Stout v Track, 2013 ABQB 751

Court of Queen ’ s Bench of Alberta Citation: Stout v Track, 2013 ABQB 751 Date: 20131219 Docket: 1203 16985 Registry: Edmonton Between: Richard Anthony Stout Respondent / Plaintiff - and - Karen Angela Track Applicant / Defendant _ ________________________________________ ______________ Reasons for Decision of the Associate Chief Justice J.D. Rooke _________________________________________ ______________ I. ......... Introduction . 2 A. The Criminal Proceeding . 2 B. The Civil Malicious Prosecution Proceeding . 3 II. ....... The Law .. 4

III. ...... The Factual Context of this Dispute . 7 IV. ...... Analysis . 8 A. The Substance of Mr. Stout’s Claim .. 9 1. Did Ms. Track Initiate the Criminal Proceeding? . 9 2. The Criminal Proceeding Terminated in Favour of Mr. Stout 10 3. Absence of Reasonable and Probable Cause . 10 4. Malice . 12 5. Conclusion –

Summary Judgment 13 B. Abuse of Process . 13 1. Damage Claims are Outragous . 14 2. Frivolous, Improper, or Abusive Claims . 14 C. Collateral Attack . 17 V. Costs.................................................................................................................................. 17 I. Introduction [ 1 ] Between 2005 and 2010 Richard Anthony Stout and Karen Angela Track engaged in what can only be described as a tumultuous relationship. Mr. Stout persisted when Ms. Track terminated that relationship in 2010. A. The Criminal Proceeding [ 2 ] On November 19, 2010 Ms.

Track detected someone attempting to break into her home. A basement window was broken; Ms. Track’s home alarm was activated. She telephoned 911, reported the event, and when officers from the Edmonton Police Service [“EPS”] arrived she identified Mr. Stout as a suspect, given his prior activities. [ 3 ] Mr. Stout was subsequently arrested and charged with three offences: 1. between March 6, 2010 to November 30, 2010 Mr. Stout had harassed Ms. Track and caused her to fear for her safety, contrary to Criminal Code , RSC 1985, c C-46, s 264(1); 2. on November 19, 2010 Mr.

Stout had unlawfully loitered or prowled near Ms. Track’s residence, contrary to Criminal Code , s 177; and 3. on November 19, 2010 Mr. Stout had committed mischief by causing damage under $5,000.00 (to the window in Ms. Track’s residence). [ 4 ] Mr. Stout was released on a judicial interim release the following day. The terms of release included an order prohibiting Mr. Stout from contacting Ms. Track or her children. Nevertheless, in December 2010-January 2011 further incidents occurred where Mr. Stout contacted Ms. Track. This led to several further arrests and charges.

These charges were heard together in a single trial, the “Criminal Proceeding”. [ 5 ] Mr. Stout was tried in the Alberta Provincial Court. The trial decision is reported as R v Stout , 2013 ABPC 108 . During this proceeding the Crown stayed or consolidated certain of the charges against Mr. Stout. Ultimately, Mr. Stout was found guilty of six counts: Count 9: Criminal Code , s 145(3) – breach of recognizance by contact with Ms.

Track on Dec. 3, 2010; Count 10: Criminal Code , s 145(3) – breach of recognizance by being present at a prohibited location on Dec. 3, 2010; Count 11: Criminal Code , s 145(3) – breach of recognizance by contact with Ms. Track on Dec. 4, 2010; Count 12: Criminal Code , s 145(3) – breach of recognizance by contact with Ms. Track on Dec. 6, 2010; Count 16: Criminal Code , s 145(3) – breach of recognizance by contact with Ms. Track on Jan. 9, 2011; and Count 19: Criminal Code , s 145(3) – breach of recognizance by contact with Ms. Track on between Jan. 28-30, 2011. Mr.

Stout was found not guilty by Judge Stevens-Guille of the other charges, including those related to the events of November 19, 2010.

[ 6 ] In total, Mr. Stout was fined $3,010.00, ordered to pay a $464.00 victim surcharge, and placed on three years probation. The probation order included a condition that Mr. Stout was not to have any direct or indirect contact with Ms. Track, including communication via third parties. [ 7 ] The decision of Judge Stevens-Guille was not appealed by either the Crown or Mr. Stout. B. The Civil Malicious Prosecution Proceeding [ 8 ] On November 12, 2012 Mr. Stout filed the Statement of Claim which initiated the present action [the “Civil Action”]. He alleged Ms.

Track deliberately provided false information to the EPS including: alleged stalking and harassment activities, that Mr. Stout was a trained martial artist and a physical danger to others and himself, that Mr. Stout was frequently unfaithful during his relationship with Ms. Track and had used services provided by prostitutes. [ 9 ] Mr. Stout’s claim is that: 1. these allegedly false statements led to Mr. Stout being arrested and charged with various Criminal Code offences; 2. there was no reasonable or probable cause to charge and prosecute Mr.

Stout in the period around November 19, 2010; and 3. that any subsequent breaches of recognizance were an indirect consequence of Ms. Track’s false statements and the resulting pre- trial terms of recognizance [ 10 ] Mr. Stout alleges Ms. Track’s conduct was malicious prosecution and had caused injury, including damage to Mr. Stout’s reputation, loss of career opportunities, legal costs incurred in defence of the criminal action, and general damages. [ 11 ] Mr.

