Quaye v Law Society of Alberta, 2019 ABQB 916

Court of Queen’s Bench of Alberta Citation: Quaye v Law Society of Alberta, 2019 ABQB 916 Date: 20191203 Docket: 1903 21485 Registry: Edmonton Between: Gerald Quaye Applicant - and - Law Society of Alberta; Attorney General of Alberta; College of Physicians and Surgeons of Alberta Respondents _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I.

Introduction [ 1 ] On October 18, 2019, Gerald Quaye filed an Originating Application seeking judicial review of an April 15, 2019 decision of a panel of the Law Society of Alberta Appeal Committee. Mr. Quaye named the Law Society of Alberta, the Attorney General of Alberta, and the College of Physicians and Surgeons of Alberta, as Respondents.

[ 2 ] On November 20, 2019, Nielsen ACJ received a request from Counsel for the Attorney General of Alberta (AG) to review this Originating Application under Civil Practice Note No. 7 (CPN7) as a possible Apparently Vexatious Application or Proceeding (AVAP). This was followed by a similar request from the College of Physicians and Surgeons of Alberta (College) and the Law Society of Alberta (Law Society) on November 22, 2019. [ 3 ] Nielsen ACJ is the judge assigned to review the AVAPs filed in Edmonton at the Court of Queen’s Bench.

However, given that Nielsen ACJ had an earlier involvement in a matter involving Mr. Quaye and the Attorney General of Alberta (as noted below), I have been assigned to review the Originating Application under CPN7. CPN7 can be found on-line at https://www.albertacourts.ca/qb/areas-of-law/civil/practice-notes . [ 4 ] Mr. Quaye is the son of Dr. Austin Quaye, a physician who was suspended by the College in 2001. Dr. Quaye was later struck from the College register in 2006. Dr. Quaye passed away in 2013. [ 5 ] In 2015 Mr. Quaye swore a private information in Provincial Court against the College and Dr.

Ohlhauser, who was the Registrar of the College at the time of Dr. Quaye’s suspension. Process was not issued on that information. [ 6 ] In 2016, Mr. Quaye again swore a private information against the College and Dr. Ohlhauser in Provincial Court. Process was issued on one of the three counts. Chief Crown Prosecutor, Shelley Bykewich, then stayed the charge, and notified Mr. Quaye of the stay by letter dated November 21, 2016. [ 7 ] Mr. Quaye applied to the Court of Queen’s Bench for judicial review of the decision to stay the charge (Prior Action).

This matter came before Nielsen J (as he then was) on April 4, 2018. The AG took the position that the judicial review could not proceed, and thus, the AG did not have to file a Certified Record. Nielsen J accepted that the judicial review could not proceed. As part of the Prior Action, Mr. Quaye also applied for production of the exhibits filed with the Provincial Court in the private prosecution that was ultimately stayed.

This application was also heard, and dismissed, by Nielsen J on April 4, 2018. [ 8 ] Neither the dismissal of the judicial review, nor the dismissal of the application for production, were appealed. [ 9 ] After the judicial review concluded, Mr. Quaye requested the return of documents he had provided to the Crown as part of the private prosecution in 2016. These appeared to be the same documents requested in the application for production of exhibits. Ms. Bridgett, counsel for the AG, advised Mr.

Quaye that the material he sought was not on the Crown’s file and that any material he may have provided to the Crown was likely shredded pursuant to the Crown’s retention policy. [ 10 ] On June 6, 2018, Mr. Quaye made a complaint to the Law Society against Ms. Bykewich, claiming that she improperly destroyed evidence and refused to produce evidence in the judicial review. [ 11 ] On February 6, 2019, the Law Society dismissed Mr. Quaye’s complaint. Mr. Quaye appealed the Law Society’s decision to the Appeal Committee.

On April 15, 2019, the Appeal Committee dismissed the appeal. [ 12 ] The Originating Application is Mr. Quaye’s attempt to judicially review the Appeal Committee decision (Judicial Review). [ 13 ] Mr. Quaye has also filed two applications in addition to, and related to, the Originating Application. Both applications are returnable in the Court of Queen’s Bench on December 4, 2019. The first application seeks the production of the documents Mr. Quaye sought in the application for production dismissed by Nielsen J in April 2018 (Production Application). The second application seeks to have Ms.

Bykewich held in contempt for failing to comply with the Notice to Obtain Record of Proceedings in the judicial review of the decision to stay the private prosecution (Contempt Application). II. CPN7 [ 14 ] This Court implemented CPN7 to better manage litigation that, on its face, appears to be unmeritorious, has no chance of success, or is otherwise abusive and vexatious.

