V.W.W. v. Wasylyshen, 2013 ABQB 327

Court of Queen’s Bench of Alberta Citation: V.W.W. v. Wasylyshen, 2013 ABQB 327 Date: 20130605 Docket: 0403 03486 Registry: Edmonton Between: Monica Leung, M.L. As Guardian and Trustee for V.W.W. (V.W.W.) Applicant (Plaintiff) - and - Bob Wasylyshen, Chief of Police of the City of Edmonton, City of Edmonton, Sergeant Epler (Reg. #911), Constable J.R. Mitzel (Reg. #2082), David Hung-Chee Leung, Paul M.K. Leung, C.H. William Cheung, and Brent W. Miekle Respondent (Defendants) _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Don J.

Manderscheid _______________________________________________________ 1. Introduction............................................................................................................... Page: 2 2. History of this Proceeding and the Litigants............................................................. Page: 2 A. The Present Action......................................................................................... Page: 2 B. The Parallel Action......................................................................................... Page: 5 3.

Submissions................................................................................................................ Page: 7 A. Ms. Wong....................................................................................................... Page: 7 B. Dr. P. Leung................................................................................................... Page: 8

4. The Procedure............................................................................................................ Page: 9 5. Issues Page: 10 6. Analysis.................................................................................................................... Page: 11 A. Should the Action Continue?...................................................................... Page: 11 i. Evidence in Support of the Action.................................................. Page: 12 ii. The Action is Vexatious................................................................... Page: 15 iii.

Standing of Monica Leung (Deceased)........................................... Page: 16 B. Other Remedies Sought by Ms. Wong........................................................ Page: 19 1. Introduction [ 1 ] V.W.W., otherwise known as Victoria Winne Wong, [“Ms. Wong”, or the “Applicant”], a self-represented, vexatious litigant, seeks leave to continue her lawsuit, docket #0403 03486 [the “Action”], against the Defendant Paul M. K. Leung [“Dr. P. Leung”, or the “Respondent”].

The Respondent cross-applies to strike out the Applicant’s Amended Statement of Claim as the Amended Statement of Claim discloses no cause of action against him, is vexatious, and an abuse of court process. 2. History of this Proceeding and the Litigants A. The Present Action [ 2 ] On February 24, 2004, Monica Leung [“Ms. M. Leung”], filed the Statement of Claim and initiated the Action on behalf of her sister, Ms. Wong. At that point Ms. M. Leung was Ms. Wong’s guardian and trustee due to a 1995 order of this court. Ms. M.

Leung is also named as a party in the style of cause. [ 3 ] Briefly, the Statement of Claim alleged that on February 24, 2002, two police officers, Sgt. Epler and Const. Mitzel, entered into a house occupied by Ms. Wong. The officers were accompanied by Dr. P. Leung and his father, David Hung-Che Leung. Dr. P. Leung allegedly indicated to the police officers that Ms. Wong was violent. It is further alleged that Dr. P. Leung acted illegally when, as he removed his father’s personal property from the house, he also wrongfully removed property of Ms. Wong. Ms.

Wong sues for general ($100,000.00) and punitive ($5,000.00) damages, claiming harassment, mental trauma, and public embarrassment. [ 4 ] On February 22, 2004, Ms. M. Leung was granted a three-month extension to the deadline to serve the Statement of Claim. Subsequently, Defendants Bob Wasylyshen, Sgt. Epler, Const. Mitzel, C.H. William Cheung, and Brent W. Mielke obtained a declaration from Master Wacowich that the time extension did not conform to the Alberta Rules of Court , Alta. Reg. 390/1968. The result was the Statement of Claim had expired.

This conclusion was first confirmed by Justice Moen of the Alberta Court of Queen’s Bench on August 24, 2005, and ultimately by the Court of Appeal in Leung v. Wasylyshen , 2009 ABCA 13 . These five Defendants were therefore struck from the Action. [ 5 ] An Amended Statement of Claim was filed on May 12, 2005. It expands on the events of February 24, 2002, and details additional alleged misconduct by other defendants to the Action. The only new reference to Dr. P. Leung is the following paragraph:

9. While on the property occupied by the Plaintiffs, Paul M.K. Leung (hereafter referred to as “PAUL”) aided and abetted David in removing property belonging to the Plaintiffs. Paul also revealed confidential medical information about the Plaintiff Monica Leung, a former patient of Paul’s, thereby infringing on the Plaintiff’s right to privacy.

The remedy sought in the Amended Statement of Claim is different: $28,000.00 in general damages to each Plaintiff from each Defendant, and $5,000.00 in punitive damages. [ 6 ] The Respondent’s Statement of Defence was filed on June 1, 2005 and denies all alleged wrong doing. [ 7 ] On May 8, 2006, Veit J. in a separate action exercised the Court’s parens patriae authority to replace Ms. M. Leung with the Public Guardian as Ms. Wong’s ‘next friend’ in that lawsuit: V.W. v. Booker , 2006 ABQB 336 at para. 21 . The Public Guardian was at that time appointed as co-guardian of Ms. Wong, along with Ms. M.

