Ellis v Szawlowski, 2021 ABQB 103

Court of Queen’s Bench of Alberta Citation: Ellis v Szawlowski, 2021 ABQB 103 Date: 20210210 Docket: 2103 00262 Registry: Edmonton Between: Craig Ellis Plaintiff - and - A. Szawlowski, City of Edmonton (Edmonton Police Service, Police Seize Vehicle Section), Alberta Government (Alberta Transportation Safety) Defendants _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] On January 20, 2021, Craig Ellis (Mr.

Ellis) filed a Statement of Claim naming Edmonton Police Service Officer A. Szawlowski, the City of Edmonton (City of Edmonton (Edmonton Police Service, Police Seize Vehicle Section), and the Alberta

Transportation Safety Board (ATSB)) (incorrectly named the Alberta Government (Alberta Transportation Safety) as Defendants (the 2021 Action). On January 26, 2021, Counsel for the ATSB referred Mr. Ellis’s Statement of Claim to the Court as an Apparently Vexatious Application or Proceeding (AVAP) pursuant to Civil Practice Note No. 7 (CPN7), paragraph 5.

Counsel for the ATSB also provided: 1. the July 16, 2019 Statement of Claim for the Ellis v Szawlowski Alberta Court of Queen’s Bench Docket 1903 14530 action (the 2019 Action), and 2. the November 14, 2019 Order of Master Birkett striking the ATSB from the 2019 Action pursuant to r 3.68 of the Alberta Rules of Court , Alta Reg 124/2010 . [ 2 ] The 2021 Action and 2019 Action name the same Defendants. The body of the 2019 Action Statement of Claim reads: Statement of facts relied on: 1. Officer Szawloski, committed Perjury when he arrested Plaintiff on the early morning of January 20th, 2019.

Officer Szawloski, Stated on the Notice of Suspension/Disqualification he arrested the Plaintiff for

Section 320.15(1)(

b) which was not the truth. Officer Szawlowski arrested the Plaintiff for trying to make a phone call. 2. Officer Szawloski, Refused, and denied information that would have allowed the Plaintiff to make an appropriate decision. Remedy sought 3. I ask the Court to reinstate the driving privileges of the Plaintiff immediately. 4. I ask the Court for Costs, and all restitution that has occurred in regards to this Matter to be paid to the Plaintiff (Sic.) [ 3 ] The body of the 2021 Action Statement of Claim reads: Statement of facts relies on: 1.

On the early morning of January 20, 2019 Craig Ellis (Plaintiff) and Micheal Elvin Codrington was exiting the On The Rocks (OTR) walking west I notice a Police in a unmarked car. When the Police officer, and I made eye contact Officer look down as if he where reading something. I walk to my vehicle and precede to make a three point turn in the ally north of Jasper. That is when I notice the officer unmarked car pull away to follow me north on 118th Street, after the second stop sign right before I approach 104 Ave. is when the officer in the unmarked police car lights to signal me to stop.

Officer approach the vehicle explain to me why he has stop me and ask if I had anything to drink. I reply yes to having two beers. Officer, then explain the Alberta Traffic Safety Act 88.1 he had ask when was the last time I had a drink of alcohol I told him less then 5 minutes under the Alberta Traffic Act Officer should have allow for 20 minutes to pass under the

Section 88.1 law. Officer at that time ask me to provide a breathe sample and when I mention that I drank the last of my beer right before we left about 4-5 minutes ago. Officer inform me either I blow right now or get arrested, I told the Officer that I'll provide you a sample at the station that is when Officer arrested me. 2. Officer Szawloski, Refused, and denied information that would have allowed the Plaintiff to make an appropriate decision. 3. On February 6, 2019 I purchase a Application for Appeal to obtain my Alberta License for suspended unlawfully. 4.

