Lee v Blondin, 2017 ABQB 800

Court of Queen’s Bench of Alberta Citation: Lee v Blondin, 2017 ABQB 800 Date: 20171221 Docket: 1703 04933 Registry: Edmonton Between: John Mark Lee Jr. Plaintiff - and - William Blondin, Bridget Blondin, Teresa Savage, Patricia MacLeod, Dawn-Marie MacLeod, Bob MacLeod, Laura Lee Kennedy and Pat MacLeod Defendants _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Nature of the Application [ 1 ] Mr.

Lee applied without notice, seeking an order for substitutional service of a statement of claim, which he filed May 9, 2017, in relation to this Action. [ 2 ] In his application document, Mr. Lee indicated:

1 that he “is no [sic] prohibited by any order or condition by the Correctional or Parole services from serving the claim”, but indicated that “it is an expected requirement to refrain from any contact with the victims as such contact will and can result [sic] repercussions, retaliation by prison security and likely transfer to higher security prison setting”, as “contact without victim’s families consent in construed a [sic] victimizing and being in one’s crime cycle”. [emphasis in original] 2 that he proposed that this Court contact the Parole Board of Canada, or have the Crown’s criminal division do so, to obtain the Defendants’ addresses for the purposes of having this Court serve the Statement of Claim on each of the Defendants. 3 that other options be discussed during the hearing of the application. [ 3 ] The Statement of Claim alleges that the Defendants have intentionally inflicted mental suffering and engaged in outrageous conduct causing severe emotional distress and mental shock, amongst other things, in relation to Mr.

Lee. “Facts and Particulars” set out in the Statement of Claim include reference to Victim Impact Statements prepared by members of the “MacLeod Family”. Mr. Lee refers to a specific statement contained in Mr. Blondin’s Victim Impact Statement, as well as other comments contained in other Defendants’ Victim Impact Statements. [ 4 ] The Facts and Particulars also refer to a Facebook site maintained by the MacLeod Family. Mr.

Lee says that “ various emotionally disturbing and shocking comments ” [emphasis in the original] have been made in relation to him. [ 5 ] Of particular note is para 9 of the Statement of Claim, which states: The Plaintiff’s family is outraged and emotionally disturbed on a level where the Lee family has demanded that the Plaintiff bring a lawsuit as the victim’s family has gone too far, and” [ 6 ] Mr.

Lee alleges that the Victim Impact Statements and statements made on the Facebook site have caused him severe emotional distress, and that this conduct by the Defendants was intentionally reckless and gives rise to liability in tort for intentional infliction of mental suffering on him, as well as liability for the suffering of Mr. Lee’s family. [ 7 ] Mr. Lee also alleges that this conduct and specific statements made by them were intended to expressly harm him, resulting in the tort of misfeasance. [ 8 ] In addition, Mr.

Lee says that the actions of the Defendants have aggravated and elevated the mental disorders, suicidal thoughts, feelings and ideations from which he suffers, which are documented in various parole reports, psychological and psychiatric reports, and case management reports, thereby causing additional harm to him and his family. [ 9 ] Mr. Lee asserts that the actions of the Defendants have caused his sister to submit her own Victim Impact Statement to the Parole Board, causing him further emotional harm for which the Defendants are liable. [ 10 ] Mr.

Lee claims damages from the Defendants, including aggravated and punitive damages in the amount of $200,000, solicitor and client costs, and interest. [ 11 ] In the alternative, he asks that the Defendants discontinue: issuing Victim Impact Statements; their attendance at parole hearings; and receiving any further information in relation to him. He also asks that they remove all “hate, insulting and statements that suggest, recommend, give innuendos of any harm toward, for or against Mr. Lee or otherwise” and never mention Mr. Lee or anyone related to Mr.

Lee in a negative context, unless it is in the total privacy of the Defendants. Mr. Lee provides that he will discontinue his Statement of Claim if the Defendants contractually agree to the foregoing restrictions. [ 12 ] Accompanying Mr. Lee’s application was a document entitled “List of Documents”. It included copies of a letter prepared by Mr. Lee’s sister, copies of various Victim Impact Statements, and postings from the Facebook site referred to in Mr. Lee’s Statement of Claim. Mr.

Lee also filed two affidavits, one on February 1, 2017 and a second, on November 15, 2017, although the body of the documents is identical. In his affidavits, Mr. Lee states: The defendants/s are my victim’s family members and I am prohibited to have direct or indirect contact with the victim’s family unless it is via prison authorities... [emphasis in the original] [ 13 ] In his Affidavits, Mr. Lee proposes to serve the Statement of Claim and related documents on one of two named prison officials. [ 14 ] At the hearing of the application, given the apparent conflict in his documents on this point, I asked Mr.

