Jordan v Attorney (Justice and Attorney General), 2017 ABQB 293

Court of Queen’s Bench of Alberta Citation: Jordan v Attorney (Justice and Attorney General), 2017 ABQB 293 Date: 20170427 Docket: 1201 10180 Registry: Calgary Between: Shawn Edward Jordan Plaintiff - and - Her Majesty the Queen In Right of Alberta (Minister of Justice and Solicitor General), Alison Redford, Verlyn Olson, Rick Hanson (Chief of Police), Attorney General of Canada and Jane and John Doe Crown Prosecutors, Sarah Stewart, Paul Mason, Sheena Cunningham, Sarah Clive, Margot Engley, Michael Ewenson Defendant Corrected judgment: A corrigendum was issued on May 25, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of J.L.

Mason , Master in Chambers _______________________________________________________ [ 1 ] On March 15, 2012, Shawn Edward Jordan was acquitted of criminal harassment and extortion charges concerning his former common law partner, DL. Mr.

Jordan subsequently commenced this action advancing a variety of allegations against a host of defendants, including the Attorney General of Canada (the “AG”). [ 2 ] Pursuant to Master Laycock’s previous decision in this action at 2013 ABQB 160 , only the allegations of vicarious liability for malicious prosecution by individual RCMP officers, including DL and her romantic partner KB, remain extant vis-à-vis the AG.

[ 3 ] The AG applies to summarily dismiss these remaining allegations pursuant to rule 7.3, or alternatively, to strike them as an abuse of process pursuant to rule 3.68(2)(d). Mr. Jordan cross-applies to file a reply to the AG’s defence served April 4, 2013, or alternatively to further amend his Amended Amended Statement of Claim. Mr. Jordan relies on rules 3.62-3.66. [ 4 ] For the reasons that follow, Mr. Jordan’s application to file a reply or further amend his Amended Amended Statement of Claim is dismissed.

The proposed additional pleading does not serve to clarify or define the issues or otherwise assist in the resolution of the dispute in any fashion. The AG’s application to summarily dismiss the remaining allegations of vicarious liability for the malicious prosecution of Mr. Jordan by RCMP officers is granted. The evidence is clear that the RCMP did not participate in the investigation and subsequent charges against Mr. Jordan. The actions of the impugned officers were neither authorized by the RCMP, nor sufficiently related to conduct authorized by the RCMP to justify the imposition of vicarious liability.

Preliminary objection to jurisdiction of Master [ 5 ] Mr. Jordan submits that this litigation is under case management by Hawco J, and that he has not authorized the parties to bring these applications in Masters’ chambers. Counsel for the AG did not believe this matter was under case management. [ 6 ] The court record indicates that Hawco J was appointed as case management justice in 2013, but that no case management meeting has been held in this matter since October 6, 2014. Hawco J has since directed the Masters’ office that it is appropriate to deal with these applications in this forum.

Order of applications [ 7 ] The general rule where an application to amend pleadings and an application for

summary judgment are heard concurrently is that the amendment application should be heard first: see 926 Capital Corp v Petro River Oil Corp , 2016 ABQB 194 at paragraphs 14-20 , and cases cited. Mr. Jordan’s application to add a reply or further amend his Amended Amended Statement of Claim [ 8 ] Rule 3.33(1) permits a plaintiff to file a reply to statement of defence. Rule 3.33(3) requires that this be done within 10 days after service of the statement defence. [ 9 ] Mr.

Jordan seeks to file his reply almost four years after the AG served its statement of defence. [ 10 ] Rules 13.5(2) and (3) permit the court to extend a time period specified in the rules, even after the time period has expired. The court’s determination in this regard is a discretionary one, informed by factors including: the length of the delay; the explanation for the delay; and the relative prejudice to the parties. If a delay is significant, evidence is required to explain it.

Further, the court will not act without purpose: Pagnucco v Sears Canada Inc ., 2011 ABQB 810 at paragraphs 9-12 . [ 11 ] Foundational rule 1.2(1) provides that the rules serve to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.

