Clark v Pezzente, 2016 ABQB 361

Court of Queen’s Bench of Alberta Citation: Clark v Pezzente, 2016 ABQB 361 Date: 20160629 Docket: 1501 04482 Registry: Calgary Between: Alexander S. Clark Plaintiff/Appellant - and - Maurizio Pezzente, Toronto Dominion Bank, TD Canada Trust, TD Investment Services Inc., TD Waterhouse Canada Inc. Defendants/Respondents _______________________________________________________ Endorsement of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________

Appeal of Order of A. Robertson, Master in Chambers Dated the 05th day of November, 2015 Docket: 1501 04482) Introduction [1] This action 1501-04482 is an attempt to obtain a retrial of action 0601-12779. [2] On or about May 27, 2004, the Plaintiff transferred his retirement pension plan from its then administrator Canada LifeAssurance Company to TD Canada Trust.

The funds were transferred into an account at TD Canada Trust opened on June 9, 2004 andtransferred into an Alberta Registered Retirement Account (LIRA). [3] On July 6, 2004, the funds were again transferred to a related corporate entity of TD Canada Trust, TD Waterhouse CanadaInc. At that time the Plaintiff met Maurizio Pezzente who represented himself as an employee of TD Waterhouse Canada Inc. and signedoff as “Financial Advisor”. At the time Mr. Pezzente met with Mr. Clark, he was registered as a “sales person” (this accords with hisstatus with the Canadian Securities Administrators National Registration).

At the time Mr. Pezzente met with Mr. Clark, he wasemployed by a separate corporate entity of TD a company known as TD Investment Services Inc. According to the Alberta SecuritiesCommission this latter company is registered to sell mutual funds and Mr. Pezzente had a mutual funds licence code P1686. [4] In his claim, Mr. Clark advised that he was induced to act upon the representations of the Defendants by Mr. Pezzente. [5] The Statement of Claim in this action was filed on April 22, 2015. History of Litigation [6] On May 13, 2015, the Defendant’s filed a notice seeking the following remedy: 1.

Striking out the Statement of Claim 2. Alternatively, setting aside the Statement of Claim; and 3. Alternatively, staying the Action. [7] In their grounds for making this application, the Defendants set out a complete history of the proceedings to this date andtheir position on this later action: 4. In 2006, the Plaintiff commenced an action for the same relief against TD Waterhouse Canada Inc. (“TDW”), action number0601-12779 (the “First Action”). 4.1 The Trial in the First Action was heard by Justice Belzil in July 2012. 4.1.1.

On July 31, 2012, His lordship dismissed the Plaintiff’s claims pursuant to the Reasons for Judgment reported at 2012 ABQB502. 4.1.2. On September 11, 2012, Justice Belzil awarded double costs against the Plaintiff for all steps taken in the First Action afterservice of TDW’s formal offer to settle. 4.1.3.

The TDW’s trial costs were taxed in the amount of $76,365.53, but remain unpaid. 4.2 The Plaintiff then appealed to the Court of Appeal. 4.2.1 He was directed by Justice Paperny to provide security for costs before the hearing. 4.2.2 Pursuant to a Memorandum of Judgment filed on April 15, 2013, and reported as 2013 ABCA 123, the Plaintiff’s appeal wasdismissed, with costs. 4.2.3 TDW’s costs of the appeal were taxed and the security for costs was applied against the amount owing for the costs of the appeal,but leaving an unpaid balance. 4.3 In May 2013, the Plaintiff applied for leave to appeal to the Supreme Court of Canada.

On July 25, 2013, pursuant to a judgmentreported at , the Plaintiff’s application for leave was refused. 5. In November 2014, the Plaintiff filed an application in the First Action “to introduce new evidence after final judgment at trialhas been made.” On November 19, 2014, Justice Poelman dismissed the application.

6. The present action is an obvious attempt to revisit the claims which were heard and dismissed by Justice Belzil almost three years ago. 7. The Statement of Claim fails to set out a reasonable claim, constitutes an abuse of process and is frivolous and improper. [ 8 ] An application for

summary judgement in this action was filed on August 17, 2015 by Mr. Clark. Analysis [ 9 ] The present action seeks the same relief as the action dismissed by Justice Belzil 0601-12779. As the history of the material above will demonstrate, the Defendants made an application to strike out the Statement of Claim and Mr. Clark responded with a Counter-Application for

summary judgment. [ 10 ] In his decision Mr. Justice Paul Belzil found at paragraphs 18, 22, 23, 32, 49 and 50: [18] The correspondence on April 4, 2006 from Ms. Proulx to the Plaintiff clarified that at all times material, this LIRA was subject to Alberta legislation, therefore withdrawals were permitted for non-residents. There is no evidence that the Plaintiff's LIRA was ever federally regulated. ... [22] I find as a fact that the error originated with an employee of the Defendant [Mr. Pezzente]. This error was corrected in Ms. Proulx's correspondence of April 4, 2006.

