. Alan Rudakoff , counsel for the University of Lethbridge and a number of the individual defendants, filed a defence alleging that her claim was without merit and brought an application on behalf of his clients for security for costs. That application was returnable in Master ’ s Chambers on June 30, 2011. Ms. Allen did not attend but had an individual appear on her behalf who presented the Court with a document entitled “ Written Representations ” .

Within the Written Representations were rather derogatory remarks about Mr. Rudakoff personally. [ 21 ] The Master reviewed the motion, the supporting affidavit and the written representation and heard argument. He ordered that Ms. Allen post security for costs no later than September 1, 2011. [ 22 ] Ms. Allen appealed that order. That came before me September 2, 2011 and was ultimately dismissed. [ 23 ] On that same day, Mr. Venturo, on behalf of the Students ’ Union, had filed a Notice of Motion and Affidavit returnable on that date.

He advised the Court that the matter should proceed by way of Special and a date was ultimately obtained for December 14, 2011. During that brief process, Ms. Allen advised the Court that she had not been served, notwithstanding an Affidavit of Service had been filed. [ 24 ] At the hearing of this application on December 14, 2011, Ms. Allen once again made derogatory remarks about counsel, stating that I had, during the September 2 morning Chambers, ordered costs in the amount of $500 against Mr. Venturo personally for inappropriate conduct on another Chambers application in which he appeared that morning.

I did not remember having done so. Mr. Venturo denied that I had made any order. Ms. Allen assured me that I had. [ 25 ] I have listened to the FTR recording of the proceedings that morning. There is no such order made against Mr. Venturo. There was a completely unrelated application by another counsel. In that particular application, I did assess costs in the amount of $500 against another party, but Mr. Venturo was not counsel nor was he involved in that other matter. Nor was he reprimanded in any manner

that morning. [ 26 ] The Students ’ Union argues that Ms. Allen has brought and continues to bring actions which have no reasonable expectation of obtaining relief. Her actions are often brought for improper purposes. They are often duplicated. She alleges inappropriate behaviour on behalf the named defendants as well as parties not named and counsel for the defendants. [ 27 ] The Statement of Claim is rife with allegations of unfair and racially biased conduct against the Plaintiff involving other students and other professors.

Her claim against the Students ’ Union is that it had a duty to support her in her ongoing difficulties with her teachers and other students and that it failed to do so. Indeed, she alleges that the Students ’ Union acted as her adversary and sided with the university. [ 28 ] The affidavit of Cheri Pokarney, the manager of the Students ’ Union, describes the nature of the claim against the Students ’ Union and sets out the grounds of defence. Ms. Pokarney advers that the Defendant has a good defence and sets forth the nature of that defence.

In addition, she attaches the pleadings filed in the other actions to which I have referred to above. [ 29 ] I have perused the pleadings, motions, affidavits and letters filed in the other eleven actions referred to above. There are common themes: harassment, intimidation, discrimination, racial bias and conspiracy. Often the claims are for completely exorbitant and unrealistic damages. Often the remedies sought are not legal remedies at all. Far too often, the Plaintiff alleges misconduct by defence counsel. What is very clear is that Ms.

Allen sees offence taken against her and her family from schools, universities, the police force, the Human Rights Commission and various government departments. Issues [ 30 ] The primary issue in this application is whether Ms. Allen to should be declared a vexatious litigant. [ 31 ] It should also be noted that Ms. Allen has brought a motion on her own, which is to obtain

summary judgment against the University of Lethbridge Students ’ Union. Law [ 32 ] The Judicature Act , RSA 2000, c. J-2 sets out what is required to be established to have one declared to be a vexatious litigant. Section 23(2) states:

(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. [33]

Section 23.1(1) of the Act requires that the Minister of Justice and Attorney General of the Province be given notice when anapplication is brought to have a person declared a vexatious litigant. This was not done in this case prior to bringing the application.However, the Defendant has advised me that it has since forwarded a copy of the Application and the Affidavit in these proceedings tothe Minister’s office. Ms.

