ET v Rocky Mountain Play Therapy Institute Inc, 2017 ABQB 475

Court of Queen’s Bench of Alberta Citation: ET v Rocky Mountain Play Therapy Institute Inc, 2017 ABQB 475 Date: 20170801 Docket: 1201 07908, 1501 13939 Registry: Calgary 1201 07908 Between: ET Plaintiff/Respondent - and - Rocky Mountain Play Therapy Institute Inc. and Ken Kwan Defendants/Applicant - and - IT Third Party 1501 13939 And Between: ET Plaintiff/Respondent - and - Calgary Roman Catholic Separate School District No. 1 Defendant/Applicant

Corrected judgment: A corrigendum was issued on November 8, 2018; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice E.A. Hughes _______________________________________________________ Introduction [ 1 ] These two actions have been under case management since February, 2016. Throughout this time, ET [1] has been a self represented litigant. [ 2 ] The defendants, Mr.

Kwan and Rocky Mountain Play Therapy Institute Inc. (“RMPTI”), and Calgary Catholic Separate School District No. 1 (“School District”), seek a declaration that ET is a vexatious litigant and an order prohibiting him from filing any further actions or taking any steps in respect of these existing actions without leave of the Court. Further, the defendants seek an order requiring ET to post security for costs.

ET opposes the applications. [ 3 ] I will first set out a brief history that outlines the factual relationship between the two actions, which in turn will be followed by a more fulsome recitation of the various proceedings that form the basis of the applications by the defendants. The Factual Relationship Between the Actions [ 4 ] In April, 2011, ET retained the defendant, Ken Kwan, to provide psychological counselling to his then six year old son, M. RMPTI was Mr. Kwan’s employer. Mr.

Kwan had several sessions with M and issued a report in November, 2011. [ 5 ] ET alleged in the first Statement of Claim he filed naming Mr. Kwan and RMPTI as defendants, that he had retained Mr. Kwan to provide therapy to M “who was experiencing serious emotional trauma as a result of being left alone at night at his mother’s home. The emotional trauma M was going through had a serious impact on his school attendance.” This action was ultimately discontinued. [ 6 ] On June 21, 2012, ET commenced action #1201 07908 against Mr. Kwan and RMPTI (“the Kwan action”).

ET alleges defamation, negligence, and a breach of contract with respect to the counselling services provided to M by Mr. Kwan and seeks damages in the amount of $375,000 and punitive damages in the sum of $100,000. This was the second Statement of Claim filed by ET respecting this claim. [ 7 ] Approximately one week before filing this Statement of Claim, ET made a complaint against Mr. Kwan to the College of Alberta Psychologists (“CAP”). Ultimately, a hearing regarding the complaint was scheduled for October 15, 2014. [ 8 ] Counsel for Mr.

Kwan served a Notice to Attend and Produce on Rosanna Taylor, a counsellor at M’s school, St. Brigid, to attend the hearing before the CAP. St. Brigid’s is a school within School District No. 1. Counsel for the School District, in advance of the hearing, provided 11 pages of documents from M’s file to counsel for Mr. Kwan and other counsel involved in the hearing. [ 9 ] On the date of Mr. Kwan’s hearing before the CAP, the matter was resolved by Mr.

Kwan admitting responsibility for two of the four allegations, with the other two being withdrawn. [ 10 ] On November 23, 2015 ET commenced the second action - #1501-13939. [ 11 ] In this action, ET alleges counsel for the School District was not permitted to provide the documents in advance of the hearing to counsel for Mr. Kwan and other counsel in that the documents are “private and confidential school counselling records”. ET alleges that: 1) Providing these documents was an “illegal/criminal act” because only Ms. Taylor was permitted to bring the documents in question to the hearing; 2) counsel for Mr.

Kwan and counsel for the School District conspired together to permit counsel for Mr. Kwan to have the

documents prior to the hearing; 3) only one of the 11 pages provided by the School District to counsel for Mr.

Kwan were counselling records. [ 12 ] ET also alleges counsel for the School District, in replying to the complaint made by ET to the Law Society of Alberta respecting his conduct, provided copies of the documents to the Law Society and this is “child abuse” and “father abuse”. [ 13 ] ET further alleges that these acts caused “emotional and psychological damage, stress, humiliation, irreparable harm to his reputation, serious financial loss, injury and other loss”, and seeks general damages in the sum of $475,000 and punitive damages in the amount of $100,000.

ET’s Litigation History [2] 2006 [ 14 ] July, 2006 - ET swore a private Information alleging his wife, IT, had committed perjury. [ 15 ] November, 2006 - ET was advised by letter that the Information was to be stayed by the Crown Prosecutor’s Office. 2009 [ 16 ] In 2009, ET commenced an action against Alberta on behalf of himself and his son M, claiming damages for a variety of alleged wrongs arising from his child custody litigation with his ex-wife.

The background facts were described in ET v Alberta , 2010 ABCA 88 at paras 2-4 : In 2006, the appellant’s wife left him and went to a woman’s shelter with the couple’s infant son, [M]. She obtained initial sole custody of the son through an ex parte order in Provincial Court. She also obtained a Restraining Order, which was later changed to a mutual Restraining Order in the Court of Queen’s Bench. At no time did Alberta seek to obtain the custody of [M]. In other words, the custody dispute remained between the appellant and his estranged wife.

The son suffered a seizure while in daycare during the time he was in the mother’s sole custody. Later in the fall of 2006, the appellant obtained joint custody of the son. Two years later, the appellant commenced an action against Alberta, on behalf of himself and his son [M], claiming damages of $5,000,000 for a variety of alleged wrongs arising from his child custody litigation.

The alleged wrongs, as described in the Statement of Claim, include: That the Alberta Government knowingly, wilfully and negligently has written into Family Court Law, provisions which clearly violated the Canada Charter of Rights and Freedoms, ...; [T]he Alberta Government knowingly, wilfully and negligently allowed Family Court judges to clearly violate this same Charter of Rights in the case of [T] v. [T] in the Provincial Court in Calgary in 2006, to the detriment, abuse and harm to the very life of [M], an infant, and [ET]; On March 24, 2006 a family court judge in Alberta Family Court Calgary arbitrarily, negligently and recklessly granted Sole Parent status of [M], a twenty two month old infant at that time, to his mother [IT] who had previously abused [M]..