Lee to clarify whether or not he was prohibited from contacting the Defendants. He clarified that there was no court order prohibiting him from doing so, but that there were policies and procedures in place in the correctional facilities which had that effect.

He clarified that he was seeking an Order from this Court, because the prison authorities would not penalize him for serving the Statement of Claim if the Court ordered that he could do so. [ 15 ] I also asked him to clarify the basis of his claim, specifically asking if he was seeking to penalize the Defendants for, and prevent them in the future from exercising, any rights granted to them by law. He said this was not the case and clarified that he was relying solely on, and that his injury arose in consequence of, the postings on the Facebook site. Background [ 16 ] Mr.

Lee is serving a life sentence for the first degree murder of 16 year old Bill MacLeod in May of 1986. I understand that the Defendants are relatives of Mr. MacLeod, by blood or by marriage.

[ 17 ] The Facebook site referred to in Mr. Lee’s materials apparently is either titled or referred to as “R.I.P. Billy MacLeod”. One of the entries included in Mr. Lee’s materials, posted by the Defendant, Ms. Kennedy, indicates that the Facebook group “is for family, friends, Kingstonians or anyone to post comments, feelings or thoughts whatever about Billy or about the status of the parole hearings and Whig Standard articles”. Applicable Law [ 18 ] Of particular relevance to this application are Rules 11.28(1) and (2), 11.25(1) and (3), 3.25, and 3.68(1) and (2).

For ease of reference, these Rules have been attached as Exhibit A. Analysis [ 19 ] It is my understanding that all of the Defendants reside in Ontario, and that they have established and maintained the Facebook site in that province. Therefore, it seems likely that, if a tort was committed by the Defendants, it was committed in Ontario by persons resident in that province. Arguably, this Court does not have jurisdiction over such a claim. If it does, however, Mr. Lee ought to have applied not only for substitutional service, but also for service ex juris .

For the following reasons, I do not find it necessary to deal with these issues further. [ 20 ] Mr. Lee is attempting to circumvent policies and procedures to which he is subject by obtaining an order from this Court permitting him to do that which he advises he is not permitted to do. Policies and procedures of correctional authorities cannot take away a citizen’s rights to seek recourse against those who have committed tortious acts against them, unless such policies and procedures have been effected under legislative authority that supersedes or suspends such legal rights. Mr.

Lee did not provide me with any evidence concerning the policies and procedures to which he advises he is subject, or the authority under which they were enacted, nor did he provide notice to the Correctional authorities that he was seeking court authority to overrule them. However, for the following reasons, I do not find it necessary to pursue this issue further. [ 21 ] Although he distanced himself from this position when I asked him to confirm the basis of his cause of action, Mr.

Lee’s Statement of Claim clearly refers to the provision of Victim Impact Statements at his Parole Board hearings as one of the bases for his cause of action. While Mr. Lee denies that he is attempting to punish the Defendants for opposing his release, and that he is not seeking to prevent them from exercising their statutory right to provide Victim Impact Statements at future Parole Board hearings, it is clear from his Statement of Claim that Mr. Lee is trying to do so. [ 22 ] Insofar as Mr.

Lee is attempting to extract a contractual obligation from the Defendants, this form of “remedy” is not a proper request for relief in a Statement of Claim. Contracts are private agreements between the parties and not a remedy that can be imposed by this Court. [ 23 ] There is no basis in law to found an action for either intentional infliction of mental suffering or intentional infliction for misfeasance on the basis of a person exercising a statutory right to provide a Victim Impact Statement at a Parole Board hearing. [ 24 ] Similarly, it is clear that Mr.

Lee is basing his claims for the torts alleged to have been committed by the Defendants on their establishment and maintenance of the R.I.P. Billy MacLeod Facebook site. While Mr. Lee may find some of the postings disturbing, I note that the postings that he specifically refers to were not made by the Defendants. Regardless, I conclude that a website established by the family of a murder victim for the purpose of remembering the victim and providing updates on the status of parole hearings cannot of itself be the foundation of the tortious acts claimed by Mr. Lee.

The right to free speech is a Charter value, which will only be restricted in exceptional circumstances that do not apply here. I cannot conclude, either on a general basis or on the basis of comments made by the Defendants on the Facebook site, that their establishment and maintenance of the site could reasonably be construed as, or be intended to have the effect of, committing the tortious acts complained of by Mr. Lee. Furthermore, Mr. Lee can choose not to look at the site if the comments made about him disturb him. [ 25 ] As for Mr.