Rule 1.2(2) states that in particular, the rules are intended to be used: to identify the real issues in dispute; to facilitate the quickest means of resolving a claim at the least expense; to encourage the parties to resolve the claim between themselves as early in the process as practicable; to oblige the parties to communicate honestly, openly, and in a timely way; and to provide an effective, efficient and credible system of remedies and sanctions to enforce the rules, orders and judgments. [ 12 ] Against this backdrop, I turn to Mr. Jordan’s application for extension of time to file a reply. [ 13 ] Mr.

Jordan has not provided any evidence as to the reason for his nearly four -year delay in advancing this reply. Nor is it clear what he seeks to achieve by filing this document. [ 14 ] The proposed reply does not serve to identify real issues in dispute between the parties, or to facilitate the efficient resolution of the dispute. Rather, it obscures the issues by advancing a series of general statements lacking in cogency, some of which are not restricted to factual matters but which extend to matters of argument and hypothetical future events. It also appears to include references to evidence which Mr.

Jordan presumably believes will assist in proving his claim. It is not restricted to statements of material fact. It is repetitive of allegations included in the Amended Amended Statement of Claim in several respects. [ 15 ] In short, the contents of this reply, proposed to be filed roughly four years after the AG’s defence was served, do not illuminate the issues or otherwise serve to assist in the resolution of this dispute. [ 16 ] Mr. Jordan’s application for an extension of time to rile this reply is accordingly dismissed. [ 17 ] This conclusion equally applies to Mr.

Jordan’s alternative application to allow him to further amend his Amended Amended Statement of Claim along the lines of the statements made in the proposed reply. The AG’s application to summarily dismiss the remaining claim against it [ 18 ] Mr. Jordan asserts that by order dated September 20, 2016, Master Robertson limited the within application to determination of the AG’s application to strike his Amended Amended Statement of Claim pursuant to rule 3.68(d). He argues that the court should therefore not entertain the AG’s alternative application for

summary dismissal of his claim. [ 19 ] Master Robertson’s order of September 20, 2016 is simply a scheduling order. Such an order is required prior to scheduling a special hearing in which a self-represented litigant is participating. The terms of the order do not purport to limit the applications to be heard at the special, nor does the transcript of the September 20, 2016 hearing indicate that any such limitation was discussed. [ 20 ] Applicants occasionally file an amended notice of application to seek additional relief from the court not initially sought. The AG did so on December 19, 2016. Its amended notice of application filed that date adds an application for

summary dismissal of Mr.

Jordan’s claim. [ 21 ] The AG should have sought court approval of that step, not because of Master Robertson’s order, but to ensure that the court was made aware of what matters were intended to be brought forward in the special hearing, and that sufficient time was set aside for determination. [ 22 ] However, Mr. Jordan does not dispute that he was served with the amended notice of application. The AG’s brief contained extensive submissions on the topic of

summary dismissal, as did Mr. Jordan’s. The topic was fully canvassed at the hearing as well. [ 23 ] In the circumstances, I will not limit the AG’s application to the rule 3.68(

d) ground. Rule 7.3 and the test for

summary judgment [ 24 ] Rule 7.3(1) permits a party to apply to the court for

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

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

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

c) the only real issue is the amount to be awarded. [ 25 ] Rule 7.3(2) requires that the application be supported by an affidavit swearing positively that one or more of these grounds have been met, or by other evidence to the effect that the grounds have been met. [ 26 ]

Summary judgment is no longer denied solely on the basis that the evidence discloses a triable issue. The court now asks whether there is any issue of merit that genuinely requires a trial or, conversely, whether the claim or defence is so compelling that the likelihood it will succeed is very high such that it should be determined summarily: Whitecourt Power Limited Partnership v Elliott Turbomachinery Canada Inc. , 2015 ABCA 252 at paragraph 9 , citing Hryniak v Mauldin , 2014 SCC 7 as well as decisions from the Court of Appeal of Alberta.

