Wang v Alberta Health Services, 2019 ABQB 907

Court of Queen’s Bench of Alberta Citation: Wang v Alberta Health Services, 2019 ABQB 907 Date: 20191128 Docket: 1401 10235 Registry: Calgary Between: Xiaoli Lily Wang and Daiming Robert Li Appellants - and - Alberta Health Services Respondent _______________________________________________________ Endorsement of the Associate Chief Justice J.D. Rooke _______________________________________________________ I.

Introduction [ 1 ] On November 13, 2019, I issued a decision in which I found that a Statement of Claim filed by Xiaoli Lily Wang and Daiming Robert Li was an Apparently Vexatious Application or Proceeding (“AVAP”) under Civil Practice Note No. 7 (“CPN7”): Wang v Government of Alberta , 2019 ABQB 869 (“ Wang CPN7 #1 ”). Ms. Wang and Mr. Li were given 14 days to respond to that decision. In the meantime, by Order, I imposed interim court filing restrictions that, inter alia , prohibit Ms. Wang and Mr.

Li from continuing any appeal, action, application or proceeding in this Court without an order granting leave. [ 2 ] Since the issuance of Wang CPN7 #1 , Ms. Wang has contacted my office by email several times. In an email dated November 14, 2019, Ms. Wang stated: The Half-day Special hearing

schedule at 2pm November 28, 2019 has been cancelled at the request of the Respondent AHS. by the court. But we need a Special Hearing to appeal the decision of assessment officer for the more than $300,000 legal fees claimed by 32 unknown persons from a private law firm acting for AHS. [ 3 ] Review of the Court file discloses that Ms. Wang and Mr. Li (collectively, the “Appellants”) have appealed an assessment of costs by the Court’s assessment officer. I therefore take Ms. Wang’s correspondence to be a request for leave to continue that appeal. [ 4 ] As noted in Wang CPN7 #1 , Ms. Wang and Mr.

Li have been involved in several proceedings stemming from 2014 inspections of certain rental properties by Alberta Health Services (“AHS”). In one of those proceedings, Action No. 1401 10235 (the

“AHS Action”), Justice Jeffrey of this Court, having found against Ms. Wang and Mr. Li, made an order dated June 8, 2016 for full indemnity costs in favour of AHS. That costs award came before the assessment officer; Ms. Wang asserts that he assessed costs of some $300,000 against her and Mr. Li. [ 5 ] Ms. Wang and Mr. Li filed an appeal from the assessment officer. On November 8, 2019, they filed a document styled “Brief & Authorities”. [ 6 ] I reviewed that Brief and found that little of it focussed on the merits of the assessment officer’s decision. Rather, it consists largely of a re-hashing of Ms.

Wang and Mr. Li’s grievances with respect to the 2014 inspections. Much of the Brief is spent raking over the facts of the AHS Action. Those facts already have been fully canvassed both in this Court and in the Court of Appeal; they are not relevant to the merits of the assessment officer’s decision. [ 7 ] The Brief also sets out argument about the alleged negligence of the Government of Alberta in failing to enact certain legislation. As I noted in Wang CPN7 #1 , this is not a cause of action in law. In fairness to the Appellants, the Brief was filed prior to the issuance of Wang CPN7 #1 .

Nevertheless, the fact remains that this argument is irrelevant to the assessment of costs against the Appellants. [ 8 ] More disturbing is that the Brief is replete with allegations of perjury and conspiracy levelled against AHS, Ayuk Eyong (an inspector with AHS) and Ivan Bernardo, who acted as Counsel for AHS. These allegations are particularly troubling in light of Justice Jeffrey’s finding that there was no misrepresentation. I note that Justice Jeffrey’s Order of June 8, 2016 provided an opportunity for the Appellants to obtain some costs relief if they resiled from those allegations: 3.

Subject to paragraph 5 below, Alberta Health Services may, if it chooses to, forgive a portion of this costs award if the Respondents each apologize to Mr. Eyong and Mr. Ivan Bernardo in writing and retract all allegations of impropriety and unprofessional conduct they have made against Mr. Eyong and Mr. Bernardo. 4. The apology and retraction described above shall be set out in wording satisfactory to Ayuk Eyong and Ivan Bernardo and shall be distributed by the Respondents to those individuals specified by Ayuk Eyong and Ivan Bernardo. 5.

The portion of this costs award that may be forgiven by Alberta Health Services is limited to 15% for an apology and retraction with respect to Ivan Bernardo, and a further 5% with respect to Ayuk Eyong. [ 9 ] Clearly, any hope that the Appellants would display such contrition was in vain. The Brief states: Justice Jeffrey’s order of June 8, 2016 is miscarriage of justice as a result of the perjury . Wang and Li have never apologized to Ayuk Eyong and Ivan Bernardo. The Applicants are victims of the perjury . None of the costs against the Applicants are reasonable and proper.

