MUA v Four Points Sheraton Edmonton South (DBA), 2017 ABQB 804

Court of Queen’s Bench of Alberta Citation: MUA v Four Points Sheraton Edmonton South (DBA), 2017 ABQB 804 Date: 20171221 Docket: 1703 01982 Registry: Edmonton Between: MUA Plaintiff - and - Four Points Sheraton Edmonton South (DBA), Edsask Properties Management, Francis Mejaie, Camron Jordan, Chef Pepsi, Chef with Blond Hair, Third Chef (Identity Unknown) Defendants _______________________________________________________ Memorandum of Decision of L.A. Smart, Master in Chambers _______________________________________________________ Introduction [ 1 ] The Plaintiff, MUA, is a self-represented litigant.

In January 2017, he commenced an action against the Defendants claiming: • that he was discriminated and conspired against, sexually harassed and sexually assaulted, while working as a server at the Defendant hotel, Four Points Sheraton Edmonton South (DBA), properly named Four Points by Sheraton Edmonton South (Four Points by Sheraton); • that his internal sexual assault complaint “was not taken seriously” (para 12); and • that the Defendants’ actions caused him “not to return to work” (para 11). [ 2 ] MUA’s prolix Statement of Claim alleges that the incidents in issue “transpired between June and December 2005” (para 2), and violated labour and human rights codes and the Criminal Code .

It suggests that Four Points by Sheraton or the Defendant Edsask Properties Management, properly named Edsask Properties Ltd. (Edsask), may be held vicariously liable for the actions of the individual

Defendants. Among other things, the Statement of Claim seeks damages of $300 million and the reimbursement of lost wages. [ 3 ] Edsask owns and operates Four Points by Sheraton. Its Statement of Defence, filed on its own behalf and on behalf of Four Points by Sheraton, contains: • a blanket denial of the allegations in the Statement of Claim; • an admission that MUA “was an employee of Edsask or its predecessor between June and December, 2005” (para 3); and • a statement that MUA’s “employment was terminated in October 2006” (para 3).

Among other things, the Statement of Defence states that MUA’s action was not brought within the applicable limitation period in the Limitations Act , RSA 2000, c L-12. [ 4 ] Edsask seeks an order striking MUA’s Statement of Claim. Alternatively, it seeks an order requiring MUA to post security for costs. Application to Strike the Statement of Claim [ 5 ] Rule 3.68 of the Alberta Rules of Court , Alta Reg 124/2010 provides:

(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 ... be struck out; ...

(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 ...; (

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 pleadings is so prejudicial to the claim that it is sufficient to defeat the claim.

(3) No evidence may be submitted on an application made on the basis of the condition set out in subrule (2)(b). ... [ 6 ] Edsask originally took the position that MUA’s Statement of Claim should be struck in its entirety because it was barred by the Limitations Act and, therefore, disclosed “no reasonable claim”: rule 3.68(2)(b).

However, in light of the May 2017 amendments to the Limitations Act , which did away with limitation periods for claims relating to a sexual assault or battery, Edsask resiled from its original position. [ 7 ] At the hearing before me, Edsask’s counsel argued that the Statement of Claim should be struck in its entirety because it is frivolous, improper, incomprehensible, and so irregular that it is incapable of being effectively defended.

This argument cannot succeed. [ 8 ] Despite its prolixity, and the unrealistic relief it seeks, MUA’s Statement of Claim discloses causes of action (sexual assault or battery and constructive or wrongful dismissal).

Among other things, it: • describes an incident involving MUA being “successively smacked on the posterior end” by his supervisor, a kitchen manager and three cooks (the five individual Defendants) while working at the Four Points by Sheraton (para 6); • states that MUA’s internal sexual assault complaint “was not taken seriously” (para 12); • states that the Defendants’ actions “caused [MUA] not to return to work” (para. 11); and • seeks lost wages from the year of the termination of MUA’s employment.

As such, the Statement of Claim cannot be said to be incomprehensible, “frivolous ... or improper”: rule 3.68(2)(c). Moreover, Edsask’s suggestion that the Statement of Claim is so poorly drafted or facially flawed that it will be difficult to defend is not a sufficient basis for striking it out; being difficult to defend is not a condition under rule 3.68(2). Conclusion [ 9 ] Edsask’s application to strike MUA’s Statement of Claim in its entirety is dismissed. (Edsask’s counsel did not seek to have any particular parts of the Statement of Claim struck out.)

Alternative Application for Security for Costs [ 10 ] I will now move on to Edsask’s alternative application for security for costs. [ 11 ] Rule 4.22 of the Alberta Rules of Court provides: 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. [ 12 ] Accordingly, I must consider the factors listed in rule 4.22 to determine whether it is just and reasonable for me to order MUA to provide security for costs: Attila Dogan Construction v AMEC Americas Limited , 2011 ABQB 175 at paras 10 and 24-25 , 504 AR 295 [ Attila Dogan Construction ].

Is it likely that Edsask will be able to enforce an order or judgment against assets in Alberta? [ 13 ] The first factor for me to consider is whether it is likely that Edsask will be able to enforce an order or judgment against assets in Alberta. [ 14 ] Based on MUA’s affidavit evidence, and the submissions he made at the hearing of Edsask’s application, I am satisfied that he currently resides in a rental unit in Alberta.

However, there is nothing before me that suggests he has any assets in this province. [ 15 ] To the contrary, the fact that MUA obtained a fee waiver when he filed his Statement of Claim, and the fact that he admitted to me that he is currently unemployed, indicate that he has no assets in Alberta. Accordingly, it seems unlikely that Edsask will be able to enforce an order or judgment against assets here. This factor favours the granting of a security for costs order.