Leung. [ 8 ] On March 2, 2007, Veit J. declared that Ms. Wong was no longer a dependant adult, and relieved Ms. M. Leung of her responsibility as Ms. Wong’s guardian and trustee: Re Wong (Dependent Adult) , 2007 ABQB 168 , 156 A.C.W.S. (3d) 919. At para. 3 in that decision Justice Veit concluded: “... The pleadings in the motor vehicle accident litigation will be amended as required to conform to this decision.” The Court of Appeal took a parallel step and instructed in Leung v.

Wasylyshen , 2008 ABCA 430 that the appeal’s style of cause be amended to read “Monica Leung and Victoria Wong”, to clarify the respective roles of the two sisters in the expired Statement of Claim appeal. [ 9 ] No corresponding amendment was made to the Action with the surviving Defendants. [ 10 ] Ms. M. Leung died in 2009. [ 11 ] On July 8, 2010, Dr. P. Leung filed a Notice of Motion for

Summary Judgment with a supporting Affidavit. On July 21, 2010 the

summary judgment application was adjourned sine die . [ 12 ] Slatter J.A. declared Ms. Wong a vexatious litigant in Wong v. Giannacopoulos , 2011 ABCA 206 , 510 A.R. 234, judgment dated June 29, 2011. Justice Slatter ordered that Ms. Wong is prohibited from commencing or continuing any appeal, action, application or proceeding in the Alberta Court of Appeal, Court of Queen’s Bench, or Provincial Court, unless permitted to do so by an order from a Judge of the court in which the proceeding is conducted. A subsequent request for leave to challenge the June 29, 2011 vexatious litigant order was denied: Wong v.

Giannacopoulos , 2011 ABCA 277 , 515 A.R. 58. [ 13 ] On December 19, 2012, Dr. P. Leung requested and was granted an order that Ms. Wong had until January 31, 2013 to seek leave to continue the Action, otherwise the suit against Dr. P. Leung would be struck. [ 14 ] Ms. Wong responded on January 25, 2013 with: 1. an application for leave to continue the Action; 2. a request to file “a new claim or an amended amended Statement of Claim”; 3. a request for an order removing an Affidavit of Linda-Leah Meub from the court file; 4. a request for Court permission to examine Dr. P.

Leung on his affidavit of July 8, 2010; and

5. A request for abridged time to serve her application. [ 15 ] The application includes an apparently new allegation at para. 6: “It is my belief that prior to evicting me from the residence he burned.” An Affidavit in support of the application was filed on January 28, 2013, which largely restates the application but also alleges: 1. Dr. P.

Leung’s lawyer should “take care of the file and he should not leave this file sit too long to be questioned by the Applicant and her sister”; 2. the February 24, 2002 visit to the house “was not a routine call” but instead “it was a pre-arranged call between the Respondent and the Edmonton City Police Department. Why the Police Department was become so corrupted? The Respondent, Paul Leung and his father David Leung took advantage of the two naive Canadian Chinese female women.” 3. the police officers when “invading” the house “using fire gun pointing at” Ms. Wong and Ms. M.

Leung; 4, that David Leung was violent to the two sisters; and 5. “Respondent, Paul Leung and David Leung had the house keys. Monies within the house were dyed and chemical medications/tablets were contaminated yet with no sign of a break in.” [ 16 ] On January 29, 2013 this application was adjourned for a Special Chambers hearing on May 8, 2013. This decision is in response to that Special Chambers hearing. B. The Parallel Action [ 17 ] In March 2, 2009, Ms. Wong initiated a lawsuit, docket #0903 03126 [the “Parallel Action”], which names certain of the same defendants (David Hung-Chee Leung, Paul M. K.

Leung, Brent W. Mielke, C. H. William Cheung) but adds others not in the Action (Martin Hattersley, Shtabsky & Tussman LLP, Public Guardian and Public Trustee of Government of Alberta, Monica Leung), including Ms. Wong’s own sister. As summarized in a series of reported cases, listed below, the alleged misconduct that is the basis of the Parallel Action is the same as the Action, though Ms. Wong also claims Ms. M. Leung and the Public Trustee mismanaged her legal affairs while Ms. Wong was a dependent adult. [ 18 ] A motion to strike the Parallel Action claims against Dr. P.

Leung was granted in Master’s Chambers on June 25, 2010. Ross J. subsequently confirmed that order in Wong v. Leung , 2010 ABQB 628 . Justice Ross at para. 14 provides a

summary of Dr. P. Leung’s alleged misconduct as expressed in the Parallel Action Statement of Claim and supplementary affidavits: ... The Plaintiff has, however, detailed the following allegations relating to Paul Leung in Affidavits: • that Paul Leung swore Affidavits in Action No. 0203 13525 to evict the Plaintiff, although he was not a party to that action; • that Paul Leung would not admit that he had a relationship with the Plaintiff; • that Paul Leung exhibited dismissive behavior towards the Plaintiff;

• that Paul Leung played a major

part in evicting the Plaintiff; • that the Plaintiff believes Paul Leung entered her house in 2006 because he had her house keys; • that during the "break and enter" the Plaintiff's paper money was damaged and her medication was poisoned. As will become clear, these allegations substantially parallel those made by Ms. Wong in the present Action. [19] Justice Ross concluded all claims either had no basis in fact, were bald allegations, or were vexatious: 15 The first three allegations do not form causes of action in law. The latter three may be seen as generalized references to a suspectedconspiracy.

