Royal Bank of Canada v Godbout, 2021 ABQB 191

Court of Queen’s Bench of Alberta Citation: Royal Bank of Canada v Godbout, 2021 ABQB 191 Date: 20210311 Docket: 2010 00857 Registry: Red Deer Between: Royal Bank of Canada Plaintiff - and - Carl Godbout also known as Carl Antonio Godbout Defendant _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I.

Introduction [ 1 ] On March 4, 2021, Counsel for the Royal Bank of Canada [RBC] by letter referred to me an appeal of a February 9, 2021 decision of Master Mason in a foreclosure proceeding for review pursuant to Civil Practice Note No. 7 [CPN7]. CPN7 is a document- based “show cause” method to conduct the Rule 3.68 process: Unrau v National Dental Examining Board , 2018 ABQB 874 [ Unrau

#1 ]; Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 [ Ubah #2 ]. [ 2 ] The Defendant in this matter is the Estate of Carl Godbout [the Estate]. Mr. Godbout died on November 10, 2019. At that time Mr. Godbout lived in a condo in Red Deer. RBC had financed purchase of the condo via a mortgage. Linda Feeney [Ms. Feeney] is the Personal Representative for Administration of the Estate: Alberta Court of Queen’s Bench Docket ES1024029. [ 3 ] RBC on August 19, 2020 filed a Statement of Claim to initiate proceedings in relation to the condo. The Estate was found in default on September 15, 2020.

Foreclosure was granted by Master Mason on February 9, 2021. That February 9, 2021 decision is now under appeal. The appeal is not, however, being conducted by Ms. Feeney, but instead by her son, Keenan Feeney [Mr. Feeney]. Mr. Feeney has purported to self-appointed himself as the litigation representative of the Estate pursuant to Rule 2.14. The authority for that step was purportedly a letter from Ms.

Feeney that states, in part: I hereby give authorization as the Next of Kin and Authorized Representative to the estate to my son, Keenan Anthony Feeney ... to be included and permitted access to all portions of Carl Antonio Godbout’s property and court proceedings. [ 4 ] As I understand it, Counsel for the RBC has referred the appeal of Master Mason’s February 9, 2021 decision for CPN7 review on four bases: 1. Mr. Feeney does not have standing, since he has not satisfied the requirements of Rule 2.14, 2. no affidavit evidence supports the Notice of Appeal, 3. Mr.

Feeney has not established a financial interest in the Godbout Estate, and 4. Mr. Feeney has an extensive abusive litigation record, referencing reported decisions. [ 5 ] Subsequent to receipt of the March 4, 2021 letter from Counsel for the RBC, Mr. Feeney by email provided to my office an Affidavit he had sworn and filed on March 3, 2021 in support of the March 1, 2021 Notice of Appeal. II. Application of CPN7 and Rule 3.68 [ 6 ] CPN7 has a specific and limited focus. CPN7 is an alternative document-only method to conduct a Rule 3.68 proceeding.

CPN7 is typically focussed on one point: whether a particular filing is a “clearer case of abuse” [ Unrau #2 at para 22] . ... CPN7 is a comparatively narrow review. It asks: when the Court reviews a particular filing, does that filing, on its own, appear to be abusive or hopeless? If so, then - based on its review of that filing - the Court seeks an explanation from the party who filed the AVAP as to why the filing has merit. CPN7 is not a tool that is triggered by subtle potential deficiencies or borderline filings.

Nor does it rely on affidavit evidence and argument. [ Ubah #2 at para 32 , emphasis in original.] [ 7 ] The bases on which Counsel for RBC has referred Mr. Feeney’s Notice of Appeal are problematic. First, the question of standing is not relevant to a Rule 3.68 proceeding. Rule 3.68(2) identifies five alternative criteria for the Court to rule upon and strike out a pleading: whether the Court has no jurisdiction, or “... a commencement document or pleading ...” has a critical defect.

The status of the individual who filed a document is not a basis identified in Rule 3.68 to strike out a court filing. [ 8 ] Second, Mr. Feeney did file an affidavit in support of his appeal. [ 9 ] Third, in Rule 3.68 proceedings, alleged and claimed facts are presumed to be true ( R v Imperial Tobacco Canada Ltd , 2011 SCC 42 at para 17 ), with a limited exception for allegations that are absurd, implausible, or hyperbole ( Arabi v Alberta , 2014 ABQB 295 at paras 74-78 ; VWW v Wasylyshen , 2013 ABQB 327 at para 52 , leave refused 2014 ABCA 121 ). Mr. Feeney deposes he is a beneficiary of the Estate. Mr.

Feeney is a relative of Mr. Godbout. Mr. Feeney has, therefore, for the purposes of Rule 3.68, established a presumed factual basis for that interest that is not absurd, implausible, or hyperbole. [ 10 ] Finally, the fact that Courts have found that Mr. Feeney has engaged in abusive litigation is irrelevant to the specific potential merit of the appeal of the February 9, 2021 decision of Master Mason. Abusive litigants sometimes engage in valid litigation. That is why CPN7 relates only to the substance (or absence of substance) of a particular filing . [ 11 ] Given these findings I therefore conclude that Mr.

