Riccioni v Law Society of Alberta, 2017 ABQB 261

Court of Queen’s Bench of Alberta Citation: Riccioni v Law Society of Alberta, 2017 ABQB 261 Date: 20170412 Docket: 1501 00406 Registry: Calgary Between: Peter D. Riccioni Plaintiff - and - The Law Society of Alberta, Alberta Lawyers Insurance Association (a.k.a. Alberta Lawyers Insurance Exchange), Carsten Jensen, Jensen Shawa Soloman LLP, Perry R. Mack, Machida Mack Shewchuck Meagher LLP, John Doe(s) 1 To 10 Defendants _______________________________________________________ Memorandum of Decision of A. R. Robertson , Q.C., Master in Chambers _______________________________________________________ Introduction

[ 1 ] This is an application to strike an amended statement of claim in its entirety pursuant to rule 3.68 on three grounds: (

a) that the plaintiff has no cause of action against the defendants, (

b) that the action is frivolous, and (

c) that it is an abuse of process. [ 2 ] There is also a cross-application, brought at the last moment, to amend, very substantially, the amended statement of claim and to add four more identified individuals in place of four of the “John Doe” parties named. [ 3 ] The defendants already named and the proposed added defendants are the Law Society of Alberta (“LSA” or “Law Society”), the Alberta Lawyers Insurance Association (“ALIA”), several lawyers involved in some way with the LSA (some with the disciplinary proceedings themselves), and the law firms of two of them. [ 4 ] I will consider the application to amend first, and then consider the application to strike. [ 5 ] When considering the application to strike, in light of the complexity of the pleadings and the requirement of rule 3.68(3) I will review the amended statement of claim from two perspectives: without evidence, and with evidence. [ 6 ] For the reasons set out herein, I dismiss the application to file an amended amended statement of claim, and I dismiss the action in its entirety pursuant to rule 3.68.

Background [ 7 ] The plaintiff, Mr. Riccioni, was a lawyer in private practice who was the subject of complaints relating to his failure to comply with the rules of the LSA. He initially faced 20 citations. He admitted to one of them (that he failed to follow the accounting rules of the LSA and that such conduct is conduct deserving of sanction). At the conclusion of a hearing before three benchers of the LSA, counsel for the Law Society acknowledged that five of the citations had not been proven. Mr.

Riccioni was found guilty of the remaining 14 citations. [ 8 ] The facts leading up to the complaint and disciplinary hearing involved multiple cases of mortgage fraud in which Mr. Riccioni had some involvement, although not as a principal actor. Mr. Riccioni was found to have carried on his private practice (as a sole practitioner) in a manner that facilitated the fraud. The Previous Proceedings [ 9 ] An understanding of the steps in the previous proceedings is necessary to put this claim in context. [ 10 ] The decision as to whether Mr.

Riccioni had engaged in conduct deserving of sanction in relation to the 15 citations (the one admitted plus the 14 proven) was rendered November 14, 2012. The hearing had stretched out over the course of well over one year, starting February 14, 2011 and concluding May 10, 2012. Counsel for both parties made submissions on the appropriate sanctions on November 26, 2012, and the hearing committee released the sanction phase report on January 11, 2013. He was disbarred. [ 11 ] Mr. Riccioni appealed, and the appeal was heard before a committee of seven benchers, including two non-lawyers, on December 16, 2013.

Written reasons dismissing the appeal were delivered March 5, 2014. The appeal committee upheld the decision of the hearing committee, [ 12 ] He further appealed the decision to the Court of Appeal of Alberta, which was heard February 5, 2015, and the reasons dismissing the appeal were filed on March 19, 2015. Steps in These Proceedings [ 13 ] An understanding of the steps in these proceedings is also necessary, in order to put the concern of “bad faith” (relating to his proposed amended amended statement of claim) in context. [ 14 ] Mr.

Riccioni filed a statement of claim in these proceedings, on January 12, 2015, which was prior to the hearing of his appeal by the Court of Appeal. He sued the Law Society of Alberta and 22 individuals. [ 15 ] He did not serve the original statement of claim. He filed an amended statement of claim on January 11, 2016, deleting most of the individuals named, but adding Alberta Lawyers Insurance Association (“a.k.a. Alberta Lawyers Insurance Exchange”) and the law firms where two of the individual defendants (Mr. Jensen and Mr.

Mack) worked at the relevant time, and he added “John Doe(s) 1 to 10”. [ 16 ] That amended statement of claim substantially re-wrote the original statement of claim. He underlined the entire text in red. [ 17 ] A statement of defence on behalf of all of the defendants was filed January 19, 2016. Mr. Riccioni filed a reply to defence on February 1, 2016.

Accordingly, pleadings closed on February 1, 2016, pursuant to rule 3.67 of the Alberta Rules of Court . [ 18 ] On the same day that the statement of defence was filed, the defendants filed an application, returnable February 10, 2016 for an order striking the amended statement of claim.

That is the application currently before the Court. [ 19 ] The application to strike was initially adjourned to July 11, 2016 at 2:00 p.m., so that it could be heard as a special application. [ 20 ] The defendants filed a brief and their supporting authorities on June 14, 2016, but there was a short delay in having it served upon Mr. Riccioni. The deadline in Practice Note 2 had not been met. As a result, I adjourned the special application to January 31, 2017. Once again, it was scheduled to be heard as a special application. [ 21 ] I directed that Mr.

Riccioni file and serve his response brief on or before September 30, 2016. I intended to give Mr. Riccioni

more than sufficient time for his brief to be filed and served, but still have it served well in advance of the new return date. [22] However, Mr. Riccioni did not file his brief on or before September 30. Almost four months later, on January 20, 2017 hefiled an amended amended statement of claim, without the consent of the defendants and without approval of the court.

This was in clearviolation of rule 3.62 of the Alberta Rules of Court. [23] The amended amended statement of claim added four new individuals, being two members of the Law Society ConductCommittee (Kevin Feth and Sandra Corbett), the Chair of the Appeal Panel (Fred Fenwick), and the Executive Director and Manager ofConduct with the Law Society (Katherine Whitburn). [24] Prior to filing the amended amended statement of claim, Mr. Riccioni swore two affidavits in Texas, one on December 6,2016 and one on December 19, 2016. The first was filed December 15, 2016 and the second was filed on January 3, 2017.

They arealmost the same. I am hard-pressed to find any significant difference. They both have unusual aspects, particularly an exhibit called a“Notice of Void Judgment” that Mr. Riccioni has apparently filed with the office of Official Public Records in Galveston County, Texas. That document, of course, has no meaning in Alberta. [25] Those affidavits were filed in opposition to the application to strike his claim, not in support of his amendment, but I haveread them and I have taken them into account on the amendment1501 03244q application.

They make sweeping allegations, often withno detail to support the conclusions of wrongdoing alleged. Where that is the case, I have not considered the unsupported allegations,following Guarantee Co of North America v Gordon Capital Corp, (SCC), [1999] 3 S.C.R. 423 at para. 31. A self-serving affidavit that sets out conclusions and opinions but does not state the supporting facts cannot be taken into account. [26] Both Mr. Riccioni and defence counsel sometimes refer to the “hearing panel” and the “appeal panel”.