They do not, however, allege facts that could substantiate a cause of action in conspiracy: that two or more persons havecombined to effect the unlawful purpose of causing injury to the plaintiff, or to use unlawful means directed towards the plaintiff, and asa result caused damage to the plaintiff: L. N. Klar, Tort Law, 4th ed.(Toronto, Ont.: Carswell, 2008), at 700-708. 16 I note, in addition, that four years after the alleged events, and despite having filed five Affidavits, the Plaintiff has cited noparticulars of the alleged conspiracy and no evidence that could conceivably substantiate the allegation.

I am satisfied that the Plaintiff'scurrent and proposed claims against Paul Leung cannot succeed, and are vexatious for that reason. Another indication that theproceeding is vexatious is that the "grounds and issues raised [have been] rolled forward into subsequent actions and repeated andsupplemented": Dykun v. Odishaw, 2000 ABQB 548, at para. 42, citing Lang Michener Lash Johnston v. Fabian (1987), (ON SC), 37 D.L.R. (4th) 685 (Ont. H.C.) at 691.

This case is particularly egregious in that the earlier proceeding (Action No. 020313525) has not even concluded; the Plaintiff is facing an application to have her previous action dismissed for want of prosecution at thesame time that she is seeking to commence this broader action repeating and supplementing the issues in the earlier action. [20] The claims against the Crown were also dismissed: para. 26. Master Smart subsequently struck the aspects of the action directedto Brent W. Mielke, Shtabsky & Tussman LLP, and C.H. William Cheung (Wong v. Leung; V.W.W. v.

Leung, 2011 ABQB 688, 530A.R. 82) and Martin Hattersley (Wong v. Leung; V.W.W. v. Leung, 2011 ABQB 687, 530 A.R. 76). [21] By this point Ms. Wong had been declared a vexatious litigant. Ms. Wong then sought leave to appeal the decision of JusticeRoss to strike Dr. P. Leung from the Parallel Action, which was denied: Wong v. Leung, 2012 ABCA 290, 536 A.R. 253. Subsequently,Côte J.A. did the same for what appears to have been the remainder of the Parallel Action: Wong v. Leung, 2012 ABCA 156, 524 A.R.338. C. Other Litigation by Ms. Wong [22] Ms.

Wong has a broad history of engaging in frivolous and vexatious litigation. In Wong v. Chambers, 2009 ABQB 57, appealabandoned 2011 ABCA 278, she and her sister intruded as ‘busybodies’ in unrelated matters. Wong (Guardian and Trustee of) v. Al-Hassan, 2003 ABCA 366, 128 A.C.W.S. (3d) 444; V.W.W. (Guardian and Trustee of) v. Al-Hassan, 2004 ABCA 275, 133 A.C.W.S.(3d) 946; Wong (Trustee of) v. Al-Hassan, 2005 ABQB 36, 136 A.C.W.S. (3d) 816 report facets of another action being dismissed asout of time, or otherwise fatally flawed. Ms.

Wong has attempted to continue litigation which she failed to advance in a timely mannerboth at trial (V.W.W. v. Baxter (c.o.b. All Well Walk In Clinic), 2000 ABQB 816) and on appeal (Leung v. Edmonton (City), 2009ABCA 149, 176 A.C.W.S. (3d) 917). [23] Ms. Wong’s failure to attend examinations for discovery has led to a lawsuit she initiated being struck: Wong v. Williams, [1994]A.J. No. 426 (QL) (Alta. C.A.), leave denied [1994] S.C.C.A. No. 262. She has sought remedies not available in law (Wong v. Sun LifeAssurance Co. of Canada, [1995] A.J. No. 1629 (QL) (Alta.

Q.B.)) and has not paid court cost awards against her (Wong v. Booker,2004 ABQB 555 , [2004] A.J. No. 1118 at para. 15 (QL) 132 A.C.W.S. (3d) 857 (Alta. Q.B.)).

3. Submissions A. Ms. Wong [ 24 ] Ms. Wong filed a brief for the May 8, 2013 hearing which largely restates her position and arguments from the other materials identified above, but seems to also indicate some kind of connection between Dr. P. Leung and a Dr. George Bondar, who had treated Ms. M. Leung. Ms. Wong also seems to complain that this action was allowed to remain dormant until Ms. M. Leung had died and then was resumed only when her sister was not available as a witness. The brief closes: I want to file a new claim as he has made me lose my home and also bully me and harass me for the last decade.

Treat me like trash. [ 25 ] Ms. Wong in oral submissions expanded on her position. At the time of the alleged misconduct she was disadvantaged as a lay person, a dependent adult, and because of her poor health. The house had been entered without a search warrant, and she had been promised a half interest in that property by David Leung as a reward for the care she had provided to him. Dr. P. Leung, however, had neglected his father. [ 26 ] Someone had tampered with and poisoned the medication in her house, and replaced currency with a variant with a different dye.

As there was no sign of a forced entry, only the Plaintiffs had the capacity to engage in these acts. They had keys to the house. [ 27 ] Ms. Wong explained that the vexatious litigant declaration made by Justice Slatter was incorrect, and had caused post-traumatic stress disorder. She complains that her attempt to appeal that decision was denied despite the protection afforded by the Charter of Rights and Freedoms . Dr. P. Leung lied in his affidavit. He hates Ms.