By arbitrarily granting Sole Parent status to the mother based on no evidence whatsoever and no investigation into the allegations made against the father [ET], this judge’s ruling inflicted cruel and unusual punishment on [M] and [ET] as witnessed by [ET]. ... The entire family court process is bias [sic] and discriminatory to men/fathers and clearly, in this case, clearly demonstrated inequality to [ET] as a father and as a man.

Due to the many transparent and obvious violations of equality rights under the Charter placed on [ET] and the continuing bias demonstrated by family court judge towards fathers/men; [M] suffered physical and mental abuse and neglect which almost caused his death and may have left him brain damaged. ... [ 17 ] Alberta brought an application to have the Statement of Claim struck because it did not disclose a cause of action. The application was granted by the Chambers Judge.

On appeal, ET’s main ground of appeal, as identified by the Alberta Court of Appeal, was that “the Chamber’s Judge was not impartial, he did not allow the appellant to speak, and he arbitrarily and unreasonably decided in favor of Alberta prior to the hearing.” [ 18 ] As a preliminary matter the Court of Appeal noted that ET was obliged to have a lawyer act as legal representative for his son. Further, the Court found ET had not shown any basis for his allegations of bias and dismissed ET’s appeal finding no errors by the Chambers Judge.

See ET v Alberta . [ 19 ] ET sought leave to appeal to the Supreme Court of Canada. Leave was denied. 2011 [ 20 ] November 21, 2011 - ET filed a Statement of Claim naming himself and M, “a Minor by his next friend ET” as plaintiffs and Rocky Mountain Psychological Services and Ken Kwan as defendants. See #1101–15785. Again, ET held himself out as acting as the litigation representative for his son. In this action, ET made similar allegations to the matter now before the court.

2012 [ 21 ] January 19, 2012 – Master Prowse heard Mr. Kwan’s Application seeking an order that ET could not act as the litigation representative for M.

The Master held it would be in M’s best interest to have a member of the Law Society act on M’s behalf and stayed the action involving M until a lawyer was retained to represent M. [ 22 ] January 30, 2012 - ET filed an appeal of the Master’s Decision. [ 23 ] February 15, 2012 - ET retained counsel as counsel for ET filed a Notice of Change of Representation. [ 24 ] March 6, 2012 - Counsel for ET filed a Partial Discontinuance of ET’s claim against Rocky Mountain Psychological Services and Ken Kwan. Eventually, that Statement of Claim was discontinued. [ 25 ] June 15, 2012 - ET filed a complaint against Mr.

Kwan with the College of Alberta Psychologists. [ 26 ] June 21, 2012 - A second Statement of Claim was filed naming Mr. Kwan and RMPTI as defendants. This is one of the two actions in which the defendants seek an order that ET is a vexatious litigant. [ 27 ] July 23 2012 – Mr. Kwan filed his Statement of Defence. 2013 [ 28 ] June 19, 2013 - Mr. Kwan filed an Application for

Summary Dismissal. The application was set for August 14, 2014 as a special chambers application in Master’s Chambers. 2014 [ 29 ] June 16, 2014 - ET’s complaint to the College of Alberta Psychologists respecting Mr. Kwan was set for hearing. [ 30 ] July, 2014 – Counsel for Mr. Kwan advised counsel for ET that the Application for

Summary Dismissal was to be withdrawn. [ 31 ] August 8, 2014 – Counsel for ET filed an Application seeking $56,685.00 in thrown away costs in responding to the

summary dismissal application and $20,000.00 in punitive costs. This application was returnable on August 25, 2014. [ 32 ] August 25, 2014 – Counsel for Mr. Kwan sought an adjournment of the application which was opposed by counsel for ET. The Master granted the adjournment, ordered the application to proceed as a special chambers application in Master’s Chambers and ordered ET to pay costs. [ 33 ] October 15, 2014 - Mr.

Kwan admitted responsibility to two of the four allegations at his hearing before the College of Alberta Psychologists; the other two were withdrawn. [ 34 ] December 5, 2014 - ET filed a complaint with the Office of the Information and Privacy Commissioner alleging the School District had disclosed his and his son’s personal information in contravention of the Freedom of Information and Protection Act by providing the 11 pages of documents from M’s file to counsel in advance of the CAP hearing . [ 35 ] December 16, 2014 – Counsel for Mr.

Kwan filed an Application (the “Omnibus Application”) seeking: 1) Permission to use 6 of the 11 records obtained in the College of Alberta Psychologists’ hearing; 2) Leave to amend his Statement of Defence; 3) Production by Child and Family Services of its file regarding M; 4) To compel ET to answer undertakings. 2015 [ 36 ] January 12, 2015 - ET’s application for the thrown away costs and the punitive costs was heard by Master Prowse. [ 37 ] January 23, 2015 - Master Prowse awarded ET enhanced costs totaling $13,000.00 but did not award indemnity costs or penal costs.

See ET v Rocky Mountain Play Therapy Institute Inc , 2015 ABQB 61 [ 38 ] January 27, 2015 - Counsel for ET appealed Master Prowse’s Costs Order. [ 39 ] February 1, 2015 - ET made a complaint to the Law Society of Alberta against Mr. Venturo and Ms. Bracco-Callaghan, counsel for Mr. Kwan, Mr. Hokanson, counsel for the School District and another lawyer respecting the use of the 11 pages of documents prior to the CAP hearing. [ 40 ] February 23, March 30, and May 14, 2015 - The Omnibus Application was heard by Master Mason. [ 41 ] June 22, 2015 – Master Mason issued her decision. See 2015 ABQB 396 .