In Beier v Proper Cat Construction Ltd , 2013 ABQB 351 at paragraph 61 , Wakeling J. (as he then was), explained that a party's position is without merit if the facts and law make the moving party's position “unassailable” and entitle it to the relief it seeks. [ 27 ] The court will also consider whether examination of the existing record can lead to an adjudication and disposition that is fair and just to both parties: Whitecourt Power Limited Partnership v Elliott Turbomachinery Canada Inc . , at paragraph 9. [ 28 ] The standard for fairness is not whether the process is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles: Hryniak v Mauldin at paragraph 50 . [ 29 ] The court is to presume that the best evidence from both sides is before it: 1214777 Alberta Ltd v 480955 Alberta Ltd , 2014 ABQB 301 , at paragraph 17 . [ 30 ] A party faced with an application for

summary judgment must put its best foot forward, and present evidence to show sufficient “merit” to establish a genuine issue requiring a trial with respect to the outstanding issues: Windsor v Canadian Pacific Railway Ltd , 2014 ABCA 108 at paragraph 21 , citing Canada v Lameman , 2008 SCC 14 at paragraph 19 . The mere assertion of a position by the non-moving party in a pleading or otherwise, or the mere hope of the non-moving party that something will turn up at a trial, does not suffice.

The key is whether the circumstances require viva voce evidence in order to properly resolve the case: 776826 Alberta Ltd. v Ostrowercha , 2015 ABCA 49 , at paragraph 11 . [ 31 ] The onus remains on the applicant to present uncontroverted facts and law which entitle it to judgment: see for example, Access Mortgage Corporation

(2004) Limited v Arres Capital Inc. , 2014 ABCA 280 , at paragraph 45 . [ 32 ] In order to put these applications into context, I will review the litigation history of the actions commenced by Mr. Jordan. Litigation history [ 33 ] This action represents one of the last remnants of litigation launched by Mr.

Jordan in 2011, encompassing eight Queen’s Bench actions involving a multitude of defendants, including: several Calgary Police Service (“CPS”) officers, the City of Calgary, the Calgary Police Commission, Allison Redford, Verlyn Olsen, Alberta Law Enforcement Response Teams, several Crown prosecutors, a Maintenance Enforcement Program (“MEP”) employee, a provincial court judge and a Queen’s Bench justice. [ 34 ] The allegations include defamation, breach of privacy, and malicious prosecution.

As Hawco J states at paragraph 11 of his reasons in Jordan v Calgary (City) , 2014 ABQB 576 : All of these actions revolve around Mr. Jordan’s relationship with [DL]. A number of them involve charges which were laid against him for criminal harassment of [DL] and for threatening her. These in turn appeared to go back to an email which [Mr.

Jordan] sent to Maintenance Enforcement Program on March 18, 2010... [ 35 ] Along the same lines, Yamauchi J held at paragraph 15 of reasons in Jordan v Alberta Law Enforcement Response Teams , 2013 ABQB 330 , issued in another action involving this email: Jordan has commenced 7 other actions against various individuals and organizations, including Nation J.

These actions all arise out of the same primary facts, viz , the circulation of the Email, the creation and distribution of the [threat assessment report], the criminal harassment charges that were brought against him, and Nation J’s order in family court as a result of the Email.

[ 36 ] The subject line of Mr. Jordan’s March 18, 2010 email is “MEP/DEAD BEAT PARENTS/SUICIDE WATCH!”. The body of the email refers to a March 4 th , 2010 meeting Mr. Jordan had with MEP employee Ian Hope regarding payment arrangements of Mr. Jordan’s arrears of child support payments for his two children with DL. In that meeting, Mr. Jordan had apparently advised Mr. Hope that he could only afford to pay $50 per month, and Mr. Hope apparently requested a larger amount. Mr. Jordan goes on to state in the email that: ...when MEP makes such unrealistic and impossible demands it will begin to cause SUICIDES!