Wong as he cannot accept that she is his step-mother. [ 28 ] Another theme was that various lawyers (government and private) and judges of the Alberta Court of Queen’s Bench and Court of Appeal had formed a conspiratorial cabal. This was a consequence of their friendship and familial relationships with Dr. P. Leung. Ms. Wong was and is a victim of this powerful group. She lacks “the money to buy justice”. Further, medical doctors in Alberta, including Dr. P. Leung, lie and murder people. The judiciary assist this misconduct. Ms. Wong acts to prevent that, whether successful or not. [ 29 ] Lastly, Ms.

Wong stated that she did not personally have an interest in further prosecuting the Action, but was instead acting on the instructions of her deceased sister’s ghost. I will address that unusual argument in more detail below. B. Dr. P. Leung [ 30 ] Dr. P. Leung denies the alleged misconduct and argues the facts alleged in the Amended Statement of Claim neither support a duty of care for Dr. P. Leung, nor create a nexus between the alleged misconduct and the damages claimed. The Action, as it relates to Dr. P. Leung, is therefore frivolous and vexatious.

Any continuation of the Action would be an abuse of Court processes. [ 31 ] The Respondent argues that the allegations of misconduct directed to Ms. M. Leung are irrelevant as Ms. M. Leung is not a party to the Action, but instead was only involved as a Guardian and Trustee for Ms. Wong: Respondent’s Factum, at para. 19. This does not agree with my reading of the Statement of Claim, and Amended Statement of Claim. I note the Alberta Court of Appeal came to the same conclusion: see Leung v. Wasylyshen , 2008 ABCA 430 at para. 4 ; Leung v. Wasylyshen , 2009 ABCA 13 . That said, Ms. M.

Leung is dead, which affects the nature of a claim that could be advanced by her estate. [ 32 ] The Respondent identifies other factors that favour termination of the Action:

1. Ms. Wong’s litigation history in the Parallel Action; 2. Ms. Wong has not paid court costs owed; this point does not appear to be disputed by Ms. Wong; 3. the Action has not been advanced in a timely manner; 4. that certain of the remedies Ms. Wong seeks are unavailable, irrelevant, or out of sequence:

a) leave to file an Amended Amended Statement of Claim or an entirely new Statement of Claim is time-barred;

b) there is no basis to attack the affidavit evidence of Linda Meub, which is irrelevant to this application; and

c) the application to cross-examine Dr. P. Leung is premature and should follow only if Ms. Wong receives leave to continue this action; and 5 the manner in which the Action has proceeded and Ms. Wong’s conduct matches the criteria for vexatious litigation identified by Lee J. in Dykun v. Odishaw , 2000 ABQB 548 , 267 A.R. 318 . 4. The Procedure [ 33 ] Justice Slatter’s Wong v. Giannacopoulos , 2011 ABCA 206 at para. 14 , 510 A.R. 234 decision restricts Ms. Wong’s future litigation activities: ... The appellant V.W.

Wong, also known as Victoria Wong, is declared to be a vexatious litigant, on the following conditions: a. The appellant, V. (Victoria) W. Wong, is prohibited from commencing, or attempting to commence, or continuing any appeal, action, application or proceeding in the Court of Appeal, the Court of Queen’s Bench or the Provincial Court of Alberta, on her own behalf or on behalf of any other person or estate without an order of a judge of the court in which the proceeding is conducted . ... d. An application to commence any appeal, action, application or proceeding must be accompanied by an affidavit: (

i) attaching a copy of the order declaring the appellant to be a vexatious litigant, (ii) attaching a copy of the appeal, pleading, application or process the appellant proposes to issue or file, (iii) deposing fully and completely to the facts and circumstances surrounding the proposed claim or proceeding, so as to demonstrate that the proceeding is not an abuse of process, and that there are reasonable grounds for it,

(iv) indicating whether the appellant has ever sued some or all of the defendants or respondents previously in any jurisdiction or court, and if so providing full particulars, (

v) undertaking that, if leave is granted, the authorized appeal, pleading, application or process, the order granting leave to proceed, and the affidavit in support of the order will promptly be served on the defendants or respondents, and (vi) undertaking to diligently prosecute the proceeding. [Emphasis added.] [ 34 ] These instructions are repeated in paras. 1(

a) and 1(

d) of the July 15, 2011 order of Justice Slatter. [ 35 ] In Wong v. Leung , 2012 ABCA 290 , 536 A.R. 253, a Parallel Proceeding decision, Justice Bielby applied the procedure set out in the vexatious litigant order. At para. 2 she indicates that Ms. Wong’s application should be accompanied by an affidavit as described in Wong v. Giannacopoulos , at para. 14, point d. On appeal, Justice Bielby evaluated the statement of claim, proposed amendments, and supporting evidence: paras. 8-10.

As for what was called “potential fresh evidence”, Bielby J.A. at para. 18 commented on this new material, but only in a hypothetical sense: In written and oral argument advanced in support of this leave application, Ms. Wong raised evidence and claims not included in her statement of claim. I will review them only in the context of showing that this evidence and these claims, had they been included in the statement of claim, would still not have created a valid cause or causes of action. [ 36 ] I will take the same approach to Ms. Wong’s current application. 5. Issues [ 37 ] The issues fall into two stages: 1.

