Sewak v Killips, 2021 ABQB 147

Court of Queen’s Bench of Alberta Citation: Sewak v Killips, 2021 ABQB 147 Date: 20210224 Docket: 2103 00001 Registry: Edmonton Between: Shaneil Sewak Plaintiff - and - Jennifer Killips, Neil Dehaas, Government of Alberta, Premier Jason Kenney, Judge John Maher, Ryan Jenkins, Hillary Flaherty, and Justice and Solicitor General Government of Alberta Defendants _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] On January 4, 2021, Shaneil Sewak (Mr. Sewak) filed a thirteen-page Statement of Claim naming eight Defendants, and that

seeks in total $16,436,000 in damages. The keystone to that Statement of Claim is Mr. Sewak claims he “... was wrongfully convicted in and around February 2017.” (Statement of Claim, page 7, para 1). The conviction in question was for Obstruction of Justice: Criminal Code , RSC, 1985, c C-46 , s 139(2). Mr. Sewak received a 15 month custodial sentence. As is described by Mr. Sewak in his Statement of Claim, that conviction was appealed to the Alberta Court of Appeal, which in written reasons confirmed Mr. Sewak’s conviction: R v Sewak , 2019 ABCA 303 . Mr.

Sewak in his appeal claimed that his trial lawyer was incompetent. [ 2 ] Certain of the Defendants named by Mr. Sewak were involved in the obstruction of justice proceedings: • Neil Dehaas (Constable Dehaas) is an Edmonton Police Service Constable who conducted investigations that led to the charges against Mr. Sewak. Mr.

Sewak appears to complain that Constable Dehaas is liable because he “... made the choice to believe [redacted] without any evidence or without questioning the Plaintiff on his side of the story.” (Statement of Claim, page 2, para 10), and because “Constable Dehaas showed a disdained hate for the plaintiff during the charges and the arrest” (Statement of Claim, page 2, para 12). • Ryan Jenkins (Mr. Jenkins) is the Crown Prosecutor who conducted the obstruction of justice trial in the Provincial Court of Alberta. Mr.

Sewak’s Statement of Claim makes difficult to understand allegations concerning documents in that proceeding (Statement of Claim, page 5, paras 45-47), and alleges Mr. Jenkins “... knew that his witness was lying and continued to lie in court.” (Statement of Claim, page 5, para 48) and “... showed hate and determination to put the plaintiff in jail at the sentence.” (sic) (Statement of Claim, page 6, para 63). • John Maher (Judge Maher) is a judge of the Provincial Court of Alberta who conducted Mr. Sewak’s trial in February 2017. Mr. Sewak reports that his lawyer told Mr.

Sewak that Judge Maher “... was known to be a racist judge and the trial could be difficult.” (Statement of Claim, page 3, para 36). Mr.

Sewak’s Statement of Claim complains: 1) about documents at the trial (Statement of Claim, page 5, paras 50-52); 2) that Judge Maher knew a Crown witness was lying (Statement of Claim, page 5, paras 52-53); 3) “Judge Maher decided that the plaintiff was guilty before the trial even began.” (Statement of Claim, page 5, para 54); and 4) “Judge Maher showed hate and determination to put the plaintiff in jail at the sentence.” (sic) (Statement of Claim, page 6, para 64). • Jennifer Killips (Ms. Killips) is a probation officer who prepared a pre-sentence report concerning Mr. Sewak after he was convicted. Mr.

Sewak’s complaint against Ms. Killips is that she did not believe Mr. Sewak and she recommended he should be incarcerated (Statement of Claim, pages 5-6, paras 59-62). [ 3 ] Mr. Sewak’s allegations in relation to Hillary Flaherty (Ms. Flaherty) are that Ms. Flaherty represented the Alberta Government in “Statement of Claims in the Court of Queen’s Bench in Alberta”. Ms. Flaherty allegedly told Mr. Sewak and Mr. Sewak’s wife that “she has connections” and if Mr. Sewak withdrew his “statement of claims” then Mr. Sewak would be released from jail (Statement of Claim, page 7, paras 81-83). Mr. Sewak alleges that Ms.

