Miller v Edmonton (City), 2020 ABQB 784

Court of Queen’s Bench of Alberta Citation: Miller v Edmonton (City), 2020 ABQB 784 Date: 20201216 Docket: 2003 13235 Registry: Edmonton Between: Glenn D. Miller Plaintiff - and - The City of Edmonton Defendant _______________________________________________________ Memorandum of Decision of the Associate Chief Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] On August 24, 2020, Glenn D. Miller (Mr.

Miller) filed a two-page Statement of Claim naming the City of Edmonton (Edmonton) as Defendant, and seeking $565 million “for nuisance and creating a public health hazard”. Mr. Miller’s Statement of Claim alleges that the June 29, 2020 Bylaw passed by the Edmonton City Council that requires mandatory face masks for persons in public

buildings and using public transportation is not an appropriate response to the current COVID-19 pandemic. Instead, Mr. Miller states the real risk to himself and others is unsanitary discarded face masks: ... City Council has failed to do due diligence and is negligent by its actions in its needless and senseless enacting of Bylaw 19408. It has failed to access true scientific data and statistical analysis of COVID-19 fatalities and cases of infection. The true data shows that over 99.5% of the population has sufficient immunity to this corona virus.

The truth is that this COVID-19 is no more a pandemic than for any other year of recorded world fatalities for other corona virus deaths previous to COVID-19. The City has grossly overreacted in this COVID-19 being an extraordinary health pandemic by restricting normal human behavior and enjoyment of life, and is promoting and pushing anxiety, fear, and paranoia onto me, my fellow citizens, and visitors. ... The real health crisis emerging from the creation and enacting of City Bylaw 19408 is the accumulation in litter caused by the discarding of unsanitary used face masks by the public in public places.

By the discarding of face masks and with the City knowing or that it should have known that it is unable to control the actions of people, that the City has created a public health hazard for me and others by the enacting of Bylaw 19408. (Sic.) [ 2 ] Mr. Miller continues to indicate the COVID-19 pandemic is “a hoax”. Edmonton’s actions are controlled as part of a broader conspiracy: There is a definite agenda at play here by various world agencies and actors to push the COVID-19 virus as a pretext and a slight-of-hand distraction for behind-the-scenes action, and the City is acting as willing puppet.

The doctors, nurses, health professionals, scientists, statisticians, academicians, and other knowledgeable people who have spoken out on the misleading and unscientific data of the bad science behind COVID-19 statistics that have been backing the decision-making policies of government health officials have had their voices suppressed and ignored.

They have had their information on videos, websites, and other communications censored or deplatformed by the business interests that own and control their ability to access media and social media outlets such as YouTube and Facebook. (Sic.) [ 3 ] The Statement of Claim concludes with a demand: This statement of claim will be quitted in its entirety without cost to the City if the City immediately rescinds Bylaw 19408 within ten days (10) of this filing of statement of claim AND that the City issue a public announcement that it will undertake to take steps to educate itself on the true scientific statistical data of COVID-19 fatality, and that the City do so; AND that the City issue a public announcement that it will undertake to take steps to press and demand that the Alberta provincial government and Canadian federal government make themselves accountable for providing misleading and faulty COVID-19 statistics to the citizens of Edmonton, Alberta, and Canada, and that the City do so.

Should the City decide to continue enforcing Bylaw 19408 after this deadline so stated then I seek [$565 million for nuisance and creating a public health hazard]. (Sic.) [ 4 ] On September 3, 2020 Mr. Miller filed a second document, titled Amended Statement of Claim, however, its contents are probably more accurately described as a supplement to the Statement of Claim. Mr. Miller concludes that Edmonton did not respond to his demand in the Statement of Claim, and so Mr. Miller will seek the $565 million damages claim for “tort of nuisance”. Mr.

Miller also alleges that his Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK) , 1982, c 11 ( Charter ) rights were also breached: ... that the City's restriction of normal citizen behaviour and limiting enjoyment of life that was imposed on me and Edmonton citizens ... through the enacting of Bylaw 19408, these restrictions as so stated are now an overt declaration that the City of Edmonton infringed on my Canadian Charter of Rights and Freedoms , that the City overreached on its authority thereby abusing my security of person through its violation of my Canadian Charter of Rights and Freedoms citizen rights, and that this said infringement of Charter rights is not limited to security of person rights. (Sic.) [ 5 ] Mr.