Should the Action be struck in accordance with the Wong v. Giannacopoulos vexatious litigant order? 2. If the Action is continued, should this Court:

a) grant the Applicant leave to file an Amended Amended Statement of Claim or initiate a new action against the Respondent;

b) order the Affidavit of Linda Meub removed from the Court file; or

c) order Dr. P. Leung make himself available to Ms. Wong for cross-examination on his Affidavit of July 8, 2010? 6. Analysis

A. Should the Action Continue? [ 38 ] As a preliminary matter, I note that the principle of stare decisis dictates that certain potential bases for Ms. Wong’s lawsuit are closed. In the Parallel Action decision of Wong v. Leung , 2010 ABQB 628 , Justice Ross concluded that three allegations against Dr. P. Leung are not a basis for a legal action, that Dr. P. Leung:

a) had sworn affidavits that were a basis to evict Ms. Wong from the house;

b) denied any relationship with Ms. Wong; and

c) exhibited dismissive behaviour towards Ms. Wong. [ 39 ] I have no authority to review Justice Ross’s conclusions as a consequence of the common law principle that an unappealed decision cannot be the subject of another proceeding, what is more commonly referred to as the prohibition against a “collateral attack”. This rule was recently explained by Justice Abella in British Columbia (Workers' Compensation Board) v.

Figliola , 2011 SCC 52 , at para. 28 , [2011] 3 S.C.R. 422: The rule against collateral attack similarly attempts to protect the fairness and integrity of the justice system by preventing duplicative proceedings.

It prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route … [Emphasis added.] [ 40 ] Arguably I could say the same for the allegations which Justice Ross grouped as the “generalized references to a suspected conspiracy”, however at para. 16 Justice Ross concluded those aspects of the Parallel Action’s allegations were vexatious, in part, as those allegations duplicated claims advanced in this earlier Action. [ 41 ] I believe it is incorrect to create a ‘vicious cycle of vexatious allegation’ that would invalidate all of Ms.

Wong’s claims, and so will instead presume, at least in this limited sense, Ms. Wong (through her ‘next friend’) had acted in good faith when she made the conspiracy-related claims. i. Evidence in Support of the Action [ 42 ] I have reviewed Ms. Wong’s allegations and evidence. I note Ms. Wong’s Affidavit of January 28, 2013 provides only a limited outline of her allegations without evidence to substantiate the claims, and so falls short of the detail indicated in Wong v.

Giannacopoulos , at para. 14(d)(iii): ... must be accompanied by an affidavit ... ... deposing fully and completely to the facts and circumstances surrounding the proposed claim or proceeding, so as to demonstrate that the proceeding is not an abuse of process, and that there are reasonable grounds for it ... [Emphasis added.] [ 43 ] After applying the collateral attack analysis above, Ms. Wong’s remaining claims against Dr. P. Leung are that:

1. on February 24, 2002 he illegally removed Ms. Wong’s documents from the house; 2. he is part of a conspiracy with the Edmonton Police Service and its officers to cause Ms. Wong suffering; 3. he is part of a conspiracy with various lawyers and the judiciary:

a) to cause Ms. Wong harm, and

b) to conceal murders by medical doctors; and 4. he, alone or with his father, around February 24, 2002 clandestinely entered into the house and tampered with Ms. Wong’smedication and currency; and 5. “It is my belief that prior to evicting me from the residence he burned.” [44] Only the first allegation is reflected in the Statement of Claim and Amended Statement of Claim. The other four causes of actionare “potential fresh evidence”. Nevertheless, I will consider each. [45] Ms. Wong’s allegations of misconduct are based on her own account and nothing else.

She has not, for example, providedsupporting affidavits from any other witnesses. Her allegations are broad, for example she has not provided any details of whatdocuments she alleges were wrongfully taken by Dr. P. Leung on February 24, 2002. [46] The absence of supporting evidence is global. Ms. Wong has not provided medical records to substantiate the alleged linksbetween Dr. P. Leung and her sister. She claims to have found altered money in her home, that she then exchanged at a CIBC branch, butoffers no evidence to support what would appear to be detection of counterfeit funds, a serious criminal offence.

Nor did Ms. Wongretain any of this altered currency as evidence. I find this account improbable. The same is true for the tainted pharmaceuticals. [47] Ms. Wong alleges that she and perhaps her sister are the target of a broad conspiracy by police officers, medical doctors, lawyers,and judges. Frankly, her claims are scandalous, and are no more than bald allegations. She says medical doctors in Alberta murderpersons, and that is covered up by the judiciary and lawyers - yet she names not a single victim. Ms.

Wong claims to continue this actionat the direction of her dead sister. [48] I have not received expert evidence as to the present mental health of Ms. Wong and so I will not comment on that domain, whichis outside my area of expertise. I can, however, evaluate the credibility and reliability of this litigant, who is also a key and necessarywitness to prove the Plaintiffs’ case. [49] For the purposes of this application I will not consider the fact that Ms. Wong has previously been a dependent adult, and that herallegations have not been accepted in other court proceedings. I restrict myself to simply what Ms.

Wong has said and provided in thisparticular proceeding. That is enough. [50] An analysis of this kind, while difficult, is squarely within the expertise of judges such as myself. It is a subjective, contextualprocess. In White v. R., (SCC), 1947 CarswellOnt 8 paras. 8-10, [1947] S.C.R. 268, the court said: The issue of credibility is one of fact and cannot be determined by following a set of rules that it is suggested have the force of law and,in so far as the language of Mr. Justice Beck may be so construed, it cannot be supported upon the authorities.