Including MURDER SUICIDES!... [ 37 ] Mr. Jordan went on to refer to “coming home to a DEAD MOMMY OR DADDY because you have taken away their ability to drive their child to a soccer game, teacher interview, or to care during an emergency, and driven them to the brink of hopelessness!” [ 38 ] As Hawco J stated at paragraph 13-16 of his reasons in Jordan v Calgary (City) : Not surprisingly, the email caused concern, not only to Mr. Hope of the Maintenance Enforcement Program, but to the Calgary Police Service, to whom Mr. Hope forwarded a copy.

The email caused the Calgary Police Service to conduct a check on the Plaintiff and to interview [DL]. The email, a copy of which was given to her by two CPS officers, concerned her for her safety, and her children’s (and [Mr. Jordan’s] children’

s) safety, as well as concern for [Mr. Jordan]. Without going through all the facts in detail, it is, I believe, sufficient to say that as a result of this email, charges were laid by the Calgary Police Service and criminal proceedings initiated... Mr. Jordan was arrested and charged with criminal harassment of [DL] and threatening her. The Crown elected to proceed by Indictment. The matter proceeded to a preliminary inquiry and on to trial where Mr. Jordan was found not guilty by a Jury. After having been shown the email in an application by [DL] for supervised access by Mr.

Jordan, Madam Justice Nation ordered that Mr. Jordan’s access to his children be supervised. That resulted, among other things, in her being sued by Mr. Jordan... One of the judges named in Action No. 1401-02759, Her Honour Judge Lamoureux, was sued because of her involvement in the case as it went through the Provincial Court system, through to Court of Queen’s Bench. [ 39 ] This email at the root of the investigations, reports, and prosecution that Mr. Jordan complains of in the actions was sent by him to MEP, members of the government, the media and subsequently, to DL.

Hawco J held at paragraph 46 and 53 of his reasons: The MEP email appears to be the seed which germinated all actions because of what it created in various circumstances. Mr. Jordan takes great exception in its dissemination by various parties, but it was he that sent a copy of that email to the Sun Media and to many of the Defendants. ... When I look to the email which has given rise to so many of these proceedings, I conclude that any reasonable person, particularly a police officer, would view it with great concern. This clearly is capable of being interpreted as a threat of suicide and murder by Mr.

Jordan, possibly involving himself, his children and former partner. [ 40 ] Yamauchi J similarly held in his reasons in Jordan v Alberta Law Enforcement Response Teams at paragraph 40 that: ...Jordan might have intended the Email to be polemic...however [he was] directly involved in the various issues that he raises in the Email. In this Court’s view, this moves the Email from the polemic to a potential threat. MEP, Cst.

Cowley and Sgt McCallum had every right, and a duty, to take the Email seriously, and refer the matter to I-TRAC [from paragraphs 19-20: a multi-disciplinary unit comprised of members of municipal police, RCMP, sheriffs, prosecutors, family law experts and consulting psychologists and psychiatrists that provides an informed, non-prejudicial opinion on risk and risk management in the service of protecting victims and the prevention of violence.] [ 41 ] Since Master Laycock’s ruling in the within action in 2013, the claim has been dismissed against all the other defendants.

Six of the other seven actions arising from the same circumstances have been dismissed as lacking in merit, and Hawco J has declared that Mr. Jordan is a vexatious litigant: Jordan v Alberta Law Enforcement Response Teams (Yamauchi J) [1201 05986]; Jordan v Calgary (City ) (Hawco J) [1101 09564, 1101 09996, 1101 10561, 1101 11371, 1201 10180, 1401 02759]. Mr. Jordan has unsuccessfully pursued appeals of the

summary dismissal of his action against Nation J to the Court of Appeal, and sought leave to appeal from the Supreme Court of Canada, which was denied: Jordan v Nation , 2013 ABCA 11 ; Jordan v Nation , 2013 CarswellAlta 1735 (SCC) (note) . [ 42 ] Mr. Jordan has one remaining claim outstanding apart from this one, involving allegations of defamation relating to a letter a psychologist wrote for the purpose of the family law proceedings involving Mr. Jordan and DL.