Miller sought three new “amended remedies”: 1) $150,000 for “... infringement, overreaching of the City’s authority, and violation of my Canadian Charter of Rights and Freedom citizen rights ...”; 2) $100,000 in “tort of nuisance” damages for Edmonton’s perpetuating the pandemic hoax and “... continuing to abide with faulty, misrepresented, and skewed scientific data ...”; and 3) $1,000 in “tort of nuisance” damages for “creating a public health hazard” caused by discarded face masks in public places. [ 6 ] Mr.

Miller’s Statement of Claim and Amended Statement of Claim were referred to me by the Clerk of the Court as Apparently Vexatious Applications or Proceedings (AVAPs) pursuant to Civil Practice Note No. 7 (CPN7), paragraph 5. I am the judge assigned to review the AVAPs filed in Edmonton at the Court of Queen’s Bench. After review of Mr. Miller’s Statement of Claim and Amended Statement of Claim, I concluded these documents exhibit issues that warrant review by a CPN7 document-based “show cause” procedure.

I, therefore, in a decision reported as Miller v Edmonton (City) , 2020 ABQB 591 ( Miller #1 ), requested that Mr. Miller provide an up to ten-page Written Submission that responded to four questions: 1) How do the Statement of Claim and Amended Statement of Claim not seek disproportionate or impossible remedies?

2) How do the Statement of Claim and Amended Statement of Claim provide an adequate basis for the Court and Edmonton to make a meaningful response? 3) How does the Amended Statement of Claim identify which of Mr.

Miller’s Charter rights have been breached, and identify an adequate factual foundation or alleged factual foundation for that breach or breaches that permits the Court and Edmonton to make a meaningful response? 4) How do the Statement of Claim and Amended Statement of Claim assert a right recognized in law, rather than seek acknowledgement and correction of perceived shortcomings of the Edmonton municipal government? ( Miller #1 at para 25 .) [ 7 ] Mr.

Miller on October 19, 2020 requested additional time for his Written Submission, indicating he was having difficulty preparing his Written Submission due to depression and other mental health conditions. In response, by letter I extended Mr. Miller’s deadline to November 25, 2020, with Edmonton’s Written Reply due December 2, 2020. [ 8 ] A nine-page Written Submission was received from Mr. Miller on November 24, 2020. On December 1, 2020, Edmonton submitted a Written Reply. What remains is for me to complete the CPN7 process, pursuant to CPN7 paragraph 3(e). II. The Parties’ Submissions A. Mr. Miller [ 9 ] Mr.

Miller in his Written Submission stressed that I should evaluate his lawsuit in light of Mr. Miller’s history, motivations, personal beliefs, and community activism. Mr. Miller explained he is 62 years old, has been unable to work for almost half his life, and receives government support due to his mental and physical disabilities. Mr. Miller self-identifies as a community advocate who assists others, and, for example, has advocated for improved and more affordable Edmonton transit services. [ 10 ] Mr. Miller responded directly to the four questions in Miller #1 .

He explains that the remedies he sought were not disproportionate or impossible because these were “... an attention-getting tactic and nothing more.” He did not make these claims to enrich himself, but because the Edmonton City Council had enacted the mask bylaw without valid evidence and public consultation. [ 11 ] Mr. Miller also points to litigation in Ontario conducted by lawyer Rocco Galati. Mr. Miller has “adopted” those pleadings. Mr. Miller says “... my prime intention was to have the court declare the City of Edmonton’s Bylaw invalid and to cause the bylaw to be null and void.” Mr.

Miller also claims the Charter puts the onus upon Edmonton to prove its pandemic response steps were proportional and rational. Instead, Mr. Miller says Edmonton had provided no medical or scientific basis for its decision. Edmonton and other governments have acted “by dictatorial decree”, and Mr. Miller will not “... acquiesce to government bullying and tyrannical dictatorship.” [ 12 ] In relation to whether his pleadings provide an adequate basis for a meaningful response by the Court and the Defendant, Mr.