Stout seeks: 1. general damages - $100,000.00, 2. loss of past and future income - $1,000,000.00, 3. legal defence costs - $30,000.00, 4. punitive damages - $50,000.00, 5. interest pursuant to the Judgment Interest Act , RSA 2000, c J-1, and 6. costs. [ 12 ] An Amended Statement of Claim was subsequently filed on July 11, 2013. Its allegations are substantially the same as the original pleading. [ 13 ] On June 28, 2013 Ms.

Track applied: 1. to have the Amended Statement of Claim struck per Alberta Rules of Court , Alta Reg 124/2010, Rule 3.68 [the “ Rules ”, or individually a “ Rule ”], or 2. for the court to order

summary judgment against the Plaintiff per Rule 7.3. [ 14 ] I heard that application on October 17, 2013 and ordered the Amended Statement of Claim struck as an abuse of process, and that Mr. Stout pay Ms. Track’s costs to date on a solicitor and own client indemnity basis. [ 15 ] I also indicated, provisionally, that if I had permitted this action to continue, then I would have ordered that the litigation be stayed until Mr. Stout had produced to the Defence as part of his affidavit of records the disclosure that Mr. Stout received from the Crown during the Criminal Proceeding. The costs to Ms.

Track from that process would be due on a solicitor-client basis. I would also grant the order sought by Ms. Track for Mr. Stout to pay into court $100,000.00 in security for costs. [ 16 ] At that time I indicated I would provide full written reasons for that result. These are those reasons. II. The Law [ 17 ] There is no disagreement between the parties on the law relevant to the operation of Rules 3.68 and 7.3: 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following : (

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

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

c) that judgment or an order be entered; (

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

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

a) the Court has no jurisdiction; (

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

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

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

e) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim. ... 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the followinggrounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded. [Emphasis added.] [18] The relevant tests for both provisions are well established. [19] An action or defence may be struck under Rule 3.68 where it is plain and obvious, or beyond reasonable doubt, that the actioncannot succeed: Hunt v Carey Canada Inc., (SCC), [1990] 2 SCR 959, 74 DLR (4th) 321. Pleadings should beconsidered in a broad and liberal manner: Tottrup v Lund, 2000 ABCA 121, at para 8, 186 DLR (4th) 226. [20] 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, 453 AR 337. [21] A proceeding that is an abuse of process may be struck on that basis: Reece v Edmonton (City), 2011 ABCA 238 at para 14,335 DLR (4th) 600. Litigation that is commonly referred to as “vexatious” may be struck under either Rule 3.682(

c) or (

d) as that term issynonymous with impropriety and abuse of process: Wong v Leung, 2011 ABQB 688 at para 33, 530 AR 82; Mcmeekin v Alberta(Attorney General), 2012 ABQB 144 at para 11, 537 AR 136. [22] Rule 7.3(1) applies the same legal test as Alberta Rules of Court, Alta Reg 390/1968, Rule 159(b): Manufacturers LifeInsurance Co. v Executive Centre at Manulife Place Inc., 2011 ABQB 189 at para 11, 48 Alta LR (5th) 178; Encana Corp. v ARCResources Ltd., 2011 ABQB 431 at para 7.

The necessary threshold is described in Canada (Attorney General) v Lameman;Papaschase Indian Band No. 136 (Descendents of) v Canada (Attorney General); Papaschase Indian Band No. 136 v Canada(Attorney General), 2008 SCC 14 at para 11, [2008] 1 SCR 372: … the bar on a motion for

summary judgment is high. The defendant who seeks

summary dismissal bears the evidentiary burden ofshowing that there is "no genuine issue of material fact requiring trial" ... The defendant must prove this; it cannot rely on mereallegations or the pleadings ... If the defendant does prove this, the plaintiff must either refute or counter the defendant's evidence, or risksummary dismissal ... Each side must "put its best foot forward" with respect to the existence or non-existence of material issues to betried ...

The chambers judge may make inferences of fact based on the undisputed facts before the court, as long as the inferences arestrongly supported by the facts ... [Emphasis added.] [23] Because of its relevance to the abuse of process aspects of these Reasons, I believe it is important for these Reasons that Ireview certain of the general principles under which the Rules operate: 1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in atimely and cost-effective way.

(2) In particular, these rules are intended to be used … (

b) to facilitate the quickest means of resolving a claim at the least expense, …

(3) To achieve the purpose and intention of these rules the parties must, jointly and individually during an action, (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at theleast expense, … (

c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules, and

(

d) when using publicly funded Court resources, use them effectively. [Emphasis added.] [ 24 ] I note the comments of Justice Moen in Envision Edmonton Opportunities Society v Edmonton (City) , 2011 ABQB 29 at paras 47-48 , 507 AR 275 where she stressed the crucial interpretative role of these principles and how the emphasis on timely and cost- effective litigation is inexorably linked to a fair and just treatment of litigants: [47] Under the Foundational Rule of the New Rules, Rule 1.2, however, timeliness and cost-effectiveness is put front and centre alongside the need for a fair and just result .