Master Mason ordered the use of the records obtained in the CAP proceeding, allowed Mr. Kwan to amend his statement of defence; ordered production of the Child and Family

Services file to her for review; and directed ET to answer two undertakings. [42] June 29, 2015 - ET appealed Master Mason’s Order.

On this same day, the Law Society of Alberta advised ET theinformation he provided in his complaint did not disclose conduct deserving of sanction. [43] July 1, 2015 - ET again advanced allegations of misconduct with respect to the above named lawyers to the Law Society. [44] July 6, 2015 – The Information and Privacy Commissioner advised ET that her Office was discontinuing its investigation as aresult of Master Mason’s decision. [45] July 12, 2015 - ET filed another complaint with the Office of the Information and Privacy Commissioner. This was “... acomplaint about Scott Venturo LLP (the law firm), and Mr.

Venturo and Ms. Bracco-Callaghan (lawyers in the law firm).” Thecomplaint alleged that the law firm and the lawyers in the firm had collected personal information respecting ET and his son in thecourse of the disciplinary proceeding against Mr. Kwan. [46] August 19, 2015 - The appeal from Master Prowse’s enhanced costs order was dismissed by Justice McIntyre from the bench.Counsel for Mr. Kwan then sought enhanced costs which was opposed by counsel for ET. Justice McIntyre awarded enhanced costs toMr. Kwan. See 2015 ABQB 824.

The Court said at para 14: E.T.’s Notice of Application for this costs special alleged misconduct by Kwan. Other documents filed with the court – including E.T.’sbrief filed February 23, 2015 – alleged numerous illegalities including child abuse, fraud, perjury and conspiracy. I reviewed the Brief filed by counsel for ET.

It begins: “ET has instructed counsel to submit the following introductory points.” These“points” are seven pages authored by ET and provide the basis for the above paragraph in Justice McIntyre’s decision. [47] November 10, 2015 – ET was advised by letter that his complaint against counsel for Mr. Kwan was dismissed by the LawSociety. ET appealed the decision. [48] November 20, 2015 - ET commenced action #1501 – 13939 - ET v. Calgary Catholic School District No. 1 [Calgary RomanCatholic Separate School District No. 1].

At this point, ET was again a self represented litigant and has remained so. 2016 [49] January 26, 2016 – An Appeal Panel of the Law Society of Alberta dismissed ET’s appeal. At para 6 of the decision, thePanel said: Specifically, the Panel agrees that Mr. Venturo did not engage in any conduct which was improper or part of a conspiracy. The Panelnotes Master Mason also confirmed this in her observations below: The provision of records from the school counseling file by the School Board in advance of the hearing does not strike me as untoward orimproper, or the subject of a conspiracy as E.T. asserts.

Rather, it appears to be a reasonable approach to facilitate an efficient hearingand possibly avoid the need for the attendance of witnesses. These are not nefarious but laudable aims. (Paragraph 45, ET v. RockyMountain Play Therapy Institute Inc., 2015 ABQB 396.) [50] February 3, 2016 - Case Management was ordered. [51] February 19, 2016 - Justice Strekaf dismissed ET’s appeal of Master Mason’s decision.

See 2016 ABQB 108. [52] February 22, 2016 - ET filed a Notice of Appeal of Justice Strekaf’s decision. [53] March 7, 2016 – The Information and Privacy Commissioner advised ET by letter: In conclusion, ET’s complaint under PIPA cannot succeed because

section 14(

d) of PIPA allows the collection of the Counselling Filewithout consent. I have therefore decided to refuse to conduct an inquiry under section 50(1) of the PIPA and have closed Case File000802. [54] March 15, 2016 - Mr. Kwan was advised by the Calgary Police Service that ET had filed a complaint against Mr. Kwanrespecting allegations of fraud and forgery. [55] May 5, 2016 - Calgary Police Service advised it would not pursue criminal charges against Mr. Kwan. [56] May 20, 2016 – Justice Strekaf issued her decision respecting costs arising from ET’s appeal of Master Mason’s decision. See2016 ABQB 299.

Strekaf, J said at paras 6 – 10: Solicitor-and-client costs are only awarded in exceptional circumstances where there has been reprehensible, scandalous or outrageousconduct on the part of one of the parties: Young v Young, (SCC), [1993] 4 SCR 3 at para 260. Mr. Kwan submits thatthey should be awarded in this case given the serious nature of the allegations made before the Master and on this appeal regarding theconduct of E.T.’s ex-wife, Mr. Kwan and counsel that were not established.

The Brief filed by E.T.’s counsel in the proceedings beforethe Master alleges: perjury and child abuse by E.T.’s ex-wife; perjury, fraud, forgery and child abuse by Mr. Kwan; conspiracy, criminalconduct and child abuse by Mr. Kwan’s counsel and counsel for the Calgary Catholic School Board; allegations that Mr. Kwan and hiscounsel were trying to bankrupt E.T., had launched a speculative fishing expedition and brought applications in bad faith that weredisingenuous and improper.

E.T.’s Brief on appeal also alleged fraud, forgery, child abuse, perjury, criminal conduct, abuse of process,breach of privacy, misleading the court, contempt of court, collusion and bias on the part of the Master.

E.T.’s costs submissions largely constitute an attempt to re-argue the appeal and continue to allege child abuse, criminal/illegal conduct,bias, perjury and defamation. Many of the allegations made by E.T. were highly inflammatory, not relevant to the issues before the Master or on the appeal and werenot established on the evidence. However, I am not satisfied that solicitor-and-client costs should be awarded at this stage of theproceedings since that determination is more appropriately made at trial.

However, to the extent that solicitor-and-client costs relating tothe application before the Master and the appeal are greater than the costs awarded by me, any claims which Mr. Kwan may wish toadvance with respect to that difference is a matter that is left to be dealt with by the trial judge. Enhanced costs may be awarded where unproven allegations of serious impropriety are advanced unsuccessfully: Buchanan vLamoureux, 2011 ABQB 256 ; Waste Management of Canada Corp v Thorhild (County) No 7, 2009 ABQB 157 .