The proper terms are“hearing committee” and “appeal committee”, as used in the Legal Profession Act, RSA 2000, Chap. L-8. I will use the word“committee” except when quoting from the pleadings and correspondence. [27] The changing list of defendants in the style of cause adds to the confusion in understanding the claim.

For example, Ms.Whitburn was named in the original statement of claim, but her name was omitted from the style of cause in the amended statement ofclaim, and her name appears again as a defendant in the improperly-file amended amended statement of claim. [28] The style of cause shown at the beginning of this memorandum reflects the parties as described in the amended statement ofclaim, not the parties as described in the improperly-filed amended amended statement of claim. [29] Mr. Riccioni filed his responding brief (which was due September 30) on January 30, 2017 – only the day before the specialapplication.

There had been an exchange of correspondence amongst counsel, Mr. Riccioni, and the Court in the business days leadingup to the hearing. It began with defence counsel’s objection to the delivery of the amended amended statement of claim and the latefiling (at that time non-filing) of a reply brief. [30] My response was that we would deal with the amended amended statement of claim at the outset of the special application. The Application to Amend the Claim [31] Mr. Riccioni mentioned, in one brief paragraph at the end of his responding brief, that he was asking for leave to amend thestatement of claim.

At the hearing he presented an unfiled application and an unfiled affidavit. [32] When the amended amended statement of claim was filed, pleadings were closed, and there was no consent from either thedefendants, or the proposed new defendants, or approval by the Court. Rule 3.62 (as well as other rules mentioned below) was ignored. On that ground alone, the amended amended statement of claim should be struck. [33] However, I consider the application brought by Mr.

Riccioni so late in the day to be an application to further amend theamended statement of claim nunc pro tunc. [34] No one addressed the requirement to serve the proposed new parties with notice of the application, as required by rule 6.3(3)(requiring five days’ notice on not only parties but “every other person affected by the application”), or the requirements of rule 3.74(“Adding, Removing or Substituting Parties After Close of Pleadings”).

Defence counsel’s arguments indicated that she was, or wouldbe, representing the proposed new parties as well as the existing defendants, so there was no need to adjourn for notice to them. [35] The unsworn affidavit in support of the application was not served “a reasonable time before the application [was] to beheard” as required by rule 6.6. That rule provides that I am to ignore it unless I rule otherwise. In the circumstances, I have taken it intoaccount. [36] The law is clear that when there is an application for

summary judgment and there is a cross-application to amend, the Courtshould consider the proposed amendment before the

summary judgment application: Hur v 726913 Alberta Ltd, 2013 ABQB 208 at para. 27 and H. Ash & Associates v Banham, 2014 ABQB 718, [2014] A.R. 731. In my view, the same approach applies toan application to strike a claim under rule 3.68. [37] It is not a simple matter to perform this analysis here. Although parts of the amended statement of claim are reproducedverbatim in the amended amended statement of claim, Mr.

Riccioni has underlined the entire content of the amended amended statementof claim, thus obscuring the changes that he proposes from the previous pleading rather than identifying them. [38] Some modest level of evidence is required to seek an amendment: Attila Dogan Construction and Installation Co. Inc., v.AMEC American Limited, 2014 ABCA 74 at para. 26 and 27. A higher level of evidence is required where the proposedamendments contain assertions of fraud or high-handed or malicious conduct: Canadian Natural Resources Ltd v Arcelormittal, 2013ABCA 87, at para. 11.

[39] On an application to amend, one of the grounds for refusing the amendment is that the claim proposed to be included ishopeless: Manson Insulation Products Ltd v Crossroads C & I Distributors, 2011 ABQB 51 , at para. 45, citing DowChemical Canada Inc. v. Nova Chemicals Corporation, 2010 ABQB 524 at para 20-21 (and see Attila Dogan, cited above). Another ground for refusing the amendment listed in Manson Insulation Products is that it would add a new party or a new cause ofaction after the limitation period had expired.

A further ground identified is where “there is an element of bad faith associated with thefailure to plead the amendment in the first instance”. “Fresh Evidence” [40] Mr. Riccioni says that the basis for the proposed amendment is that Mr. Riccioni learned of new evidence after the amendedstatement of claim was filed. This is his explanation for part of the new claims proposed against Carsten Jensen relating to “suppressionof information, breaches of contractual and fiduciary duties, breaches of trust, presenting false statements of fact” and perhaps otherallegations. [41] In support, Mr.

Riccioni provided an unfiled affidavit sworn January 31, 2017 asserting that a consent order had been madedelaying an affidavit of records from the defendants, and then he found that certain important information had not been disclosed to him. He says he learned only recently that the “hearing panel” (he means the hearing committee) had not been appointed by Mr. Jensen, whowas a lawyer appointed by ALIA to defend him at the time, but rather by Kevin Feth. [42] Mr. Riccioni was sued by various parties in connection with unpaid mortgage claims. ALIA appointed Mr. Jensen as legalcounsel to defend his position. Mr.

Jensen was therefore counsel for ALIA as the insurer, but in that capacity he was representing Mr.Riccioni. [43] Mr. Riccioni alleges that he had specifically asked Mr. Jensen who had selected the hearing committee members for hisdisciplinary hearing. Mr. Jensen had replied in an email on February 10, 2015: As I have told you a number of times, I had no involvement of any kind with your Law Society matters. I wasn’t consulted, had no inputand no role. Because I was your counsel on the ALIA matters, involving me in any way would have been in a conflict, and so I wasn’tinvolved.

So, the answer to questions one through 13 is “I don’t know”. I would note that I was your counsel before I became chair ofconduct of the Law Society, and so I was kept away from your Law Society matters right from the beginning. It wasn’t a matter ofstepping back – I wasn’t ever involved at all. [44] But in 2011 Mr. Riccioni had received a copy of the letter of appointment of the hearing committee - apparently signed by Mr.Jensen. He did not raise any concern at the time. On April 26, 2016, he received a letter from defence counsel in (in this action)explaining that the appearance of Mr.

Jensen’s signature on the letter of appointment was due to an administrative error in the LawSociety offices, and not because Mr. Jensen was involved. Mr. Jensen specifically recused himself from any involvement of the conductcomplaints against you, based on a conflict arising from his representation of you on the ALIA matter. Consequently, Mr. Jensen wasnot involved in any capacity with respect to your disciplinary matter. For your information, I enclose a series of emails respecting theappointment of panels, and you’ll note Mr.

Jensen’s specific advice that he was conflicted on the matter dealing with your complaints. [45] The enclosed email string makes it clear that at the outset Mr. Jensen had recognized the conflict and he had asked Kevin Fethto make the appointment. The fact that Mr. Feth made the appointment (not Mr. Jensen) is acknowledged by Mr. Riccioni in paragraph40 of the amended amended statement of claim. [46] Document J1 of binder 1 marked at the disciplinary hearing was the notice of appointment of the hearing committee,apparently signed by Mr. Jensen. Although Mr.

Riccioni asserts that he was primarily a litigation lawyer for 17 years, he says he did notappreciate the letter. But his unsworn affidavit of January 31, 2017 says, “in 2011, I received a letter of appointment confirming Jensensigned the letter and appointed the hearing panel members.” [47] There is no reason to question the explanation from defence counsel, particularly in light of the email of September 3, 2010when Mr. Jensen specifically advised Mr. Feth to appoint the committee “as I am conflicted on this matter”. [48] The evidence therefore indicates that Mr.