Following an application by DL and the psychologist in July 2014, Dario J summarily dismissed a portion of the action against the psychologist and his clinic. She further held that Mr. Jordan must post security for costs in favour of DL. O’Ferrall JA held that as a vexatious litigant, Mr. Jordan needed leave to appeal Dario J’s decision. He did not grant him permission to do so, on the basis that there was no chance of success on appeal: Jordan v De Wet , 2016 ABCA 366 . [ 43 ] The application before Hawco J to have Mr.

Jordan declared a vexatious litigant was brought by the City of Calgary and Her Majesty the Queen in Right of Alberta. The AG did not participate in that application. [ 44 ] Hawco J states at paragraph 57 of his reasons in Jordan v Calgary (City ) that malicious prosecution is at the core of the other action in which the AG was included as a defendant along with a group of defendants also included in this action (1401 02759). He struck action 1401 02759 as it “simply cannot succeed” (at paragraph 57).

He recognized, however, that the allegation of the vicarious liability of the AG had been reserved by Master Laycock in this action, and permitted Mr. Jordan to continue with that limited claim. [ 45 ] The merits of the vicarious liability of the AG for the tort of malicious prosecution alleged to have been committed by DL,

KB and other RCMP officers have not been specifically addressed to this point, although the roles of the other defendants involved havebeen, along with many of the facts surrounding the investigation and charges against Mr. Jordan. The actions against these otherdefendants have been dismissed. Those defendants have been held to have been acting reasonably, in accordance with their respectiveduties in their responses to Mr. Jordan’s email of March 18, 2010.

DL and KB have not been named as defendants in any of the actions,with the exception of DL being named as a defendant in the defamation action described in paragraph 42 above. [46] The time has now arrived to consider the merits of Mr. Jordan’s vicarious liability claim against the AG. The AG is not vicariously liable for the actions of the RCMP officers in this case [47] RCMP members are deemed to be servants of the federal Crown: Crown Liability and Proceedings Act, RSC 1985 c. C-50,section 36. [48] DL and KB were RCMP officers during the period when Mr.

Jordan was investigated by the CPS and subsequently chargedwith criminally harassing and extorting DL. Mr. Jordan alleges that the AG is vicariously liable for the actions of DL and KB and theirsuperiors at the RCMP, which Mr. Jordan believes was their orchestration of false charges being laid against him by members of theCPS. [49] The AG can only be liable if these actions are sufficiently related to the officers’ employment with the RCMP to justify theimposition of vicarious liability.

An employer may be vicariously liable: (1) for acts of the officers authorized by the RCMP; or (2) forunauthorized acts which are sufficiently related to authorized acts: Bazley v Curry, (SCC), [1999] 2 S.C.R 534. The RCMP did not investigate Mr. Jordan or contribute to the CPS investigation [50] The AG relies on the affidavit of Sarah Shields, Senior Claims Analyst with the North West Claims and Litigation unit of theRCMP, sworn December 15, 2016. [51] The unchallenged evidence of Ms.

Shields is that since 2007, the RCMP has used a system known as the Police Recordingand Occurrence System (“PROS”) to record all investigations. She states that she searched the PROS system and did not locate any filesinvolving Mr. Jordan that relate to the allegations set out in this action. [52] Ms. Shields goes on to state that she did locate a record of a complaint made in 2007 by Mr. Jordan against DL and KB. [53] The exhibited report indicates that Mr. Jordan lodged a complaint that DL provided sensitive information in relation to a highprofile investigation of Mr.

