Savage v Sniderman, 2021 ABQB 165

Court of Queen’s Bench of Alberta Citation: Savage v Sniderman, 2021 ABQB 165 Date: 20210303 Docket: 2103 00364 Registry: Edmonton Between: Shawn D. Savage Plaintiff - and - Howard J. Sniderman Q.C. and Witten LLP Defendants _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] On January 25, 2021, Shawn D. Savage (Mr. Savage) filed a Statement of Claim naming Howard J. Sniderman Q.C. (Mr. Sniderman) and the Witten LLP law firm (Witten) as Defendants.

The Statement of Claim states that Mr. Sniderman is a partner in Witten. The Statement of Claim indicates that Mr. Sniderman was representing “Cory Sekura and Team Sekura Auctions”, and that, in

that capacity, Mr. Sniderman “sent an intent to enforce a security agreement on behalf of Cory Sekura and Team Sekura Auctions.” [ 2 ] The next 13 paragraphs of the Statement of Claim indicate that Mr. Savage did not sign the security agreement, which is allegedly a forgery, and then a series of allegations against Mr. Sniderman, that Mr.

Sniderman knew or ought to have known: ... the security agreement was manufactured by way of forgery ... the text message sent by the Plaintiff to Corey Sekura on Oct 4, 2018 discredits the security agreement ... that the security agreement did not have a valid date ... that the security agreement surfaced 5 days after the plaintiff filed an objection to the landlord distress seizure issued by Corey Sekura and his companies ... that there is no terms to the security agreement ... that the commissioner of oaths on the security agreement did not date the agreement, and the Commissioner is also Corey Sekura's sister in-law and office manager ... that Corey Sekura not being able to provide and exact date on when the agreement was signed was suspicious ... that continuing the use of this security agreement for an improper purpose is an abuse of process ... that once the document in question became more apparent that it was manufactured illegally, he had an obligation to inform that Alberta Lawyer Insurance Association of this and get their instruction on how to proceed ... that he had an obligation to withdraw as counsel for Corey Sekura and his companies ... that using the security agreement as a part of the defense filed on June 2, 2020 for Corey Sekura and his companies was an abuse of process (Sic.) [ 3 ] Mr.

Savage also alleges Mr. Sniderman “... did not use due care when uttering this document, he had an obligation to ensure it was a legitimate agreement before enforcing on it”. [ 4 ] The only allegation against Witten is “Witten LLP had an obligation to ensure the lawyers at their firm were acting in a appropriate manner” (sic). [ 5 ] Mr. Savage seeks each of the Defendants pay $500,000 “... for the stress, anxiety and financial hardship”, and “[I]mmediate suspension of Howard J.

Sniderman’s licence to practice law pending a formal review of his actions”. [ 6 ] On February 18, 2021, counsel for the Defendants by letter referred Mr. Savage’s Statement of Claim to the Court as an Apparently Vexatious Application or Proceeding (AVAP) pursuant to Civil Practice Note No. 7 (CPN7), paragraph 6. 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. [ 7 ] I have reviewed Mr.

Savage’s 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. Savage’s Statement of Claim should be subject to a CPN7 show-cause document-based review under r 3.68 of the Alberta Rules of Court , Alta Reg 124/2010 . That means I have decided that Mr.

Savage must file a Written Submission setting out why his Statement of Claim should not be struck out because it is significantly deficient. [ 8 ] Counsel for the Defendants also provided a number of other documents that I will not consider for the purposes of the CPN7 analysis, but will discuss later in the Conclusion to this decision. II. CPN7 [ 9 ] The 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.

CPN7 is intended to provide litigants with a timely, proportionate, and cost-effective response: Unrau v National Dental Examining Board , 2018 ABQB 874 ( Unrau #1 ). [ 10 ] 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 r 3.68 of the Alberta Rules of Court . [ 11 ] 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 clearly addressed “To the Attention of” the Justice who initiates the CPN7 process, and must also be served on the other parties to the litigation. [ 12 ] CPN7 is not to be used for “close calls”. The Court only intervenes when the defect(

s) in question are “apparent on the face of the pleading”, and the suspect pleadings are “clearer cases of abuse”: Unrau #1 at paras 22 and 24 .

[13] 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 [14] Mr.

Savage’s Statement of Claim exhibits a number of issues. A. Inadequate Pleadings [15] An Application or a Statement of Claim sets the issues to which the opposing party must respond, and alerts that party of thecase 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), 2015FCA 227 at paras 16-20.

Pleadings must provide a basis for the Court and other litigants to make a meaningful response, and indicate tothe responding parties the “... who, when, where, how and what gave rise to its liability.”: Mancuso v Canada (National Health andWelfare) at para 19. [16] Mr. Savage cannot file inadequate pleadings and then either supplement those claims, or expect the Defendants to “fill in theblanks”: Mancuso v Canada (National Health and Welfare) at para 20.