Anglin J. (later ChiefJustice) in speaking of credibility stated:

by that I understand not merely the appreciation of the witnesses' desire to be truthful but also of their opportunities of knowledge andpowers of observation, judgment and memory – in a word, the trustworthiness of their testimony, which may have depended very largelyon their demeanour in the witness box and their manner in giving evidence. Reymond v. Township of Bosanquet [(1919) (SCC), 59 Can. S.C.R. 452, at 460]. The foregoing is a general statement and does not purport to be exhaustive.

Eminent judges have from time to time indicated certainguides that have been of the greatest assistance, but so far as I have been able to find there has never been an effort made to indicate allthe possible factors that might enter into the determination. It is a matter in which so many human characteristics, both the strong and theweak, must be taken into consideration. The general integrity and intelligence of the witness, his powers to observe, his capacity toremember and his accuracy in statement are important.

It is also important to determine whether he is honestly endeavouring to tell thetruth, whether he is sincere and frank or whether he is biassed, reticent and evasive. All these questions and others may be answered fromthe observation of the witness' general conduct and demeanour in determining the question of credibility. [Emphasis added.] [51] Justice Brown in R. v. Jurado, 2007 ONCJ 44 at para. 19, 73 WCB (2d) 93 expressed the analysis this way: ... I must consider the witness's perception, memory and sincerity.

I must consider the witness's ability to observe, store, recall and reportevidence accurately, reliably, and truthfully. I must consider the witness's interest or bias, if any, including animosity. I must consider thewitness's evidence in the context of its internal consistencies or inconsistencies, its consistencies or inconsistencies with other evidencefrom other witnesses and, finally, its consistency with reason and the probability of truth. The Court can expect discrepancies andinconsistencies from time to time. Such is the nature of our human personalities and frailties. These are to be expected.

Someinconsistencies and discrepancies have a need to be resolved and some do not. The evidence must be considered in totality as a whole. Iam able to accept some, all, or none of a witness's evidence. [52] I have no difficulty concluding that Ms. Wong is neither credible nor reliable. Many of her claims are extraordinary, and do notmeet the principle suggested by Marcello Truzzi in “On the Extraordinary: An Attempt at Clarification”, (1978) 1 Zetetic Scholar 11 at11, and subsequently popularized by scientist Carl Sagan, that “[a]n extraordinary claim requires extraordinary proof.” Ms.

Wong’sallegations of conspiracy, murder, counterfeiting, poisoning attempts, and supernatural contact obviously fall within this category. [53] These claims also taint the remainder of her more plausible allegations, such as that certain of her documents were improperlyremoved from the house. But alone, even those allegations are hopelessly suspect. Ms. Wong cannot detail anything specific: what thesemissing documents were, when she discovered they were missing, was their removal accidental or deliberate? All that is provided is abald allegation, and who was at fault. [54] Ms.

Wong is required, on a balance of probabilities, to prove that she has a case. She depends alone on her own account, withoutcorroboration by testimony, documentation, or otherwise. My conclusion that Ms. Wong is neither credible nor reliable is therefore fatalto the Action, which must be struck. ii. The Action is Vexatious [55] A second basis on which I would strike the Action against Dr. P. Leung is that Ms. Wong’s present litigation strategy is that of avexatious litigant.

I come to that conclusion neither on the basis of Justice Slatter’s decision and order, nor the conclusion of Justice Rossin the Parallel Action. Rather, the conduct and allegations of Ms. Wong in this Action alone disclose a vexatious and frivolous litigationstrategy that is intended to abuse court processes. [56] Certain characteristics are commonly associated with vexatious litigation. One is an absence of facts to describe and support thealleged misconduct, which I have reviewed above. Rule 3.68(2)(c)) authorizes me to dismiss an action that is frivolous, irrelevant orimproper.

A pleading is frivolous if its substance indicates bad faith or is factually hopeless: Donaldson v. Farrell, 2011 ABQB 11 atpara. 20. A frivolous plea is one so palpably bad that the Court needs no real argument to be convinced of that fact: Haljan v. SerdahelyEstate, 2008 ABQB 472 at para. 21. [57] Other ‘fingerprint’ signs are identified by Justice Lee in Dykun v. Odishaw, and expanded upon by Justice Shelley in McMeekinv. Alberta (Attorney General), 2012 ABQB 456 at paras. 178-211. Many of these factors are present in the current proceeding.

[ 58 ] Ms. Wong’s present Action challenges conclusions already addressed in a different proceeding and which are barred by the rule against collateral attack: Dykun v. Odishaw , at para. 42 . She has launched repeated and futile appeals: Dykun v. Odishaw , at para. 42 . [ 59 ] Ms. Wong’s allegations expand to include judicial officers and lawyers who were involved in her proceedings: Dykun v. Odishaw , at para. 42 ; McMeekin v. Alberta (Attorney General) , at paras. 196, 205 . The allegations form a pattern of gross abuse of office.

Sensational conspiratorial claims of this kind are a typical feature in vexatious litigation, as explained in Wilson v. Canada (Revenue) , 2006 FC 1535 at para. 31 , 305 F.T.R. 250: Other indicia of vexatious behaviour include ... 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 ... [Emphasis added.] [ 60 ] Ignoring prior costs orders is another basis to dismiss litigation as vexatious: Dykun v.