Jensen was not completely accurate when he said he “wasn’t consulted”. It maymore accurately be said that he was consulted, but declined to participate. But this becomes a word game. He did precisely what theLaw Society and the courts expect when a lawyer is asked to take a step but finds himself in a conflict: the lawyer is expected to declineto participate. [49] By letter of September 22, 2016, defence counsel wrote and said she had been advised that Kevin Feth appointed the appealpanel (she was referring to the appeal committee). [50] Mr. Riccioni’s allegation that Mr. Jensen concealed this point (Mr.

Feth’s role) is the foundation of his assertion that therewas “fresh evidence”. His point is that Mr. Jensen was not honest with him and the result is that he did not know that it was Mr. Fethwho appointed both the hearing committee and the appeal committee. [51] Mr. Riccioni had the explanation regarding Mr. Jensen’s signature from defence counsel in April 2016, about three monthsbefore the original date for the hearing of this special application, and about eight months before he filed the amended amendedstatement of claim which he says was done based on this “fresh evidence”. [52] Therefore, Mr.

Riccioni had both the appointment letter and the February 10, 2015 email from Mr. Jensen long before his firstamendment to the claim, and he had the explanation long before the application to strike was to be heard, and long before he improperlyfiled his amended amended statement of claim. [53] Therefore, the only “fresh evidence” to justify an amendment that Mr. Riccioni learned after the application was adjourned inJuly 2016 was the knowledge that Mr. Feth had appointed the appeal committee. He already knew Mr. Feth had appointed the hearing

committee. [ 54 ] There is no evidence that up to that time he had shown any interest about who had appointed the appeal committee, prior to the email from him to Mr. Jensen sent February 10, 2015. That was about 11 months after the Court of Appeal had dismissed his appeal and over a year after he started this claim. Other New Claims in the Amended Amended Statement of Claim [ 55 ] It is difficult to separate the claims as against each of the proposed new defendants. Many allegations are bundled together.

Some are grouped as allegations against “the defendants” although some specifically reference certain individuals. [ 56 ] He asserts in his affidavit that the real party of interest and complainants were actually Kevin Feth and Sandra Corbett employed at Field Law in tandem with Perry Mack employed at MMSM. Field Law and MMSM filed lawsuits against me supposedly acting in their clients’ best interests. [ 57 ] Mr. Riccioni explained in oral argument that the thrust of most of the new amendments are to the effect that Mr. Feth, Ms. Corbett, Mr. Mack, and Mr.

Fenwick each had a personal interest, and therefore they were biased in the prosecution of the complaints. He says that they were acting in connection with claims where he was named either as a defendant or is a third party arising out of the mortgage fraud scheme. [ 58 ] But neither of them was the lawyer prosecuting the complaints, nor were they on the committee of three benchers who initially heard the complaints. Mr. Fenwick sat on the appeal committee. [ 59 ] And the amended amended statement of claim does not seek to add just Mr. Feth and Ms. Corbett. It also purports to add Katherine Whitburn.

She is the Executive Director and Manager of Conduct at the LSA. [ 60 ] The proposed claim against Ms. Whitburn, in particular, is not well described. Various broad allegations are made with little or no details. [ 61 ] In paragraph 10, he asserts that she, along with Mr. Jensen, Mr. Mack, Mr. Feth and Ms. Corbett were “using their positions with the LSA as a tool to gather evidence against him, the ‘patsy’, in order for their swindle to succeed.” There are no details given. [ 62 ] At sub-paragraph 25 h, he asserts that Mr. Jensen and Ms. Whitburn thwarted his attempts to assemble evidence in his favour.

He provides no details. [ 63 ] At sub-paragraph 25 j Ms. Whitburn is mentioned, together with Mr. Jensen and Mr. Feth, where Mr. Riccioni asserts that she believed the Legal Profession Act overrides the Alberta Bill of Rights and the Charter . At sub-paragraph m, he asserts that she, together with Mr. Feth, Mr. Jensen and Mr. Fenwick, would have directed suspicion to Theresa Calmusky (a defendant in the mortgage fraud claims) or would have had to withdraw their claims against Mr. Riccioni if some evidence had not been withheld.

At paragraph 63, he asserts that “Whitburn denied Jensen’s involvement in the disciplinary process. This could be viewed as an elaborate cover-up, now using Whitburn to support Jensen’s dishonesty.” [ 64 ] This allegation of evidence withheld seems to be limited to the letter signed by Mr. Jensen in error, and that Mr. Feth’s role appointing the hearing committee was “concealed” from him. [ 65 ] Since the erroneous appointment letter was presented as fact by the LSA at the first hearing, “This shows bad faith and conspiracy, on the part of Jensen, Feth and Whitburn.” Other references to Ms.

Whitburn are in references to “the defendants” as a whole. [ 66 ] His claim against Mr. Mack, Mr. Feth and Ms. Corbett, in sub-paragraphs 25 l and m, is that they created the disciplinary citations from claims launched against him “and allegedly on behalf of their clients”. [ 67 ] Reading all of this, I think Mr. Riccioni’s concern is that they used information that they had become aware of through the litigation that they were handling to inform themselves when drafting the citations. That assumes that the complaints were improper.

That is contrary to the known result – one citation admitted, 14 proven, five acknowledged not to have been proven. [ 68 ] I cannot see a proper claim here, as I discuss below in considering the entire claim under rule 3.68. [ 69 ] I will examine the allegations against some of the other proposed individual defendants to the extent that I can separate the allegations made against them. Perry Mack [ 70 ] Mr. Mack’s involvement was extremely tenuous.

He can be considered separately from the other individual proposed defendants, although various unsupported allegations are made against him together with others, discussed below. Although he was named as a defendant in the amended statement of claim, the assertions against him are expanded in the amended amended statement of claim. [ 71 ] Mr. Mack was a partner at a firm (Machida Mack Shewchuk Meagher LLP) that represented defendants, called “straw buyers”.

These were people who had found themselves mixed up in a series of frauds whereby they signed documents and were named as purchasers of real estate that were given phony inflated values in transfers of land and then mortgaged using the inflated values. When the scheme collapsed, they were found to be liable for the mortgage debts (as the mortgages were high ratio loans). But Mr. Mack, who happened to be President of the Law Society at the time, is not said to have been actively involved in the defence of those claims. Another lawyer with his firm was acting on the matters.

[ 72 ] Mr. Riccioni asserts, without any evidence at all, that Mr. Mack was drumming up business for his firm, to be handled by someone else. This is not enough for an amendment. I recognize that the basic assertion is in the amended statement of claim, but an application to amend a claim requires at least some modest evidence to support the amendment: Attila Dogan , cited above. Even if the allegation were true, the allegation is not that he was seeking to commence proceedings.

At worst, the allegation is that he was encouraging defendants to use his firm in the defence of the claims. [ 73 ] Perhaps there is a suggestion that he was encouraging claims over against Mr. Riccioni. But he was not the lawyer handling the matters in his office. Furthermore, there is no evidence that Mr. Mack had anything to do with selecting either the hearing committee or the appeal committee. He did not sit on either committee. He had nothing to do with the decision that Mr. Riccioni should be disbarred. [ 74 ] There is simply nothing in these allegations the gives rise to any claim that Mr.

