Jordan v. Alberta (Justice and Attorney General), 2013 ABQB 160

Court of Queen ’ s Bench of Alberta Citation: Jordan v.

Alberta (Justice and Attorney General), 2013 ABQB 160 Date: 20130313 Docket: 1201 10180 Registry: Calgary Between: Shawn Edward Jordan Plaintiff - and - Her Majesty the Queen In Right of Alberta (Minister of Justice and Solicitor General), Alison Redford, Verlyn Olson, Rick Hanson (Chief of Police), Attorney General of Canada and Jane and John Doe Crown Prosecutors, Sarah Stewart, Paul Mason, Sheena Cunningham, Sarah Clive, Margot Engley, Michael Ewenson Defendants Corrected judgment: A corrigendum was issued on March 15, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of K.R.

Laycock, Master in Chambers _______________________________________________________ [ 1 ] This application to strike the plaintiff’s claim pursuant to rule 3.68 is brought by one of the defendants, the Attorney General of Canada. The application was originally heard on September 4, 2012 by another Master who granted the plaintiff leave to amend his claim. The matter was next heard in morning chambers on October 17, 2012. I adjourned the matter and required the parties to provide me with a written brief summarizing their submissions. The final brief was filed February 4, 2013.

The plaintiff again amended his pleadings between the hearing and filing of his brief.

[ 2 ] Notwithstanding the most recent amendment, counsel for the applicant submits that the claim is hopeless and should be struck. The amended amended statement of claim is 23 pages long. [ 3 ] Counsel for the Attorney General summarized the amended amended claim in his brief as follows: A. Members Blake and Johnson, and others, knew certain facts and assertions of law regarding an e-mail the plaintiff sent to Premier Redford and others.

This e-mail was allegedly the basis of an April 22, 2010 charge laid by a Calgary Police Service (CPS) officer against the plaintiff for harassing or threatening RCMP member Johnson. B. RCMP members Blake and Johnson were somehow involved in “procuring”an assault charge by a CPS officer in April 2007 against the plaintiff for assaulting RCMP member Johnson. Blake “utilized RCMP telecommunications to commit the application of force towards the creation of the charge while knowing that the use of public resources when no proper duty of RCMP business affairs exists, is untoward”.

The plaintiff was apparently ultimately convicted of assault. C. In May 2009, RCMP members Johnson and Blake complained to a CPS officer about the plaintiff, resulting in an investigation but no charges. D. On March 15, 2010, RCMP member Johnson “used suasion”with a CPS officer to monitor the plaintiff and “catch him”driving with a suspended license. E.

On and between March 26 and April 11, 2010, RCMP members Blake and Johnson “were present and actively involved at the scene outside of the plaintiff’s residence during routine and scheduled multiple pick-up and drop-off’s of the plaintiff’s two children.” It is unclear if these are the children that the plaintiff and RCMP member Johnson had together. F.

On and before April 21, 2010, Blake and other RCMP members allegedly “improperly peddled RCMP influence to palliate and overshadow the privacy breach” involved in some actions involving spurious criminal charges and “[m]isusing their positions as public officers to ....[i]ntentionally harm and damage the plaintiff”. Further, it’s also alleged they “planted material”, without identifying the material, obtained by the CPS from the Maintenance Enforcement Program in an affidavit which had some kind of effect on the Family Court. G.

In relation to the April 22, 2010 charge and subsequent detention of the plaintiff, Burke was somehow involved in the “conscripting”of bail terms while present in the Court gallery in uniform. H. On May 10, 2010, Blake and another RCMP officer were in the Court gallery during a court appearance relating to a criminal charge. I.

On a number of occasions Blake, Johnson and other individual RCMP members gave evidence. [ 4 ] Counsel for the Attorney General of Canada argues that the action discloses no reasonable claim against the Attorney General of Canada and the claim is frivolous, irrelevant or improper. [ 5 ] During oral argument the plaintiff, who is self represented, stated that two RCMP officers were involved in laying two criminal charges against him which were subsequently dismissed at trial. He stated that he is suing the Attorney General on the basis that there is vicarious liability for tort committed by the RCMP officers.