Iam satisfied that enhanced costs are appropriate in this case given the serious unfounded allegations that were made by E.T. about Mr.Kwan, E.T.’s ex-wife and legal counsel, both before the Master and on the appeal. Mr. Kwan is awarded costs in the global amount of $18,000 (including disbursements and other charges), which reflects three times thetaxable costs of the application before the Master and on the appeal. These costs have not been paid. [57] June 3, 2016 – The hearing of Mr.

Kwan’s Application to have ET declared a vexatious litigant commenced but wasadjourned early due to ET’s health. [58] October 24, 2016 – The School District filed an Application to declare ET a vexatious litigant. [59] October 26, 2016 - The Court of Appeal dismissed ET’s appeal of Justice Strekaf’s decision upholding the decision of MasterMason. See 2016 ABCA 320. The Court held there was no merit in any of the arguments advanced by ET. The Court also dealt with costsand said at paras 16 – 19: Mr. Kwan seeks full-indemnity costs.

Costs are awarded to a successful party on a full-indemnity basis only in exceptional circumstances. “Blameworthy litigation conduct...may create a rare and exceptional case.” ET claims in his factum that Mr. Kwan committed “numerous serious criminal acts against my child and me” and “serious child abuse”.ET also accuses Mr. Venturo and Ms. Bracco-Callaghan, counsel for Mr. Kwan, and Mr. Hokanson, counsel for Calgary CatholicSchool District, of criminal acts and other forms of misconduct. These allegations are groundless, irrelevant and offensive. This isblameworthy litigation conduct. ET must pay Mr.

Kwan’s costs on a full-indemnity basis which are set at $15,000. These costs have not been paid. 2017 [60] January 18, 2017 – ET emailed counsel for Mr. Kwan stating “I thought I will let you know that [IT] is using your client in alie to family court. Mr. Kwan does not have permission to conduct a psychological assessment of me or M [just one of many lies].” [61] January 27, 2017 – ET sent a “cease and desist letter” to counsel for Mr. Kwan, counsel for RMPTI and counsel for theSchool District.

The letter amongst other things stated that I hereby demand that you and all those listed: immediately cease and desist from making and all false and defamatory statementsagainst me and REMOVE EVERY DOCUMENT REFERENCING THESE LIES INCLUDING [REDACTED] AND FROM ALLSOURCES OF STORAGE; within 14 days from the date of this registered letter. [62] February 15 and 17, 2017 – ET faxed to the Court materials that made further allegations of child abuse, witness intimidation,bias and favouritism, collusion, conspiracy etc by counsel for the defendants, and the defendants. [63] March 14, 2017, April 21, 2017, and May 16, 2017 – ET filed other materials all of which made the same allegations as in theabove paragraph. [64] May 16, 2017 – The hearing respecting these applications was concluded.

The applications were adjourned to July 18, 2017for decision. [65] July 13, 2017 – ET filed an “Application to Nullify/Reverse the June 22, 2015 Decision of Master Mason Illegally Obtainedby the Defendants Through Criminal Actions/Conduct” in the Kwan action. In this Application, ET made allegations that includedallegations of “theft, perjury fraud, abuse of the subpoena process, abuse of the Alberta and Canada Evidence Act, child abuse in the formof abuse of a child’s legal rights under the Charter, and abuse of my rights under the Charter”. Analysis [66]

Part 2.1 of the Judicature Act , RSA 2000, c J-2 – “Vexatious Proceedings” – provides the authority and sets out theprocedure to declare a person to be a vexatious litigant. S 23.1 of that Part states:

23.1(1) Where on application or on its own motion, with notice to the Minister of Justice and Solicitor General, a Court is satisfied that a person is instituting vexatious proceedings in the Court or is conducting a proceeding in a vexatious manner, the Court may order that (

a) the person shall not institute a further proceeding or institute proceedings on behalf of any other person, or (

b) a proceeding instituted by the person may not be continued, without the permission of the Court.

(2) An application under subsection (1) may be made by a party against whom vexatious proceedings are being instituted or conducted, a clerk of the Court or the Minister of Justice and Solicitor General or, with the permission of the Court, any other person.

(3) The Minister of Justice and Solicitor General of Alberta has the right to appear and be heard in person or by counsel on an application or a Court’s motion under subsection (1) or (4). ... .

(7) A person against whom an order has been made under subsection (1) or (4) may apply to a Court for permission to institute or continue a proceeding in that Court and the Court may, subject to any terms or conditions it may impose, grant permission if it is satisfied that the proceeding is not an abuse of process and that there are reasonable grounds for the proceeding. [ 67 ] S 23(2) sets out a non-exclusive list of conduct that may form the basis of a vexatious litigant application:

(2) For the purposes of this Part, instituting vexatious proceedings or conducting a proceeding in a vexatious manner includes, without limitation, any one or more of the following: (

a) persistently bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction; (

b) persistently bringing proceedings that cannot succeed or that have no reasonable expectation of providing relief; (

c) persistently bringing proceedings for improper purposes; (

d) persistently using previously raised grounds and issues in subsequent proceedings inappropriately; (

e) persistently failing to pay the costs of unsuccessful proceedings on the part of the person who commenced those proceedings; (

f) persistently taking unsuccessful appeals from judicial decisions; (

g) persistently engaging in inappropriate courtroom behaviour. [ 68 ] Justice Michalyshyn observed in Chutskoff v Bonora , 2014 ABQB 389 at para 131 : “Any one or more of [these above] indicia is a basis to find a person has engaged in vexatious misconduct.” [ 69 ] Persistent is the adjective of persistently. “Persistent” is defined in Webster’s Third New International Dictionary as “continuing in a course of action without regard to opposition or previous failure...” [ 70 ] Of course the evidence must support a finding that ET has a history of “persistently” engaging in any of the prohibited acts in s 23(2). [ 71 ] The Chutskoff decision at para 92 identified conduct that is stereotypical of vexatious litigation.