Flaherty “tried to send documents to the plaintiff in jail which caused a lot of problems with the plaintiff with other inmates”, no documents were received, and “The plaintiff was completely unaware of any court proceedings to have his claim struck.” (Statement of Claim, page 7, paras 81-86). [ 4 ] The Statement of Claim allegations concerning Premier Jason Kenney (Premier Kenney) are that Mr.

Sewak wrote letters to Premier Kenney “... in regards to his provinces corrupt system and racism ...” (sic), but those letters were ignored, and Premier Kenney “... is supposed to make sure our judicial system is not corrupt and full of bigotry.” (Statement of Claim, page 10, paras 65-68). [ 5 ] The Statement of Claim does not appear to make specific allegations in relation to the Government of Alberta (Alberta) or Alberta Justice and Solicitor General (Alberta Justice), other than certain other Defendants are employed by Alberta and Alberta Justice. [ 6 ] Mr.

Sewak describes at length a range of events he says occurred while Mr. Sewak was detained prior to and after his conviction, including conflicts and fights with other inmates. Mr. Sewak describes how he allegedly experienced harsh conditions while detained and incarcerated. He missed his wife and dog. Mr. Sewak describes how he became friends with a fellow inmate, by the name of Krishneil, who was found in a field, murdered. The Statement of Claim states Mr.

Sewak’s incarceration had many negative effects, including it disrupted his business, led to psychological injury, prevented him from having children, and concludes: “This trial, this conviction and this jail experience destroyed The Plaintiff, as a person and continues to do so.” (Sic.) (Statement of Claim, page 12, para 96). [ 7 ] The Statement of Claim damages sought include: 1) $5,000,000 “for the psychological, physical and emotional damages”; 2) $500,000 “for loss of income”; 3) payment of Mr. Sewak’s criminal defence legal bills (total $67,000); 4) payment of $54,000 in relation to Mr.

Sewak’s bills while incarcerated; 5) payments of $200,000 and $100,000 to Mr. Sewak’s wife and parents, respectively, for psychological and emotional stress; 6) $7,000,000 for loss of income from Mr. Sewak’s businesses; and 7) $3,500,000 when a building in Lintlaw, Saskatchewan was not sold. [ 8 ] Mr. Sewak’s Statement of Claim was referred to me by the Clerk of the Court as an Apparently Vexatious Application or

Proceeding (AVAP) 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 that review I concluded in a decision reported as Sewak v Killips , 2021 ABQB 64 [ Sewak #1 ] that Mr. Sewak’s Statement of Claim exhibited prima facie defects that warranted a show-cause review pursuant to CPN7. I therefore requested that Mr.

Sewak respond in an up to ten page Written Submission to six questions: 1) Why is his Statement of Claim not a prohibited collateral attack on now concluded criminal proceedings? 2) What law provides a basis for liability for Judge Maher, Mr. Jenkins, and Premier Kenney? 3) How does the Statement of Claim provide an adequate basis for the Court and Defendant to make a meaningful response? 4) How does the Statement of Claim not seek disproportionate or impossible remedies? 5) What is the legal basis on which Mr.

Sewak may advance damages claims on behalf of persons who are not named parties to this litigation? 6) How does the Statement of Claim provide a basis to substantiate Mr. Sewak’s claims of decision-maker bias and misconduct? ( Sewak #1 at para 44 .) [ 9 ] Mr. Sewak’s six page Written Submission was received on February 8, 2021. Written Replies were received from counsel for Ms. Killips, Premier Kenny, Mr. Jenkins, Ms.

Flaherty, the Government of Alberta, and Justice and Solicitor General (Alberta Defendants) on February 18, 2021, from counsel for Judge Maher on February 19, 2021, and from counsel for Constable Dehaas on February 22, 2021. After review of these materials, I conclude that Mr. Sewak’s Statement of Claim should be struck out as an abuse of the Court’s processes. II. Analysis and Conclusion [ 10 ] I will first review the Written Replies since the Written Replies introduce several additional factors. A.