On February 8, 2020 I fill out an Application for Appeal 5. On February 13, 2019 I, and Mary Beth (Client) attend a Vehicle Seizure Appeal Hearing. At the Hearing I explain to the Board who was M. McCallum, Presiding Officer, and W. Hass Held at the Alberta Transportation Safety Board That Officer Szawlowski Willfully Failed to convey 88. l of the Alberta Traffic Safety Act. require 20 Minutes after your last consumption of Alcohol 6. Ms McCallum, stated that they couldn't determine if Officer Szawlowski base on the Court don't happen until July 10.

Later I received a standard letter asking to Appeal the Appeal on February 13. 7. On July 10, 2019 The Court Heard The Matter of Ellis vs Szawlowski and rules it a Stay. 8. On December 19, 2019 The Court Heard the Matter Ellis vs Szawlowski in a Private Hearing where the Court rule that Szawlowski wasn't under Oath at the time of the arrest. 9. On August 8, 2020 I made a compliant with the Citizen Complaint under

section 45 Alberta Police Act Remedy sought 10. I ask the Court for Costs for Pain, and Suffering and all restitution that has occurred in regards to this Matter to be paid to the Plaintiff (Sic.) [ 4 ] I am the judge assigned to review the AVAPs filed in Edmonton at the Court of Queen’s Bench. CPN7 is reviewable on-line at https://www.albertacourts.ca/qb/areas-of-law/civil/practice-notes. [ 5 ] I have reviewed Mr. Ellis’s 2021 Statement of Claim and conclude it is an AVAP because this filing has elements that

Courts identify as characteristics of hopeless and abusive proceedings. On that basis, I conclude Mr. Ellis’s Statement of Claim should besubject to a CPN7 show-cause document-based review under r 3.68 of the Alberta Rules of Court. That means I have decided that Mr.Ellis must file a Written Submission setting out why his Statement of Claim should not be struck out because it is significantly deficient. II. CPN7 [6] The Court implemented CPN7 to better manage litigation that, on its face, appears to be unmeritorious, has no chance ofsuccess, or is otherwise abusive and vexatious.

CPN7 is intended to provide litigants with a timely, proportionate, and cost-effectiveresponse: Unrau v National Dental Examining Board, 2018 ABQB 874 (Unrau #1). [7] If, on initial review by the Court, an AVAP appears to have no merit, have no prospect of success, or is otherwise abusiveand vexatious, then the Court issues a first written decision that identifies the apparent issue or issues that may be a basis to strike out theAVAP under r 3.68 of the Alberta Rules of Court. [8] The party who filed the AVAP is then given an opportunity to, within 14 days, provide to the Court a Written Submission ofup to a total of 10 pages in length that responds to, and demonstrates why, the AVAP is a legitimate action and should be permitted tocontinue.

The Written Submission must be clearly addressed “To the Attention of” the Justice who initiates the CPN7 process, and mustalso be served on the other parties to the litigation. [9] CPN7 is not to be used for “close calls”. The Court only intervenes when the defect(

s) in question are “apparent on the faceof the pleading”, and the suspect pleadings are “clearer cases of abuse”: Unrau #1 at paras 22 and 24. [10] The Court only considers restricted forms of evidence when it conducts a CPN7 review because this process has a very narrowfocus and operates to examine a single document and its content: Ubah v Canadian Natural Resources Limited, 2019 ABQB 347 atparas 24-48 (Ubah #2). There are exceptions to that rule.

For example, the Court may examine other documents in the same proceedingthat are related to the suspect filing (Ubah #2 at para 35), or documents and records that are evidence that the AVAP is an attempt tolitigate an issue that has already been decided or closed (Ubah #2 at para 45). III. Analysis [11] The 2021 Action Statement of Claim exhibits a number of issues. As a preliminary point, I am considering the 2019 Actiondocuments provided to the Court since these documents are evidence on whether the 2021 Action has attempted to litigate an issue thathas already been decided or closed: Ubah #2 at para 45. A.