He states that the tort is malicious prosecution. [ 6 ] In paragraph 11 the plaintiff alleges that he was charged in April 2007 with assaulting Johnson. The plaintiff states in paragraph 11(

e) that he was convicted and had to pay a fine. The plaintiff alleges in paragraph 12 that he was charged on April 22, 2010. In paragraph 17 of the statement of claim describes the charges arising out of the Criminal Code section 264(2) (

d) and section

346(1.1)(b). In paragraph 17® he states that he was acquitted on both charges on March 15, 2012. [7] The plaintiff argues that his action alleges the tort of malicious prosecution and it is not plain and obvious that his claimdiscloses no reasonable cause of action. The plaintiff has provided a number of cases and articles dealing with malicious prosecution,including, from the New Zealand Court of Appeal, Rawlinson v. Rice [1997] 2 N.Z.L.R. 651 and Rawlinson v. Rice [1998] 1 N.Z.L.R.454;

article by Bruce Hughson entitled Malicious Prosecution,

article by Judy Mungovan entitled Report of the Joint Criminal/CivilSection Working Group on: Malicious Prosecution;

article by Francois Lareau entitled The Distinction Between Conscious Negligenceand Recklessness; and an

article by Paul Kostro entitled Malicious Abuse of Progress and Malicious Use of Process. [8] The Supreme Court of Canada in Nelles v. Ontario (SCC), [1989] 2 S.C.R. 170, 1989 CarswellOnt 415, 37 C.P.C. (2d) 1, 60 D.L.R. (4th) 609, set out 4 elements that must be proven for a plaintiff to succeed in an action for maliciousprosecution:

a) the proceedings must have been initiated by the defendant,

b) the proceedings must be terminated in favour of the plaintiff,

c) the absence of reasonable and probable cause,

d) malice, or primary purpose other than that of carrying the law into effect. [9] Counsel for the applicant is correct when he asserts that the pleadings are difficult to read. They contain statements of fact,opinion and argument. A close examination of the pleadings is necessary in assessing whether or not the pleadings set forth allegationsthat would support the four elements required as set out in Nelles. [10] The plaintiff cannot succeed in an action for malicious prosecution with respect to the criminal charge that arose in 2007because the proceeding was not terminated in his favour.

I can only conclude that it was included in the pleadings for context. I willtherefore only consider the to charges that resulted in an acquittal on March 15, 2012. Proceedings initiated by the defendant [11] In Terrigno v. Kretschmer 2012 ABQB 750, Justice Jeffrey considered a

summary dismissal application involving amalicious prosecution action. In considering the first element, he concluded that someone who was not the prosecutor could be liablewhere it could be demonstrated that they were “actively instrumental” in commencing the process: see also Kefeli v. Centennial Collegeof Applied Arts and Technology, [2002] OJ No. 3023; Miazga v. Kvello Estate, 2009 SCC 51. [12] In A.M. v. Matthews, 2012 ABQB 185, Justice Shelley concluded at para. 223 that to have initiated the proceeding thedefendant must have been involved in the decision to charge or to investigate the plaintiff. The plaintiff alleges in paragraph 11(

j) that theRCMP officers improperly peddled RCMP influence to prop up the spurious criminal charges they were instrumental in creating. Healleges that they falsely reinforced the idea that the plaintiff was a threat to Johnson and accordingly misused their positions as publicofficers. [13] The pleadings allege an ongoing series of actions involving RCMP officers leading up to a criminal charge against the plaintiffon April 22, 2010. It alleges the instigation of the investigation by the RCMP members. The actual charges followed an investigation bythe CPS.