I have listed some of the identified conduct in a

summary manner below: 1. Collateral attack; 2. Hopeless proceedings; 3. Escalating proceedings; 4. Bringing proceedings for improper purposes; 5. Failure to honour court ordered obligations; 6. Persistently taking unsuccessful appeals from judicial decisions; 7. Unsubstantiated claims of conspiracy, fraud and misconduct; 8. Scandalous or inflammatory language in proceedings. [ 72 ] I appreciate the above conduct from Chutskoff was in the context of vexatious litigation. In this application I must consider the conduct of the person behind the litigation – ET – and not whether the proceedings are vexatious.

See RO v DF , 2016 ABCA 170 at para 38 . Regardless, these indicators “... provide a useful guide to assessing a litigant’s conduct”. Chisan v Fielding , 2017 ABQB 233 at para 51 . [ 73 ] In addition, I may also take into account ET’s behaviour in non-judicial proceedings. In Bishop v Bishop , 2011 ONCA 211 , Rosenberg JA, writing for the court, said at paras 8 and 9:

As for the second ground of appeal - that the motion judge improperly took non-judicial proceedings into account - we agree with theprinciple enunciated by Dawson J. in Canada Post Corp. v. Varma, (FC), [2000] F.C.J. No. 851 at para. 23: A respondent's behaviour both in and out of the court has been held to be relevant. In Canada v. Warriner, (1993), 70 F.T.R. 8 (T.D.),McGillis J. noted that frivolous and unsubstantiated allegations of impropriety had been levelled against lawyers who had acted for oragainst the respondent.

In Vojic, supra, McGillis J. took into account the fact that the respondent had failed to appear on severaloccasions and had shown disregard for the court. In Yorke v. Canada, (1995), 102 F.T.R. 189 (T.D.), Rouleau J. considered a number offactors, including that the respondent's proceedings in the Federal Court were replete with extreme and unsubstantiated allegations.

We would simply add to that statement by noting that in our view, the institution of non-judicial proceedings can, depending on thecircumstances, constitute evidence from which a court may infer that court proceedings commenced by the litigant are not bona fide butthe product of someone who is unreasonably obsessed with a cause and likely to pursue vexatious court proceedings on an indefinitebasis unless stopped.

In this case, we are satisfied that the motion judge was entitled to look to the extra-judicial proceedings commencedby the appellant in assessing the bona fides of the legal proceedings he had commenced and was continuing to pursue.

See also Chutskoff; Hok v Alberta, 2016 ABQB 335 at para 84. [74] The Applicants/Defendants allege ET has persistently: • Brought proceedings that cannot succeed, or that have no reasonable expectation of providing relief; • Failed to pay the costs of unsuccessful proceedings; • Brought proceedings for improper purposes; • Taken unsuccessful appeals from judicial decisions; • Made collateral attacks; • Made unsubstantiated allegations of conspiracy, fraud and misconduct. [75] Almost, if not every document authored by ET since the brief filed February 13, 2015 alleges: • Mr. Kwan is a liar; • because Mr.

Kwan’s lawyers received the 11 pages of documents prior to Mr. Kwan’s hearing before the CAP hearing, the actionsof Mr. Kwan’s lawyers are illegal acts in that they criminally obtained M’s private and confidential school counselling records; • the lawyers for the parties have committed perjury; • the lawyers for the parties have conspired; • Mr. Kwan, RMPTI and the lawyers for the parties have committed child abuse crimes; and • Mr. Kwan has committed child abuse, fraud, forgery, perjury, contempt of court and failing to report child abuse. [76] ET opposes the application.

For example, in his reply to the application filed May 16, 2006, ET wrote at pps 2 -3: ... I find this Order request very offensive and an attempted abuse of my rights and my child’s rights. What Mr. Venturo is implying is thathe is asking the court to deny me my rights to justice as a Canadian. Mr. Venturo is implying that I should not be allowed to protect myinnocent child who has suffered serious child abuse by Kwan’s actions and not be allowed to defend my child and me in a court of law.Mr.

Venturo is implying that if persons commit crimes against anyone including committing acts of child abuse, then they should not useour courts to settle disputes. This implies a very dangerous solution which can compare to years ago when persons would take the lawinto their own hands to settle disputes. ... Kwan and his lawyers have described me as a vexatious litigant simply because I will NOT allow my child to continue to be abused byKwan and his lawyers. By identifying the SERIOUS CRIMES COMMITTED BY KWAN and REVIEWING THE UNDENIABLEEVIDENCE, I believe the court must hold Kwan and others accountable.

So far, the Court, for whatever reason, has completely ignoredthe Clear and Undeniable evidence I have provided proving beyond any doubt that Kwan, RMPTI and lawyers involved have committedSERIOUS CRIMES against my child and me. The Court appears to have completely ignored all the evidence I have submitted in favourof Kwan and made serious decisions which, had the evidence been reviewed and commented on, would have prevented these wrongfuldecisions being made.

This IS NOT JUSTICE! [77] ET submits on each court appearance that he speaks the truth and does not lie, and he is a loving and responsible father of M. [78] The Minister of Justice and Solicitor General was served with the Application as required by the Judicature Act. Counsel forMr. Kwan advised the Court the Minister takes no position. [79] Based on a review of all the court documents filed in these proceedings, up to and including July 13, 2017, the affidavitevidence, the written submissions of the parties, and the oral submissions, I find ET is conducting these proceedings in a vexatiousmanner.

My reasons for this conclusion are set out below:

Scandalous and Inflammatory Language [ 80 ] Since ET filed his Statement of Claim in ET v Alberta , he has alleged various individuals and institutions have abused his son. Over this same time period, the language and allegations have been progressively more scandalous and inflammatory. [ 81 ] The decision in ET v Alberta sets out parts of ET’s pleadings from the action he commenced at in 2009. Those are set out above at paragraph 16. [ 82 ] The first Statement of Claim filed by ET in the Kwan action in 2011 alleged defamation of ET by Mr. Kwan. ET plead at paras 22 – 25: 22.