Duplicate Proceedings and Collateral Attack [12] The 2019 Action and the 2021 Action share many common elements. Both complain that Officer Szawlowski did somethingwrong when he arrested Mr. Ellis on January 20, 2019. Both name the same Defendants. To the degree that the allegations in the 2019Action and 2021 Action are discernable, both complain that Mr. Ellis was improperly subject to punitive steps that involve motorvehicles and motor vehicle operation. Both Actions seek “... all restitution that has occurred in regards to this Matter to be paid to thePlaintiff.” [13] Mr.

Ellis appears to be conducting two proceedings relating to the same dispute and he is seeking, at a minimum, relatedremedies. Conducting multiple proceedings with the same purpose is an abuse of court: Unrau v National Dental Examining Board,2019 ABQB 283 at para 613 (Unrau #2). [14] Furthermore, a litigation step or proceeding that directly or indirectly challenges a prior court decision or result outside anappeal process is a collateral attack. Collateral attacks are generally prohibited and an abuse of process: British Columbia (Workers’Compensation Board) v Figliola, 2011 SCC 52 at para 28.

Collateral attacks subvert “the orderly and functional administration ofjustice”: Dagenais v Canadian Broadcasting Corp, (SCC), [1994] 3 SCR 835 at 871, 120 DLR (4th) 12. Any action orapplication that is identified as a collateral attack should be terminated, immediately: Alberta v Pocklington Foods Inc, 1995 ABCA 111at para 14. [15] Master Birkett already struck out claims against the ATSB in relation to the January 20, 2019 event and its downstreamconsequences. Mr. Ellis in the 2021 Action appears to be targeting the ATBS in relation to the same matter. [16] I therefore request that Mr.

Ellis provide an explanation as to why the 2021 Action and the 2019 Action are not duplicate oroverlapping litigation, and why the 2021 Action is not a collateral attack on the November 14, 2019 Order of Master Birkett. B. Defective Pleadings [17] A Statement of Claim sets the issues to which the opposing party must respond, and alerts that party of the case it must meet:Whiten v Pilot Insurance Co, 2002 SCC 18 at para 87.

Proper pleadings require more than simply bare assertions, or “bald allegations”of wrongdoing: GH v Alcock, 2013 ABCA 24 at para 58; Mancuso v Canada (National Health and Welfare), 2015 FCA 227 at paras16-20. Pleadings must provide a basis for the Court and other litigants to make a meaningful response, and indicate to the respondingparties the “... who, when, where, how and what gave rise to its liability.”: Mancuso v Canada (National Health and Welfare) at para19.

Inadequate pleadings abuse the court’s process because a Defendant cannot defend against unclear and non-specific claims and theCourt cannot control the proceedings, identify the proposed argument, or make findings on the relevant facts: Unrau #2 at para 629.

[ 18 ] Much of the 2021 Action Statement of Claim is cryptic. What does “purchase a Application for Appeal” mean? Who is Mary Beth? How is she a “client”? Is Mr. Ellis purporting to have represented his “client” at an ATSB hearing? Is Mr. Ellis challenging the ATSB’s conclusion? Was a vehicle seized? By whom? Who now has that vehicle? [ 19 ] Mr. Ellis mentions a number of Court dates and rulings, but he provides no data on what Court that was or what the proceedings were.

The dates mentioned do not match any activity in the 2021 Action or the 2019 Action, and those are the only two Ellis versus Szawlowski proceedings in this Court. What is a “Private Hearing”? What does it mean “... that Szawlowski wasn’t under Oath ...”. An “Oath” to whom? Why is an “Oath” relevant? Why is it relevant that Mr. Ellis has made a complaint pursuant to the Police Act , RSA 2000, c P-17 , s 45? Who is the complaint against? No one is named. [ 20 ] The 2021 Action Statement of Claim provides no explanation at all for his remedy. The Statement of Claim does not indicate an amount sought.