Jordan in April of 2004, after receiving that information from KB. He further reported that DL phoned hisemployer in the fall of 2004 and “expressed... that he was a criminal, thief and a con artist as well as a dead beat dad” and that he “feltthat she may have checked his criminal record unlawfully”. Mr.

Jordan also reported that KB “called him from a RCMP phone and toldhim that he reviewed his police record and was aware of the details within it.” [54] The report indicates the details of resolution as follows: No C.P.I.C. irregularities found with offline search satisfied that no harm was done in [illegible] info from [DL]. [55] Ms. Shields deposes that she has been unable to locate any other documents related to Mr. Jordan in the possession of theRCMP. [56] Based on the searches that she conducted and the material she reviewed, she deposes that it is her belief that RCMP officersdid not investigate Mr.

Jordan or contribute to the CPS investigation of Mr. Jordan that is the subject of this action. [57] Ms. Shields’ search of the RCMP system of tracking investigations and her failure to locate any record disclosing aninvestigation or contribution to the CPS investigation is compelling evidence that RCMP members were not involved in their workcapacity in the CPS charging Mr. Jordan with criminal harassment and extortion. The only document located relating to Mr. Jordan was areport of complaint that he made against DL and KB in 2007, which was resolved. The RCMP did not authorize the actions of DL and KB [58] Mr.

Jordan asserts that DL and KB’s supervisors were actively involved in the furtherance of the charges laid against him bythe CPS and acted in common design to prosecute him, even though they all knew he was innocent. This arguably falls into the firstcategory of vicarious liability described in Bazley v Curry. [59] In the face of Ms. Shields’ evidence that the RCMP did not investigate Mr. Jordan or contribute to the CPS investigation, it isincumbent on Mr. Jordan to raise some evidence of the alleged participation by DL and KB’s superiors in what he asserts to be aconcocted investigation and charges. [60] Mr.

Jordan’s responding affidavit sworn February 27, 2017 is largely comprised of conclusory statements, unsubstantiatedexpressions of belief, speculation and argument. He continues to advance positions that this court has previously rejected in publisheddecisions. He provides no substantive evidence to support his position that DL and KB’s superiors were involved in advancing thecharges against him. [61] Mr. Jordan points to what he describes as an email that he says “explains the involvement of the RCMP ROTCSuperintendent acting in common design with [DL and KB]”.

This document appears to be a set of notes made by CPS ConstableCowley in her investigation of Mr. Jordan. It makes reference to Mr. Jordan’s March 18, 2010 email to MEP, and the possible need to setup accommodations for DL and KB. The notes say that she had “just gotten off the phone with [DL] and she indicated that there was nonew info to cause them to be re-located”. This document does not support the statement made by Mr. Jordan.

[ 62 ] Mr. Jordan further notes that his conditions of release prior to trial on the charges at issue included that he not attend at RCMP offices, and that this is evidence of RCMP involvement in DL and KB’s plot to have him wrongfully charged by the CPS. It seems to me, however, that being prohibited from attending at the workplace of the person whom he is charged with harassing is simply a logical condition of release, rather than proof of RCMP involvement in the investigation and prosecution. [ 63 ] Mr. Jordan also argues that DL’s “work supervisors Sgt.

Pat Mills and Corporal Colin White” were listed on the indictment form as Crown witnesses, but did not give evidence at his trial. He asserts that this shows that these other officers were involved in DL and KB’s malicious prosecution. [ 64 ] It appears from other exhibits in Mr. Jordan’s affidavit that these officers were involved in professional standards for the RCMP, and that the prosecution had at one time contemplated calling them as witnesses at Mr. Jordan’s trial on the charges at issue. Following his split with DL in 2004, Mr.