A lack of specificity is not merely a technical defect, but goes tothe core of the claim: GH v Alcock at para 58, citing AL v Ontario (Minister of Community and Social Services) (2006) (ON CA), 274 DLR (4th) 431, 218 OAC 150 (Ont CA). Inadequate pleadings abuse the Court’s process because a respondentcannot defend against unclear and non-specific claims and the Court cannot control the proceedings, identify the proposed argument, ormake findings on the relevant facts: Unrau v National Dental Examining Board, 2019 ABQB 283 at para 629 [Unrau #2] [17] Mr. Savage’s allegations against Mr.

Sniderman are largely bald allegations. For example, paragraph 6 of the Statement ofClaim alleges Mr. Sniderman knew or ought to have known that a text message “discredits the security agreement”. Why is that? Whatwas the text message? The text message was, allegedly, sent by Mr. Savage to Corey Sekura. How would Mr. Sniderman, personally,become informed of that message, or how should he realize that meant the security agreement was a forgery? Mr. Sniderman allegedlyknew or ought to have known “that there is no terms to the security agreement” (sic). What does this mean? Is this relevant to the forgeryclaim?

What was the security agreement, if it had “no terms”? [18] There is no indication that Mr. Savage was somehow injured by the Defendants, beyond there was “stress, anxiety, andfinancial hardship”. There are no specifics as to the “stress, anxiety, and financial hardship”, or how that relates to the Defendants. Howdoes Mr. Savage allege he experienced monetary harm, and what, if any, of the $1,000,000 in damages, relates to that? [19] A broader issue is that Mr. Savage provides no indication of the legal basis on which he is suing the Defendants. Is Mr.Savage alleging this is a tort matter, because Mr.

Sniderman “did not use due care” prior to enforcing the security agreement? Or is Mr.Savage alleging Mr. Sniderman breached a duty to the Court, as a lawyer, for engaging in an abuse of process? If so, how does that affectMr. Savage? Why is informing the Alberta Lawyer Insurance Association relevant to Mr. Savage? He seems to be a third-party to thatrelationship. [20] As for Witten, how did that Defendant breach the alleged obligation “... to ensure the lawyers at their firm were acting in aappropriate manner” (sic). What lawyer did something wrong? Was it Mr. Sniderman? What did Witten do or not do?

Why does Mr.Savage have a separate basis to claim $500,000 from Witten? Is the claim against Witten an allegation of vicarious liability? [21] I request that Mr. Savage indicate how the Statement of Claim provides a basis for the Court and the Defendants to make ameaningful response so that the Statement of Claim is not an abuse of the Court’s processes. B. The Legal Basis for the Defendants’ Liability in Tort [22] As I previously indicated, the Statement of Claim does not provide a clear explanation of what is the legal basis for Mr.Savage to seek damages from the Defendants. Mr.

Savage does not indicate if this is a question of contract, or legislated obligation. I amgoing to infer, in an excess of caution, that when Mr. Savage stated Mr. Sniderman “... did not use due care ...” that Mr. Savage isalleging that Mr. Sniderman had a duty of care to Mr. Savage, and that Mr. Sniderman breached that duty of care, resulting in a tortinjury: “stress, anxiety and financial hardship”. [23] From what I can ascertain from the Statement of Claim, Mr. Sniderman is, or was, representing Cory Sekura and Team SekuraAuctions in some kind of collections dispute between Mr.

Savage and Cory Sekura and Team Sekura Auctions. [24] Canadian courts have repeatedly ruled that lawyers have no duty of care to opposing parties: e.g.

Templanza v Ford, 2018ABQB 168 at paras 69-72, appeal abandoned 2019 ABCA 309, reinstatement denied 2019 ABCA 345, leave to appeal to SCC refused,39034 (30 April 2020); Kumar v Korpan, 2020 SKQB 256 at paras 46-49; 9383859 Canada Ltd v Saeed, 2020 ONSC 4883; Sewak vKillips, 2021 ABQB 64 at paras 22-23. [25] Manderscheid J in Wong v Leung, 2011 ABQB 688 at paras 23-24 concluded: There can be absolutely no legal duty of care owed by a Defendant's counsel to a Plaintiff.

If such duty were to exist, it would strike atthe very heart of the adversarial system, which forms the very foundation of litigation under the common law. ...

[26] Given these authorities, I request Mr. Savage identify the legal basis for why when Mr. Sniderman “... did not use due care ...”that was in breach of a duty of care to Mr. Savage. I further request Mr. Savage to explain how a duty of care would arise betweenhimself and the law firm of opposing counsel, Witten. C. Excessive or Impossible Remedies [27] Mr. Savage has claimed a total of $1,000,000 in damages from the Defendants. As I have previously indicated, Mr.