Odishaw , at para. 42 ; McMeekin v. Alberta (Attorney General) , at para. 196 . The Respondent observes that to date Ms. Wong has not paid cost awards against her in the Parallel Action, and while I have generally considered the potentially vexatious character of the Action in isolation, I believe this is an instance where a broader review of Ms. Wong’s litigation conduct is appropriate, particularly as the Parallel Action involves the same alleged misconduct. Ms.

Wong has no right to inflict further litigation costs on a person when she has not already paid what is due. [ 61 ] Together, these factors are a second basis to dismiss the Action against Dr. P. Leung as being frivolous and vexatious. iii. Standing of Monica Leung (Deceased) [ 62 ] In her closing reply Ms. Wong made a startling announcement. Ms. Wong explained that she was willing to discontinue this lawsuit when she received notice of the present application, and learned that she had 30 days to respond or the Action would be dismissed. However, at this point the “spirit” of her dead sister intervened: Ms.

Wong: ... But somehow Lai Monica came back, told me you say no, you cannot stop it because that’s the file filed by me, you have to continue until you have – use up all your resources. I don’t know whether you believe spirit or not. She’s been chasing me, she say, no, you have to go back because this is a group of someone the judges and lawyers getting together. ... [ 63 ] I inquired as to whether I had correctly understood Ms. Wong, and that the present application to continue this lawsuit was on the instruction of her deceased sister.

The Court: So just so this Court is clear, you are advising this Court that the spirit of your late deceased sister has come to you and stated that you must continue with the present litigation against Dr. Leung? Ms. Wong: Yes. The Court: Am I correct in that? Ms. Wong: Yes, you can ask – ask Brenda. I went to Brenda’s office. She prepare everything. We got everything filed and then suddenly, the spirit say – came back, no, you cannot let them get away with murder. They will continue doing it. To me, I am just victim. Nobody know who I am.

Tomorrow, I probably go to another city and change my name or perhaps leave this country for good. So, the spirit has been haunting at me continuously because that is her file filed by her. ... [ 64 ] At the close of the proceeding and after I had indicated I would reserve my decision and write this decision, Ms. Wong concluded with the following:

Ms. Wong: Don’t worry about it, Your Honour. You know, I got – you have plenty of time. You know why, I already expect the poor outcome, but I had to respect Lai Monica. [ 65 ] Ms. M. Leung’s role in this litigation is potentially relevant in two ways. The first is that contrary to the Respondent’s submissions, Ms. M. Leung was a Plaintiff, and upon her death, her interests, including this lawsuit, formed a part of her estate. On this point the Legislature has been explicit; the Survival of Actions Act , R.S.A. 2000, c. S-27, ss. 1- 2 instructs that a lawsuit initiated before death becomes a part of the deceased person’s estate: 1 In this Act, “cause of action” means ... (

b) a civil proceeding commenced before death ... 2. A cause of action vested in a person who dies after January 1, 1979 survives for the benefit of the person’s estate . [Emphasis added.] [ 66 ] That same legislation restricts actions that survive death to those that have directly or indirectly caused a loss to the estate: 5(1) If a cause of action survives under

section 2 , only those damages that resulted in actual financial loss to the deceased or the deceased’s estate are recoverable.

(2) Without restricting the generality of subsection (1), the following are not recoverable : (

a) punitive or exemplary damages ; (

b) damages for loss of expectation of life, pain and suffering , physical disfigurement or loss of amenities; ... [ 67 ] The May 12, 2005 Amended Statement of Claim states that: ... the Plaintiffs suffered damages through

a) public embarrassment;

b) harassment;

c) post traumatic stress disorder;

d) fear;

e) anxiety; and

f) mental cruelty. [68] The remedies sought are general damages and punitive damages. Recovery of the latter is explicitly precluded by Survival ofActions Act, s. 5(2)(a). I conclude the various psychological state complaints fall into the “pain and suffering” category prohibited bySurvival of Actions Act, s. 5(2)(b), and certainly did not result in actual financial loss: Survival of Actions Act, s. 5(1). Together theseprovisions exhaust and eliminate any claim that the estate of Ms. M. Leung may have on Dr. P. Leung via this Action, irrespective ofwhoever may properly represent the estate of Ms. M.

Leung. [69] Then there is a second issue. That Ms. M. Leung is dead is not in dispute. What troubles me is that, as I understand it, Ms. Wonghas informed the Court that Ms. Wong is now acting on or conveying the instructions of her deceased sister, and that Ms. Wong herselfhas no interest in continuing the lawsuit against the Defendant Dr. P. Leung. I am unaware of any case law where a court of competentjurisdiction entertained the granting of relief to a litigant, where such litigant was taking their instructions from, for lack of a better word,a “ghost”.

If anything, the above excerpts from the transcript of the application are indicative of the reasoning under which Ms. Wongwishes to continue the Action. [70] This lawsuit was initiated and filed by Ms. M. Leung herself, on behalf of her sister Ms. Wong, for whom Ms. M. Leung was atthe time a court-appointed guardian. She continues to remain, at least in this action’s style of cause, as Ms. Wong’s representative forlitigation purposes. When this action was initiated Ms. M. Leung was “a trustee or guardian appointed under The Dependent Adults Act”(Alberta Rules of Court, Alta.