It is intended to provide litigants with a timely, proportionate, and cost-effective response: Unrau v National Dental Examining Board , 2018 ABQB 874 ( Unrau #1 ). [ 15 ] If, on initial review by the Court, an AVAP appears to have no merit, have no prospect of success, or is otherwise abusive and vexatious, then the Court issues a first written decision that identifies the apparent issue or issues that may be a basis to strike out the AVAP under Rule 3.68 of the Alberta Rules of Court, Alta Reg 124/2010 . [ 16 ] The party who filed the AVAP is then given an opportunity to, within 14 days, provide to the Court a Written Submission of up to a total of 10 pages in length that responds to, and demonstrates why, the AVAP is a legitimate action and should be permitted to continue.

The Written Submission must be served on the other parties to the litigation. [ 17 ] CPN7 is not to be used for “close calls”. The Court only intervenes when the defect or defects in question are “apparent on the fact of the pleading”, and the suspect pleadings are “clearer cases of abuse”: Unrau #1 at paras 22 and 24 . [ 18 ] The Court only considers restricted forms of evidence when it conducts a CPN7 review because this process has a very narrow focus and operates to examine a single document and its content: Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 at paras 24-28 ( Ubah #2 ).

There are exceptions to that rule. For example, the Court may examine other documents in the same proceeding that are related to the suspect filing ( Ubah #2 at para 35 ), or documents and records that are evidence that the AVAP is an attempt to litigate an issue that has already been decided or closed ( Ubah #2 at para 45 ). III. Analysis

Law Society [19] The Law Society identifies five reasons why the Originating Application should be reviewed under CPN7.

First, the LawSociety notes that Originating Application was not filed until October 18, 2019, contrary to Rule 3.15(2) of the Alberta Rules of Court,which provides that originating applications for judicial review must be filed and served within 6 months after the date of the decision oract, and that this deadline cannot be varied by the Court. [20] The Law Society notes that the deadline to file and serve an Originating Application in these circumstances was October 15,2019, six months from the date of the Appeal Committee decision.

The Originating Application was filed October 18, 2019, on the basisof an ex parte fiat allowing the late filing. The Law Society says, and the Affidavits of Service on the court file confirm, that the AG andthe College were both served on October 29, 2019. The Law Society says it was served on October 30, 2019. The Affidavit of Serviceon the court file says that a copy of the necessary documents was mailed by Mr.

Quaye to the Law Society on October 29, 2019, so it isreasonable to conclude the Law Society received the documents on October 30. [21] Second, the Law Society says that the Originating Application is irregular and wholly inadequate, and does not disclose abasis for seeking judicial review or claiming a breach of

section 15 of the Charter (The Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (UK), 1982, c 11). [22] Third, the Law Society also says that Mr. Quaye does not have standing to seek judicial review of the Appeal Committeedecision and that the Originating Application constitutes an abuse of process. The Law Society points to recent case law from the AlbertaCourt of Appeal - Tran v College of Physicians and Surgeons of Alberta, 2018 ABCA 95 – which says that a complainant under aprofessional regulatory scheme has limited standing to seek judicial review.

In particular, complainants in such settings may only seekjudicial review on the basis that the appeal process was conducted in a “fundamentally unfair manner”: Tran at para 6. [23] Fourth, the Law Society says that the Originating Application seeks impossible, excessive, and disproportionate remedies, anddoes not particularize or set out any basis for the remedies sought. The Originating Application seeks certiorari, as well as injunction,indictment, declaration, expedited trial, and damages.

The Law Society notes that it regulates the legal profession in the public interest,and does not provide damages, compensation, or other remedies to complainants, nor does it have the ability to indict lawyers or anyoneelse. [24] Fifth, the Law Society submits that the original complaint to the Law Society on June 6, 2018, was itself an abuse of process.The Law Society says the complaint was without merit, constituted an improper and collateral attack on the decisions of this Court in thePrior Action, and the Appeal Committee’s dismissal of the complaint was correct on its face. [25] Overall, the Law Society argues that the application for judicial review is without merit and hopeless.

Attorney General [26] The AG identifies several reasons that the Originating Application, and two related applications, are appropriate for reviewunder CPN7. First, the AG echoes the Law Society in noting that the Originating Application was filed too late, contrary to Rule 3.15(2). [27] The AG also says that the Production Application and Contempt Application are both an abuse of process as they seek to re-litigate issues that were determined by this Court in the Prior Action.

College of Physicians and Surgeons [28] The College takes the position that the Originating Application warrants review under CPN7 for two reasons. First, theCollege says that it is improperly named as a respondent in the Application because the College was not a party to the Law SocietyAppeal Committee decision dismissing Mr. Quaye’s complaint, and had no involvement with the complaint made by Mr. Quaye.Second, like the AG and the Law Society, the College notes that the Originating Application for judicial review was not filed and servedwithin six months after the date of the decision, contrary to Rule 3.15(2).