In my opinion, the Legislature in enacting Rule 1.2 is signalling the need to consider timeliness and cost-effectiveness in conjunction with the need for fairness and justice. I would go even further, and say that Rule 1.2 recognizes that a result, to be fair and just, must also be timely and cost-effective . This makes perfect sense in light of the seemingly inexorable trend toward longer and more expensive trials which put access to the courts out of reach of more and more people. The ordinary citizen in this day and age is hard-pressed to afford a long trial. [48] As a result, I would say that Rule 7.1(1)(

a) must be read in light of Rule 1.2. The effect of doing so signals that the court should be more willing to grant remedies with the potential to provide a more timely and cost-effective result without sacrificing fairness and justice . If the court can narrow the focus of a trial and do away with the necessity for a long trial without sacrificing fairness or justice, it should do so, recognizing that providing litigants with a timely and cost-effective result serves the ends of justice. [Emphasis added] III.

The Factual Context of this Dispute [ 25 ] I have previously observed that there is little dispute that the relationship between Mr. Stout and Ms. Track was an unusual one. In their affidavits both make broad allegations about each other and their conduct. I can proceed in this application only on facts that are not in dispute. [ 26 ] I believe neither party contests the documentary evidence that accompanied Ms. Track’s affidavit in this matter (see para 30 below). Further, Mr. Stout acknowledges his misconduct in relation to the counts on which he was found guilty in the Criminal Proceeding.

He did not contest that those breaches of his pre-trial release terms occurred. Mr. Stout also conceded at trial that his pattern of communication and communication attempts directed to Ms. Track met the Criminal Code , s 264(2)(

b) criteria for prohibited harassing conduct: Criminal Proceeding decision, para 39. [ 27 ] One source for a factual background is the judgment in the Criminal Proceeding. Judge Stevens-Guille made the following relevant conclusions: 1. Prior to November 19, 2010 Mr. Stout and Ms. Track had been involved in relationships, but that their last relationship had ended in March, 2010: para. 18. 2. On November 19, 2010 a basement window to Ms. Track’s residence was broken and that triggered a security alarm: para 8. 3. This event led to an EPS response. Ms. Track identified Mr.

Stout to the EPS as a possible suspect: paras 8-9. 4. Ms. Track disclosed to EPS Mr. Stout had made many telephone calls and text messages to her in the recent past: paras 9, 18. 5. On November 19, 2010 but prior to the broken basement window incident Mr. Stout had appeared, unsolicited, at a hair salon where Ms. Track was having her hair done and attempted to communicate with Ms. Track: para 20. [ 28 ] Judge Stevens-Guille had a reasonable doubt on whether the Crown had proven certain facts beyond a reasonable doubt: 1. that Ms. Track feared for her safety as a consequence of Mr.

Stout’s activities (para 52), and 2. that Mr. Stout had assaulted Ms. Track by touching her in a downtown pedway (paras 45-46). [ 29 ] The Criminal Proceeding decision also touches on the relationship history of Mr. Stout and Ms. Track. Judge Stevens-Guille characterized that relationship as “more than a bit dysfunctional”: para 5. He was being generous. These two persons repeatedly entered into intimate relationships and then broke up, the estimate being on 20-30 occasions over a five year period: para 5. Each reconciliation was initiated by a campaign of unilateral contact attempts by Mr. Stout to Ms.

Track: paras 7, 51. Mr. Stout was engaged in this process around the time Ms. Track reported the attempted break-in to the EPS. The trial judge characterized Mr. Stout’s conduct as “irrational in the circumstances of it all.”: para 50. [ 30 ] I have reviewed the exhibits that accompanied Ms. Track’s affidavit on this application. They are extensive and document Mr. Stout’s communications directed to Ms. Track both before and after November 19, 2010. I will not review the substance of these items in detail, other than to say that these materials establish, beyond any question, that Mr.

Stout was intensely and obsessively focussed on Ms. Track and maintaining an ongoing intimate relationship with her. I believe the degree and scope of fixation would be objectively alarming to any observer. The volume is extreme, particularly when one takes into account that these communications almost entirely flow in one direction: from Mr. Stout to Ms. Track. This conduct can only be considered harassment. [ 31 ] I also believe I may make draw some conclusions from Mr. Stout’s affidavit of July 19, 2013, filed in this matter in reply to Ms. Track’s application to have this action struck out. Mr.

Stout displays a quite astonishing lack on insight to his own conduct, instead displacing fault to Ms. Track. At para 5 he indicates his barrage of communication in the period prior to the November 19, 2010 event was something that Ms. Track desired and demanded: “… actively encouraged and enforced by Ms. Track as part of the protocol and normal pattern of her bizarre relationship requirements.” At para 4 he describes the communications that were the foundation for his criminal convictions as “friendly emails and texts responding to the aggressive, provocative and pre-meditated contact [in the pedway]”.

Mr. Stout further claims his contact with Ms. Track in the period shortly prior to November 19, 2010 was at her invitation: paras 7, 10. [32] Mr. Stout alleges a malicious scheme of false allegations to injure him. However, aspects of his claims are either illogical orhave very low credibility. Three examples make this point: 1. At para 14 Mr. Stout alleges that Ms. Track diverted documents that relate to his house sale from Ms. Track’s employer, a lawfirm, “… to my criminal defence lawyer to maximize my embarrassment by having to explain the criminal charges to those associatedwith the transaction.” 2.

