Theaker v Public Service Alliance of Canada, 2017 ABQB 170

Court of Queen’s Bench of Alberta Citation: Theaker v Public Service Alliance of Canada, 2017 ABQB 170 Date: 20170310 Docket: 1503 16939 Registry: Edmonton Between: Karen Joy Theaker Plaintiff - and - Public Service Alliance of Canada, Union of Solicitor General Employees, Ray Domeij, ABC Corporation Ltd., Jane Doe, and Joseph Tietelbaum Defendants _______________________________________________________ Reasons for Judgment of W.S.

Schlosser , Master in Chambers _______________________________________________________ [ 1 ] This is a Rule 3.68 application by the Public Service Alliance of Canada, the Union of Solicitor General Employees and Mr. Ray Domeij (the ‘Union’), to strike an Amended Statement of Claim. The application pits a wrong rule choice against an inevitable conclusion. List of Authorities Applicant’s Authorities 1. Public Service Labour Relations Act , RSC 2003, c 22 ; 2. Theaker v Union of Solicitor General Employees and Public Service Alliance of Canada , 2013 PSLRB 17 ; 3. Alberta Rules of Court , AR 124/2010;

4. Limitations Act, RSA 2000, C L-12; 5. Martin v General Teamsters, Local Union No 3622011, ABQB 412; 6. Tottrup v. Alberta (Minister of Environmental Protection), 2000 ABCA 121; 7. Hunt v Carey Canada Inc, (SCC), [1990] 2 SCR 959; 8. Reece v Edmonton (City), 2011 ABCA 238; 9. British Columbia (Workers' Compensation Board) v Figliola, 2011 SCC 52; 10. Kniss v Stenberg, 2014 ABCA 73; 11. VWW v Wasylyshen, 2013 ABQB 327; 12. VWW v Leung, 2014 ABCA 121; 13. Serdahely Estate, 2008 ABQB 472; 14. Tibilla v. Public Service Alliance of Canada (Union of Taxation Employees), 2012 FC 1246; 15. McNeil v.

Duggan, 2014 ABQB 659; 16. Danyluk v. Ainsworth Technologies Inc, 2001 SCC 44. Respondent’s Authorities 1. Condon v Canada, 2014 FC 250; 2. Hunt v Carey Canada Inc, (SCC), [1990] 2 SCR 959. By the Court 1. O’Connor Associates Environmental Inc. v MEC OP LLC, 2014 ABCA 140; 2. Toronto Dominion Bank v Letendre, 2012 ABQB 323; 3. Community Futures Lesser Slave Lake Region v Alberta Indian Investment Corporation, 2014 ABCA 232; 4. David M Gottlieb, Professional Corporation v Tymkow, 2012 ABQB 262; 5. Joly v Pelletier, [1999] OJ No 1728 (Sup Ct J).

Facts [2] The Plaintiff, Karen Joy Theaker, was a Union member working for the Department of Justice when she was injured on thejob and required workplace accommodation. Ms. Theaker became dissatisfied with her employer’s treatment of her during this time, soshe filed a number of grievances; alleging harassment, discrimination and constructive dismissal. Mr. Domeij was the Unionrepresentative initially assigned to the Plaintiff’s case. [3] The Amended Statement of Claim alleges that none of these grievances was heard on its merits.

This prompted two “duty ofunfair representation complaints”. [4] The first of these later complaints was abandoned. The second was dismissed. It is reported at 2013 PSLRB 17. [5] Since that time Ms. Theaker filed a Human Rights complaint. A somewhat more focused lawsuit preceded this one (QBAction #1303 08527). There is also, apparently, a lawsuit against Her Majesty the Queen in Right of Canada, filed in Federal Court. [6] The grievances and the duty of fair representation complaints were filed in the 2009-2013 time frame.

The earlier lawsuitwas filed in June, 2013. [7] It is at this point that a villain, Joseph Teitelbaum, enters the scene. Ms. Theaker alleges that she abandoned her earlierlawsuit and her legitimate union complaints because of harassment and retribution suffered at the hands of the Union and the Union’shenchman, Joseph Teitelbaum. [8] The balance of the lawsuit is a wide-ranging chronology of misery allegedly suffered by Ms. Theaker at the hands of Mr.Teitelbaum during the 2013-2015 time-frame. As the amended pleading makes clear, Mr. Teitelbaum is Ms.

