Toma v Alberta (Service), 2021 ABQB 178

Court of Queen’s Bench of Alberta Citation: Toma v Alberta (Service), 2021 ABQB 178 Date: 20210305 Docket: 2103 00149 Registry: Edmonton Between: Bernard Toma and Lorna Toma Plaintiffs - and - Service Alberta, Consumer Investigation Unit, Laura Aydin, Bradley Siddell, Zeljko Kukolic, Darrelle Gabinet, Jessica Fortin, Jessica Littlewood, Brian Malkinson, Dale Menzak, Jessi Arsenault, Jackie Armstrong-Homeniuk, Nate Glubish, Hanna Storvold, Associates, Subcontractors Defendants _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________

I.

Introduction [ 1 ] On January 14, 2021 Bernard and Lorna Toma (the Tomas) filed a Statement of Claim naming as Defendants: 1) Service Alberta; 2) the Service Alberta Consumer Investigation Unit; 3) certain persons employed with Service Alberta; 4) four current or former members of the Alberta Legislature, two of whom are or were the Minister of Service Alberta (Jessica Littlewood, Brian Malkinson, Jackie Armstrong-Homeniuk, Nate Glubish); 5) Jessie Arsenault, who is identified as a “Constituency Assistant” for the Fort Saskatchewan MLA’s office; 6) the former president of the Auctioneer’s Association of Alberta (Dale Menzak); and 7) “Defendants’ Associates and Sub-Contractors identities were not known at the time of the filing”. [ 2 ] The Statement of Claim does not lay out the events that are the basis for the Tomas’ claim.

Drawing inferences from the pleadings, it appears that certain unspecified property of the Tomas was sold in an auction conducted by the Northstar Group of Companies (Northstar).

The Tomas allege misconduct occurred during that auction, including that the Tomas’ property was auctioned at discounted prices so as to favour employees, associates, family members, friends, and “regular auction patrons”, and that Northstar breached a reserve bid arrangement with Lorna Toma concerning “household merchandise”. [ 3 ] The Tomas’ Statement of Claim does not name Northstar as a Defendant, nor does it advance claims that directly relate to the allegedly illegal auction.

Instead, it appears that after the auction the Tomas initiated a complaint about the auction with the Service Alberta Consumer Investigation Unit.

The Tomas’ Statement of Claim alleges improper conduct related to that investigation in 24 paragraphs, each of which make parallel allegations against all of the Defendants. [ 4 ] The Statement of Claim then concludes: As a result of one or more of the Defendants failer to enforce legislation in pursuant to The Consumer Protection Act (CPA), Unfair Business Practices they have caused and have allowed the Northstar Group of Companies, their work associates, and their employees to cause the Plaintiffs' to suffer irreversible long term financial harm. undue mental stress and hardship. (Sic.) [ 5 ] The remedies the Tomas seek include: 1) declarations that the Defendants knowingly and intentionally oppressed the Tomas, and breached their “Fiduciary Duties and Obligations to the Plaintiffs and Society as a whole”; 2) the Court order accounting and document disclosure, and identification of “Associates and Sub-Contractors” and corporate officers involved with Northstar; 3) $25,000,000 “... for the undue suffering, irreversible long term financial and mental harm, undue stress and hardship caused to and upon the Plaintiffs by Defendants actions and inactions”; and 4) an order that the Court: ... appoint an independent impartial watchdog committee to review and enforce all recommendations set out by said independent impartial watchdog committee upon any and all investigations carried out by Service Alberta and the Consumer Investigation Unit (CIU), its associates, sub-contractors and employees. [ 6 ] The Tomas’ 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 review of the Tomas’ Statement of Claim, I concluded in a decision reported as Toma v Alberta (Service) , 2021 ABQB 110 ( Toma #1 ) that the Statement of Claim exhibited apparent deficiencies so that a CPN7 document- based show-cause review under r 3.68 of the Alberta Rules of Court , AR 124/2010 was warranted.

The Tomas were asked to submit an up to ten page Written Submission that responded to three questions: 1) How does the Statement of Claim provide an adequate basis for the Court and the Defendants to make a meaningful response? 2) How does the Statement of Claim not seek disproportionate or impossible remedies? 3) Why is the Statement of Claim not an abuse of the Court given the Tomas did not exhaust their alternative remedy or remedies? ( Toma #1 at para 31 .) [ 7 ] The Tomas did not submit a Written Submission.