Decision [29] Having reviewed the Originating Application, the Production Application, and the Contempt Application, as well as thesubmissions from the Law Society, the AG, and the College, I find that this Originating Application appears to be a suitable AVAP forreview under CPN7. [30] First, the Originating Application does not provide any basis for judicial review of the Appeal Committee decision, and forthis reason, the pleading appears to be inadequate.

Adequate pleadings are crucial as they set out the issues for the opposing parties torespond to and alert opposing parties of the case they must meet: Unrau v National Dental Examining Board, 2019 ABQB 283 at para626 (Unrau #2), citing Whiten v Pilot Insurance Co, 2002 SCC 18 at para 87. As well, the Originating Application does not set out abasis for a claim of breach of

section 15 of the Charter.

This is a problem, because “a factual foundation, or an alleged factual foundationis an absolute requirement for pleadings that seek potential Charter relief”: Unrau #2 at para 626, citing Mackay v Manitoba, (SCC), [1989] 2 SCR 357. [31] Second, the Originating Application appears to be hopeless and an abuse of court processes because it seeks remedies that areimpossible or disproportionate (Unrau #2 at paras 623-625) and, even then, fails to particularize any basis for the remedies sought. [32] Third, the Originating Application also appears to be out of time, pursuant to Rule 3.15(2) of the Alberta Rules of Court.Although Rule 13.5 allows a Court to extend a time period specified in the Rules, Rule 13.5 only gives a court this ability “unless a rule

otherwise provides”. Rule 3.15(2) specifically provides “rule 13.5 does not apply to this time period”. [ 33 ] Finally, the Law Society also refers to the Tran case, which appears to limit the standing of a complainant, such as Mr. Quaye, to seek judicial review of a decision by a professional regulatory statute. IV. Conclusion [ 34 ] Having found the Originating Application to be suitable for review under CPN7, the Court now seeks a response from Mr. Quaye on the following questions: 1) How does the Originating Application provide an adequate basis for the Respondents to make a meaningful response? 2) How does the Originating Application set out a basis for a claim of breach of

section 15 of the Charter ? 3) How does the Originating Application not seek impossible or disproportionate remedies? 4) Considering Rule 3.15(2), and the six month period provided therein for filing and serving an application for judicial review, how is this Originating Application not out of time? 5) Considering the case law, including Tran as mentioned above, does Mr. Quaye have standing to seek judicial review of the Appeal Committee’s decision? [ 35 ] CPN7 now advances to its second step. This step consists entirely of written submissions; there will be no Court appearances or oral argument: 1) Mr.

Quaye has 14 days after this decision is filed and served to prepare a Written Submission of no more than a total of 10 pages, to be filed and served, as described in para 3(

b) of CPN7; 2) If this Court receives no Written Submission by that deadlines, the Court will make its final decision on whether the Originating Application should be struck out in whole or in part under Rule 3.68 of the Alberta Rules of Court (see CPN7, para 3(c)); 3) If Mr. Quaye provides and serves a Written Submission within the time limit in 1) above, then the Respondents have seven days to provide Written Replies of up to 10 pages in length (see CPN7, para 3(d)); 4) After the Court receives Mr.

Quaye’s Written Submission and the Respondents’ Written Replies; if any, within the time limit in 3) above, the Court will make its final decision on whether the Originating Application should be struck out in whole or in part, under Rule 3.68 of the Alberta Rules of Court (see CPN7, para 3(e)). [ 36 ] I encourage Mr. Quaye to seek legal advice and assistance.

There are a variety of organizations in Edmonton that offer free legal advice and/or information, for example, Edmonton Community Legal Centre (ECLC) and Student Legal Services of Edmonton. [ 37 ] The Court will prepare and serve the Interim Order staying this Action (see CPN7, para 7). To be clear, this Interim Order will also apply to the other applications brought pursuant to this Originating Application.

Both the Application to declare the Chief Crown Prosecutor in contempt of Court, and the Application to have certain Exhibits from a Provincial Court file provided to the presiding Judge are stayed pending final decision on the CPN7 process. Mr. Quaye’s approval of the Interim Order is not required, pursuant to Rule 9.4(2) (

c) of the Alberta Rules of Court . [ 38 ] Mr. Quaye may be served with this decision and the Interim Order by email and by mail at his last known email and physical addresses. Dated at the City of Calgary, Alberta this 2 nd day of December, 2019. J.D. Rooke A.C.J.C.Q.B.A. Appearances: None .