Alberta Defendants’ Written Reply [ 11 ] The Alberta Defendants broadly adopt the Sewak #1 analysis and conclusions, and submit that Mr. Sewak’s Statement of Claim is a collateral attack on Mr. Sewak’s criminal proceedings, and, beyond that, is an abusive and vexatious proceeding. [ 12 ] Further, the Alberta Defendants submit that Mr. Jenkins cannot be liable to Mr. Sewak because Crown Prosecutors have no duty of care to defendants: Miazga v Kvello Estate , 2009 SCC 51 . Writing to Premier Kenney does not establish a duty of care, and, further, Mr. Sewak has advanced claims that are non-justiciable.

The “Government of Alberta” and “Justice and Solicitor General” are improperly named, and, in any case, no specific allegations were advanced against these Defendants. [ 13 ] The Alberta Defendants’ Written Reply attached a number of documents from a different Alberta Court of Queen’s Bench Matter: Sewak v Lebessis , Docket 1903 02426. Ms. Killips is one of the Defendants in that matter. The Alberta Defendants provided: 1) Mr. Sewak’s January 31, 2019 Statement of Claim; 2) a Noting in Default for Ms.

Killips and Alberta Community Corrections, filed May 15, 2019; 3) a December 5, 2019 Order of Master Smart setting aside the May 15, 2019 Noting in Default; and 4) a February 21, 2020 Order of Master Smart striking out Mr. Sewak’s 1903 02426 Action against Ms. Killips and Alberta Community Corrections, pursuant to r 3.68 of the Alberta Rules of Court , Alta Reg 124/2010 . [ 14 ] The Alberta Defendants observe that the allegations against Ms. Killips in the 1903 02426 Statement of Claim (page 3, paras 23-27) generally duplicate those in the current Statement of Claim (pages 4-5, paras 56-62).

The two Statements of Claim also share common alleged injuries to Mr. Sewak, and that certain remedies sought in both matters are identical. The Alberta Defendants argue that the current Statement of Claim is a collateral attack both on the concluded criminal proceedings, and the February 21, 2020 Order in the 1903 02426 Action. [ 15 ] CPN7 is a document-specific review that does not usually reference external evidence or material.

One exception to that rule is that documents may be admitted and considered where those items are evidence that an AVAP is an attempt to litigate an issue that has already been decided or closed: Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 at para 45 . This is one such instance. The 1903 02426 Action records are admissible, and I find establish an additional basis for why Mr. Sewak’s lawsuit is a collateral attack, and, therefore, an abuse of process. B. Judge Maher’s Written Reply [ 16 ] Counsel for Judge Maher adopts the Sewak #1 analysis of deficiencies in Mr.

Sewak’s Statement of Claim, and also notes that Judge Maher not only has judicial immunity under common law, but that Provincial Court Act , RSA 2000, c P-31 , s 9.51 provides Judge Maher judicial immunity for any alleged wrongdoing relating to the criminal proceeding against Mr. Sewak that was heard and decided by Judge Maher.

[17] Furthermore, this Defendant notes that Mr. Sewak’s Written Submissions acknowledge that Mr. Sewak had “no real facts” tosupport his allegations against Judge Maher, including the allegation of racism, which is a further basis to conclude his action againstJudge Maher had no valid basis and should be struck out as a vexatious pleading. I agree. C. Constable Dehaas’ Written Reply [18] Constable Dehaas also adopts the litigation defect analysis in Sewak #1, agrees that Mr. Sewak’s Statement of Claim is acollateral attack on concluded criminal proceedings, and concludes that Mr.

Sewak did not articulate a cause of action against ConstableDehaas. [19] Constable Dehaas notes that the timeline of facts in Mr. Sewak’s Statement of Claim establishes that Mr. Sewak’s January 4,2021 filing falls outside the Limitations Act, RSA 2000, c L-12, s 3(1)(

a) deadline, and the action against Constable Dehaas is thereforeout of time and statute barred. Again, that appears to be correct, given the facts and timeline alleged by Mr. Sewak in his Statement ofClaim. D. Mr. Sewak’s Written Submission [20] Mr. Sewak’s Written Submission is largely non-responsive to the six questions set in Sewak #1. Instead, the majority of Mr.Sewak’s Written Submission are additional alleged facts that expand on the claims in his Statement of Claim. Mr.