Jordan lodged one formal and other informal complaints against DL and KB which CPS Constable Cowley apparently concluded had been determined to be unfounded. The thought was that these professional standards officers could give evidence demonstrating that Mr. Jordan’s harassment of DL started years before. Ultimately, they were not called as witnesses. [ 65 ] Mr. Jordan views this as evidence that DL and KB’s superiors were sufficiently involved in the prosecution so as to give rise to vicarious liability. In the circumstances, it is not. [ 66 ] In

summary, there is no evidence that the RCMP authorized any of the actions complained of. The unauthorized acts are not sufficiently connected to the officers’ employment [ 67 ] Bazley v Curry directs that unauthorized activity should be approached in two steps. First, consideration should be given to whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls.

If the authorities do not clearly suggest a solution, the decision should be made in view of the broader policy rationale behind strict liability, being the provision of an adequate and just remedy and deterrence. As explained by McLachlin J (as she then was) at paragraph 41: The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability.

Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicarious lability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more) will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business.

In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer.[Emphasis in original] [ 68 ] McLachlin J earlier stated at paragraphs 37 and 40: Underlying the cases holding employers vicariously liable for the unauthorized acts of employees is the idea that employers may justly be held liable where the act falls within the ambit of risk that the employer’s enterprise creates or exacerbates.

Similarly, the policy purpose underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of wrong (and is thereby fairly and usefully charged with its management and minimization). The question in each case is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence. ...

The enterprise and employment must not only provide the locale or the bare opportunity for the employee to commit his or her wrong, it must materially enhance the risk, in the sense of significantly contributing to it, before it is fair to hold the employer vicariously liable. [ 69 ] The emphasis is on the strength of the causal link between the employment and the wrongful act; the employment must materially enhance the risk of the wrongful act. The connection must be strong or significant: SGH v Gorsline , 2004 ABCA 186 at paragraph 20 , citing Bazley v Curry at paragraphs 36-42 . [ 70 ] Mr.

Jordan argues that DL and KB used RCMP resources to execute their conspiracy with the CPS. [ 71 ] The topic of use of employment resources was addressed in Christian v Grbich , 2000 CarswellOnt 3899 (SCJ) . There, the defendant Constable Grbich made a telephone call from the police office while he was on duty, to a female acquaintance. He threatened to shoot and kill the plaintiff, who was a guest in the female’s home. [ 72 ] Donnelly J held that the phone call was strictly personal to Constable Grbich and unrelated to his employment as a police officer.

He found that it was not an enterprise risk inherent in police duties, and the wrongful act was not sufficiently related to authorized conduct. [ 73 ] Similarly here, while DL may have used her workplace telephone and email address to communicate with CPS Constable Cowley about a matter personal to her involving her former common law partner Mr. Jordan and their two children, this is not sufficient to expose the AG to vicarious liability. The same is true with respect to DL meeting with CPS Constable Cowley at DL’s workplace and viewing Mr. Jordan’s March 18, 2010 email at that location. [ 74 ] Mr.

Jordan also says that a plain clothes RCMP officer served him with DL’s April 19, 2010 affidavit which exhibited his March 18, 2010 email that DL relied on to obtain the order from Nation J that only permitted him supervised access to their children. He says that the affidavit of service would prove this, but went missing from the court file, after CPS Constable Cowley had reviewed it. The

search request form Mr. Jordan exhibits to his affidavit to demonstrate this, however, relates to DL’s affidavit, not the affidavit of service. Again, Mr. Jordan’s statements are not supported. [ 75 ] Mr. Jordan further suggests that an ordinary civilian would not be able to secure a threat assessment report from I-TRAC and that DL improperly used her position as an RCMP officer to do so, which in turn was used in the prosecution of the charges against him.

He believes that the I-TRAC report would not have been generated if DL had not “activated” the threat assessment process using her police “influence”. [ 76 ] Mr. Jordan again has no evidence of his stated beliefs in this regard. Moreover, Yamauchi J addressed the threat assessment that was conducted and the role that Mr. Jordan played in its generation, in Jordan v Alberta Law Enforcement Response Teams .