Mack did anything wrong that might possibly be actionable, as I will discuss below. There is no proper basis for an amendment to expand the allegations. Kevin Feth, Sandra Corbett, and Fred Fenwick [ 75 ] These three lawyers at least are said to have had something to do with the disciplinary process. [ 76 ] Paragraph 25 of the amended amended statement of claim lists, from sub-paragraph “a” to sub-paragraph “s”, 19 alleged flaws that he says occurred in the hearing process. As against the new defendants, he says that Mr. Jensen and Mr.

Feth actually believed the Legal Profession Act overrides the Alberta Bill of Rights , apparently because he alleges that they withheld evidence. It is not clear what evidence they are said to have withheld, and there is no evidence to support this amendment, and these assertions are complaints about the hearing committee and appeal committee and how the hearings were conducted. That was a subject of the appeal to the appeal committee and then the appeal to the Court of Appeal. [ 77 ] He asserts that Mr. Feth and Ms. Corbett drafted the citations against him. He sees this as an improper strategy involving Mr.

Feth both drafting the citations and appointing the committees. [ 78 ] At paragraph 31 of his affidavit of December 6, 2016, he lists wrongs that he says were committed by Mr. Feth and Ms. Corbett. Apart from the lack of factual detail, an important problem is that some of the things that he says are simply wrong. For example, he deposes that , While sitting on the Conduct Committee they alleged that: “The Member improperly delegated his duties and responsibilities on real estate files to D.R. Paralegal Services and Debra Ridley”.

This was shown to be unsubstantiated. [Emphasis added.] [ 79 ] But one of the express findings of the hearing committee, at page 45 of the Hearing Report, was that this complaint was valid: The Hearing Committee finds that the Member improperly delegated his duties and responsibilities on real estate files and matters to D.R. Paralegal Services Ltd. and Debra Ridley and that such conduct is conduct deserving of sanction. [ 80 ] He asserts that Mr. Feth appointed Mr. Fenwick to the appeal committee, and that Mr. Fenwick represented Theresa Calmusky. He claims that Mr. Feth and Mr.

Fenwick had vested interest in his “conviction” in order to make their “swindle” work and protect Randy and Theresa Calmusky and 901234 Alberta Ltd. (a company represented by Mr. Feth while he also represented Mr. Calmusky). But Mr. Calmusky was convicted. [ 81 ] Mr. Fenwick was chair of the appeal committee, which consisted of seven benchers. As well, he represented Theresa Calmusky in civil claims. However, there is no indication that he ever advanced a claim against Mr. Riccioni on Ms. Calmusky’s behalf or on behalf of anyone else. [ 82 ] Mr. Riccioni claims that somehow Mr. Feth and Ms.

Corbett stood to gain by using Mr. Mack to bring straw buyer plaintiff lawsuits against Mr. Riccioni and to manage the disciplinary proceedings accordingly (with no evidence, as mentioned above). [ 83 ] The genesis of this seems to be that their law firm, Field Law, was acting on some of the fraud matters and advanced a claim against him. However, as far as I have been able to determine, neither of them were involved in that litigation. Another lawyer with their firm was handling it.

At paragraph 31 of his December 6, 2016 affidavit he indirectly acknowledges this point, but indicates that it does not matter: Any reasonable person would see and I do believe there is nothing impartial, neutral, or unbiased with the appointment of Corbett and Feth on the Conduct Review Panel of June 2010, as Filed [sic] Law represented the Calmuskys, and Mack’s clients (“Gagarins”) whether or not they handled the clients’ work. [Emphasis added.] [ 84 ] He closes paragraph 31 of his affidavit of December 6, 2016 saying that Mr. Feth and Ms.

Corbett made “[p]rejudged, preconceived, and premeditated baseless allegations against me.” But when a bencher drafts a citation, it must be assumed that the bencher believes that the member is likely guilty of the citation, or at least has reasonable evidence to believe that the member may be found guilty. In that sense, any citation made against a member has some element of “pre-judgment” - but the process that follows involves presenting the evidence against the member, allowing it to be challenged, and allowing the member to respond.

Any “pre- conceptions” at the stage of writing the citation is more than counter-balanced by the full hearing. Even if the complaint on this point is true, it does not found any reasonable claim. [ 85 ] And in the end here, the complaints were generally proven to be true.

[ 86 ] Mr. Riccioni claims, without any details and without any evidence in support, that Mr. Feth and Ms.

Corbett intimidated witnesses, and they were guilty of conducting the hearing in an unprofessional manner, applied bully tactics in their attempt to coerce, extort and have him perjure himself and accept a plea bargain, and that they used the legislation of the Legal Profession Act arbitrarily against the rules of procedure and due process after the close of the Law Society’s case, fabricated findings of fact and law, and showed an overwhelmingly unfair bias in the process including the selection of the hearing committee members. [ 87 ] The claims against Mr. Feth, Ms. Corbett and Mr. Fenwick are described by Mr.

Riccioni as involving a “swindle” in connection with Mr. Fenwick’s client Theresa Calmusky and Mr. Feth’s clients Randy Calmusky. He describes himself as a “patsy” and asserts that they used their positions with the LSA to gather evidence against him “in order for their swindle to succeed.” [ 88 ] I have not been able to understand what “swindle” took place or how he was a “patsy”. [ 89 ] He asserts that Mr. Feth and Ms.

Corbett knew that the allegations that were posted on the LSA website, which were the allegations that the hearing committee dealt with, were false. [ 90 ] These assertions are made, it seems, in support of a defamation claim because the LSA website describes pending disciplinary matters. [ 91 ] But there actually were allegations and there was an inquiry underway. Most of the allegations were later proven to be true. One was admitted.

Showing that the statements were “substantially true” is a defence to a defamation claim: JE v Alberta (Workers’ Compensation Board) , 2015 ABQB 460 , at para. 61 . [ 92 ] He alleges (sub-paragraph 25

i) that Mr. Feth “appointed his friends and business associates to the Hearing and Appeal Committees thereby importing a sense of bias, prejudice and partiality.” But the decisions of the hearing committee and the appeal committee were upheld in the Court of Appeal. I have not seen any evidence or details of facts that suggests any of them were biased.

I assume that many benchers develop friendships with other benchers, so there would always be an element of “friendship” in any appointment to a hearing committee. [ 93 ] Mixed in with his assertions is the allegation that Lindsay McDonald, who is not a defendant or proposed defendant but was the lawyer representing the LSA in the prosecution of the complaints, “stacked the deck” through the introduction of witnesses who were straw buyers represented by Mr. Mack’s firm, some involved in lawsuits brought against them by Mr.

Feth. [ 94 ] It is not clear from the amended amended statement of claim how calling witnesses could amount to “stacking the deck”. He says (paragraph 22) that they were “of questionable character”. He said (paragraph 23) that they admitted under oath to have previously carried out straw buyer schemes. He asserts that this somehow caused a bias. These allegations are lost on me. [ 95 ] There is no indication that any of this information was only learned recently, except for the knowledge that Mr. Feth appointed the appeal committee. With the exception of the fact that Mr.