At para 16 Mr. Stout alleges that Ms. Track prepared for the Criminal Proceeding by “… years of research of “abusive” profilesand police procedures (she works as a paralegal) and knew exactly what claims to make that would result in an arrest.” 3. Further Mr. Stout also appears to indicate that it was Ms. Track who broke the basement window of her own residence so as toimplicate him: “... Ms. Track provided the contrived "physical evidence" of an attempted break-in in November of 2010 ...”: para 16. [33] I think it is fair to conclude, from the often extraordinary contents of Mr.

Stout’s affidavit, that Judge Stevens-Guille’sassessment of Mr. Stout’s conduct as “irrational in the circumstances”, applies equally today as it did at trial. IV. Analysis [34] At the close the October 17, 2013 hearing I concluded that: 1. the Civil Action should be struck as an abuse of process, or 2. in the alternative, the Civil Action is stayed until April 19, 2016: the end the no-contact probation period that resulted from Mr.Stout’s conviction in the Criminal Proceeding, or 3. that the Civil Action should be summarily dismissed even though, on a strict and technical analysis, Mr.

Stout may have potentiala claim against Ms. Track, with that legal action having, at best, no substantial result or benefit. [35] However, on closer review, I find that there is in fact a strong basis to conclude that it is plain and obvious that the Plaintiffhas no reasonable cause of action at all, not just one on a technical basis. [36] I will address these points in reverse order because the fundamental deficiency in the Civil Action is an aspect of why thatlitigation is an abuse of process. A. The Substance of Mr. Stout’s Claim [37] Counsel for the Defendant acknowledges (and I agree) that Mr.

Stout’s legal action may potentially meets the minimumthreshold to, in theory, seek a remedy from Ms. Track. That conclusion flows from the rule that I may only base an order to dismiss onuncontroversial facts. That is a high standard.

I note that a fact is distinct from a bald allegation: an allegation “...that recite[s] the basicelements of the tort in very general terms but fails to provide material facts sufficient to demonstrate an intentional wrongdoing ...”: GH vAlcock, 2013 ABCA 24 at para 58. [38] The parties agree on the elements for the tort of malicious prosecution, identified by the Supreme Court of Canada in Nelles vOntario, (SCC), [1989] 2 SCR 170 at para 42, 60 DLR (4th) 609:

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

b) the proceedings must have terminated in favour of the plaintiff;

c) the absence of reasonable and probable cause;

d) malice, or a primary purpose other than that of carrying the law into effect. 1. Did Ms. Track Initiate the Criminal Proceeding? [39] Typically the first requirement of the Nelles v Ontario test means that police investigators or a Crown Prosecutor are thetarget of a malicious prosecution proceeding.

That said, there is case law that a civilian who makes a complaint to police is potentially asubject for a malicious prosecution action (Radford v Stewart, 2010 ABQB 586 at para 71, 496 AR 302), but only where: ...the complainant gave false information to the police, or slanted information to the police, or failed to give a frank and candid accountof events to the police. [40] In Casey v Automobiles Renault Canada Ltd., (SCC), [1965] SCR 607 at 623, 54 DLR (2d) 600, JusticeMartland concluded: ... as the respondent had caused everything to be done which could be done wrongfully to set the law in motion against the appellant on acriminal charge, an action for malicious prosecution lay against the respondent, the other required elements of that tort being established.

See also Radford v Stewart, 2006 ABCA 157 at para 9, 384 AR 167. [41] Ms. Track’s November 19, 2010 report is clearly what initiated the police investigation and the downstream prosecution ofMr. Stout. She is therefore potentially the person who ‘initiated’ the Criminal Proceeding. [42] However, I note that malicious prosecution is limited to allegations that directly relate to the charges which ultimately weretried in Provincial Court. Mr. Stout’s allegations of misconduct extend past that, for example that Ms. Track made claims to EPS aboutMr. Stout’s infidelity or use of services from prostitutes.

Those additional allegations are therefore irrelevant for the purposes of thislawsuit and my analysis. 2. The Criminal Proceeding Terminated in Favour of Mr. Stout [43] A second requirement is that Mr. Stout had been successful in the Criminal Proceeding. He was on the charges that relate tothe November 19, 2010 investigation.

However, he was also convicted on six other counts relating to breaches during the proceedingsthat relate to the November 19, 2010 investigation. [44] There is Canadian case law that argues, for sound policy reasons, that the mere fact an offender is convicted of somecomponents of a multi-offence scenario does not exclude the possibility the offender was injured by another person’s maliciousprosecution: Banks v Bliefernich (1988), (BC SC), 24 BCLR (2d) 397, 44 CCLT 144 (BCSC), Radford v Stewart. [45] I therefore conclude that, for the purposes of this application, it can be argued that Mr.

Stout was successful at the CriminalProceeding. 3. Absence of Reasonable and Probable Cause [46] The parties disagree on whether there was reasonable and probable cause for Ms. Track to suspect criminal misconduct byMr. Stout. This disagreement can be reduced to two points, namely whether Ms. Track had or did not have reasonable and probablegrounds to: 1. conclude that Mr. Stout was the person who on November 19, 2010 attempted to break into her house, and 2. fear Mr.