Sewak’s more detailednarrative is excluded by r 3.68(3) of the Alberta Rules of Court, which states that: No evidence may be submitted on an application made on the basis ... [a commencement document or pleading discloses no reasonableclaim ...] [21] Furthermore, the law is clear that Mr. Sewak cannot file inadequate pleadings and then either supplement those claims, orexpect the Respondents to “fill in the blanks”: Mancuso v Canada (National Health and Welfare) 2015 FCA 227 at para 20. I havetherefore disregarded these elements of the Written Submission. They are inadmissible. [22] Mr.

Sewak in his Written Submission explains his motivation to file the Statement of Claim. He says what happened to himwas unjust, but believes that those injustices are a mechanism for change. He also says he was being a hypocrite, that the Defendants “...did not deserve the words I have said ...”, but he was angry at the time. Nevertheless, Mr. Sewak concludes his rights pursuant to theCanadian Charter of Rights and Freedoms,

Part 1 of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982,c 11 were breached, and he did not deserve that. [23] Mr. Sewak’s Written Submission does not respond to the detailed reasons in Sewak #1 as to why it appeared that hisStatement of Claim is an abuse of the Court. That means Mr. Sewak has not rebutted the law and defects in his action identified in Sewak#1, and, for that reason, I conclude Mr. Sewak’s Statement of Claim should be struck out on multiple bases. [24] The exception is that Mr. Sewak does say why his Statement of Claim does not seek disproportionate or impossible remedies.Mr.

Sewak states: Money has never been the goal here, please do not think it is. ... The main goal of these statement of claim is not money, that is not themain thing we are after, I promise you this. You reach a point where you no longer care about money as much but instead want to makea change. ... (Sic.) Mr.

Sewak continues to explain what he needs are apologies by the Defendants to him, his wife, his dogs, his parents, persons involvedwith his businesses, and an unborn child. [25] In Miller v Edmonton (City), 2020 ABQB 784 at para 22 I concluded this argument is not a valid reason for why a lawsuitshould not be struck out. Instead, if the lawsuit was not about money, then that means this action was litigation for an improper purpose,and an abuse of the Court. In addition, Mr. Sewak provided no response to the specific defects and issues I identified in Sewak #1 atparas 33-35, such as how Mr.

Sewak has a legal basis to obtain a general damages award that is nearly 14 times the maximum permittedby the Supreme Court of Canada in Andrews v Grand & Toy Alberta Ltd, (SCC), [1978] 2 SCR 229, 83 DLR (3d) 452. III. Conclusion [26] I therefore conclude that Mr. Sewak’s Statement of Claim should be struck out on multiple bases pursuant to r 3.68 of theAlberta Rules of Court.

No costs flow from this outcome since this Court does not usually order costs when the Clerk of the Court refersan AVAP pursuant to CPN7 paragraph 5: Peets v Alberta (Justice and Solicitor General), 2019 ABQB 565 at para 6. [27] Counsel for the Alberta Defendants will prepare and serve the Order giving effect to this decision. Mr. Sewak’s approval ofthat Order is not required, pursuant to r 9.4(2)(

c) of the Alberta Rules of Court. Mr. Sewak may be served this Memorandum of Decisionand the resulting Order by regular mail to the address 20 Alphonse Court, St. Albert, Alberta, T8N 5N9, and by email to the address“Shaneil@caifinancial.ca”. Dated at the City of Edmonton, Alberta this 24th day of February, 2021.

K.G. Nielsen A.C.J.C.Q.B.A. Appearances: Shaneil Sewak Self-represented Litigant John-Marc Dube Civil Litigation Alberta Justice for the Defendants Jennifer Killips, Premier Jason Kenney, Ryan Jenkins, Hillary Flaherty, the Government of Alberta, and Justice and Solicitor General Brian A. Vail, Q.C. Field Law for the Defendant Judge John Maher Lorena K. Harris Dentons LLP for the Defendant Constable Neil Dehaas