Feth appointed the hearing and appeal committees, these complaints either were directly the subject of the appeals, or they should have been if he thought there was any merit to them. [ 96 ] The clients of Mr. Fenwick and Mr. Feth - Mr. and Ms. Calmusky - are said to have been implicated in the mortgage frauds, and Mr. Calmusky was convicted in 2016. Mr. Riccioni says that Mr. Feth, who appointed the committees, had a vested interest in Mr. Riccioni’s “conviction”, and that Mr. Fenwick also somehow had a vested interest in his “conviction”. [ 97 ] I cannot understand what “vested interest” is being put forward.

In paragraph 45 he asserts that Mr. Feth, Ms. Corbett, Mr. Mack, Mr. Fenwick, and Mr. Jensen had a “vested interest” in the outcome of the disciplinary hearing as they were also involved in the litigation claims. This detail does not clarify the factual basis for this part of the claim. [ 98 ] He alleges in paragraph 36 that Mr. Mack, Mr. Feth and Ms. Corbett enjoyed personal gain while serving as agents with the LSA. He does not explain what the “personal gain” was. [ 99 ] He asserts that all three owed him a fiduciary duty, although there is no indication why they would. [ 100 ] In paragraph 46 m, Mr.

Riccioni asserts that Mr. Feth and Ms. Corbett “fabricated” disciplinary citations. As noted above, most of them were found to have merit. [ 101 ] In a sentence that grammatically is confusing, Mr. Riccioni seems to assert that they also failed to correct a misapprehension between Mr. Riccioni and Mr. James (of Mr. Mack’s firm), which he says shows malicious intent. There is no explanation what that misapprehension was. Mr. James is not a defendant or proposed defendant in this action and he was not involved in the disciplinary hearing. It would appear that the complaint that Mr.

Riccioni failed to correct a misapprehension was acknowledged by counsel for the LSA at the hearing not to have been proven. Mr. Jensen [ 102 ] As mentioned, Mr. Jensen was retained by ALIA to represent (successfully) Mr. Riccioni in the civil claims advanced against him. [ 103 ] In paragraph 48 Mr. Riccioni complains that Mr. Jensen did not attend at a

summary judgment application - but it was one where no relief against him was sought, and in her reasons Master Hanebury made that clear. There would have been no reason for his attendance other than to watch. [ 104 ] In paragraph 55 he states that Mr. Jensen owed him a fiduciary obligation. In paragraph 57 he makes further allegations that apparently continue that thought, which is that Mr. Jensen “misled and deceived” him in his communications and this prejudiced his defence against the LSA’s misconduct allegations. No detail is provided, and the only aspect of “misleading” him was that Mr. Jensen

had said he was not involved in the appointment of the committee. The appointment letter was part of the hearing evidence, and the explanation for Mr. Jensen’s signature on it is described above. [ 105 ] Otherwise, I do not see any other detail of how Mr. Jensen is said to have misled him, unless by apparently signing the appointment letter in error Mr. Jensen “concealed” Mr. Feth’s role in appointing the committee (which seems to be the point made in paragraph 62). [ 106 ] But Mr. Feth did not sit on the committee, and there is no suggestion that the hearing committee was in any way not independent, other than (

a) the allegation that the committee members were his friends and business associates and (

b) an anomalous reference in Mr. Riccioni’s claim to Mr. Feth’s role in the appointments as being an opportunity for him to “stack the deck” - despite the fact that Mr. Feth was not the prosecuting counsel or a member of the hearing committee. Other Allegations [ 107 ] Mr. Riccioni makes a reference in the amended amended statement of claim to the defendants “acting against the rules of procedure and due process after the close of the LSA’s case”. This is clearly a reference to a topic that was discussed in the Court of Appeal on Mr. Riccioni’s appeal. Mr.

Riccioni took the unusual position of not testifying on his own behalf but volunteering to testify if the hearing committee asked him to. The hearing committee then called him as a witness, following which he was cross-examined by the LSA’s counsel. That was one of the central issues before the Court of Appeal of Alberta in his case. The Court of Appeal did not find anything wrong with the process that was followed. [ 108 ] The theory of the claim expressed in paragraphs 35 to 37, 42 and 44 seems to be that Messrs. Mack and Feth and Ms.

Corbett actively pursued frivolous lawsuits “while conducting extra-judicial proceedings against” him. To the extent I can understand what the complaint is, I believe he alleges that since Mr.

Jensen was successful in arranging for the discontinuances of the claims as against him, therefore the lawsuits must have been frivolous, which is a conclusion that the allegations do not support. [ 109 ] His affidavit of December 6, 2016, in paragraph 25, addresses the assertion that specific claims were “frivolous” - but he attaches as Exhibit “14” a copy of his account and trust statement for acting for one of the parties to the claim to which he refers. Mr.

Riccioni seems to have had some direct involvement. [ 110 ] In the lawsuits brought by the lenders against the straw buyers and others, third party claims were made as against him. The central person involved in the mortgage fraud worked as Mr. Riccioni’s paralegal.

The hearing committee concluded that the manner in which he had practised had facilitated the frauds. [ 111 ] In light of this connection, there is no basis for saying that the claims against him were “frivolous”, regardless of how they were resolved. [ 112 ] In paragraph 47 he lists several types of cause of action, but with no facts to provide any helpful information on which the causes of action could be based. The Selection of the Hearing Committee [ 113 ] Mr.

Riccioni complains about the selection of the hearing committee, but he does not seriously suggest that any particular member of the hearing committee was biased, or that there was a reasonable apprehension of bias in play. (As discussed, Mr. Riccioni alleges that Mr. Feth appointed his “friends and business associates” to the committees.) Even if it were proven that somehow Mr. Feth, Ms. Corbett or Mr. Fenwick had some scheme in play in the selection of the hearing committee (although it seems to have been done by Mr. Feth, and there is no indication that Mr.

Fenwick was involved at all at that stage), the hearing committee seems obviously to have been an independent committee. Reading their decision and the record generally, it is clear that they took their positions very seriously. [ 114 ] As suggested above, allegations that the committee conducted the hearing unprofessionally might possibly have been a proper basis for his appeal to the appeal committee. The argument that Mr.

Fenwick should not have been on the appeal committee was not made at the time of the appeal. [ 115 ] These sorts of complaints might also have been part of the appeal to the Court of Appeal and as I have mentioned, at least one was. Complaints About the Gathering of Evidence [ 116 ] Mr. Riccioni further asserts that the defendants, including the newly-added defendants Mr. Jensen, Mr. Feth, Ms. Corbett and Ms.

Whitburn, were “using their positions with the LSA as a tool to gather evidence against him, the ‘patsy’, in order for their swindle to succeed.” [ 117 ] He claims that the nature of the practice review, conduct review, consultations, interrogations, random audits and interviews done in connection with the hearing were done in bad faith, and that he endured “numerous disruptions to his practice, mental anguish and unrelenting scrutiny by [the defendants’] investigators.” [ 118 ] There might be some basis for a claim such as this if he had been exonerated at the hearing. He was not.

Complaints About his Counsel at the Hearing Committee [ 119 ] At paragraphs 70 to 72 of his affidavit of December 6, 2016, he complains that Simon Renouf, his counsel at the Hearing Committee, failed to follow his instructions about raising conflicts of interest and denial of due process. There is no further detail, so I assume that the “conflicts of interest” “denial of due process” concerns are those raised in his claim here, which I deal with throughout this memorandum of decision. Mr. Renouf is not a defendant.

