Anderson v Entner, 2017 ABQB 733

Court of Queen’s Bench of Alberta Citation: Anderson v Entner, 2017 ABQB 733 Date: 20171201 Docket: FL01 17717; 1501 13702 Registry: Calgary Between: Docket: FL01 17717 Cheryl Anderson and Foothills Home Appraisal Group Inc. Plaintiffs - and - Dwight Entner and Ace Western Home Appraisal Group Inc. Defendants And Between: Docket: 1501 13702 Cheryl Anderson Plaintiff - and - Yvette Felicia Lee Defendant

_______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Bryan E. Mahoney _______________________________________________________ [ 1 ] This special application hearing was scheduled through the office of the Chief Justice based on a December 20, 2016 letter sent to him, signed by both parties, requesting I be assigned to hear this matter because I presided over a Judicial Dispute Resolution ("JDR") meeting and thus knew the background of the dispute between these two parties. The JDR took place on May 4, 2016.

The result was a successful settlement of all matters as set out in two court orders also dated May 4, 2016. [ 2 ] So as to avoid any uncertainty, at the commencement of this special application, both parties again confirmed on the record that notwithstanding I presided over the JDR they both wanted me to hear this application. Cheryl Anderson is self-represented and Dwight Entner has legal counsel, who now also represents Yvette Lee. Ms. Anderson throughout has been respectful to the court and capable of making her case understood. Likewise, counsel for Mr. Entner, Mr.

Aberle, was also civil and assisted in a very professional way. [ 3 ] There are two applications before the court at this hearing. The first is an application to strike the statement of claim brought by Ms. Anderson against Ms. Lee. The second is the application by Ms. Anderson to add Mr. Entner as a party to her action, as well as to add two appraisal corporations, Foothills Home Appraisal Group Inc. (“Foothills”) and Ace Western Home Appraisal Group Inc. (“Ace Western”). Mr. Entner was a director of both corporations. Ms.

Anderson seeks other remedies listed in her brief filed August 25, 2017. [ 4 ] In the post JDR order of May 4, 2016, the

preamble states in part that: And upon the plaintiff and defendant coming to a resolution of all matters between them and as alleged in the pleadings in this action. . . . [ 5 ] Paragraph 2 of the May 4, 2016 order states: No further action shall be brought by the Plaintiff, Cheryl Anderson, or Foothills Home Appraisal Group Inc. against Dwight Entner, his friends, family and business associates and Ace Western Home Appraisal Group Inc. without consent of this court. [ 6 ] Paragraph 3 of the May 4, 2016 order states: There should be a Consent Dismissal Order of Cheryl Anderson's claim against Dwight Entner in Court of Queen's Bench Action No. 1601 02451 on a without costs basis. [ 7 ] I find that the terms of the May 4, 2016 order precludes the plaintiff, Ms.

Anderson, from adding Mr. Entner, Foothills, and Ace Western as parties in her action FL01 17717. The same order also precludes Ms. Anderson from proceeding with an action against Yvette Lee. That action, 1501 13702, is struck out. [ 8 ] I reject Ms. Anderson’s submission that all issues were not resolved between the parties and Foothills, Ace Western, and Ms. Lee. The finality of the May 4, 2016 order is clear. Ms. Anderson consented to its terms on the record in court on May 4, 2016. The issues at the JDR were predominately based on allegations by Ms.

Anderson of fraud, conspiracy and breach of fiduciary duty against Mr. Entner, Foothills, Ace Western and Ms. Lee. The part of the JDR regarding the division of property under the constructive trust claim was resolved expeditiously by Mr. Entner agreeing that Ms. Anderson could have one-half of the joint property that she was seeking. In order to resolve all other claims between them, as set out in the May 4, 2016 order, Mr. Entner agreed to an additional payment to Ms. Anderson of $75,000.

There never would have been a settlement and court order without the parties agreeing to all terms that finalized matters. [ 9 ] The doctrine of res judicata applies here. Res judicata is a fundamental legal doctrine which states that once a lawsuit is decided, the litigant parties are barred from raising the same issue again in another court proceeding. The parties are also barred from raising another issue arising from the same series of claims or transactions that could have been, but was not, raised in the decided lawsuit.

It is based on the principle that lawsuits cannot be allowed to go on for ever and must come to an end. [ 10 ] The Supreme Court of Canada has held that: The doctrine of res judicata has two branches: issue estoppel and cause of action estoppel. Issue estoppel precludes the litigation of an issue previously decided in another court proceeding, and cause of action estoppel precludes the litigation of a cause of action which was adjudged in a previous court proceeding: Ernst & Young Inc v Central Guarantee Trust Company , 2006 ABCA 337 at para 29 , leave to appeal to SCC refused, 31794 (April 19, 2007).

[11] The court further held: For issue estoppel to be successfully invoked, the issue must be the same as the one decided in the prior judicial decision, the priorjudicial decision must have been final, and the parties to both proceedings must be the same or their privies: Ernst & Young at para 30. [12] The order of May 4, 2016 is a final court order. It served to finally dispose of all substantive rights between the parties andthose other individuals and corporations connected to Mr. Entner. Ms. Anderson’s allegations of fraud, conspiracy and breach offiduciary duty against Mr.