Stout, an element of the Criminal Code s 264(1) offence that the trial judge concluded was not established beyond areasonable doubt. [47] The Applicant argues that objectively and subjectively Mr. Stout was the logical suspect for the November 19, 2010 break inattempt, and that his escalating and obsessive conduct was a basis for Ms. Track to fear Mr. Stout’s intentions. The Respondent’sargument essentially devolves to Mr. Stout’s conduct was simply a normal feature of this particularly unusual interrelationship, that therecould not be any basis for Ms. Track to fear Mr.

Stout given that history, and an observation that “[i]t would be difficult to find a lessreasonable person than the Defendant.” [48] In Nelles v Ontario, this requirement is defined at paras 43-44: 43 ...

Reasonable and probable cause has been defined as "an honest belief in the guilt of the accused based upon a full conviction,founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead anyordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guiltyof the crime imputed" (Hicks v. Faulkner (1878), 8 Q.B.D. 167, at p. 171, Hawkins J.) 44 This test contains both a subjective and objective element.

There must be both actual belief on the part of the prosecutor and thatbelief must be reasonable in the circumstances. ... [49] The Alberta Court of Appeal in Boudreault v Barrett, 1998 ABCA 232 at para 12, 219 AR 67 characterized the threshold asthe plaintiff “... would have to prove that the prosecution was initiated for reasons tantamount to a fraud on the process of criminaljustice.” [50] While sufficient to create a reasonable doubt in the criminal prosecution, in this civil action, Mr. Stout’s basis to claim thatMs.

Track had no reasonable and probable grounds to fear him or to suspect he was the one who broke her basement window is veryweak. To the contrary, I find that, on all the evidence before this Court, he was a logical suspect for the break and enter attempt, both onan objective and subjective basis. The documentary evidence establishes what Mr. Stout admits: his obsessive pursuit of this woman. Hedeluged Ms. Track with telephone calls and text messages. The very same day as the attempted break and enter Mr. Stout had appearedwithout warning or invitation at the hairdresser attended by Ms. Track. Mr.

Stout also left a letter at her house on the day of the break in. [51] Mr. Stout argues in his affidavit that he would have known better than to attempt to break into Ms. Track’s home. He knewabout the security arrangements. I consider those explanations irrelevant. Perhaps a rational person would have come to the conclusionthat there would be more sensible ways to enter Ms. Track’s residence, but I have no difficulty concluding that, at the relevant time, thisman was obsessed, fanatic, and irrational. It would be entirely plausible that the latest evolution of Mr.

Stout’s ‘reconciliation’techniques would include breaking the basement window of Ms. Track’s residence. On that basis I can only conclude, in a civil context,that Ms. Track had reasonable and probable grounds to suggest to police that Mr. Stout was a possible, if not obvious, suspect. [52] As for the issue of Mr. Stout having caused Ms. Track to be fearful for her safety, the trial judge’s conclusion was that the

Crown had not established that fact beyond a reasonable doubt. That finding is relevant in this application to the extent it is evidence that Ms. Track’s alleged fear for her safety is a question for debate. Given the standard of proof at a civil trial would be whether Mr. Stout had, on a balance of probabilities, caused Ms. Track to fear for her safety in November of 2010, Mr. Stout’s allegation of malicious prosecution is far from proven. [ 53 ] I have no doubt that any objective observer would draw the exact same conclusion; Mr. Stout was an obsessive, irrational stalker.

He showed no signs of discontinuing his pursuit. The only question would be what would Mr. Stout do next? [ 54 ] I therefore conclude the subjective and objective requirements for reasonable and probable cause are established for Ms. Track’s suspicion that Mr. Stout may have been the one who attempted to break into her home on November 19, 2010. This foundation for the Civil Action has no chance for success and should be struck. [ 55 ] However, the Criminal Code , s 264(1) charge of harassment that caused fear for safety arguably may not have had a subjective basis.

That said, it is difficult to review the admitted history of Mr. Stout’s activities and the Track affidavit documentary record and not see a strong basis to conclude Ms. Track had a reason to be afraid, regardless of whether her past history with this man did not include violence. [ 56 ] Since I have concluded that Ms. Track did not engage in malicious prosecution when she alleged Mr. Stout was a probable suspect for the November 19, 2010 break and enter, I also conclude that any ‘downstream’ effects of that allegation are equally lawful; ie. Mr.

Stout’s arrest, release on bail, and his subsequent breaches of recognizance. 4. Malice [ 57 ] The last of the Nelles v Ontario criteria is that Ms. Track’s statement to the EPS was based on “malice, or a primary purpose other than that of carrying the law into effect”. At para. 45, Justice Lamer (as he then was) explained this requirement: The required element of malice is for all intents, the equivalent of "improper purpose".

It has according to Fleming, a "wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage" (Fleming, op. cit., at p. 609). To succeed in an action for malicious prosecution against the Attorney General or Crown Attorney, the plaintiff would have to prove ... malice in the form of a deliberate and improper use of the office of the Attorney General or Crown Attorney, a use inconsistent with the status of "minister of justice".

In my view this burden on the plaintiff amounts to a requirement that the Attorney General or Crown Attorney perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice. In fact, in some cases this would seem to amount to criminal conduct. (See for example breach of trust, s. 122, conspiracy re: false prosecution s. 465(1)(b), obstructing justice s. 139(2) and (3) of the Criminal Code, R.S.C., 1985, c. C-46 .) [ 58 ] In Boudreault v Barrett at para 14 the malice component is defined in this manner: There is no indication of malice.