Instead, the Court received a ten-page “Affidavit of: Bernard Toma and Lorna Toma”, sworn by Bernard Toma on February 24, 2021 which was filed on that date [Tomas Affidavit]. No Written Replies were received from the Defendants.

II. Analysis [ 8 ] The status of the Tomas Affidavit must first be evaluated prior to determining the outcome of the CPN7 process. A. Preliminary Issue - Tomas Affidavit is Excluded [ 9 ] CPN7 is a method to conduct the r 3.68 of the Alberta Rules of Court process. Subsection 3.68(3) of the Alberta Rules of Court states that: No evidence may be submitted on an application made on the basis ... [a commencement document or pleading discloses no reasonable claim ...] [ 10 ] I have carefully reviewed the Tomas Affidavit. The title of that document is accurate.

The Tomas Affidavit begins: We are appealing Associate Chief Justice K.G. Nielsen’s decision of putting a temporary stay on our Statement of Claim Court File # 2013 00149 Toma vs Alberta (Service) based on the facts and reasoning contained in this affidavit. This action is definitely warranted and is not Frivolous or Vexatious in anyway.

This claim in no way or manner will be a waste of the Courts time and will bring to light an extremely serious deep-rooted industry problem that all the defendants named in this action choose to ignore even after being presented with hard documented evidence both verbally and in written form. .... [ 11 ] What follows is a narrative that expands on the Tomas’ complaints, and that describes their experiences. Mr. Toma indicates the Tomas Affidavit is “an extremely condensed version of events” based on “over 100 pages of factual documentation”.

The Tomas Affidavit reproduces emails, describes the sequence of events, and in general expands on the allegations made in the Statement of Claim. Mr. Toma deposes as to interactions and communications with named Defendants. [ 12 ] None of this information is admissible in a r 3.68 of the Alberta Rules of Court process. Rule 3.68 and CPN7 tests the Statement of Claim on its own, as an independent initiating document. The Tomas Affidavit is entirely evidence that relates to whether the Statement of Claim “... discloses no reasonable claim ...”. I therefore disregard the Tomas Affidavit and its contents. B.

The Tomas Have Not Rebutted the Toma #1 Prima Facie Defects [ 13 ] In Toma #1 I identified and provided detailed explanations of how the Tomas’ Statement of Claim had three prima facie defects: 1) The Statement of Claim did not provide adequate information to permit a meaningful response by the Court and the Defendants: Toma #1 at paras 14-21 . 2) The Statement of Claim sought impossible and/or excessive remedies: Toma #1 at paras 24-27 . 3) The Tomas had an alternative administrative remedy, judicial review, to advance their complaints: Toma #1 at paras 28-30 . [ 14 ] The Tomas have not responded to any of these issues.

I therefore conclude that the Tomas’ Statement of Claim should be struck out as an abuse of court processes. III. Conclusion [ 15 ] The Tomas’ Statement of Claim is struck out on multiple bases pursuant to r 3.68 of the Alberta Rules of Court . No costs flow from this outcome since this Court does not usually order 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 . [ 16 ] Counsel for the Alberta Defendants will prepare and serve the Order giving effect to this decision.

The Tomas’ approval of that Order is not required, pursuant to r 9.4(2)(

c) of the Alberta Rules of Court . The Tomas may be served this Memorandum of Decision and the resulting Order by regular mail to the address identified in the Tomas Affidavit. Dated at the City of Edmonton, Alberta thi s 5 th day of March, 2021. K.G. Nielsen A.C.J.C.Q.B.A.

Appearances: Bernard Toma and Lorna Toma Self-represented litigants Kate Bridgett Civil Litigation Team Alberta Justice and Solicitor General for the Defendants Service Alberta, Consumer Investigation Unit, Bradley Siddell, Laura Aydin, Zeljko Kukolic, Darrelle Gabinet, Jessica Fortin, Hannah Storvold, Jessica Littlewood, Brian Malkinson, Jackie Armstrong-Homeniuk, and Nate Glubish.