Miller indicates he was unaware of the content expected in a Statement of Claim, but now appreciated the appropriate content and detail after reading the Galati 191-page Statement of Claim. Mr. Miller observes he is a layperson, and his pleadings should be evaluated on that basis. [ 13 ] The third question in Miller #1 was how the Statement of Claim and Amended Statement of Claim adequately particularized the basis for Mr. Miller’s Charter allegations. Mr. Miller in his Written Submission expands on the substance of his Charter claims. For example, Mr. Miller says in relation to Charter , s 8:

Section 8: My right to be secure against unreasonable search and seizure, in that I refuse to acquiesce to these dictatorial COVID-19 measures and do not wear a face mask and that I have been accosted and stopped and questioned by public authorities and government employees in their capacity as acting on authority of governments to demand they I wear a face mask and be required to produce a mask; and that this sometimes happens in retail outlets and other public places; (Sic.) [ 14 ] Finally, Mr.

Miller responds to the question of why his pleadings assert a right recognized in law, rather than acknowledgement and correction of perceived shortcomings of the Edmonton municipal government. Mr. Miller focuses on the Edmonton masking bylaw that he characterizes in a highly negative light: the bylaw is “... a mindless, nasty piece of spurious frivolous and vexatious legislation ...”, a “... wanton act of nonsense, depravity, and illegal abuse ...”, and “... this miserable excuse for a bylaw ...” should be “... null and void due to its utter asinitity, vacuousness, and impossibility of legal enforcement.” Mr.

Miller states because the masking bylaw is so defective, that he must possess a right to pursue litigation against Edmonton, and observes “... In this same vein next month we may very well see another mandatory bylaw enacted by Edmonton Council stating that all Jews must wear yellow stars.” [ 15 ] In conclusion, Mr. Miller emphasizes: 1) he is a layperson; 2) the appropriate step forward is that I direct him on how to correct defects and irregularities in his litigation; 3) Mr.

Miller is adopting the Galati litigation; and 4) that Edmonton’s continuing to mandate mandatory mask requirements is “perpetuating the COVID-19 pandemic hoax”, and that

will lead to social disorder. B. Edmonton [16] Counsel for Edmonton notes that it had filed an application and brief to strike out Mr. Miller’s action under r 3.68 of theAlberta Rules of Court, Alta Reg 124/2010. Edmonton submits Mr. Miller’s Written Submission does not respond to the four defectsidentified in Miller #1. [17] Edmonton observes that Mr. Miller admits his litigation was not conducted in good faith. The exorbitant $565 million claimwas “an attention-getting tactic”.

Furthermore, Edmonton argues this claim is impossible, since the Supreme Court of Canada hasexplicitly ruled in Mackin v New Brunswick (Minister of Finance), 2002 SCC 13 at paras 78-79 that a law that is declaredunconstitutional is no basis for damages, “... absent conduct that is clearly wrong, in bad faith or an abuse of power ...”. This is the firstbasis on which Edmonton says that Mr. Miller’s litigation “... is frivolous, vexatious, and an abuse of process.” [18] Counsel for Edmonton agrees that Mr. Miller’s pleadings fail to provide adequate particulars, and instead relies on bareassertions of wrongdoing.

Edmonton complains that by adding new complaints and attempting to “adopt” the Galati lawsuit, Mr. Milleris attempting to expand his litigation without a valid basis, improperly presenting the defence with a “moving target”. Similarly, Mr.Miller should not be permitted to pivot and expand his claims, when what he has sought were damages. [19] Edmonton agrees Mr. Miller has not identified the basis for his Charter allegations. Furthermore, the new more detailedclaims Mr. Miller included in his Written Submission are unrelated to the Edmonton masking bylaw. Mr.

Miller is complaining aboutsteps imposed by all levels of government in a lawsuit that only targets Edmonton. Edmonton characterizes Mr. Miller’s lawsuit aslitigation for an improper purpose. Mr. Miller acknowledges he sued to express his displeasure with the City Council’s actions. Mr.Miller wanted to gain the City Council’s attention, rather than obtain his attention-getting and excessive damages. [20] Edmonton concludes that Mr. Miller’s Statement of Claim and Amended Statement of Claim should be struck out, but: ...