The allegation of affirmative action by the RCMP members could lead the court to believe that pressure was exerted in theinstitution of the investigation and the prosecution of the plaintiff. For the purpose of this application, the allegation in the pleadings thatone or more RCMP officers took positive steps in the institution of the prosecution of criminal charges against the plaintiff must beaccepted as true. I therefore conclude that the statement of claim does include sufficient material to support a finding that the firstelement is properly pled. Proceedings terminated in favour of the defendant

[ 14 ] The pleadings allege that the plaintiff was charged on April 22, 2010 with making threats to Dawn Johnson. After a trial before a Judge and Jury, the plaintiff was acquitted on March 15, 2012. The second element of the Nelles test has been properly alleged. Absence of reasonable probable cause [ 15 ] The pleadings allege that the plaintiff was subjected to unrelenting, targeted police harassment and monitoring, unnecessary surveillance and interference. Most of the conduct complained of occurred prior to the charge being laid.

If these allegations are proven, a trial judge may conclude that there was an absence of reasonable and probable cause in the prosecution of the charge. Malice/Primary purpose [ 16 ] In so far as the pleading alludes to an ongoing dispute, that have matrimonial dispute underpinnings, and given all the allegations against Johnson, Blake and other members of the RCMP, there may be a basis for concluding malice existed on the part of one or more of the RCMP members. Alternatively, it could be found that the primary purpose of the prosecution was for other than that of carrying the law into effect.

Vicarious Liability [ 17 ] The individual RCMP members referred to in the statement of claim are not named as defendants. The facts and motives with respect to these officers are included for the purpose of alleging that they instigated the charges to satisfy the first element in the Nelles test. The reference to them as RCMP members , RCMP police officers and improperly peddling RCMP influence are pled to show that the allegations against the members relate to the course and scope of their duty.

If these actions were taken by the officers while on duty or in the course of their employment, the Attorney General of Canada may be vicariously liable for their acts as alleged in the statement of claim paragraph 6(e) . Conclusion [ 18 ] Although much of the complaint is about the prosecutorial process and claims against the Alberta defendants, there remains sufficient particulars that, if proven, could result in a judgment in the plaintiff’s favour against the Attorney General of Canada. [ 19 ] It is therefore my conclusion that it is not beyond doubt that this claim will fail.

Nor can I conclude that the action is frivolous, irrelevant or improper in regards to this applicant. [ 20 ] The statement of claim is unnecessarily wordy, contains many bare allegations, convoluted language and terminology and could be further amended to include only material facts and not flourish. I have not been asked to strike out embarrassing or unnecessary segments of the pleadings. The application was to strike the claim in its entirety, because it is bound to fail.

I decline to strike the action for malicious prosecution for the reasons stated above. [ 21 ] As I noted earlier, the plaintiff further amended his statement of claim after argument of this motion. The amendment to paragraph 37 of the statement of claim now makes new allegations against the Attorney General of Canada. Counsel for the Attorney General of Canada specifically addressed this portion of the amendment in his brief at paragraphs 14 to 20. The plaintiff failed to address these issues in his reply brief.

I agree with counsel for the Attorney General of Canada that these new “causes of action” are hopeless as alleged against the Attorney General of Canada and are dismissed. At the time of the original hearing I extended the time for the applicant to defend the action. The defendant’s statement of defence must now be filed within 20 days of the release of this decision. [ 22 ] The parties are to arrange a time to re-attend before me to speak to costs of this application.

Heard on the 17 th day of October, 2012. Dated at the City of Calgary, Alberta this 13 th day of March, 2013. K.R. Laycock M.C.C.Q.B.A. Appearances: Shawn Edward Jordan the Plaintiff / Respondent James Elford Department of Justice Canada for the Defendant / Applicant _______________________________________________________ Corrigendum of the Reasons for Judgment of K.R. Laycock, Master in Chambers _______________________________________________________ The following replaces the Citation line: Citation: Jordan v. Alberta (Justice and Attorney General), 2013 ABQB 160