Shelley MacDonald of the Minister’s office has reviewed the material and has stated this in an email to theDefendant’s counsel’s office on January 25, 2012: Upon reviewing the Application and Affidavit, I can advise that the Minister of Justice and Attorney General of Alberta would not haveappeared at the Application, pursuant to the rights afforded under

Section 23.1(3) of the Judicature Act. [34] That being the case, the Defendant’s Application is in order. [35] In Crocker-McEwing v. Drake,

(2001) ABQB 13, 2001 ABQB 13 , [2001] 5 W.W.R. 158, Justice Watson, as hethen was, stated: 33 The fundamental policy balance is between the desire not to unnecessarily or unfairly impede access to the Courts by legitimate andbona fide Plaintiffs and the desire to ensure that the administration of justice is not perverted by encouraging risk-free and doubtfullitigation claims by Plaintiffs to the harassment of, and to the imposition of practically unrecoverable cost upon, Defendants who arepossessed of facially meritorious answers to such claims. 34 Both policy considerations deserve great respect.

Access to the Courts is a matter going to the very heart of the viability andcredibility of the administration of justice. Limitations on that access should be driven by strong grounds of policy: see e.g.B.C.G.E.U.11. On the other hand, the uses of recoverable and case-related costs has long been accepted as a means of regularizing theprocesses of Courts and ensuring fairness therein.

Moreover, the use of costs is to serve the further aim of discouraging the phenomenonof legal proceedings which become the tool of the recreational litigant or, worse, the litigation terrorist. [36] In that case, Justice Watson was dealing with the issue of security for costs. The same principles are applicable indetermining whether a person should , in effect, be barred from unrestricted access to the court. [37] In O’Neill v.

Deacons, 2007 ABQB 754, ACJ Wittmann (as he then was) said this: 22 The criteria for declaring an individual a vexatious litigant that are set out in s. 23(2) of the Judicature Act are relatively new. TheJudicature Act was amended to add those criteria in June, 2007. Prior to the amendment, the courts relied upon a common law definitionof vexatiousness. As s. 23(2) does not purport to provide an exclusive list of relevant criteria, the

definitions and factors considered bythe courts prior to June, 2007 remain helpful. In Jamieson v. Denman, [2004] A.J. No. 904 (Q.B.), 2004 ABQB 593, Watson J. (as hethen was), described vexatiousness this way, at paras. 126-127: I consider the word “vexatious” to carry with it a normative concept as well as a legal one. It seems to me that a party can be said to haveacted in a vexatious manner, not merely that they acted in a manner which might be characterized as mean-spirited or nasty, but also thatin fact the nastiness conveyed itself through to the legal process itself.

In other words, that the legal process was being misused My view of the word “vexatious” is that it connotes not simply that the party was acting without the highest of motives, or was acting ina manner which was hostile towards the other side. “Vexatious”, as a word, means to me that the litigant’s mental state goes beyondsimple animus against the other side, and rises to a situation where the litigant actually is attempting to abuse or misuse the legal process.

... 25 What the various common law and statutory criteria suggest is that vexatious litigants are those who persistently exploit and abuse the processes of the court in order to achieve some improper purpose or obtain some advantage. [ 38 ] Justice Romaine in Del Bianco v. 935074 Alberta Ltd. , 2007 ABQB 150 , para 20 , 35: 20 ... There is a difference, however, between a badly-constructed pleading in a claim with even a faint hope of merit and the kind of bitter ranting set out in this Statement of Claim.

While the Court may have an obligation to ensure that plaintiffs with a reasonable cause of action are not precluded from having their day in court by insufficient pleadings, the context and history of this action gives rise to policy issues of a different nature - the protection of litigants from scandalous, frivolous or embarrassing pleadings and claims that are an abuse of the process of the Court. ... 35 It is characteristic of vexatious litigation that the pleadings are replete with extreme and unsubstantiated allegations, and often refer to far-flung conspiracies involving large numbers of individuals and institutions: Canada Post , at para. 46; Public Guardian & Trustee v.