It does not say what was the “Pain, and Suffering”, who caused it, or how. The Statement of Claim seeks “all restitution that has occurred in regards to this Matter”. What is that? Who owes “all restitution”, and why? [ 21 ] The 2021 Action Statement of Claim appears to be an abusive pleading, as the Statement of Claim is so ill-defined that the Defendants are unable to make a meaningful reply and the Court cannot regulate this proceeding: kisikawpimootewin v Canada , 2004 FC 1426 at paras 17-18 . Unrau #2 at para 629 . I therefore request Mr.

Ellis explain how the 2021 Action Statement of Claim permits the Court and Defendants to make a meaningful response. C. Exhausting Alternative Remedies [ 22 ] Mr. Ellis seems to be advancing some kind of allegation against the ATSB, that perhaps relates to the outcome of a February 13, 2019 ATSB hearing. Mr. Ellis says he “... received a standard letter asking to Appeal the Appeal on February 13.” What this means is unclear. The 2021 Action Statement of Claim does not indicate any further administrative review steps by Mr. Ellis that relate to the ATSB. Mr.

Ellis also indicates at paragraph 9 of the Statement of Claim that he has made a Police Act , s 45 complaint. [ 23 ] It is an abuse of process to pursue judicial proceedings without first exhausting the administrative regime: Al-Ghamdi v Alberta , 2017 ABQB 684 at paras 126-128 , aff’d 2020 ABCA 81 . The 2021 Action appears to have this defect. He has not, for example, conducted a judicial review of the ATSB’s decision(s). If the Police Act , s 45 complaint is directed to Officer Szawlowski, then Mr. Ellis is conducting concurrent lawsuits and an administrative review of that officer. Mr.

Ellis is therefore asked to indicate how the 2021 Action is not an abuse of process as Mr. Ellis has not exhausted his alternative administrative regime remedies. IV. Conclusion [ 24 ] The 2021 Action Statement of Claim appears to be a suitable AVAP candidate for review pursuant to CPN7. The Court seeks responses from Mr.

Ellis to the following questions: 1) Why are the 2021 Action and the 2019 Action not duplicate or overlapping litigation? 2) Why is the 2021 Action not a collateral attack on the November 14, 2019 Order of Master Birkett? 3) How does the 2021 Action Statement of Claim provide an adequate basis for the Court and Defendants to make a meaningful response? 4) How is the 2021 Action not an abuse of process as Mr. Ellis has not exhausted his alternative administrative regime remedies against the ATSB and Officer Szawlowski? [ 25 ] CPN7 now advances to its second step.

This step consists entirely of written submissions; there will be no Court appearances or oral argument. The next steps are: 1) Mr. Ellis has 14 days to provide 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. The Written Submission must be clearly addressed “To the Attention of Associate Chief Justice K.G. Nielsen”. 2) If this Court receives no Written Submission by that deadline, the Court will make its final decision on whether the 2021 Action Statement of Claim should be struck out in whole or in part under r 3.68 of the Alberta Rules of Court (see CPN7, para 3(c)). 3) If Mr. Ellis provides and serves a Written Submission, then the Defendants each have seven days to provide a Written Reply of up to 10 pages in length (see CPN7, para 3(d)).

The Written Replies must be clearly addressed “To the Attention of Associate Chief Justice K.G. Nielsen”. 4) After the Court receives Mr. Ellis’s Written Submission and the Defendants’ Written Replies, if any, the Court will make its final decision on whether the 2021 Action Statement of Claim should be struck out in whole or in part, under r 3.68 of the Alberta Rules of Court (see CPN7, para 3(e)). [ 26 ] The Court will prepare and serve an Interim Order staying the 2021 Action (see CPN7, para 7). Mr. Ellis’s approval of that Order is not required, pursuant to r 9.4(2)(

c) of the Alberta Rules of Court . Dated at the City of Edmonton, Alberta this 10 th day of February, 2021.

K.G. Nielsen A.C.J.C.Q.B.A. Appearances: Shaheer Meenai Legal Services Division Alberta Justice and Solicitor General for the Defendant Alberta Transportation Safety Board