Feeney’s appeal is not a suitable candidate for CPN7 review. RBC’s referral is rejected. III. Mr. Feeney’s Status as a Self-Appointed Representative [ 12 ] My conclusion in relation to CPN7 does not end my review of Mr. Feeney’s appeal. Counsel for RBC alleges that Mr. Feeney is not a proper self-appointed representative for the Estate. Rule 2.21 gives the Court a broad authority and discretion to engage and manage litigation representatives: 2.21 The Court may do one or more of the following: (

a) terminate the authority or appointment of a litigation representative; (

b) appoint a person as or replace a litigation representative;

(

c) impose terms and conditions on, or on the appointment of, a litigation representative or cancel or vary the terms or conditions. [ 13 ] Furthermore, this Court has a positive obligation to ensure that only appropriate and authorized persons act as litigation representatives.

The British Columbia Court of Appeal in R v Dick , 2002 BCCA 27 described that obligation as a test of whether an individual ought to be accorded the “privilege” of appearing on behalf of another: ... there being clear authority for the proposition that, subject to statutory provisions otherwise, it lies within a court's discretion to permit or not to permit a person who is not a lawyer, to represent a litigant in court. ... There are strong public policy reasons for this general rule.

Each court has the responsibility to ensure that persons appearing before it are properly represented and (in the case of criminal law) defended, and to maintain the rule of law and the integrity of the court generally. ... [Emphasis added.] [ 14 ] Mr. Feeney has purported to self-appoint himself as a representative for the Estate pursuant to Rule 2.14.

There appear to be several issues with that self-appointment, and the Court has an obligation to resolve those questions before the appeal proceeds. [ 15 ] First, Rule 2.14 states a precondition to making a Rule 2.14 self-appointment that the “individual or estate” is required to have a litigation representative pursuant to Rule 2.11. Rule 2.11 states in relation to an estate: 2.11(

e) Unless otherwise ordered by the Court, the following individuals or estates must have a litigation representative to bring or defend an action or to continue or to participate in an action, or for an action to be brought or to be continued against them: ... an estate for which no personal representative has obtained a grant under the Surrogate Rules (AR 130/95 ) and that has an interest in a claim or intended claim. [ 16 ] Ms. Feeney purports to be the Personal Representative for the Godbout Estate. This raises the first issue for Mr. Feeney: how is Mr. Feeney’s self-appointment legally valid when Ms.

Feeney is the Estate’s Personal Representative? Put another way, the Estate’s litigation representation position is “already occupied” by someone else. [ 17 ] Second, Rule 2.14 requires that Mr. Feeney file an affidavit in support of his self-appointment that satisfies criteria set in Rule 2.14(2-3). No such affidavit has been filed to date.

Rule 2.14(4) further states that a self-appointed representative: ... has no authority to make or defend a claim or, without the Court’s permission , to make an application or take any proceeding in an action, until the [ Rule 2.14(1-3) affidavit is filed]. [Emphasis added.] [ 18 ] Mr. Feeney has not filed a Rule 2.14 affidavit. That means Mr. Feeney had no authority to file the appeal of the Master’s February 9, 2021 decision, and the Notice of Appeal will be unfiled, and the appeal itself cancelled, unless: 1. Mr. Feeney files a Rule 2.14 affidavit, or 2. Mr.

Feeney provides to me a valid basis for why the Court should exercise its Rule 2.14(4) discretion and grant him permission to continue the appeal without a Rule 2.14 affidavit. [ 19 ] I therefore order that the appeal filed by Mr. Feeney on March 1, 2021 is stayed, immediately. The scheduled April 26, 2021 hearing date is cancelled. [ 20 ] The appeal will not resume and be re-scheduled until Mr.

Feeney establishes that he is: 1. legally permitted to conduct the appeal pursuant to the Alberta Rules of Court , and 2. an appropriate person to represent the Estate in relation to the foreclosure proceeding. [ 21 ] Evaluation of Mr. Feeney’s self-appointed status will be conducted on a document-only basis. Submissions should be directed to myself as follows: 1. Mr. Feeney has until March 24, 2021 to submit written argument and affidavit(

s) in support of why he is a legally qualified and appropriate self-appointed representative for the Estate in the stayed appeal; 2. RBC has until March 31 to file reply argument and affidavit evidence; and 3. Mr. Feeney has until April 7, 2021 to file rebuttal argument. IV. Conclusion [ 22 ] The appeal of Master Mason’s February 9, 2021 decision is stayed. The scheduled April 26, 2021 hearing is cancelled. Dates have been set for Mr.

Feeney and RBC to make submissions to me to resolve the self-representation issue. [ 23 ] There are no costs associated with this decision. [ 24 ] The Court will prepare and serve an Interim Stay Order staying Mr. Feeney’s appeal of the Master’s decision. Mr. Feeney’s approval of that Order is not required, pursuant to Rule 9.4(2)(

c) of the Alberta Rules of Court . Mr. Feeney may be served this Decision and the Interim Stay Order to his email address: keenan.feeney@gmail.com.

Dated at Red Deer, Alberta this 11 th day of March, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Steven M. Shafir Witten LLP for the Plaintiff Keeney Feeney for the Defendant