[ 120 ] At paragraph 73 and 64, he claims that the Director of Conduct pressured him to take a “‘one-time offer’ plea bargain” but he does not state that he entered into such a plea bargain, and the facts generally indicate that he did not. At best, this assertion is that the Director of Conduct tried to do something that Mr. Riccioni believes was wrong, but in the end he did not.

Analysis: Application to Amend the Claim Evidence Required [ 121 ] As mentioned above, the usual requirement to amend a claim is some modest amount of evidence, but where the proposed allegations assert fraud or high-hand or malicious conduct, some significant evidence is required: Canadian Natural Resources Ltd , cited above. [ 122 ] The allegations here are that the defendants acted in a high-handed and malicious way. [ 123 ] I turn to the factors to be considered when an amendment is sought.

Bad Faith [ 124 ] The importance of the identity of who appointed the committees (or rather, the lack of importance) is demonstrated by the fact that Mr. Riccioni made no issue at all of the fact that the lawyer representing him in the civil claims had apparently appointed the hearing committee. What is far more important than who made the appointment is the actual make-up of the committees, and there is no evidence that this “administrative error”, and Mr.

Feth’s role in appointing the committees, made any difference at all to the process. [ 125 ] The history of these proceedings to date is an important indication of bad faith on the part of Mr. Riccioni. He was told in July 2016 to file his brief in September. By then he already had most of the so-called “fresh evidence” upon which he now relies, but he said nothing in the hearing before me in July, he said nothing to defence counsel, he did not raise a concern about Mr. Feth appointing the hearing committee when he first learned and he did not raise a concern about Mr.

Feth appointing the appeal committee when he learned that. He did not file a brief at all until the day before the hearing, and he first raised the issue about Mr.

Feth when he improperly filed his amended amended statement of claim just days before the special hearing date. [ 126 ] Ignoring a court order setting a deadline for his brief, filing his amended pleading in violation of the Alberta Rules of Court , and leaving the issue until the last moment, are all indicators of bad faith. [ 127 ] This is a transparent attempt at gaining an advantage by surprising defence counsel with new positions taken at the last possible moment. [ 128 ] As well, the claim as a whole demonstrates bad faith on the plaintiff’s part.

Rather than raising many of the issues that he now pleads before the hearing committee, the appeal committee, or the Court of Appeal, he waited until the appeal process was exhausted. He now raises them in the context of a claim where, in his list of relief sought he asks for, “an order directing this matter be re-heard before an unbiased and impartial LSA disciplinary hearing committee”. He asks that the Court of Queen’s Bench set aside, among other things, a decision of the Court of Appeal. [ 129 ] That is, the entire purpose of this claim is to re-litigate what has already gone through three levels of hearing.

Repeated amendments simply underscore the bad faith that pervades the claim as a whole. I will address this further in my discussion of abuse of process. [ 130 ] I have concluded that there is bad faith demonstrated by Mr. Riccioni. Hopeless Claims [ 131 ] As well, the nature of the proposed amendments are hopeless for at least three reasons. [ 132 ] Firstly, this is demonstrated by the first item in the list of relief sought: this case is an attempt at a collateral attack on the previous proceedings.

Trying to polish up a bad claim that is fundamentally flawed from the outset is a wasted effort. [ 133 ] Secondly, the individual assertions he makes do not lead to proper claims. Throughout the initial hearing, the appeal hearing, and the Court of Appeal hearing, Mr. Riccioni was represented by counsel. The hearing committee spent considerable time reviewing all of the evidence before them and analysing it. The hearing report is 100 pages, not counting the two-page Appendix listing the citations.

There is no evidence that those three benchers were in any way biased, just the bald assertion that they were friends of Mr. Feth. [ 134 ] Of course, allegations of bias should have been raised before the hearing committee: section 59(5) , Legal Profession Act , RSA 2000 Chap. L-8:

(5) An allegation of bias affecting a Hearing Committee, (

a) if raised before commencement of the hearing, is to be dealt with by the chair of the Conduct Committee; (

b) if raised at or after commencement of the hearing, is to be dealt with by the Hearing Committee unless the Hearing Committee refers the matter to the chair of the Conduct Committee. [ 135 ] The allegations of bias, improper motive and general wrongdoing that Mr. Riccioni now asserts about Mr. Feth and Ms. Corbett preparing the citations, even if they are true, do not lead to a proper claim that the hearing itself was flawed. A person who advances any allegation of wrongdoing is of the view that the respondent has done something wrong. Usually the person making the allegation has some “motive” for making that allegation.

[ 136 ] Where that person has improper animus in making the allegation, if the respondent is acquitted of the claim, there are possible repercussions that the law recognizes. There may be damages for malicious prosecution, or costs on a solicitor and client basis if the misbehaviour proceeds through the litigation, or perhaps an elevated award of costs short of “solicitor and client”, or perhaps some other form of sanction. [ 137 ] However, the allegations here were demonstrated to be substantially true. [ 138 ] Thirdly, the suggestion that Mr.

Fenwick in some way controlled a committee of six other benchers in a review of an extensive report by the initial hearing committee is, at most, fanciful. The substantial decision had already been made by the hearing committee. Furthermore, although Mr. Riccioni was aware of Mr. Fenwick’s involvement in the appeal committee, and he was aware of Mr. Fenwick’s prior involvement in litigation relating to mortgage fraud (although not by advancing a claim against Mr. Riccioni), he did not raise the issue at the time, or on appeal to the Court of Appeal.

This is a latter-day complaint that (if it had merit) should have been advanced years ago in the previous proceedings. [ 139 ] I have concluded that the proposed new claims are hopeless. Limitation Period [ 140 ] The defendants argue that his claims are statute-barred.

This appears to be so, in light of the fact that all of the facts on which the claim is based seem to have been known in 2012 and this action was commenced in 2015, but this point was not pressed in the oral argument. [ 141 ] Furthermore, it might involve a review of whether the facts warranted bring a proceeding (as required by section 3(1)(iii), Limitations Act , RSA 2000 chap. L-12) before the appeal process was complete. (As mentioned Mr. Riccioni started the action shortly before the Court of Appeal made its ruling).

The defendants argue otherwise, citing Ewing v Allen , 2015 ABQB 264 (M.C.) at para. 34 . [ 142 ] Given my decision on the other points, there is no need to make a decision on the limitation issue. [ 143 ] For these reasons, the proposed amended amended statement of claim is not permitted, and I direct that the improperly filed pleading be struck. Analysis: The Application to Dismiss [ 144 ] That brings us to the application to dismiss the amended statement of claim, that is, to dismiss the claim as a whole.

The Legal Landscape [ 145 ] Rule 3.68 of the Alberta Rules of Court provides as follows (with the words on which I will focus in bold): Court options to deal with significant deficiencies 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.

(3) No evidence may be submitted on an application made on the basis of the condition set out in subrule (2)(b).