Does MUA have the ability to pay a costs award? [ 16 ] The second factor for me to consider is whether MUA has the ability to pay a costs award. [ 17 ] MUA has demonstrated that he lacks the ability to pay a costs award by failing to pay previous costs awarded against him.

In July 2017, on the same day I heard this matter, I granted Edsask’s application to have an outstanding Ontario judgment, requiring MUA to pay $2,500 in costs, registered in this Court pursuant to the Reciprocal Enforcement of Judgments Act , RSA 2000, c R-6. [ 18 ] Edsask’s affidavit evidence demonstrates that there is another outstanding costs award (for $20,000) against MUA in Ontario, and an outstanding costs award (for $750) against MUA in Alberta. [ 19 ] At the hearing before me, MUA asserted that the $20,000 costs award had been waived. However, he did not provide any evidence to support his assertion.

MUA did not deny that the other costs awards remain unpaid. [ 20 ] Given MUA’s failure to pay previous costs awards, and his current unemployment, it seems unlikely that he has the ability to pay a costs award. This factor favours the granting of a security for costs order. Does the action have merit? [ 21 ] The third factor for me to consider is whether MUA’s action has merit. [ 22 ] At this very early stage of the litigation, before there has been any disclosure of information by the parties under

Part 5 of the Alberta Rules of Court , it is very difficult for me to consider the merits of MUA’s action: Bechir v Gowling Lafleur Henderson LLP , 2017 ABQB 214 at para 13 , [2017] AJ No 330 (QL) [ Bechir ]. [ 23 ] The only undisputed facts before me are that Edsask (or its predecessor) employed MUA during the relevant period, and that MUA’s employment was terminated.

Edsask admitted these facts in its Statement of Defence. [ 24 ] As it appears that Edsask has lost its limitations defence (due to the recent amendments to the Limitations Act ), I am faced with MUA’s prolix allegations (which disclose causes of action) and Edsask’s blanket denial of those allegations. This is insufficient to allow me to do any weighing of the merits of the action. [ 25 ] In these circumstances, the merits of the action are a relatively unimportant factor for me to consider; they are a neutral factor:

Bechir at paras 14-17 . Would a security for costs order unduly prejudice MUA’s ability to continue his action? [ 26 ] The fourth factor for me to consider is whether a security for costs order will unduly prejudice MUA’s ability to continue his action. [ 27 ] As MUA appears to have no present ability to pay a costs award, a security for costs order may very well hinder his ability to continue his action. That said, during his submissions, MUA asserted that he is in the process of obtaining some assistance from Assured Income for the Severely Handicapped (AISH).

This suggests that he may have access to some resources, and that a modest security for costs order would not render him unable to continue his action. [ 28 ] It is well-established that "[a]ccess to justice does not equate to access to civil processes without fear of costs consequences": DataNet Information Systems, Inc v Belzil , 2011 ABCA 40 at para 4 , [2011] AJ No 119 (QL), leave to appeal to SCC refused, 34196 (September 29, 2011). Accordingly, I do not think a modest security for costs order will unduly prejudice MUA’s ability to continue his action.

This factor favours the granting of a security for costs order. Are there any other matters to be considered? [ 29 ] Finally, I must consider any other relevant matters. MUA’s litigiousness and poor litigation track record are such matters. Edsask’s evidence demonstrates that MUA commenced a number of actions in Ontario as a self-represented litigant between 2008 and 2016. Two of those actions were dismissed as abandoned. One was dismissed following a trial, and resulted in the outstanding $20,000 costs award I mentioned earlier.

Another was dismissed on a motion brought by Edsask, and resulted in the $2,500 costs judgement that I ordered to be registered in this Court. The fifth action was dismissed at the hearing of MUA’s application to add a defendant. And, the sixth action appears to be unresolved. [ 30 ] Edsask’s evidence also demonstrates that, in addition to this action, MUA commenced three other actions in Alberta in January and February 2017, all as a self-represented litigant and all with the benefit of fee waivers.

One of those actions has already been struck, and resulted in the outstanding $750 costs award I mentioned earlier. The other two actions remain unresolved. Both seek tens of millions of dollars in damages. [ 31 ] MUA’s litigiousness and poor litigation track record are matters that favour the granting of a security for costs order. Conclusion [ 32 ] Having considered all the factors in rule 4.22 , I am satisfied that it is just and reasonable for me to order MUA to provide security for costs. That said, I am not prepared to order security for costs in the amount Edsask seeks.

Security for Costs Order [ 33 ] Edsask seeks security for costs to the end of the litigation in the amount of $107,000 (based on double Column 5 of

Schedule C to the Alberta Rules of Court ). I think a modest and staged, or incremental, posting of security for costs is more appropriate in the circumstances: Attila Dogan Construction at para 28 ; Hayden v Alberta Health Services (Foothills Medical Centre) , 2017 ABQB 111 at para 39 , [2017] AJ No 145 (QL). [ 34 ] Therefore, MUA must post security for costs to the end of questioning in the amount of $3,000 (based on Column 1 of

Schedule C to the Alberta Rules of Court ), by paying that amount into Court within 90 days of the date of this decision. [ 35 ] All applications and other proceedings in this action will be stayed until the security is provided. If MUA provides the security in accordance with this decision, Edsask can apply for the next installment of security for costs after questioning is completed. [ 36 ] If MUA does not provide the security in accordance with this decision, his action is dismissed in its entirely without further order. Costs [ 37 ] Edsask is entitled to the costs of this application, based on Column 1 of

Schedule C to the Alberta Rules of Court . Dated at the City of Edmonton, Alberta this 21 st day of December, 2017.

L.A. Smart M.C.C.Q.B.A. Appearances: M.U.A. Plaintiff Self-Represented Litigant Scott A. Matheson Field LLP for the Defendants Four Points Sheraton Edmonton South (DBA) and Edsask Properties Management