Brown , [2002] B.C.J. No. 1885 , 2002 BCSC 1152 (S.C.) at paras. 69 to 71 . Again, this is true of the wording of Mr. Del Bianco's pleadings in this case, samples of which I have referred to earlier in these reasons, where the allegations may be unfounded in fact or merely speculative, but the language is vitriolic, offensive and defamatory. As noted by the Applicants, Mr.

Del Bianco has instituted, either on his own behalf or on behalf of Kaleeda, at least eight actions arising out of the same set of circumstances, adding defendants as he fails to achieve any meaningful success in previous actions to the point where he has now drawn into a proliferation of litigation just about anyone who had anything to do with a company that he ceased to have any meaningful involvement with in 1997. Decision [ 39 ] With respect to the motion for

summary judgment, as the rest of this decision will soon make clear, there is absolutely no basis for an order for

summary judgment. Ms. Allen ’ s application in that regard is dismissed. [ 40 ] The Plaintiff, Ms. Allen, is, without doubt, a vexatious litigant. She persists in bringing proceedings which cannot succeed or have no reasonable expectation of providing relief. This action is a prime example. It is rooted in a verbal argument between students. It seeks ludicrous amounts of money for damages and, basically, requests that Ms. Allen be allowed to proceed in her studies without interference or input from her future professors. [ 41 ] Ms.

Allen persistently brings proceedings for improper purposes – as in this case, to compel the Defendant to pay for her education. [ 42 ] She persistently alleges conspiracies and intimidation, together with harassment and racial bias. [ 43 ] She has failed to pay costs because she says the actions have not been completed. She has failed to comply with directions in other actions. She has made a number of appeals from decisions, without anything more than what may be described as a modicum of success. [ 44 ] Ms.

Allen further persistently engages in inappropriate courtroom behaviour, including, in this action, completely inaccurate representations about improper conduct and motives of defence counsel – a common, recurring theme. [ 45 ] Perhaps the only saving grace which I can determine with respect to Ms. Allen is that I do not consider her to be malicious. I

suspect that she does believe that the numerous defendants she has brought before the courts have a bias because she is a black woman. That belief simply does not appear to have any evidentiary basis whatsoever. Nor does it justify her hostility towards the various defendants and her unwarranted abuse of the legal process. [ 46 ] As a result, I declare Ms. Allen to be a vexatious litigant. I direct that she not institute any further proceedings or institute proceedings on behalf of any other person without leave of the Court. I further direct that any proceedings instituted by Ms.

Allen may not be continued without leave of the Court. This will not, of course, prevent Ms. Allen from appealing this decision or pursuing any appeal presently before that Court. [ 47 ] The Defendant is entitled to its costs of this proceeding. Heard on the 14 th day of December, 2012. Dated at the City of Calgary, Alberta this 31 st day of January, 2012. G.C. Hawco J.C.Q.B.A. Appearances: Rhona Allen for the Plaintiff Domenic S. Venturo, Q.C. Katrina Edgerton-McGhan Scott Venturo LLP for the University of Lethbridge Students ’ Union Alan S.

Rudakoff Norton Rose Canada LLP for the Defendants _______________________________________________________

Corrigendum of the Memorandum of Judgment of The Honourable Mr. Justice G.C. Hawco _______________________________________________________ The spelling of the following names were corrected: Alan Rudakoff and Cheri Pokarney. Paragraph [15], first line, the spelling of “ claims ” was corrected. Paragraph [31] was corrected to read that “ Ms. Allen has brought a motion on her own, which is to obtain

summary judgment against the University of Lethbridge Students ’ Union. ” In Appearances, Mr. Domenic Venturo, Q.C. and Ms. Katrina Edgerton-McGhan were listed as co-counsel for the Defendant University of Lethbridge Students ’ Union. Mr. Alan S. Rudakoff was added as counsel for the balance of the Defendants.