(4) The Court may (

a) strike out all or part of an affidavit that contains frivolous, irrelevant or improper information; (

b) strike out all or any pleadings if a party without sufficient cause does not (

i) serve an affidavit of records in accordance with rule 5.5 , (ii) comply with rule 5.10 , or

(iii) comply with an order under rule 5.11. [146] An application pursuant to rule 3.68(2)(

b) does not allow a review of evidence. The determination of whether or not there is areasonable claim must be made on the face of the pleading. [147] An application that is based only on sub-paragraph (

b) is often difficult because it requires the Court to proceed on theassumption that all of the allegations in the statement of claim are true, no matter how preposterous. Master Schlosser recentlyunderscored this difficulty, referring to a decided case that dealt with a plaintiff’s claim that his rights to live freely as a Martian had beencompromised: Theaker v PSAC, 2017 ABQB 170 at para. 13.

Often, an application to dismiss summarily brought under rule 7.3 wouldbe more appropriate. [148] A dismissal application under the balance of rule 3.68 does allow a review of the evidence. [149] Because of this distinction, throughout the reasons set out below under the heading “Examination of the Claims”, I haveconsidered each specific claim under sub-rule (b), without evidence, and also considered it in light of the evidence before the Court todetermine whether the claim is frivolous or an abuse of process. The Culture Shift [150] Not every claim filed with the Court of Queen’s Bench deserves a trial.

On an application under rule 3.68(2)(b), the Court maydismiss claims that do not set a cause of action in the described facts. [151] The Alberta Court of Appeal considered applications under rule 3.68(2)(

b) in O’Connor Associates Environmental Inc v MECOP LLC, 2014 ABCA 140 at para. 13 to 16. In that decision, the Court re-considered its own decision in Canadian Natural Resources Ltd v Arcelormittal Tubular Products Roman S.A., 2013 ABCA 279, 83 Alta. L.R. (5th) 417 and said that Arcelormittal Tubular statedthe test too strictly. (This was a different decision that the decision cited above in the same matter.) [152] The Court may, on an application to strike brought under rule 3.68(2)(

b) strike out claims that have no reasonable prospect ofsuccess without having to find precedent that previously ruled there is no such claim at law: “[J]ust because there is no “bindingauthority” does not mean that the claim has a reasonable prospect of success.” The recent Supreme Court of Canada direction inHryniuk v Mauldin, 2014 SCC 7 applies to applications to strike (at para. 14): This trend towards simplifying proceedings as soon as it is reasonable and fair has now been re-enforced in Hryniak v Mauldin, 2014SCC 7 , a

summary judgment case calling for “a culture shift . . . in order to create an environment promoting timely andaffordable access to the civil justice system. . . . moving the emphasis away from the conventional trial in favour of proportionalprocedures tailored to the needs of the particular case.” Striking pleadings that have no reasonable prospect of success is consistent withthis new culture. [153] The Court of Queen’s Bench recently addressed applications to strike under rule 3.68 in Chutskoff Estate v Bonora, 2014ABQB, 2014 CarswellAlta 1040, at para. 80-93.

In doing so, the Court quoted from Onischuk v Alberta, 2014 ABQB 89 at para. 35,where Associate Chief Justice Rooke made the following comment that has application here, where the claim is difficult to understand,makes accusations without a factual background to substantiate many of them, and is in substance an attempt at re-litigating what hasalready been decided: ...

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. [154] Furthermore, regardless of whether a claim sets out facts that might otherwise amount to a proper claim, a collateral attack onprevious valid legal proceedings must be dismissed under rule 3.68(2)(d). It is an example of an abuse of process: Toronto (City) cCUPE, Local 79, 2003 SCC 63 , 2009 SCC 63, 2003 CarswellOnt 4328 at para. 33 to 55.

The Evidence Before the Court [155] As mentioned, evidence may be reviewed in an application to strike under the balance of the rule other than 3.68(2)(b). [156] Mr. Riccioni himself filed affidavits in relation to his claim (in addition to his “fresh evidence” affidavit provided at thehearing), as discussed above.

As well, the Court was provided with copies of the hearing report, the sanction phase report, and thedecision of the LSA appeal committee, as well as the decision of the Court of Appeal (which is reported at 2015 ABCA 62). [157] Although these reports were not attached to an affidavit, they are, in fact, the record upon which Mr. Riccioni founds his claim,and he did not object to them being presented.

Examination of the Claims [158] It is appropriate to make some general comments about the claims against the individuals before reviewing the various claimsagainst the defendants as a group. [159] The claim against Mr. Jensen acting as Mr. Riccioni’s defence counsel (retained by ALIA for this purpose) discloses noreasonable cause of action, because Mr. Jensen was retained by ALIA to defend Mr. Riccioni, and he did so effectively. According tothe amended statement of claim, all of the actions that were defended by Mr. Jensen were discontinued. Mr. Riccioni describes them as

“frivolous and vexatious litigation”. Mr. Jensen cannot be liable to Mr. Riccioni for successfully defending him. [ 160 ] The balance of his claims against Mr. Jensen relate to Mr. Jensen’s involvement with the LSA. However, when we look at the evidence, we see that Mr. Jensen distanced himself from the conduct proceedings against Mr. Riccioni. [ 161 ] As mentioned, the claim against Mr. Mack is extremely tenuous. Mr. Mack happened to be President of the Law Society of Alberta during part of the time in question, and his firm represented some of the straw buyers. [ 162 ] In the amended statement of claim Mr.

Riccioni asserts that Mr. Mack and Mr. Jensen used “material nonpublic information for their own personal or corporate financial gain” and “abused their fiduciary duties owed to the membership including the plaintiff.” This is addressed at paragraph 29 of his affidavit of December 6, 2016, but again no factual detail is set out. A plaintiff is required in his statement of claim to plead facts upon which causes of action may be founded.

Non-specific allegations of conclusions such as this are not the proper basis of a claim. [ 163 ] The balance of the amended statement of claim, up to paragraph 31, makes allegations that are applicable to the defendants generally.

He makes broad assertions, such as (in paragraph 17): The initiation of the investigation and the pursuit of the said citations by the Defendants constitute bad faith, defamation of character, malicious prosecution, and an abuse of process whereby they are able to conceal information, manipulate evidence and witnesses, and later arbitrarily and unconstitutionally prosecute the Plaintiff. [ 164 ] It is not incorrect to plead such broad allegations such as this, although it is not necessary to do so, but a pleading is required to include the facts on which a party relies (rule 13.6(2)) and what must be examined carefully are the allegations of facts. [ 165 ] At paragraph 8, Mr.

Riccioni complains of the Law Society’s program to remove confidentiality barriers between the various departments of the defendants (presumably the LSA and ALIA), which he says removes civil and constitutionally guaranteed rights of the members, although he does not enunciate what those are. These complaints seem to relate to his concerns of defamation, discussed below. [ 166 ] From the evidence, it seems that ALIA, having become aware of concerns about Mr. Riccioni’s practice, drew them to the attention of the Law Society.

Since ALIA exists as a subsidiary of the LSA solely for the purposes of serving the LSA and its members (having been incorporated pursuant to the obligation by the LSA to provide an indemnity program under

Part 5 of the Legal Profession Act , RSA 2000, Chap. L-8) it is difficult to see how this is wrong. This aspect of the claim is frivolous and improper. [ 167 ] In paragraph 9, Mr. Riccioni complains that the LSA investigators solicited testimony from straw buyers, but did not disclose that to the plaintiff. Since the nature of the information apparently discovered was that Mr. Riccioni was not looking after his practice properly, the LSA chose to investigate that.