We also seek, in accordance with CPN7, subsection 7, the issuance of an order prohibiting further applications or actions from beingcommenced in relation to this matter without leave of the Court. III. Analysis [21] I generally accept Edmonton’s Written Reply arguments and conclude Mr. Miller has not responded to the four defectsidentified in Miller #1. [22] Mr. Miller sought a disproportionate or impossible remedy. His $565 million claim has no basis in law. Even if I were toaccept Mr.

Miller now indicating he never sought to obtain that amount, and that aspect of his lawsuit was “an attention-getting tactic”,then Mr. Miller’s lawsuit was litigation for an improper purpose, and an abuse of the Court and Edmonton. [23] One point where I disagree with Edmonton is that this is an instance where Mackin v New Brunswick (Minister of Finance)would apply, and that allegations that a law is unconstitutional cannot ground a claim for damages.

When conducting procedure pursuantto r 3.68, pleadings are presumed to be factually correct (Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285 atpara 13), with the limited exception where allegations are absurd, highly implausible, or hyperbole (Arabi v Alberta, 2014 ABQB 295 atparas 74-78). Arguably, Mr. Miller’s claims that the COVID-19 pandemic is “a hoax”, and/or the product of a hidden conspiratorial handfall into that exception, but the allegations Mr.

Miller makes also match “conduct that is clearly wrong, in bad faith or an abuse ofpower”: Mackin v New Brunswick (Minister of Finance) at para 78. [24] Mr. Miller’s action must be grounded on its pleadings: Whiten v Pilot Insurance Co, 2002 SCC 18 at para 87; Mackay vManitoba, (SCC), [1989] 2 SCR 357, 61 DLR (4th) 485. Mr. Miller cannot after-the-fact expand on what he alleged, orgraft other litigation onto his lawsuit. This is a second basis for why Mr. Miller’s litigation is abusive and should be struck out: Unrau vNational Dental Examining Board, 2019 ABQB 283 at para 629. [25] Third, Mr.

Miller does not deny that he is litigating not for himself but for a broader social purpose. He is candid about thereason for his lawsuit: he is a self-declared community advocate who sued to alter policy decisions by political actors. That is a furtherreason why Mr. Miller’s lawsuit against Edmonton is an abuse of the Court. [26] On these separate and independent bases, I strike out Mr. Miller’s Statement of Claim and Amended Statement of Claim,pursuant to CPN7, paragraph 3(e), and r 3.68 of the Alberta Rules of Court. IV. Conclusion [27] Mr. Miller’s Docket 2003 13235 action is now terminated.

No costs flow from this outcome since this Court does not usuallyorder costs when the Clerk of the Court refers an AVAP pursuant to CPN7 paragraph 5: Peets v Alberta (Justice and Solicitor General),2019 ABQB 565 at para 6. [28] Counsel for Edmonton will prepare and serve the Order giving effect to this decision. Mr. Miller’s approval of that Order isnot required, pursuant to r 9.4(2)(

c) of the Alberta Rules of Court. [29] Edmonton has also sought that the Court impose prospective litigation gatekeeping steps pursuant to CPN7 paragraph 7. InJonsson v Lymer, 2020 ABCA 167, Slatter JA ruled that this Court has only a residual inherent jurisdiction to impose limits on abusive

litigants’ future court activities. The Judicature Act , RSA 2000, c J-2 , ss 23-23.1 process instead effectively “occupies the field”. Further, Jonsson v Lymer at para 85 (

d) ruled the Court may not initiate procedures that impose litigant gatekeeping on its own motion, but instead that obligation falls to the parties to litigation. If Edmonton seeks to have Mr. Miller’s future litigation subject to a leave requirement, then Edmonton should make an application pursuant to Judicature Act , ss 23-23.1. Dated at the City of Edmonton, Alberta this 16 th day of December, 2020. K.G. Nielsen A.C.J.C.Q.B.A. Appearances: Glenn D. Miller Self-represented Litigant Michael Gunther Office of the City Manager Law Branch For the City of Edmonton