Without doubt, the Respondent has brought the administration of justice into disrepute . [Emphasis in original.] [ 10 ] The Brief also sets out certain arguments about the Bill of Costs in question. These include the following: On May 31, 2019, the Respondent served the Applicants with a copy of incomplete Bill of Costs with the column of Narrative all covered in black. There are also unusual 32 unique initials all claimed at a lawyer’s full rate, and countless group claims on the same dates , and some people even claimed more than 9 hours or even more than 12 hours on a single date.

On September 10, 2019, Court of Appeal Justice Antonio pronounced an Order and decided that the issues of whether AHS must reveal the names behind the 32 initials, and the details of work done to be decided at the special on November 28, 2019. As appeared on page 17 of the record, the assessment officer denied the Applicants request for a complete bill of costs with narrative.

However, he said “...if a judge overrules me, then the judge will direct that you get a copy of it – and then you can look at it again.” There are 32 unique initials all claimed legal fees at a lawyer’s full rate which is not reasonable and proper.

A legal assistant, articling student, junior lawyer, and para-legal should not be allowed to charge at a lawyer’s full rate because the legal matters they are authorized to deal with are less complex, they have less (if any) formal legal education or training, and they generally do not have liability insurance. [Emphasis in original.] [ 11 ] From the above, it appears that the question of whether the Appellants should be given an unredacted Bill of Costs has already been the subject of judicial comment. After the Appellants filed this appeal, AHS brought an application to strike it.

The Appellants brought a counter-application to waive filing of a transcript. Justice Horner denied AHS’ application and adjourned the appeal to a half-day special hearing on October 31, 2019. That hearing was adjourned to November 28, 2019 by Order of Justice Ho dated August 28, 2019.

Justice Horner also denied the Appellants’ counter-application. [ 12 ] The Appellants appealed that denial, alleging, inter alia , that they were denied procedural fairness and that Justice Horner was biased against them. [ 13 ] In oral reasons reported as Alberta Health Services v Wang , 2019 ABCA 328 , Justice Antonio dismissed the appeal. In so doing, she made these comments at paras 12-14 about the Bill of Costs: The applicants have made submissions targeting the substance of the assessment appeal, which is scheduled to be heard in November. Their appeal questions the appropriateness of the bill of costs.

They assert that the only way those questions can be answered is for AHS to give them more detailed explanations about the work billed and to reveal the names of individuals who are identified by initials on the bill of costs. They say that AHS should not be allowed to hide behind solicitor-client privilege. The applicants interpret Justice Horner’s Order as having decided these issues already. They anticipate that, at the hearing in November, AHS will point to this Order and claim that the next justice cannot re-decide those issues. Therefore, they say, an appeal is their only path to a solution.

AHS interprets the order differently. Its understanding is that the issues about revealing the details behind the bill of costs and the applicability of solicitor-client privilege have not yet been decided, and are to be argued at the November hearing. Counsel for AHS says that his client will not attempt to use the Order to prevent these issues from being heard and decided. I interpret the Order the same way as AHS does.

The questions of whether AHS must reveal the names behind the initials, and the details of work done, remain open to be decided at the appeal of the Assessment Officer’s Order. [ 14 ] The result of Wang CPN7 #1 and the related Order of November 13, 2019 prevented the November 28, 2019 hearing from proceeding and, based on the above description of the Appellants’ Brief, I will not grant leave to proceed with the material filed. [ 15 ] Nevertheless, as noted, the appeal from the decision of the assessment officer was filed prior to the issuance of Wang CPN7 #1 .

The Appellants were exercising a legitimate right of appeal, though their materials are improper. In substance, the Court should be slow to interfere with a litigant’s existing rights. For that reason, court access restrictions invariably provide for an abusive litigant to be granted leave to commence or continue with a meritorious action. That being said, there is no point in expending valuable Court resources on a manifestly fruitless and meritless appeal. [ 16 ] Justice Antonio’s decision makes clear that the issue of the redacted bill of costs remains unresolved.

Accordingly, the Appellants have leave to proceed to a hearing before me for advice and directions under Rule 4.10 to determine the issue of redaction. At that hearing and subject to its outcome, the Court may give leave to proceed with the appeal. If leave is granted, directions will be given as to the proper form and content of the briefs to be filed on the appeal. [ 17 ] The parties may contact my office to

schedule the Rule 4.10 hearing. AHS will have the right to file a brief of a maximum of 10 pages 30 days before the hearing, the Respondents will the right to file a brief of the same length 20 days before the hearing, and AHS a 5 page reply 10 days before the hearing – all must only deal with the issue of redaction. AHS is also directed to provide, to the Court only , an unredacted copy of the material at the 30 day mark. Dated at the City of Calgary, Alberta this 28 th day of November, 2019. J.D. Rooke A.C.J.C.Q.B.A.