The appellant has not produced any evidence suggesting that any of the respondents acted out of spite, ill-will or vengeance toward him. Nor is there evidence that any of the respondents were inspired to initiate and prosecute the charges against the appellant by any motive other than the fulfillment of their duties to enforce the criminal law. [ 59 ] I believe Ms. Track’s motivation can be reduced to a single point: she wanted to be left alone. I have unrefuted evidence that she contacted the EPS in August, 2010 to seek assistance to meet that objective. The documentary record shows she instructed Mr.

Stout not to contact her. Mr. Stout’s affidavit only illustrates his bizarre and distorted perspective that continues to this day – namely, his allegations that these instructions were, in fact, invitations to further prove his sincerity and affection. [ 60 ] I have no doubt that Ms. Track had negative feelings for Mr. Stout during the relevant time. I also have no doubt that the record establishes Ms. Track wanted to be left alone. Mr. Stout’s claims to the contrary are groundless and irrational, a product of his obsession. Ms.

Track had a perfectly legitimate, legal reason to disclose to EPS that she was the subject of communication attempts by an apparently obsessive former intimate. That was the truth. [ 61 ] One cannot transfer the strategic decisions and actions of the investigating EPS officers to Ms. Track in this case. They were the ones who charged Mr. Stout. Ms. Track’s ‘upstream’ contributions to their investigation were two uncontested true facts: 1. Mr. Stout had engaged in an intense campaign of communication and contact events in the recent past, and 2. Ms. Track had indicated she had no wish for further contact with Mr.

Stout. [ 62 ] This is not “fraud on the process of criminal justice” but rather an entirely legitimate and legal objective, an exercise of Ms. Track’s right to privacy and to expect that law enforcement personnel would investigate apparent criminal misconduct. Ms. Track had a legal right to seek assistance from the EPS for acts that Mr. Stout admits meet the prohibited conduct described in Criminal Code , s 264(2)(b). [ 63 ] Without making such a finding, I conclude it is irrelevant even if malice, as in spite, ill-will or vengeance, were a factor in Ms. Track’s disclosures to the EPS on November 19, 2010.

She had an entirely legitimate basis to make those true statements to investigators that ultimately led to the charges against Mr. Stout. [ 64 ] This conclusion applies equally to the criminal charges that flowed from Ms. Track identifying Mr. Stout as a suspect in the aborted break and enter incident on November 19, 2010.

5. Conclusion –

Summary Judgment [65] I therefore conclude that Mr. Stout’s legal action has no prospect of success at trial and order

summary judgment against Mr.Stout under Rule 7.3(1). [66] In case I were to be found incorrect on that point, I will provisionally review whether Mr. Stout’s action should be struck as anabuse of process or otherwise stayed until the end of Mr. Stout’s probation period. B. Abuse of Process [67] In my oral decision on Oct. 17, 2013 I made a number of observations: 1. Mr. Stout’s action has a limited prospect for success, what I called “technical compliance”, as “it is plain and obvious that thePlaintiff cannot succeed in any substantial way”. 2. At best case damages would be notational, “one dollar or less.” 3.

Mr. Stout’s potential liability for court costs would be substantial, estimated by Counsel to be over $100,000.00 when calculatedon a solicitor-client basis. 1. Damage Claims are Outrageous [68] To those I add my observation that Mr. Stout’s damages claims are very large, for example: a) $1 million in lost past and future income, b) $100,000.00 in general damages, and c) $50,000.00 in punitive damages. However, Mr. Stout offers no basis to support claims of that scale in either his pleadings or his affidavit in support of this application.

Hedoes not, for example, give a single example of a job opportunity that he has lost or any other manner in which he career has suffered. HisAmended Statement of Claim and affidavit are merely replete with bald allegations. [69] Frankly, the quantum of these claims is manifestly overstated.

For example, the general damages claim is comparable toawards given for the loss of a leg: Tailleur (Next Friend of) v Grande Prairie General and Auxiliary Hospital and Nursing HomeDistrict No. 14 (1996), (AB KB), 180 AR 389, 38 Alta LR (3d) 112 (Alta QB), reversed on other grounds, 1999ABCA 2, 228 AR 274, leave refused [1999] SCCA No 16; Layden v Cope (1984), 52 AR 70, 28 CCLT 140 (Alta QB); Maldonado vBourassa (1988), (AB KB), 92 AR 337, 13 ACWS (3d) 153 (Alta QB), varied on other grounds (1990) 1990 ABCA255 , 108 AR 321, 22 ACWS (3d) 1045 (Alta CA). [70] The punitive damages claim is equally absurd.

In SAD v EEP Estate, 2003 BCSC 1535, 125 ACWS (3d) 1072 three fosterchildren received a $50,000.00 punitive damage award for a lengthy history of physical, emotional and sexual abuse. That amount wasalso ordered by the Ontario Court of Appeal in Ribeiro v. CIBC (1991), (ON CA), 13 OR (3d) 278, 44 CCEL 165(Ont CA) for the wrongful termination of an employee that was described by the trial judge in this manner: In other cases many different words have been chosen to describe the conduct and manner of employers involved in the wrongfultermination of the employment of an employee.