I also find as a fact that the error was honest and inadvertent, not intentional. ... [32] I do not accept that any breach of fiduciary duty has been proven by the Plaintiff but rather what occurred is properly characterized as a temporary administrative error which was fully corrected. ... [49] Given that I have concluded that the Defendant's error was honest, inadvertent and not intentional, there is no factual basis for awarding punitive or exemplary damages. [50] Although the Plaintiff proved that the Defendant committed an administrative error, he failed to prove that he sustained any losses as a result.

Accordingly, the Plaintiff's claim is dismissed in its entirety. [ 11 ] It is to be noted that the very misrepresentations dealt with by Mr. Justice Belzil is the basis for the present claim. In the Alberta Court of Appeal decision of this matter at para 10: The trial judge also found that the appellant did not prove he sustained any losses as a result of the respondent's error.

He noted that the balance in the account gained value during the delay period, the appellant had no immediate need for the funds from the third request, there was no evidence that the appellant needed further funds from the account during the delay period and there was no evidence that he incurred any borrowing costs during the delay period.

The trial judge did not accept that the dispute was the cause of the appellant's return to Canada, that the appellant proved any damages in connection with the sale of his house nor that the appellant proved he lost business opportunities during the delay period. [ 12 ] Key words in the Court of Appeal Decision include the conclusion of para 15: Adding breaches of fiduciary duty or similar doctrines would change nothing. The trial judge found that the delay in the third payout was an innocent error.

Since no loss was caused by that delay and the investment kept earning in the interval, the precise type of cause of action makes no difference [ 13 ] On November 2, 2015, Master Robertson of this court heard the application, now under appeal, of Mr. Clark and on November 5, 2015 dismissed the action for

summary judgment. The Learned Master granted the application to strike the claim of Mr. Clark against the defendants. [ 14 ] As the Master in his thorough and detailed decision said at commencing page 7, line 32: A more difficult application is the one to strike the claim entirely under Rule 3.68 but in the end I cannot see that this is anything more than an attempt to find justice where Mr. Clark feels he was failed before. He is essentially attempting to advance the same claim clothing it in some new detail that would not seemed to have had any effect on the outcome. Precisely who was the employer of Mr.

Pezzente given that his job apparently was to assist customers in investing in any of the TD related companies is not relevant. … [ 15 ] At page 8, line 4: But by the time [Mr. Clark] met with Mr. Pezzente, the evidence seems clear that he had already made some critical decisions about what was going to happen to his severance package and other investments. There is no evidence that Mr. Pezzente convinced him to do something that he otherwise would not have done … [ 16 ] And the Master at page 6, line 30 said this:

Regardless of how the cause of action was described, without damages there is no claim. The damages he seeks as described in the statement of claim in this action are mostly, if not entirely, a recitation of the same claim for damages that was dealt with by the trial judge in a claim against – these defendants and the balance of the defendants are their privies, as they are known in this area of law, being the law of res judicata.

They are separate corporations but all related. [ 17 ] Page 8, line 17: The tests to be considered when determining whether a proceeding is vexatious were identified in Dykun v Odishaw , 2009 ABQB 548 . They were reviewed in detail in the defendant’s brief in support of the application to strike.

In that case, Justice Lee said that if any of them were satisfied, the case would be considered vexatious and several of them apply here. ... [ 18 ] Page 8, Line 14: “once a case has been decided, subject to the appeal process, it is over,” and accordingly the Plaintiff’s claim should be struck. [ 19 ] The Master went on at p 10, line 6: Trials usually have winners and they have losers but, once a case has been decided, subject to the appeal process, it is over. Accordingly, I am bound to strike the claim.

Standard of Review [ 20 ] In Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 , the Alberta Court of Appeal has confirmed that the standard of review on appeal from a Master to a Judge is correctness. Decision [ 21 ] In this case the same question has been decided in earlier proceedings. The earlier judicial decision was final and on appeal it was confirmed as final.

The parties are the same in both proceedings ( Calgary (City) v Alberta (Human Rights and Citizenship Commission), (Calgary (City) , 2011 ABCA 65 ). [ 22 ] Therefore on review of the material filed and after listening to oral argument, I am satisfied that the decision of the Master must be upheld. The appeal is dismissed. Costs may be dealt with on application and in writing – not to exceed five pages. Heard on the 22 nd day of June, 2016. Dated at the City of Calgary, Alberta this 28 th day of June, 2016. W.P. Sullivan J.C.Q.B.A. Appearances: Alexander S.

Clark Self-Represented Plaintiff/Appellant Rinus de Waal for the Defendants/Respondents