As was the case with much of the previous medical history of M; it was ET, the father of M who once again tried his best to get M the medical treatment/therapy he needed to overcome his emotional distress. 23. The father of M is heavily slandered in this report and the report contains untruths, sentences clearly written to assassinate the parenting skills of ET and other derogatory remarks. This report is libellous and has caused serious harm to both innocent parties, namely; M and his father ET. 24.

The statements reflected in the report and apparently made by the principal, grade one teacher and counsellor at M’s school are; according to the principal of M’s school, are not accurate and it appears they were intentionally written in a manner which conflicts with the truth. The principal also noticed that even though the school counsellor had informed Ken Kwan that M had told her he was left alone in his mother’s home that this fact is clearly missing from her statement, would appear to be an intentional act by Ken Kwan to mislead anyone reading this report. 25.

Ken Kwan has abused the trust placed in him by ET and M and caused serious harm to the reputation of ET as a loving and responsible father and unknown harm to the future of the innocent and precious life of seven years of age M. [ 83 ] In an affidavit filed January 19, 2012 in that action, ET said: xxxii. ET has protected M as much as possible since M was born and E T will never allow anyone to abuse M in any manner including Rocky Mountain Psychological Services and Ken Kwan. xxxiii.

Contrary to the damaging and child abusing report, ET is a very honest and truthful person and would NEVER jeopardize the mental health of his son M to encourage him to lie under any circumstances! Ken Kwan and Rocky Mountain Psychological Services have caused a lot of harm to ET and Child M by this ludicrous accusation. [ 84 ] From February 15, 2012 until the fall of 2015, ET was represented by counsel. However, counsel for ET permitted ET to provide the seven page “Introductory Points” in the brief filed on February 13, 2015 for the Omnibus Application before the Master. ET wrote: ...

The numerous previously listed statements identifying Kwan as a liar and committing Perjury and one which clear evidence verifies he has committed fraud to try and protect himself at the expense of my innocent child’s mental health, will be easily proven at Trial and Kwan will be held to account by the evidence including the affidavits and verbal evidence from the School Principal, School Counsellor, full-time Child Caregivers and other evidence which will be produced at Trial and provided by my witnesses. ...

The audacity of Kwan to now attempt to change his Statement of Defence to one of Truth is immoral and a slap in the face of our Canadian Justice System. Respectfully, the court must deny Kwan, a person who is a proven liar and a person who has committed perjury, fraud and forgery , the opportunity to lie and abuse the justice process one more time and use the word Truth for a defence considering he is a proven liar and a person committing fraud and forgery against an innocent child and his father . ...

In addition to Kwan committing illegal acts, I find it very troubling that his lawyers are also facing investigation by The Alberta Law Society and the FOIP Commissioner relating to illegal acts in relation to the very School Counselling Records they are now trying to obtain today. I am disgusted to say the least of what has gone on during the more than three years of me trying to obtain justice through our justice system. I have an abundance of proof that the defendant is a liar and a person who has committed criminal fraud and forgery and this will eventually be proven at trial.

However, the process leading to trial has been filled with the acceptance of lies, child abuse, father abuse and what I perceive to be the illegal actions of the defendants lawyers. These illegal actions by the defendants lawyers and the lawyer for the Catholic School District include using other than legal means to obtain my innocent child’s School Counselling Records from the Catholic School District lawyer. These are the very same documents they are applying to have the Court their production at today’s session. The Catholic School District lawyer Mr.

Hokanson and the defendants lawyers communicated for the purpose of a College of Alberta Psychologists (CAP) Hearing Tribunal where Kwan was facing Unprofessional Conduct charges to which he pleaded guilty in a Plea Deal. Kwan’s lawyers wanted the production of my child’s Private and Confidential School Counselling Records and communicated with Mr. Hokanson regarding obtaining these records. The CAP Hearings Director signed a “ NOTICE TO ATTEND AND PRODUCE ” for the

School Counsellor at my child’s school, Ms. TAYLOR to Attend and Produce my child’s Private and Confidential Records “ At the Hearing Tribunal ”. Instead of following the law, Mr. Hokanson conspired with Kwan’s lawyers to circumvent the legal process. Apparently, instead of the School Counsellor Ms. Taylor taking these files/records with her when she Attended the Hearing as was required by law, the excuse was made that it was INCONVENIENT for Ms. Taylor to Attend and therefore Mr.

Hokanson and Kwan’s lawyers agreed that my child’s Private and Confidential School Counselling Records could be sent by Email DIRECTLY to Kwan’s lawyers . This is illegal and a form of child abuse which the court must frown on. The Catholic School District lawyer Mr. Hokanson and Kwan’s lawyers are currently being investigated by the FOIP Commissioner and separately by the Alberta Law Society for their illegal actions of illegally distributing and obtaining these Private and Confidential School Counselling files outside of the legal process .

This is a form of child abuse and it is a continuation of abuse of my rights as my child’s father. [ 85 ] Since ET recommenced acting on his own behalf, his allegations of criminal conduct respecting Mr. Kwan and RMPTI, and respecting conspiracy between all counsel have been repeated in almost every, if not every document ET has filed or sent, which are numerous. The most recent example is found in ET’s application filed July 13, 2017 which is marked as

Schedule 1 [3] to this decision. [ 86 ] ET has provided no evidence to this Court to support any of these allegations. [ 87 ] ET has continued to use scandalous and inflammatory language in the face of two court decisions. The first is that of Strekaf, J in 2016 ABQB 299 where she stated at paras 6 – 9: Solicitor-and-client costs are only awarded in exceptional circumstances where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. ... Mr.

Kwan submits that they should be awarded in this case given the serious nature of the allegations made before the Master and on this appeal regarding the conduct of E.T.'s ex-wife, Mr. Kwan and counsel that were not established. The Brief filed by E.T.'s counsel in the proceedings before the Master alleges: perjury and child abuse by E.T.'s ex-wife; perjury, fraud, forgery and child abuse by Mr. Kwan; conspiracy, criminal conduct and child abuse by Mr. Kwan's counsel and counsel for the Calgary Catholic School Board; allegations that Mr.