"Brutal", "shocking'', "miserable" are three which come to mind. I can easily employthem here and, as well, others. I cannot understand why an organization of the size and type of the defendant bank would treat a person,such as the plaintiff, so horribly. And its conduct is all the worse for what it also did to the various members of his family who were andcontinue to be employed by it. [71] I provide these examples to put Mr. Stout’s outlandish claims action into context. 2. Frivolous, Improper, or Abusive Claims [72] I concluded in my oral reasons that Mr.

Stout’s Amended Statement of Claim could be struck under either: Rule 3.68(2)(c): as frivolous, or improper; or Rule 3.67(2)(d): as an abuse of process. [73] These categories are interrelated. I have above surveyed case law that comments on how a pleading made in bad faith, as Ifind to be the case here, is frivolous: Donaldson v Farrell, at para 20. Vexatious litigation is both improper (Rule 3.68(2)(c)) and anabuse of process (Rule 3.682(d)): Wong v Leung, at para 33; Mcmeekin v Alberta (Attorney General), at para 11.

This interrelationshipis expressly recognized in R v Scott, (SCC), [1990] 3 SCR 979 at 1007, 116 NR 361 (cited by the Appeal Court ofAppeal in Reece v Edmonton (City), at para 18) where McLachlin J (as she then was) observed: ... abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamentalprinciples of justice underlying the community's sense of fair play and decency. The concepts of oppressiveness and vexatiousnessunderline the interest of the accused in a fair trial. ...

[74] Reece v Edmonton (City) provides a recent review by the Court of Appeal of the concept of abuse of process. Slatter JAstressed at para 16 that this is a general purpose remedy with a functional objective; to control misuse of the court apparatus: Abuse of process is a compendious principle that the courts use to control misuses of the judicial system. Abuses of process can arise inmany different contexts, and there is no universal test or statement of law that encompasses all of the examples. [75] Similarly, in Toronto (City) v.

Canadian Union of Public Employees Local 79, 2003 SCC 63 at para 37, [2003] 3 SCR 77the court quoted, with approval, the restatement of the doctrine of abuse of process made by the dissenting Ontario Court of Appealdecision in Canam Enterprises Inc. v Coles (2000), (ON CA), 51 OR (3d) 481 at para 55, 194 DLR (4th) 648 (OntCA), dissent adopted en toto 2002 SCC 63, [2002] 3 SCR 307: The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would bemanifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. ... [76] More recently in Onischuk v Alberta, 2013 ABQB 89 at para 35, 555 AR 330 I characterized a litigant’s conduct (albeit in acase much different from the one at bar) as an abuse of process because of a combination of vexatious characteristics, outrageous andunsupported claims, within litigation that had no reasonable prospect for success: ...

Onischuk's pleadings essentially complain about those actions of lawyers and judges involved in his prior action, alleging conspiraciesagainst him, tampering with court transcripts and files, misrepresentations, perjury, and acting against the public interest. I have foundthe proceedings to contain the hallmarks of vexatious litigation.

To allow Onischuk to continuously bombard counsel, the judiciary, andthis Court with lengthy pleadings, replete with inflammatory accusations, irrelevant legal argument, jurisprudence and legislation, thatadvance no reasonable cause of action, is manifestly unfair to all parties involved and other participants vying for scarce judicialresources. Consequentially, to allow this action to proceed would surely bring the administration of justice into disrepute. [77] The hallmarks of a vexatious litigant are therefore relevant.

A commonly cited set of these criteria is provided in Dykun vOdishaw, 2000 ABQB 548 at para 42, where Lee J stated that a proceeding is vexatious if it satisfies any of the following tests: … (

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; … [78] The Civil Action initiated by Mr. Stout meets some of these criteria. The possibility for success is, at best, tenuous, and evenmore importantly, a reasonable person cannot anticipate the relief sought, but at best some marginal recovery.

This, all while engaged inlitigation that will necessarily involve large financial expense. [79] There is a well-established principle in law that a person can be presumed to have intended the natural consequences of theiracts: Starr v Houlden, (SCC), [1990] 1 SCR 1366, 68 DLR (4th) 641. I have concluded this action is very seriously, ifnot terminally flawed. Even if successful, Mr. Stout would receive practically no benefit. Then why sue? That leads to the second and inthis instance critical vexatious feature of this litigation. [80] I conclude Mr. Stout has initiated this lawsuit for an improper purpose.

To some degree this purpose necessarily remainscryptic. I cannot determine if Mr. Stout has decided to sue Ms. Track: 1. as a form of revenge for excluding him from her life; 2. as an attempt to maintain contact and thus circumvent the Criminal Proceeding probation order to which he is subject; or 3. as the latest permutation in Mr. Stout’s post-break up protocol to demonstrate his continued affection and interest in Ms. Track asthe key female person in his life. There is a significant probability that, in fact, the truth is a matrix of all three facets. Mr.

Stout has repeatedly stressed that his way todemonstrate his interest and intentions is via expensive gestures directed to Ms. Track. A civil action with a tariff calculated on Column 4of the Rules

Schedule C table certainly qualifies as that. [81] It is unnecessary that I conclude which alternative or combination is in play. Each is, I find, litigation for “... purposes otherthan the assertion of legitimate rights …”. [82] I therefore conclude that the Civil Action is an example of vexatious litigation, undertaken for an illegitimate purpose. Topermit this litigation to continue would be manifestly unfair to Ms. Track, the subject of Mr. Stout’s obsession. It misuses valuable andlimited court resources. The effect of this litigation is to subvert the probation order put in place to shield Ms.