There is no reasonable claim made out by asserting that they obtained evidence from people who were drawn into the fraud and did not freely share it with him, while he was still the subject of the investigation. [ 168 ] Looking at the evidence overall, it seems clear that at the outset the investigators thought that Mr. Riccioni may have been actively involved in the fraud. As it turned out, that was not the ultimate finding.

Rather, the conclusion was that his level of practice was so poor that he had facilitated the fraud by retaining a paralegal and utterly failing to supervise her work, going so far as to allow his trust account cheques to be signed by someone else. [ 169 ] When an investigation is still underway, investigators are naturally cautious about disclosing what they have found, particularly to a person who is one of the subjects of the investigation.

The allegation here does not disclose a reasonable claim, and in any event it is a collateral attack on the previous investigation, hearing, and subsequent appeals. [ 170 ] Paragraph 11 alleges that the defendants and investigators failed to provide him with support, guidance, education, or advice regarding his real estate practice. This was, of course, during the time when the investigation was underway. I do not see a basis for asserting a claim for this. [ 171 ] Paragraph 12 asserts that (

a) he cooperated fully with the LSA despite enduring disruptions to his practice, and (

b) he was not instructed to cease practising law in any area. [ 172 ] Looking at the facts, we see that the first of these allegations is contrary to the findings of the review committee. One of the findings was that he was not candid in responding to inquiries. This is a collateral attack on that finding. [ 173 ] As to the second point, I am not aware of any law that requires a regulatory/governing body to make an advance ruling while an investigation is underway and I cannot conceive that there is any such legal duty owed to the member .

Perhaps that is done in some cases where the facts are clear, because of a possible duty owed to the public , but one might expect a complaint from the subject of such a ruling that he or she was being found guilty without a proper hearing. There is no reasonable claim described by asserting that the LSA did not require him to cease his practice before the matter was concluded. [ 174 ] In paragraph 14 he alleges that he was defamed because in 2010 the LSA published the nature of the allegations against him.

This was done on the LSA website, and in accordance with the transparency that the LSA apparently thinks is appropriate. Although Mr. Riccioni may have a legitimate concern that the publication of pending professional complaints might lead to a pre-trial in the court of public opinion, as mentioned above truth is a defence to a defamation claim. There was an investigation underway based on the allegations. Furthermore, most of them were later proven to be valid, and in one case admitted to be valid.

There is no reasonable claim described on this point. [ 175 ] Paragraph 17 alleges bad faith, defamation, malicious prosecution, and abuse of process whereby the defendants “were able to conceal information, manipulate evidence and witnesses and later arbitrarily and unconstitutionally prosecute the plaintiff.” There are no particulars given of the alleged manipulation of evidence, and nothing of substance to respond to, but these are allegations about the

quality of the hearing before the hearing committee. There is no reasonable claim described on this point. [ 176 ] Furthermore, that was the subject of two appeals and the claim described here is a collateral attack on those proceedings. [ 177 ] The claim goes on to make further non-specific allegations that are in reality conclusions with no factual basis. In paragraph 45, Mr. Riccioni makes an omnibus assertion that Mr. Jensen and Mr.

Mack were guilty of “fraudulent concealment and suppression of information, breaches of contractual and fiduciary duties, breaches of trust, preventing due process, false statements of fact, barratry [vexatious litigation or incitement to it for profit], champerty and maintenance, vexatious and frivolous litigation and malicious prosecution, misuse of nonpublic information, conspiracy, abuse of public office, discrimination, prejudice, constructive fraud, negligence and breaches of established legal principles of law.” It is difficult to determine from the amended statement of claim what facts might found those allegations that I have not already addressed elsewhere. [ 178 ] At paragraph 49 Mr.

Riccioni asserts that Mr. Jensen “misled and deceived” him and his communications “thereby jeopardized and prejudiced [Mr. Riccioni’s] defence against the Society’s professional misconduct allegations”. He is not clear what Mr. Jensen did to mislead and deceive him, but it seems to be based on the assertion that Mr. Jensen told him he was not involved in the selection of the committee when, in fact, he was asked to be involved and refused. There is no claim there. [ 179 ] He further asserts, in paragraph 50, that Mr.

Jensen did not have an arm’s length association with the LSA while his firm was representing the plaintiff. The LSA, being a self-governing institution, must often find itself in circumstances where one of its benchers is a partner in a law firm that is retained by ALIA to defend one of its insured members. If a member of the Law Society volunteers to be a bencher and is elected, there is no legal or policy reason I am aware of that would mandate that by virtue of having volunteered to serve the LSA that lawyer’s firm is disqualified from representing ALIA.

In the absence of any associated assertion of wrongdoing, the mere fact that there is some connection between the firm retained to defend a member and the benchers of the Law Society does not give rise to a reasonable claim. [ 180 ] Furthermore, the evidence discloses that Mr. Riccioni had the opportunity to complain about this in the previous proceedings but did not, and accordingly the claim advanced now is a collateral attack on them. [ 181 ] Mr. Riccioni asserts that he was denied “the fundamental constitutional protection that should be available to him for a fair and impartial hearing”.

His submissions generally seem to focus on his assertion that he was not given due process. However, there is nothing asserted that actually suggests he was not given due process. [ 182 ] In fact, the facts disclose that the very opposite is true. His practice was investigated; the citations were prepared; they were reviewed, with viva voce testimony by an independent committee of three benchers; their decision in turn was reviewed on appeal by seven benchers; and then the Court of Appeal took another look at it. He received benefit of due process. He was just not successful.

The complaint of lack of due process is frivolous and improper. [ 183 ] He asserts that he was singled out for “undue or extraordinary discipline and punishment in comparison to other similar decisions.” This is simply a complaint that the sanction, being disbarment, was too extreme. He appealed the decision on punishment to the appeal committee and then to the Court of Appeal and was unsuccessful.

This is a collateral attack on that decision. [ 184 ] He alleges a “level of corruption and influence deep enough that a fair and impartial hearing within the society’s autonomous hearing process is impossible, impractical, and problematic under the existing administration.” This seems to be a

summary of his allegations of improper behaviour, discussed above, that he sees as amounting to corruption. Since I have dealt with the various components of this omnibus complaint, there is no need to address it again. Conclusion [ 185 ] For the reasons set out above, the claim as a whole is struck out. The claim is in substance a collateral attack on the outcome of previous proceedings and is therefore an abuse of process, and in any event, in many cases the allegations pled do not disclose a reasonable claim. He makes assertions that are frivolous in light of the evidence of the steps taken by the LSA.

There is no reasonable prospect that the plaintiff’s claim will succeed. [ 186 ] The parties may make submissions on costs in writing. If the defendants make such written submissions, then Mr. Riccioni shall have 30 days from receipt of the submissions to respond in writing. Heard on the 31 st day of January, 2017. Dated at the City of Calgary, Alberta this 10 th day of April, 2017. A. R. Robertson, Q.C. M.C.C.Q.B.A.

Appearances: Phyllis A. Smith Emery Jamieson LLP for the Applicants (Defendants) Peter D. Riccioni On his own behalf for the Respondent (Plaintiff)