Kwan and his counsel were trying to bankrupt E.T., had launched a speculative fishing expedition and brought applications in bad faith that were disingenuous and improper. E.T.'s Brief on appeal also alleged fraud, forgery, child abuse, perjury, criminal conduct, abuse of process, breach of privacy, misleading the court, contempt of court, collusion and bias on the part of the Master. E.T.'s costs submissions largely constitute an attempt to re-argue the appeal and continue to allege child abuse, criminal/illegal conduct, bias, perjury and defamation.

Many of the allegations made by E.T. were highly inflammatory, not relevant to the issues before the Master or on the appeal and were not established on the evidence. However, I am not satisfied that solicitor-and-client costs should be awarded at this stage of the proceedings since that determination is more appropriately made at trial. However, to the extent that solicitor-and-client costs relating to the application before the Master and the appeal are greater than the costs awarded by me, any claims which Mr.

Kwan may wish to advance with respect to that difference is a matter that is left to be dealt with by the trial judge. Enhanced costs may be awarded where unproven allegations of serious impropriety are advanced unsuccessfully… I am satisfied that enhanced costs are appropriate in this case given the serious unfounded allegations that were made by E.T. about Mr. Kwan, E.T.'s ex- wife and legal counsel, both before the Master and on the appeal. Mr.

Kwan is awarded costs in the global amount of $18,000 (including disbursements and other charges), which reflects three times the taxable costs of the application before the Master and on the appeal. [emphasis added] [ 88 ] The second decision is that of the Court of Appeal, 2016 ABCA 320 , where the court said at paras 17 – 19: Costs are awarded to a successful party on a full-indemnity basis only in exceptional circumstances. "Blameworthy litigation conduct... may create a rare and exceptional case." ET claims in his factum that Mr.

Kwan committed "numerous serious criminal acts against my child and me" and "serious child abuse". ET also accuses Mr. Venturo and Ms. Bracco-Callaghan, counsel for Mr. Kwan, and Mr. Hokanson, counsel for Calgary Catholic School District, of criminal acts and other forms of misconduct. These allegations are groundless, irrelevant and offensive . This is blameworthy litigation conduct. [emphasis added] ET must pay Mr.

Kwan's costs on a full-indemnity basis which are set at $15,000. [ 89 ] I have also advised ET in a number of case management meetings that his allegations are groundless and that he has no evidence to support them. [ 90 ] ET’s conduct clearly demonstrates his persistent use of scandalous and inflammatory language in these proceedings.

Unsubstantiated Claims of Conspiracy, Fraud and Misconduct Using Previously Raised Grounds and Issues Inappropriately [ 91 ] The above conduct clearly demonstrates that ET persistently raises unsubstantiated and groundless claims of criminal activity and other misconduct by the parties and their counsel. [ 92 ] In addition, ET’s conduct demonstrates his persistence in using allegations to which he has been advised there is no merit.

[ 93 ] Other conduct that demonstrates this persistence is the chronology of events in 2015 before ET commenced the action against the School District. That year, ET complained to the Privacy Commissioner and the Law Society of Alberta respecting the parties’ use of the documents from M’s file. Both complaints were dismissed. In addition, Master Mason held that the 6 records obtained by Mr. Kwan and his counsel in the CAP proceeding could be used in the Kwan litigation. Regardless of these decisions, ET commenced his action against the School District at the end of 2015.

Failure to Honour Court Ordered Obligations [ 94 ] Justice McIntyre in his 2015 decision, Justice Strekaf in her 2016 decision, and the Court of Appeal in its 2016 decision awarded a total of $41,199.11 in costs against ET. ET has not paid any of these costs and has advised me in case management meetings he has no ability to pay. Regardless, he continues to file applications. Persistently brings Proceedings That Cannot Succeed Hopeless Proceedings [ 95 ] ET persistently brings proceedings that cannot succeed or are hopeless.

There are a number of examples of this and include: ET filed his first Statement of Claim in the Kwan action naming himself as the litigation representative of M even though two years earlier, the Court of Appeal in T v Alberta held ET was obliged to have a lawyer act on behalf of M; ET alleges bias against decision makers who do not rule in his favor; his allegations of bias in the Alberta decision and of Master Mason are but two examples; ET has not succeeded in any of his appeals in these actions, in any appeal to the Law Society or the Privacy Commissioner, or in his dealings with the Calgary Police Service; ET continues to allege the “illegality” of the School District in providing the documents in advance of the CAP hearing even though he has been advised his position is wrong.

The Court of Appeal said at para 14 of it 2016 decision: ET takes issue with the subpoena process used in Mr. Kwan's scheduled disciplinary hearing that did not proceed. The appellant submits that documents from his son's school records were improperly or illegally obtained, having been produced prior to the scheduled hearing. ET complains that the person to whom the subpoena was directed should not have delivered them before the hearing commenced. That proposed procedure is inefficient and impractical. It may result in an adjournment, and inconvenience the parties and the adjudicator.

Collateral Attacks [ 96 ] The word “proceeding” in s 23(2) of the Judicature Act is not defined. I have interpreted it to include proceedings other than court proceedings. See paragraph 73 above. [ 97 ] Therefore, I am considering ET’s complaints to bodies other than this Court respecting the parties and their counsel. [ 98 ] ET has filed complaints with the Law Society, Office of the Privacy Commissioner, and the Calgary Police Service arising out of the use by the parties and their counsel of the documents provided by counsel for the School District prior to Mr. Kwan’s hearing before the CAP.