Theaker’s Moriarty. [9] The Amended Statement of Claim is not expertly drafted. The Amended Statement of Claim, and the affidavits tendered byMs. Theaker are the products of an unsettled mind. The contents are of varying lucidity and often lapse into paranoia. A large portion ofthe allegations are devoted to a

summary of news reports relating to cyber-terrorism in the 2011-2016 time-frame. Indeed, the purpose of

much of the pleading appears to be to alert the world to the dangers of cyber-bullying and cyber-terrorism. [ 10 ] Ms. Theaker alleges she first met Mr. Teitelbaum on an online dating website. [ 11 ] Harassment by an acquaintance met on an online dating website would hardly seem to have anything to do with Ms. Theaker’s workplace complaints. However, paragraph 6 of the Amended Statement of Claim identifies Mr. Teitelbaum as “an agent, employee, operator or ‘hactivist’” for the Public Service Alliance of Canada Union and the Union of Solicitor General Employees.

Wrong Rule Choice [ 12 ] If we assume, for the sake of argument, that Mr. Teitelbaum’s misdeeds are torts or crimes, outside the reach of the collective agreement’s resolution process, one would expect that the appropriate procedural response would be a Rule 7.3 application for

summary judgment. Armed with a case such as Kniss v Stenberg (or Tibilla , at paras 3-5 , or, McNeil , per Hanebury, M.), on the question of the Court’s power to intervene in union matters, and a several-line affidavit denying any relation between the Union and Mr. Teitelbaum, the application would likely have been over in minutes. [ 13 ] Instead, the Union relies on a rule that proceeds on the assumption that all of the allegations in the Amended Statement of Claim - however preposterous - are true.

To use an example from one of the decided cases, an application to dismiss a Plaintiff’s claim that his rights to live freely as a Martian have been compromised ( Joly v Pelletier ), is not most advantageously brought using a rule that presumes this to be true [1] . [ 14 ] The tests for Rule 7.3 and Rule 3.68 applications are also different. Rule 7.3 requires that the Court decide ‘whether a fair and just determination can be made on the record presently before it’; with a degree of certainty usually between the ordinary civil standard and what is sometimes described as the criminal standard.

Rule 3.68, on the other hand, requires the Court to identify a fatal flaw in the lawsuit to the ‘plain and obvious’ or ‘beyond reasonable doubt’ standard. The Court is required to conclude (for example), that it is plain and obvious or beyond doubt that a lawsuit discloses no reasonable claim (Rule 3.68(2)(b)). Rule 3.68 is often not the optimal choice, both from the perspective of the standard required for success and from the way the Court proceeds with these types of allegations.

Some of the other issues in this case (noted below) simply compound the problem. [ 15 ] For these reasons, and because a Rule 3.68 application will typically prompt an amendment, authorities such as the Civil Procedure Guide suggest that more money is wasted on this rule than any other. Analysis [ 16 ] I am going to begin with Rule 3.68(2)(b). i. Rule 3.68(2)(b) [ 17 ] This rule requires that the Court consider whether the lawsuit discloses ‘no reasonable claim’. Rule 3.68(3) tells us that no evidence may be submitted for this part of the application. The cases are clear.

The Court is to proceed on the basis that the facts alleged in the Amended Statement of Claim are true, or capable of being proved. [ 18 ] If we were to take paragraph 6 of the amended pleading as true, Mr. Teitelbaum is agent or an employee of the Union and, presumably, the Union might bear some responsibility for, at least some of his actions, on the principle of vicarious liability. I acknowledge that the decided cases set a wide ranging principle of non-interference in union matters.

I also acknowledge that it does not matter whether a set of facts that might be governed by the collective agreement can also be legally characterized as a ‘crime’, or a ‘tort’. That is not enough, in itself, to put it outside the Union’s jurisdiction (e.g. Kniss at para 24 ). The Court is to ask whether something is fundamentally within its jurisdiction or only incidentally so because of how it might be legally characterized.

If the latter, it is to be left to the union process. [ 19 ] On the assumption that the things pleaded in the Amended Statement of Claim are true, the Union’s bullying and harassment prevented the Plaintiff from advancing her legitimate complaints using the ordinary grievance process. Some of the acts complained of, arguably, also cross the line and are fundamentally intentional torts and crimes. [ 20 ] On this assumption, I cannot say it is beyond doubt that the Amended Statement of Claim discloses no reasonable claim. ii.

Evidence [ 21 ] Evidence is permitted for other parts of Rule 3.68. [ 22 ] The Union submitted an affidavit of Ms. Susan Stone filed February 3 rd , 2017. For her part, Ms. Theaker submitted a series of affidavits, including an earlier one filed in support of an application to renew the Statement of Claim, which reads at paragraph 5: 5.