Reg. 390/1968, s. 61), what is sometimes called a ‘next friend’: see chronology in Wong (Guardian andTrustee of) v. Al-Hassan, 2003 ABCA 366 at para. 1, 128 A.C.W.S. (3d) 444. At present, a “person” in this role is a “litigationrepresentative”(Alberta Rules of Court, Alta. Reg. 124/2010, s. 2.13(c), see also

Interpretation Act, R.S.A. 2000, c. I-8, s. 28(1)(nn)). [71] In this role Ms. M. Leung initiated a number of lawsuits, including this one. To my knowledge, to date there has been no courtorder or instruction in this specific Court of Queen’s Bench lawsuit that revises Ms. M. Leung’s status as her sister’s ‘next friend’. [72] This Court is alive to the issue on to what extent that our courts will recognize the legal standing of a particular entity. InEdwards v.

A.G. of Canada, (UK JCPC), [1930] A.C. 124 (U.K.P.C.), more commonly known as “The Persons Case”,the Privy Council overturned the Supreme Court of Canada and concluded that for the purposes of appointment of a senator (TheConstitution Act, 1867, 30 & 31 Vict, c. 3, s. 24), a “person” includes a female. More recently, Chief Justice Fraser of our Court ofAppeal in Reece v. Edmonton (City), 2011 ABCA 238, 335 D.L.R. (4th) 600, leave denied [2011] S.C.C.A.

No. 447 (in dissent)proposed that sentient animals should have legal standing, either directly or via advocates on their behalf: paras. 70, 88-91. [73] Nevertheless, in this instance I believe the correct approach is provided by an analogous scenario investigated in Joly v. Pelletier,[1999] O.J. No. 1728 (QL), 1999 CarswellOnt 1587 (Ont. Sup. Ct. J.).

The plaintiff, Rene Joly, sued a variety of individuals, medicaland lab facilities, and government officials who the plaintiff alleged had conspired with the American government to conceal the fact hewas not human and: “... to eliminate him and otherwise taken various steps to interfere with his ability to establish himself and live freelyas a martian.” Justice Epstein struck the action on two bases: it was frivolous and vexatious, and also as Rene Joly, self-admitted martian,did not have standing with the court: ...

While conspiracy to do harm to someone is the basis of many actions in the Court there is a fundamental flaw in the position of Mr.Joly. Rule 1.03 defines plaintiff as "a person who commences an action". The New Shorter Oxford English Dictionary defines person as"an individual human being".

Section 29 of the

Interpretation Act provides that a person includes a corporation. It follows that if theplaintiff is not a person in that he is neither a human being nor a corporation, he cannot be a plaintiff as contemplated by the Rules ofCivil Procedure. The entire basis of Mr. Joly's actions is that he is a martian, not a human being. There is certainly no suggest that he is acorporation. I conclude therefore that Mr. Joly, on his pleadings as drafted, has no status before the Court. [Emphasis added.] [74] Justice Epstein has adopted a strict approach to the definition of “person”.

In parallel, and absent clear legislative intent to theopposite, I refuse to entertain the directions of Ms. M. Leung (ghost), as channelled by Ms. Wong. This Court cannot and will not sit idlyback and entertain applications by Ms. Wong that may be directed in Ms. Wong’s mind by the ghost of her late sister. To do so would bea clear abuse of process in the highest degree, and would bring the administration of justice into disrepute; something this Court will notpermit. [75] I therefore reject all of Ms. Wong’s claim as initiated by Ms. M. Leung as being without merit. To permit the litigation againstDr. P.

Leung to continue is an abuse of process. I therefore strike the Action against Dr. P. Leung by Ms. M. Leung, both personally and

as Ms. Wong’s representative for litigation purposes. B. Other Remedies Sought by Ms. Wong [ 76 ] As I have struck the Action by Ms. Wong and Ms. M. Leung’s estate against Dr. P. Leung, the applications by Ms. Wong (to file a new or amended statement of claim, remove the Affidavit of Linda Meub, and order cross-examination of Dr. P. Leung on his July 8, 2010 affidavit) are moot. Nonetheless, to be perfectly clear, I conclude that Ms. Wong has not shown that to permit the within Action to proceed against Dr. P. Leung would not be an abuse of process. In my opinion, to grant leave to Ms.

Wong to proceed with her Action would be to permit the perpetuation of what I consider to be an abuse of process, in the strongest sense. Accordingly, the application for leave to proceed with the within Action is dismissed. 7. Conclusion [ 77 ] Ms. Wong has not proven that her lawsuit against Dr. P. Leung should continue. That part of the Action is struck. The other remedies sought by Ms. Wong are denied. I also strike out the claims by Ms. M. Leung’s estate against Dr. P. Leung. [ 78 ] The application for leave to proceed with the within Action is dismissed. [ 79 ] Since the Respondent has been successful Ms.

Wong shall pay Dr. P. Leung court costs of $1,250.00. Heard on the 8 th day of May, 2013. Dated at the City of Edmonton, Alberta this 4 th day of June, 2013. Don J. Manderscheid J.C.Q.B.A. Appearances: Victoria W. Wong appeared on her own behalf Daniel L. Morrow Bennett Jones LLP for the Defendant Paul M.K. Leung