He held at paragraph 39 of his reasons: Even if the [CPS] officers were not investigating the alleged criminal harassment complaint, they would still have a duty to investigate Jordan in view of the Email, inasmuch as I-TRAC’s predecessor’s mandate, which remains a mandate of I-TRAC is to “address threats posed in violent, high-risk relationships and stalking situations – including homicide and suicide”. One could go so far as to say that the police officers and I-TRAC would be negligent in their duty if they did not investigate such situations.[Emphasis in original] [ 77 ] Mr.

Jordan is also of the view that DL used her “peer to peer” relationship with CPS, and “improperly peddled” her RCMP influence with CPS Constable Cowley, in securing her agreement to concoct “their fabricated accusation”. [ 78 ] He exhibits emails exchanged between DL and CPS Constable Cowley between January and April, 2010 as demonstrative of this relationship and their plan to falsely accuse him. [ 79 ] It is important to note that, as demonstrated in the exhibits to Mr. Jordan’s affidavit, Constable Cowley was a member of the Domestic Violence Unit of the CPS.

She had been assigned to monitor the situation between DL and Mr. Jordan in 2008, following Mr. Jordan’s 2007 conviction for assaulting DL, subsequent to their break up and DL’s forming of a new relationship with KB. The contents of the emails demonstrate this, and that Constable Cowley communicated with DL as part of her investigation of Mr. Jordan. They are not probative of an improper relationship, or of a plan to concoct false charges against him. [ 80 ] This topic has similarly been addressed previously.

In Jordan v Calgary (City) at paragraph 56 , Hawco J concluded that the various CPS officers and the Crown Prosecutors involved in advancing the charges were acting in accordance with their duties. He went on to state that: To suggest that Officer Aimee Cowley of the Calgary Police Service was doing a favour to a fellow police officer is simply without merit. [ 81 ] Mr. Jordan is required to put his best foot forward in this application.

The evidence he has tendered in support of his stated beliefs and conclusions is not sufficient to raise a genuine issue requiring trial on the issue of vicarious liability. [ 82 ] His affidavit sworn February 27, 2017 contains no substantive evidence that the acts of DL and KB were related to their work for the RCMP. His statements confirm, rather, that DL and KB were dealing with a personal matter involving DL’s former common law partner, Mr. Jordan, and their two children, which was unrelated to their work for the RCMP. [ 83 ] In

summary, the evidence before the court clearly demonstrates that the involvement of DL and KB in the charges against Mr. Jordan was personal in nature and unrelated to their employment. DL and KB were employed by the RCMP at the time the charges were brought by the CPS. However, the evidence demonstrates that this is the extent of the connection between the RCMP and the charges that were brought and ultimately dismissed against Mr. Jordan. [ 84 ] In the circumstances, the vicarious liability claim against the AG has no merit. Accordingly, it is summarily dismissed. [ 85 ] Given this conclusion, it is not necessary to address the other ground for

summary dismissal of no merit to the underlying tort of malicious prosecution by DL, KB and other RCMP officers. Mr. Jordan insists that the AG is obliged to disprove malicious prosecution by the RCMP officers in order to succeed on this application. In the circumstances of this case, such evidence is not necessary for dismissal on the ground of lack of vicarious liability. [ 86 ] It is similarly not necessary to address the AG’s application for dismissal pursuant to rule 3.68(d).

Conclusion [ 87 ] The limited allegations remaining in this action against the sole remaining defendant, the AG, are dismissed. [ 88 ] The AG is entitled to its costs of the action, which may be spoken to if necessary. Heard on the 5 th day of April, 2017. Dated at the City of Calgary, Alberta this 27 th day of April, 2017 .

J.L. Mason M.C.C.Q.B.A. Appearances: Shawn Edward Jordan on his own behalf James Elford Department of Justice Canada for the Defendant _______________________________________________________ Corrigendum of the Memorandum of Decision of J.L. Mason. Master in Chambers _______________________________________________________ Page 7 – Paragraph 42 has been changed Page 13 – Appearance has been changed to Shawn Edward Jordan