All the complaints have been dismissed. [ 99 ] It appears ET is again pursuing his allegations of criminal conduct as he advised me on July 18, 2017 in court that he was meeting with the Crown in the coming weeks. [ 100 ] I find ET’s complaints to these agencies to be collateral attacks. Order [ 101 ] ET is declared to be a vexatious litigant, on the following conditions. (

a) ET is prohibited pursuant to s 23.1 of the Judicature Act from commencing, or attempting to commence, any appeal, action, application or proceeding in the Alberta Court of Appeal, the Court of Queen's Bench of Alberta or the Provincial Court of Alberta, on his own behalf or on behalf of any other person against any of the Defendants in the these two actions, or counsel for any of the Defendants including Mr. Hokanson, without an order of a judge of the court in which the proceeding is conducted. (

b) An application for permission to commence a proceeding described in (

a) must be in writing, and notice must be given a. to all of the named Defendants and counsel for the Defendants in accordance with the requirements of the Alberta Rules of Court for serving a commencement document, b. to any other person directed by a justice or judge at any time (on application or on his or her own motion) by serving the same, together with a true copy of all supporting affidavits or other materials, in accordance with the requirements of the Alberta Rules of Court for serving a commencement document or such other manner prescribed by such judge, c. the time for service shall be the time required for service of an originating application under the Alberta Rules of Court , subject to any expansion or abridgment granted by a judge or justice of the Court in which permission is sought. (

c) An application to commence any appeal, action, application or proceeding must be accompanied by an affidavit: a. attaching a copy of the order declaring ET to be a vexatious litigant,

b. attaching a copy of the appeal, pleading, application or process ET proposes to issue or file, c. deposing fully and completely to the facts and circumstances surrounding the proposed claim or proceeding, so as to demonstrate that the proceeding is not an abuse of process, and that there are reasonable grounds for it, d. indicating whether ET has previously applied for permission under this Order in respect of the same claim or matter, and if so the affidavit must include: i. a certified copy of any order refusing permission or otherwise disposing of or adjourning the application, ii. a certified copy of the transcript of the hearing and disposition of any prior request for permission, iii. a true copy of the materials relied on for the previous application, iv. a statement of new evidence or facts on which the applicant relies for the application, the source of such information, the reasons why the information was not previously known, and the facts if any demonstrating that the applicant investigated his claim diligently and did not previously discover such information, and v. undertaking to the Court to diligently prosecute the proceeding. (

d) The application shall be made in open court. (

e) Where an application for permission is dismissed, an application shall not be made again in relation to the same claim or matter unless (

a) the fact an application was previously made is disclosed to the judge or justice hearing the application, and (

b) the applicant provides relevant, credible and substantial information that could reasonably be expected to have affected the result, which was not before the judge or justice hearing the previous application and could not have been through due diligence provided in the previous application. (

f) Leave to commence proceedings may be given on conditions, including the posting of security for costs. (

g) Nothing in this Order limits the authority of a Court to stay or dismiss a proceeding as an abuse of process or on any other ground. (

h) An application to vary this Order or to set aside this Order must be made on notice to the Attorney General of Alberta, all the named Defendants, and any other person as directed by a justice of this Court. [ 102 ] If I have erred in finding ET to be a vexatious litigant, I order that any litigation or steps against the Defendants by ET in these two actions shall require leave of me as the case management judge. See RO v DF .

Security for Costs [ 103 ] The relevant considerations for granting an order for security for costs are outlined in Rule 4.22 of the Alberta Rules of Court , Alta Reg 124/2010: 4.22 Considerations for security for costs order The Court may order a party to provide security for payment of a costs award if the Court considers it just and reasonable to do so, taking into account all of the following: (

a) whether it is likely the applicant for the order will be able to enforce an order or judgment against assets in Alberta; (

b) the ability of the respondent to the application to pay the costs award; (

c) the merits of the action in which the application is filed; (

d) whether an order to give security for payment of a costs award would unduly prejudice the respondent's ability to continue the action; (

e) any other matter the Court considers appropriate. [ 104 ] In Attila Dogan Construction & Installation Co v AMEC Americas Ltd , 2011 ABQB 175 at paras 24-25 , Wittmann CJQB set out the two-step test for determining whether security for costs is justified based on the facts of the case. A court must:

(1) Determine whether factors listed in Rule 4.22 “are weighted in favour of granting the application for security for costs”; and

(2) Determine whether, based on the factors in Rule 4.22 , it is “just and reasonable to grant an application for security for payment of a costs award...” [ 105 ] Further, in Xpress Lube & Car Wash Ltd v Gill , 2011 ABQB 457 at paras 12 , Hall J cautioned that “ [a]n individual with a meritorious claim should not be deprived of pursuing his claim because he cannot afford to put up security for costs. ” [ 106 ] In the present case, the factors clearly weigh against ET, and it is just and reasonable for this Court to grant an order for security for costs. [ 107 ] ET has failed to pay the outstanding costs against him, has admitted an inability to pay future costs, and there is no evidence that

he has substantial assets in Alberta that the Applicants/Defendants can enforce against if successful. While the Applicants/Defendants in the Kwan action acknowledge that at this stage of the litigation, the merits of ET ’ s claim are not fully evident, they submit it is questionable whether ET has a good chance of success at trial. The Applicant/Defendant School District submits ET has little chance of success at trial and has recently argued an Application for

Summary Dismissal of ET’s claim; that matter is on reserve. Therefore, assuming this Court crafts its order in a manner that recognizes ET ’ s position as a self-represented litigant, I see no reason why security for costs will unduly prejudice his ability to pursue this Action. [ 108 ] The Applicants/Defendants did not make any submissions respecting the quantum of a security for costs order. The Applicants/Defendants and ET may appear before me to make submissions on quantum and related conditions. [ 109 ] The Applicants/Defendants are entitled to their costs of these applications on the appropriate column.

Heard on the 3 rd day of June, 2016, the 16 th day of May, 2017 and the 18 th day of July, 2017. Dated at the City of Calgary, Alberta this 1st day of August, 2017. E.A. Hughes J.C.Q.B.A.

Appearances: Domenic Venturo, Q.C./Laura Bracco-Callaghan for the Defendant/Applicant - Ken Kwan Erin Runnalls for the Defendant/Applicant – Rocky Mountain Play Therapy Institute Inc John Gescher for the Defendant/Applicant – Calgary Roman Catholic Separate School District No. 1 ET Self-Represented Litigant - Plaintiff/Respondent _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice E.A. Hughes _______________________________________________________ Changed date in paragraph [14] to read July, 2006 rather than 2016.