Entner, Foothills, Ace Western and Ms. Lee were fundamental to the JDR settlement which was convertedinto the May 4, 2016 order. That order, obtained by consent, was not appealed and is final. [13] The parties to the proceedings are the same in the action resolved by the May 4, 2016 order as in the actions that Ms.Anderson now wants to pursue against Mr. Entner. [14] Mr. Entner raises the issue of abuse of process. In Ernst & Young, the Court of Appeal states at para 52 that: Courts enjoy an inherent and residual discretion to prevent an abuse of process: Toronto, supra at para. 35.

In Toronto, supra at para. 37,at the Supreme Court [sic] noted: Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements ofissue estoppel ... are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy,consistency, finality and the integrity of the administration of justice.

The Court also said: "[t]he attraction of the doctrine of abuse of process is that it is unencumbered by the specific requirements of resjudicata while offering the discretion to prevent relitigation, essentially for the purpose of preserving the integrity of the court's process":Toronto, supra at para. 42. [15] With respect to Ms. Anderson’s lawsuit against Ms. Lee, res judicata does not apply since Ms. Lee was not a named party tothe action Ms. Anderson brought against Mr. Entner. However, I find that the issues that she now wants to pursue against Ms.

Lee arethe same issues that she alleged in the settled lawsuit. Allegations of conspiracy between Mr. Entner and Ms. Lee to defraud thecorporation and to wrongfully take money out of the corporation were settled in the Family Law action which was resolved by the May4, 2016 order. [16] A review of the pleadings and the affidavit evidence before me in this application, and having conducted the JDR and madethe May 4, 2016, it is clear that this is an attempt to relitigate the issues of fraud, conspiracy and breach of fiduciary duty. To re-litigatethese issues is an abuse of process. To allow Ms.

Anderson to raise them again in this case would, as stated in Ernst & Young, para 54: . . . violate principles of judicial economy and certainty and seriously undermine the administration of justice in this province. [17] In Dixon v Canada (Attorney General), 2015 ABQB 565 at para 20, this court wrote: In Reece, the Alberta Court of Appeal noted that the doctrine of abuse of process is often used to prevent re-litigation of issues evenwhen the preconditions for issue estoppel and res judicata are not present.

In Calgary (City) v Alberta (Human Rights and CitizenshipCommission), 2011 ABCA 65 , the court stated at para 15 that "the risk of inconsistent results, or the wasting of resourcesthrough duplicitous proceedings, are managed through the doctrines of res judicata, issue estoppel, and abuse of process.” . . . [18] The court further wrote, at para 22: In Reece, the court noted at paras 19-20 that "the cases on abuse of process have tended to fall into a number of categories, such as there-litigation of settled issues, delay in proceedings, and so forth” . . . [19] This application falls into the category of re-ligation of settled issues.

The evidence proves that there is no contractualrelationship between Ms. Anderson and Ms. Lee. I find on the evidence, particularly the answers given by Ms. Anderson when beingquestioned by counsel for Mr. Entner, that Ms. Lee was hired by Mr. Entner as the director and manager of Foothills, and later AceWestern. Ms. Lee’s contract of employment was with Foothills, and then later with Ace Western. There is no contractual relationshipbetween Ms. Anderson and Ms. Lee. [20] From Ms. Anderson’s materials, she appears to be unhappy that Ms.

Lee had her cell phone charges paid for, as well as otherclaimed expenses and management fees when Ms. Lee worked for the corporations. The evidence of Mr. Entner indicates that he had theauthority and agreed to pay Ms. Lee’s claims, expenses and management fees in his capacity as manager of the corporations. He statesthat these payments were terms of her employment. [21] It is very clear to me that the order of May 4, 2016 was consented to by the parties to specifically prevent the type ofapplication and claims which Ms. Anderson is now seeking to pursue. [22] Ms.

Anderson’s application is barred by the doctrine of res judicata, issue estoppel and abuse of process. The application toadd Mr. Entner as a defendant is denied. The application for an order adding Foothills Home Appraisal Group Inc. and Ace WesternHome Appraisal Group Inc. as plaintiffs is also denied. As an aside, I note that in Ms. Anderson’s Amended Statement of Claim in thesettled action (FL01 17717) that resulted in the May 4, 2016 order, she had added Foothills as a Plaintiff and Ace Western as aDefendant.

To repeat, issues against Foothills and Ace Western were resolved with the May 4, 2016 order. [23] There is no genuine issue requiring a trial. This matter can be decided on the merits of this

summary application. The action(1501 13702) against Yvette Lee is struck. There is no contractual relationship between Ms. Anderson and Ms. Lee. There can be nofinding of fraud against Ms. Lee because there is no persuasive evidence presented in this application that can meet the two essentialelements needed to find fraud, “dishonesty” and “deprivation”: R v Olan, (SCC), [1978] 2 SCR 1175 at 1182.

[ 24 ] Equally, there is no evidence of a conspiracy. The settled action reflected in the consent order of May 4, 2016 included allegations of conspiracy which were dismissed by consent. [ 25 ] All remedies sought by Ms. Anderson under the sub-title “Remedy Sought” in her brief at page four (unnumbered), filed August 25, 2017, are hereby dismissed. [ 26 ] Mr. Entner and Ms. Lee will have one set of costs for a contested application, which I set at $1,500 plus reasonable disbursements and GST. Heard on the 14 th day of September, 2017. Dated at the City of Calgary, Alberta this 1 st day of December, 2017. Bryan E.

Mahoney J.C.Q.B.A. Appearances: Cheryl Anderson Not represented by counsel Daniel J. Aberle for the Defendants, Dwight Entner and Yvette Felicia Lee