It became known to me, in the past 2 years, through a man who has been revenge stalking me online for the better part of the last 10 years (Joseph Teitelbaum), that Governments, and powerful corporations, including Unions, out-source “surveillance” and acts of intimidation, through a phenomonen called “Organized Stalking” and “Hacktivism” to avoid liability. Mr. Teitelbaum let it be known to me that he was working for PSAC Union and the Federal Department of Justice to thwart my legal employment claims. (Emphasis added)

[ 23 ] The Union’s affiant, Ms. Stone, is an administrative assistant in the law office representing the Union. All of her affidavit is sworn on information and belief. She attaches, as exhibits, the Statement Of Claim and defence in the earlier action, a copy of the court application filed in the earlier action, and an affidavit of Chantal Homier-Nehme, also filed in QB action number 1303 08527. [ 24 ] None of this evidence is admissible in its present form. An application based on Rule 3.68 is a ‘final application’, as its purpose is to dispose of all or part of Ms. Theaker’s claim.

Rule 13.18(3), in the technical rules, prohibits evidence of this kind from being used by an applicant in this type of application. It must be first-hand evidence, which this is not. [ 25 ] Rule 5.33, generally, prevents evidence taken in one lawsuit from being used in another. Rule 6.11(1)(

f) might permit the use of Ms. Homier-Nehme’s affidavit, but it requires notice of this intention to the other side, and leave of the Court. [ 26 ] The Court can take notice of its own proceedings. It can also take notice of the Public Service Labour Relations Board decision (attached as an exhibit to Ms. Homier-Nehme’s affidavit, and reproduced in the authorities) but not as proof of the truth of its contents. All of the other evidence is second, or third hand. [ 27 ] There is very little in the way of admissible evidence to determine this application other than, somewhat ironically, Ms.

Theaker’s affidavits. iii. Rule 3.68(2)(a) [ 28 ] This takes us to Rule 3.68(2)(a): ‘whether the pleading discloses a matter for which the court has no jurisdiction’. [ 29 ] As noted, the Court has very limited- jurisdiction to interfere in the grievance process, or in matters that are covered by the collective agreement. This applies to the ten grievances alleged to have been filed, and the two ‘duty of fair representation’ complaints. As for the other matters alleged in the Amended Statement of Claim, we are really no further ahead.

I acknowledge that the type of acts described by the amended pleading would be violations of s 189(1)(

b) of the Public Service Labour Relations Act , and I also acknowledge the description of the jurisdiction of the Public Service Labour Relations Board, but given the nature and degree of some of the allegations, I cannot say that it is beyond doubt that the Court lacks jurisdiction to adjudicate the claims in Ms. Theaker’s lawsuit. iv. Limitations [ 30 ] The Union argues that the Statement of Claim should be struck out because it is out of time.

They raise s 3 of the Limitations Act in their brief. [ 31 ] There are several problems with this argument. [ 32 ] First, the Union has not pleaded the Limitations Act in their Statement of Defence (which was drafted by out-of-province counsel).

The Limitations Act does not act as a bar to claims, it only provides an immunity if it is pleaded as a defence. [ 33 ] If I assume, for the sake of argument, that it is open to the Court to consider an unpleaded limitation in a Rule 3.68 application [2] it would have to be obvious on its face that the Statement of Claim was filed out of time and perhaps, if pleaded, a limitations immunity would have been inevitable. [ 34 ] In this case, the Statement of Claim raises events up to 2015 (discounting the

summary of news reports). The original Statement of Claim was filed in 2015, amended in 2016, and renewed just before expiry, by Order, in November 2016, for a period of three months. [ 35 ] For the purposes of s 3(1)(

b) of the Limitations Act , or 3(3)(

a) of the Limitations Act , a claim for a course of conduct, or a series of acts or omissions, does not arise until the conduct terminates. [ 36 ] From a procedural perspective, a limitations argument would likely focus on s 6 of the Act, not s 3. I need not comment on whether the Order renewing the Amended Statement of Claim for three months, granted in November of 2016, means that the Statement of Claim has now expired unserved against ABC Corp or Joseph Teitelbaum. [ 37 ] The Applicant’s limitations argument is procedurally and factually unfounded. v.

Rule 3.68(2)(c), (d) [ 38 ] This leaves to two possibilities: (a) 3.68(2)(c) ‘the commencement document is frivolous, irrelevant or improper’; (b) 3.68(2)(d) ‘the commencement document constitutes an abuse of process’. [ 39 ] Beginning with r 3.68(2)(d), I cannot say that a second Statement of Claim is necessarily an abuse of process, warranting it to be struck out, especially when the gist of action is that harassment by the Union prevented the Plaintiff from seeking legitimate remedies in the first place.

In a manner of speaking, the abandonment of the first claim and the circumstances surrounding it could well be evidence supporting the present claim.

[ 40 ] Nor can I say that the mere existence of a Statement of Claim where there is a union grievance process, is inherently an abuse of process. [ 41 ] The Applicants appear to pin many of their hopes on Rule 3.68(2)(c): ‘frivolous, irrelevant or improper’. In support of this argument, they cite, amongst other authorities, the decision of Justice Manderscheid in VWW v Wasylyshen , 2013 ABQB 327 . In that case, the Plaintiff, who had been declared a vexatious litigant, sought leave to continue her lawsuit.