Lee’s statement in para 9 of his Statement of Claim that it is his family that demanded he bring this Action against the Defendants, none of Mr. Lee’s family members are named as Plaintiffs in the Action. [ 26 ] In his appearance before me, Mr. Lee seemed to suggest that the Defendants need to be prevented from attending his future Parole Board hearings and from maintaining the R.I.P. Billy MacLeod Facebook site for their own good. Mr.

Lee seems to believe that the Defendants ought to have moved on with their lives, and that their attendance at his Parole Board hearings and the maintenance of the Facebook site is not good for them. In my opinion, it is highly inappropriate for a murderer to suggest to the family of his victim the manner in which they ought to grieve and the length of time during which they should do so. And it defies belief to suggest that his commencement of this Action was in any manner motivated by concern for them. [ 27 ] Having concluded that there is no factual foundation for the claims advanced by Mr.

Lee, I find the claims are not reasonable, whether or not the Court has jurisdiction. I also conclude that, in all of the circumstances, the filing of the Statement of Claim and the attempt to serve the Defendants in the manner suggested is both improper and an abuse of process. [ 28 ] I also conclude that this is an appropriate case to exercise my jurisdiction under Rule 3.68.

While there is no application before me to strike the Statement of Claim, I have concluded that it would contrary to the interests of justice, a further abuse of process, and contrary to public policy to allow the Statement of Claim to remain in effect. Allowing it to do so might lead to the Defendants having to bear both the financial and emotional cost of bringing an application to strike it in the future. Conclusion

[ 29 ] Accordingly, I dismiss Mr. Lee’s application for substitutional service and strike the Statement of Claim in this Action. Heard on the 6 th day of December, 2017. Dated at the City of Edmonton, Alberta this 21 st day of December, 2017. D.L. Shelley J.C.Q.B.A. Appearances: John Mark Lee Jr. Self-Represented Litigant Exhibit A Substitutional service 11.28(1) If service of a document, inside or outside Alberta, is impractical, the Court may, on application, make an order for substitutional service.

(2) The application must be supported by an affidavit (

a) setting out why service is impractical, (

b) proposing an alternative method of service, and (

c) stating why the alternative method of service is likely to bring the document to the attention of the person to be served. Real and substantial connection 11.25(1) A commencement document may be served outside Alberta and in Canada only if (

a) a real and substantial connection exists between Alberta and the facts on which a claim in the action is based, and (

b) the commencement document discloses the facts in support and specifically refers to the grounds for service of the document outside Alberta and in Canada.

(3) Without limiting the circumstances in which a real and substantial connection may exist between Alberta and the facts on which a claim in an action is based, in the following circumstances a real and substantial connection is presumed to exist: (

a) the claim relates to land in Alberta; (

b) the claim relates to a contract or alleged contract made, performed or breached in Alberta; (

c) the claim is governed by the law of Alberta; (

d) the claim relates to a tort committed in Alberta; (

e) the claim relates to the enforcement of a security against property other than land by the sale, possession or recovery of the property in Alberta; (

f) the claim relates to an injunction in which a person is to do or to refrain from doing something in Alberta; (

g) the defendant is resident in Alberta; (

h) the claim relates to the administration of an estate and the deceased died while ordinarily resident in Alberta; (

i) the defendant, although outside Alberta, is a necessary or proper party to the action brought against another person who was served in Alberta; (

j) the claim is brought against a trustee in relation to the carrying out of a trust in any of the following circumstances: (

i) the trust assets include immovable or movable property in Alberta and the relief claimed is only as to that property; (ii) the trustee is ordinarily resident in Alberta; (iii) the administration of the trust is principally carried on in Alberta; (iv) by the express terms of a trust document, the trust is governed by the law of Alberta; (

k) the action relates to a breach of an equitable duty in Alberta. Contents of statement of claim 3.25 A statement of claim must (

a) be in Form 10, (

b) state the claim and the basis for it, (

c) state any specific remedy sought, and (

d) comply with the rules about pleadings in

Part 13 [Technical Rules], Division 3 [Pleadings]. Court options to deal with significant deficiencies 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim or defence be struck out; (

b) that a commencement document or pleading be amended or set aside; (

c) that judgment or an order be entered; (

d) that an action, an application or a proceeding be stayed.

(2) The conditions for the order are one or more of the following: (

a) the Court has no jurisdiction; (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; (

e) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim.