Wang v Alberta, 2019 ABQB 948

Court of Queen’s Bench of Alberta Citation: Wang v Alberta, 2019 ABQB 948 Date: 20191212 Docket: 1901 12788 Registry: Calgary Between: Xiaoli Lily Wang and Daiming Robert Li Plaintiffs - and - Government of Alberta Defendant _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I.

Introduction [ 1 ] On November 13, 2019, I issued a decision pursuant to Civil Practice Note 7 (“CPN7”) finding that a Statement of Claim filed by Xiaoli Lily Wang and Daiming Robert Li and naming the Government of Alberta (“GOA”) as Defendant was an Apparently Vexatious Application or Proceeding (“AVAP”): Wang v Alberta , 2019 ABQB 869 ( Wang #1 ). I concluded that the Statement of Claim should be reviewed under the CPN7 document-based “show cause” procedure. [ 2 ] Ms. Wang and Mr.

Li (the “Plaintiffs”) were invited to provide a written submission by November 27, 2019 indicating how the Statement of Claim provides an adequate basis for a meaningful response by the GOA, how the Statement of Claim seeks a remedy that is available from this Court and how the financial remedies sought in the Statement of Claim could be justified. The GOA was given an opportunity to respond by December 4, 2019 to any submission made by the Plaintiffs. The Court received submissions from both sides within the set deadlines.

The Court also received an affidavit accompanying the Plaintiffs’ November 27, 2019 submission and a second submission from the Plaintiffs dated November 29, 2019. I have reviewed the affidavit and the second submission and concluded that, in addition to having been filed late, they provide no relevant argument. Therefore, I will not consider them for purposes of this analysis. [ 3 ] With that in mind, I proceed now to evaluate whether this litigation has a valid basis and should be permitted to continue. II. The Plaintiffs’ Submission

[ 4 ] The Plaintiffs’ November 27, 2019 submission (the “Submission”) includes the following statement: This Written Submission supported by Affidavit in Response filed on November 12, 2019 & Supplemental Affidavit of the Plaintiff Xiaoli Lily Wang filed on November 27, 2019 will show the court that all the Statement of Claims commenced by the Plaintiffs against each and every Defendant have a valid cause of action and none of them constitutes an abuse of process. [Emphasis in original.] [ 5 ] The next few pages of the Submission consist of a recitation of all of the prior actions involving the Plaintiffs.

They repeatedly reiterate claims of perjury that, as I noted in Wang #1 , have already been found to be groundless. They also make repeated assertions of fraud, impropriety and unprofessional conduct in respect of these prior actions. None of this addresses or properly responds to the issues identified by the court in Wang #1 . [ 6 ] The Plaintiffs then turn to the current Action and make a somewhat surprising argument based upon an American case: The Plaintiffs would like to draw the court’s attention on a United States magistrate judge Thomas M.

Coffin’s written ORDER and FINDINGS & RECOMMENDATION for the case of Kelsey Cascade Rose Juliana v. The United States of America 6:15-cv-01517-TC published on April 8, 2016, and an Order issued on May 25, 2018. Judge Coffin denied the government’s motion to dismiss and also denied the government’s motion to strike.

Judge Coffin particularly considered the plaintiffs’ standing against the government from the following three “irreducible constitutional minimum” requirements: (1) they suffered an injury in fact that is concrete, particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision. [ 7 ] The Plaintiffs then devote the balance of the Submission to an attempt to show that their circumstances meet these three criteria. [ 8 ] While American case law can be persuasive in appropriate circumstances, it is certainly not binding upon this Court.

More to the point, none of the Plaintiffs’ analysis under this framework responds in a meaningful way to the issues I identified in Wang #1 . To reiterate, those issues were: 1. How does the Statement of Claim provide an adequate basis for a meaningful response by the GOA. 2. How does the Statement of Claim seek a remedy that is available from this Court. 3. How can the financial remedies sought in the Statement of Claim be justified. [ 9 ] The thrust of the Plaintiffs’ claim against the GOA specifically is that the GOA has not enacted certain legislation that the Plaintiffs allege should be in place.

The Submission includes the following statements: Government of Alberta’s negligence to not define “ private dwelling ” in the Public Health Act leaves a loophole for government agency to take advantage of it for misfeasance in a public office. ... “The “Principles of Fundamental Justice” require laws to have a clear and understandable

interpretation so as to properly define the rule or offence. A law is unconstitutionally vague if it does not have clarity enough to create “legal debate””. The Public Health Act is unconstitutionally vague in failure to define a “private dwelling”. In other words, the GOA deprived the Plaintiffs’ rights for a “legal debate” that’s a violation of the Plaintiffs’ Charter rights. ...

If there was a legal definition of “ private dwelling ” in the Public Health Act , then the Action 1401 10235 would have never happened, either AHS would have not sued the Plaintiffs on the basis of public places or the Plaintiffs would have not fought back if they are not private dwellings , at the Alberta Courts. ... The survival and well-being of the plaintiffs is significantly threatened by the GOA’s negligence in failure to define “ private dwelling .” The Plaintiffs have suffered substantial injuries mentally, physically, and financially.

There has been no life since the government agency AHS commenced the court actions by taking advantage of the GOA’s loophole against the Plaintiffs. ...

Government of Alberta on its own or through its agents, is responsible at law for the tort of aggravated negligence and all the decisions made or actions taken in its name, including the impugned conduct that constitutes irreparable harm described in this submission. [All emphasis in original.] [ 10 ] However aggrieved the Plaintiffs may feel about the absence of the desired legislative definition, the fact remains that the GOA is under no legal obligation to enact particular legislation or to provide the definition sought and there is no cause of action at law for failure to do so. [ 11 ] Therefore, the Plaintiffs have alleged a cause of action that does not exist.

I find that the Statement of Claim does not refer to a legal cause of action and thus does not provide an adequate basis for a meaningful response by the GOA. That being the case, it follows that the remedies sought by the Plaintiffs in the Statement of Claim cannot be justified and the Action must be dismissed.

III. The GOA’s Submission [ 12 ] The GOA takes the position that the Plaintiffs’ Submission does not address the three issues identified in Wang #1 . In addition, the GOA’s submission sets out the following objections, to which I will respond as appropriate. [ 13 ] First, the GOA asserts that the Plaintiffs have no standing to challenge the validity of the Public Health Act and that their attempt to do so constitutes a collateral attack on decisions made in their prior actions.

I find that, even if the Plaintiffs might otherwise have had such standing, the current Action constitutes a collateral attack. [ 14 ] Second, the GOA points out that the Plaintiffs’ Submission raises a new cause of action that is not contained in the Statement of Claim, namely misfeasance in public office. I find that the existing Statement of Claim does not support an argument under this cause of action. [ 15 ] Third, the GOA argues that, contrary to the Plaintiffs’ assertion set out above, Alberta Health Services (“AHS”) is not an agent of the Crown.

In the absence of such an agency relationship, the GOA argues that it cannot be held liable for any alleged negligence of AHS. I agree. [ 16 ] Finally, the GOA points to the Plaintiffs’ claim that the GOA relied on or assisted in perjury on the part of AHS. The GOA states that its only involvement in the Plaintiffs’ prior actions has been to intervene in one such action at the Court of Appeal level. That intervention followed the Plaintiffs’ filing of a Notice of Constitutional Question on April 13, 2018.

The GOA argues that its intervention was proper and that the Plaintiffs’ arguments are a collateral attack on the decision made by the Court of Appeal. I agree with this and with the GOA’s statement that Justice Jeffrey previously held that the Plaintiffs’ claims of perjury were unfounded; I stated this in Wang #1 . Justice Jeffrey’s determination is final. Nevertheless, the Plaintiffs doggedly persist in alleging perjury. I order that it come to an end, and the Plaintiffs stop, referencing it. IV.

Conclusion [ 17 ] On the basis of the foregoing, I conclude that the Plaintiffs have not provided adequate responses to the apparent defects in the Statement of Claim. Accordingly, the Statement of Claim is struck out immediately pursuant to Rule 3.68 of the Alberta Rules of Court . [ 18 ] In Wang #1 , I imposed interim court access restrictions on Ms. Wang and Mr. Li.

Given their history of filing hopeless and abusive proceedings, those court access restrictions will remain in place for the time being while the Court considers whether ongoing court access restrictions should be imposed. [ 19 ] There shall be no costs associated with this Order: Peets v Alberta (Justice and Solicitor General) , 2019 ABQB 565 at para 6 . [ 20 ] The Court will prepare and serve the Order on Ms. Wang and Mr. Li, whose approval of the form of Order is dispensed with under Rule 9.4(2)(

c) of the Alberta Rules of Court . Dated at the City of Calgary, Alberta this 12 th day of December, 2019. J.D. Rooke A.C.J.C.Q.B.A.