One of the Defendants applied to strike it out. [ 42 ] Justice Manderscheid noted there was no supporting evidence for claims he understatedly described as extraordinary. The learned Justice also noted that the Plaintiff’s claims bore the hallmarks of vexatious litigation. He denied the Plaintiff leave to continue the action, and struck out those portions of the lawsuit relating to the Applicant. [ 43 ] There are, of course, similarities between the present lawsuit and the one considered by Justice Mandersheid. I note, however, that this lawsuit is not brought in the context of a vexatious litigant order.

I also note ‘vexatious’ is no longer in Rule 3.68, as it was in its predecessor Rule 129(1)(d). This was one of the improvements selected by Alberta Law Reform in the Rules Project. [ 44 ] The annotations to Rule 3.68 in the Civil Procedure Guide (p3 – 116) suggests that the ‘concept of a vexatious lawsuit and the law remain in the rule’; perhaps like Maitland’s Forms of Action . [ 45 ] Justice Manderscheid notes at paragraphs 56 and 57: [56] Certain characteristics are commonly associated with vexatious litigation.

One is an absence of facts to describe and support the alleged misconduct, which I have reviewed above. Rule 3.68(2)(c)) authorizes me to dismiss an action that is frivolous, irrelevant or improper. A pleading is frivolous if its substance indicates bad faith or is factually hopeless : Donaldson v. Farrell , 2011 ABQB 11 at para. 20 . A frivolous plea is one so palpably bad that the Court needs no real argument to be convinced of that fact : Haljan v. Serdahely Estate , 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 McMeekin v. Alberta (Attorney General) , 2012 ABQB 456 at paras. 178-211 . Many of these factors are present in the current proceeding. (Emphasis added) [ 46 ] Many of the

definitions referred to in the decided cases ( Serdahely Estate , per Acton, J. at paras 21-23 referred to in the quote above, is also helpful) tend to be circular in the context of a rule 3.68, application or impart the concept of vexatious litigation. [ 47 ] While much of the amended Statement of Claim falls into the category spoken of by Justice Manderscheid, I cannot say that its central point; being that the Union engaged in harassment, intimidation and bullying to dissuade the Plaintiff from seeking a legitimate remedy, is inherently frivolous. [ 48 ] There is a larger principle at stake here.

In my view, the Courts should be slow and cautious about labelling litigants or branding claims as preposterous, and simply reversing the onus; requiring a Respondent at a

summary dismissal application to, in effect, justify her claim. The Plaintiff would have to prove her claim at trial but it is the Applicant who bears the legal burden at this type of application. Unless a claim is so patently and obviously bad on its face, the Court owes litigants a duty to explain why a claim cannot succeed and should be dismissed summarily. [ 49 ] Much of Ms. Theaker’s Amended Statement of Claim is irrelevant or improper. In writing these Reasons, I attempted to perform the exercise of editing the Amended Statement of Claim to remove the improper material to see if a claim could be salvaged.

This led me to the conclusion that I do not see any way of it being saved; though not for reasons that are obvious, even from the state of edited pleadings. [ 50 ] If, for the sake of argument, we were to reduce the claim to what I understand to be its essence, and save paragraphs: 1, 2, 3, 6, 12, 57 b(part), 58 a, b, c, d, f and paragraphs 59 and 65-71, the question remains whether there is any prospect of this claim succeeding at trial. (I am trying not to convert this into a Rule 7.3 application but instead attempting to determine whether the claim might be ‘improper’ or ‘frivolous’ for the purposes of r 3.68(2)(c)). [ 51 ] Ms.

Theaker acknowledges in her affidavit evidence that she does not know the whereabouts of Mr. Teitelbaum and that she does not have the resources to find him. To switch metaphors, the elusive Mr. Teitelbaum seems to have disappeared, ‘Macavity-like’, into the ether. There is no way Ms. Theaker could prove her claim without his evidence, especially in the face of what will surely be a denial of any connection by the Union. Ms. Theaker has, in effect, admitted that her claim is hopeless and, for practical purposes, unprovable.

Maintaining a claim that you acknowledge you cannot prove is improper or frivolous for the purpose of Rule 3.68(2)(c), even when it might not be inherently so on the state of the pleadings. [ 52 ] I do not know what will bring closure to the issues Ms. Theaker has been suffering but it is not this lawsuit. Disposition [ 53 ] The application is allowed and the lawsuit is dismissed, despite the Union’s efforts. In the circumstances, I am going to deny costs of the application but not of the action. Heard on the 21 st day of February, 2017.

Dated at the City of Edmonton, Alberta this 10 th day of March, 2017. W.S. Schlosser M.C.Q.B.A.