Savagehas not provided any alleged factual basis for “financial hardship”, nor has he specified the nature of the “stress” and “anxiety” he hasexperienced. [28] Excessive or impossible remedies make litigation a hopeless proceeding that is an abuse of the Court: Unrau v NationalDental Examining Board, 2019 ABQB 283 at paras 620-625. Presuming that the award sought is general damages, for “pain andsuffering”, then the Statement of Claim amount exceeds the maximum amount of general damages that may be claimed for pain andsuffering.

That was set in Andrews v Grand & Toy Alberta Ltd, (SCC), [1978] 2 SCR 229, 83 DLR (3d) 452 at$100,000. After inflation, the Andrews v Grand & Toy Alberta Ltd general damages cap is now approximately $365,000. That amountwas for a young adult whose injuries led to near total disability. [29] Mr. Savage seeks slightly less than three times that cap amount, and that cap quantum is reserved for situations such asquadriplegia, permanent and chronic debilitating injuries and pain, or severe neurological injury. I therefore request that Mr.

Savageindicate how the Statement of Claim establishes a basis for the damages sought. [30] Further, Mr. Savage seeks that this Court order “[I]mmediate suspension of Howard J. Sniderman’s licence to practice law...”. Lawyers in Alberta are regulated by the Law Society of Alberta pursuant to the Legal Profession Act, RSA 2000, c L-8. I request Mr.Savage explain why the Court would have the authority to suspend Mr. Sniderman’s licence to practice law when legislation hasallocated the authority to take that step to the Law Society of Alberta. IV. Conclusion [31] Mr.

Savage’s Statement of Claim appears to be a suitable AVAP candidate for review pursuant to CPN7. The Court seeksresponses from Mr. Savage to the following questions: 1) How does the Statement of Claim provide an adequate basis for the Court and Defendants to make a meaningful response? 2) How in law do opposing counsel and the opposing counsel’s law firm have a duty of care to Mr. Savage? 3) How are the damages sought by Mr. Savage not excessive or impossible? 4) How does the Alberta Court of Queen’s Bench have the authority to suspend the licence of a lawyer? [32] CPN7 now advances to its second step.

This step consists entirely of written submissions; there will be no Court appearancesor oral argument. The next steps are: 1) Mr. Savage has 14 days to prepare a Written Submission of no more than a total of 10 pages, to be filed and served, as describedin 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 Statement ofClaim 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. Savage provides and serves a Written Submission, then the Defendants each have seven days to provide a Written Reply ofup to 10 pages in length (see CPN7, para 3(d)).

The Written Replies must be clearly addressed “To the Attention of Associate ChiefJustice K.G. Nielsen”. 4) After the Court receives Mr. Savage’s Written Submission and the Defendants’ Written Replies, if any, the Court will make itsfinal decision on whether the Statement of Claim should be struck out in whole or in part, under r 3.68 of the Alberta Rules of Court (seeCPN7, para 3(e)). [33] The Court will prepare and serve an Interim Order staying this action (see CPN7, para 7). [34] Counsel for the Defendants indicated in its letter that Mr.

Savage on January 25, 2021 filed an Application in a secondlawsuit, Savage v Sekura Bros Inc, Alberta Court of Queen’s Bench Docket 2003 07515. That Application in part seeks that the Courtorder that Mr. Sniderman is removed as counsel in that lawsuit. The Docket 2003 07515 Application was provided to the Court, but notconsidered in the current CPN7 process. Mr. Savage’s January 25, 2021 Application, set to be heard on March 12, 2021, states Mr.Sniderman is in conflict of interest due to the Savage v Sniderman lawsuit (Docket 2103 00364). [35] In light of my finding that Mr. Savage’s lawsuit against Mr.

Sniderman and Witten should be subject to a show cause CPN7process, and since that now stayed Docket 2103 00364 lawsuit is the basis for Mr. Savage’s Docket 2003 07515 Application, I concludethat the Docket 2003 07515 Application should be stayed until the current CPN7 process is complete. The March 12, 2021 appearance isadjourned sine die. The Court will prepare and serve an Interim Stay Order for the Docket 2003 07515 Application. [36] Mr. Savage’s approval of the Interim Stay Orders is not required, pursuant to r 9.4(2)(

c) of the Alberta Rules of Court. Mr.Savage may be served this Decision and the Interim Stay Orders to the email address identified on Mr. Savage’s Statement of Claim:shawn.savage@live.ca.

Dated at the City of Edmonton, Alberta thi s 3 rd day of March, 2021. K.G. Nielsen A.C.J.C.Q.B.A. Appearances: Jennifer E. Halloran Kingsgate Legal for the Defendants