Track from Mr. Stout. Ithink an informed and reasonable member of the public would be outraged to see Mr. Stout use this lawsuit, which at best is weak, as a

mechanism to continue his interference in the life and affairs of another person whom he has objectively harassed and pursued indefiance of court order. [83] Together, these factors lead me to conclude that to continue this lawsuit would bring the administration of justice intodisrepute. The Civil Action is frivolous, improper, and an abuse of process. I therefore would provisionally strike Mr. Stout’s AmendedStatement of Claim under Rules 3.68(2)(c-d). C.

Collateral Attack [84] In the alternative to my two previous conclusions, I also ordered that the Civil Action is stayed until expiry of the no-contactprobation order that flowed from Criminal Proceeding on April 19, 2016. I make this order on the basis of 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 SCR 422: The rule against collateral attack similarly attempts to protect the fairness and integrity of the justice system by preventing duplicativeproceedings.

It prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from adifferent forum, rather than through the designated appellate or judicial review route … [Emphasis added.] [85] Here, Mr. Stout’s litigation subverts the no-contact probation order. If I were to conclude that Mr. Stout had a legitimateaction against Ms. Track (which I do not), I would order a stay of Civil Action until the probation restriction had expired.

To dootherwise would defeat the effect of the unappealed Provincial Court Criminal Proceeding decision. [86] There is also a policy basis for this decision and that flows from the offence scenario.

In R v Verral, 2003 ABCA 184, 320AR 171 Wittmann JA (as he then was) cited the Prince Edward Island Court of Appeal R v Wall (1995), (PE SCAD),136 Nfld & PEIR 200, 29 WCB (2d) 441 judgment where that Court stressed: The focus of sentences must be to send a message to the offender, and the public, that harassing conduct against innocent and vulnerablevictims is not tolerated by society and most importantly, the Court must insure, as best it can, that the conduct of the offender neverhappens again recognizing that, if it does, a far more serious offence could be committed. [87] I am quite aware that Mr.

Stout was acquitted on the Criminal Code, s 264(1) charge of criminal harassment, but that does notnegate the fact he, in the face of court order, persisted in illegal contact with Ms. Track, and that Judge Stevens-Guille concluded that anecessary and appropriate sentence included that Ms. Track be shielded from further intrusion from this man. I believe on a policy basis Ishould not allow a legal proceeding to continue in a manner that undermines that critical message, nor escalates the risk of furthermisconduct by Mr. Stout. V. Costs [88] In my oral hearing I ordered that Mr. Stout pay for Ms.

Track’s trial costs to date on a solicitor and own client indemnitybasis. In Brown v Silvera, 2010 ABQB 224 at paras 29-35, 488 AR 22, Justice Moen reviewed the bases for elevated costs against anunsuccessful party.

Many of the criteria are present in this action: • solicitor and client costs are awarded where the conduct of a party has been ‘reprehensible, scandalous or outrageous’: Walsh vMobil Oil Canada, 2008 ABCA 268 at para 112, 440 AR 199; Hamilton v Open Window Bakery Ltd., 2004 SCC 9 at para 26, [2004] 1SCR 303; Young v Young, (SCC), [1993] 4 SCR 3 at 134, 108 DLR (4th) 193; • misconduct during the litigation can surely be found if there is no reasonable basis on which to commence, or continue, litigation:College of Physicians & Surgeons, 2009 ABQB 48 at para 33, 468 AR 101; • a proceeding that was based on groundless allegations and was a type of conduct that should be discouraged: College ofPhysicians & Surgeons, at para 33; • in some cases justice can only be done by a complete indemnification for costs: Foulis v Robinson (1978), (ON CA), 21 OR (2d) 769, 92 DLR (3d) 134 (Ont CA); and • if the positive misconduct of the party which gives rise to the action is so blatant and is calculated to deliberately harm the otherparty, then, despite the technically proper conduct of the legal proceedings, the very fact that the action must be brought by the injuredparty to gain what was rightfully his in the face of an unreasonable denial: Jackson v Trimac Industries Ltd. (1993), (AB KB), 138 AR 161 at para 32, 8 Alta LR (3d) 403 (Alta QB), affirmed on costs, 1994 ABCA 199 , 155 AR 42, 20 Alta LR(3d) 117 (Alta CA) (but see Polar Ice Express Inc. v Arctic Glacier Inc., 2009 ABCA 20 at para 21, 446 A.R. 295).

I have already reviewed why this litigation has these characteristics. [89] I also take note of the relative incomes of these two persons. One is a senior utility industry consultant and executive. Theother is a legal assistant. Since I have concluded this litigation was initiated and pursued for improper purposes as detailed above, justicecan only be served if the vulnerable target of this abusive litigation strategy is kept whole. Given this income disparity Ms. Track suffersa disproportionate effect as a consequence of the costs of litigation. I therefore order that Ms.

Track’s litigation costs be paid in full. Heard on the 17th day of October 2013.

Dated at the City of Edmonton, Alberta this 19 th day of December 2013. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Jennifer E. Lamarre Ogilvie LLP Barristers & Solicitors for the Plaintiff P. Jon Faulds, Q.C. & A. Danielle Bourgeois Field LLP Barristers & Solicitors for the Defendant