Doniger v Law Society of Alberta, 2021 ABQB 200

Court of Queen’s Bench of Alberta Citation: Doniger v Law Society of Alberta, 2021 ABQB 200 Date: 20210317 Docket: 1901 08155 Registry: Calgary Between: H. Kim Doniger Applicant - and - Law Society of Alberta Respondent _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I. CPN7 [ 1 ] On February 4, 2021, H. Kim Doniger [Ms. Doniger], filed an “Application”, naming the Law Society of Alberta [LSA] as the Respondent, along with a 31-page “Brief of H. Kim Doniger, The Applicant”.

No Affidavit was filed in support. [ 2 ] The “Brief” indicated Ms. Doniger is a member of the LSA, but at present her licence is suspended. Ms. Doniger’s licence is currently under review by an LSA Conduct Committee. As I understand Ms. Doniger’s Application and Brief, Ms. Doniger argues that a number of provisions of the Legal Profession Act , RSA 2000, c L-8 are unconstitutional as those breach Charter ss 7, 11(c), and 13, and should be struck out, and she also calls these provisions “ultra vires” because they “impinge on criminal law power”.

[ 3 ] On February 16, 2021, Counsel for the LSA referred Ms. Doniger’s Application to the Court as a candidate Apparently Vexatious Application or Proceeding [AVAP] pursuant to Civil Practice Note No. 7 [CPN7] paragraph 6. I am designated to receive and review potential CPN7 processes in Southern Alberta. In a decision dated February 22, 2021, and reported as Doniger v Law Society of Alberta , 2021 ABQB 136 [ Doniger #1 ] , I concluded that Ms.

Doniger’s Application exhibited prima facie defects so that the Application appeared to be an abuse of the Court’s processes, and should be reviewed using the CPN7 document-based “show cause” procedure. Ms. Doniger was asked to provide an up to ten-page Written Submission that responded to five questions: 1. Why Ms. Doniger’s Application is not a premature and abusive proceeding since she has not exhausted the Legal Profession Act procedure in relation to her alleged problematic conduct? 2. How is the criminal law authority implicated when all decision-making relating to Ms.

Doniger’s legal practice and licence is on a balance of probabilities, and the LSA does not have the authority to initiate or impose criminal sanctions? 3. How do the Complaint Commission proceedings implicate Ms. Doniger’s life, liberty, or security of the person? 4. How is Ms. Doniger a “person charged with an offence” so that Charter s 11(

c) applies to her? 5. Why does Legal Profession Act s 69(2) not prohibit compelled self-incrimination so as to satisfy Charter ss 11(

c) and 13? [ Doniger #1 at para 30 .] [ 4 ] Ms. Doniger had two weeks to file her Written Submission. On March 4, 2021, Ms. Doniger emailed my judicial assistant: Good morning. I would like to ask the Honourable Associate Chief Justice Rooke for an extension of the deadline to make written submission on the CPN7 application. Two weeks is simply not enough time for me.

The vast majority of these CPN7 (if not all) are against self-represented actors, presumably pursuant to 23.1 (5) of the Judicature Act prohibiting vexatious proceedings against members of the Law Society, I am still a member of the Law Society and a lawyer and as such, plan to draft a formal brief of law with references to legal authorities and therefore will require extra time to make written submissions defending myself against this action.

Additionally as previously stated, I do have a pending appeal of the Order of Rooke, ACJ, with a pending application for a stay of that order and therefore had additional obligations to meet in this time period. WIth the greatest respect I request an additional seven days time until March 15 to submit my response or "show cause" submission. [Sic.] [ 5 ] The following day I ordered extensions to the Doniger #1 deadlines: 1. Ms. Doniger’s Written Submission deadline was extended to March 15, 2021, and 2. the LSA’s Written Reply deadline was extended to March 29, 2021. [ 6 ] Ms.

Doniger’s Written Submission deadline has passed. Nothing has been received. Pursuant to CPN7, paragraph 3(c), and Rule 3.68, I conclude that Ms. Doniger has not rebutted the five defects identified in Doniger #1 . I therefore strike out Ms. Doniger’s judicial review Application as a hopeless proceeding, and an abuse of the Court’s processes. II. Costs [ 7 ] When an action is terminated via the CPN7 process, the usual practice of this Court is to award costs in favour of the litigant who referred the matter to the Court: e.g.

Ahad v Calgary Housing Company , 2020 ABQB 450 at para 9 ; Phillips v Kenney , 2020 ABQB 452 at para 9 ; Skrypichayko v Law Society of Alberta , 2020 ABQB 604 at para 43 ; Feeney v Alberta , 2020 ABQB 633 at para 6 . [ 8 ] The Court has a broad discretion to determine an appropriate cost award ( Rule 10.31), and to take into account litigant conduct that caused unnecessary litigation or delay ( Rule 10.33(2)(a-b)), where a litigant engaged in improper litigation ( Rule 10.33(2) (d)), or otherwise engaged in “misconduct” ( Rule 10.33(2)(g)).

Elevated costs have been ordered in CPN7 proceedings where a litigant has engaged in abusive litigation: e.g. Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 at para 90-91 ; Biley v International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Local 210 , 2019 ABQB 506 at paras 57-58 ; Chisan v Akers , 2020 ABQB 746 at para 28 . [ 9 ] Doniger #1 issued on February 22, 2021. The following day Ms.

Doniger filed an appeal of Doniger #1 and the interim stay order, demanding that Doniger #1 be quashed: Doniger v Law Society of Alberta , Docket 2101 0043AC. Ms. Doniger then applied in the Alberta Court of Appeal proceeding for a stay of the Doniger #1 interim stay. [ 10 ] The Docket 2101 0043AC stay hearing was conducted on March 11, 2021. Justice Feehan on March 15, 2021 dismissed Ms. Doniger’s stay application with written reasons: Doniger v Law Society of Alberta , 2021 ABCA 94 [ Doniger #2 ]. Doniger #2 makes a number of relevant findings concerning Ms. Doniger’s judicial review proceedings: 1. Ms.

Doniger’s appeal of Doniger #1 was premature and contrary to the rule that appellate review is only conducted of final decisions ( Doniger #2 at paras 28, 35 ); 2. “... By applying for a stay, Ms. Doniger is attempting to bypass the Practice Note process and evade the court’s management over

apparently vexatious applications or proceedings.” ( Doniger #2 at para 29 ); 3. The Docket 2101 0043AC stay application is “... hopeless and the underlying appeal is frivolous and vexatious; there is no serious issue to be tried.” ( Doniger #2 at para 31 ); and 4. the only potential consequence of the Docket 2101 0043AC stay application would be to delay proceedings and determination of the relevant issues ( Doniger #2 at para 40 ) Succinctly, Justice Feehan concluded that Ms.

Doniger’s attempt to appeal Doniger #1 was an unmeritorious and abusive attempt to derail the CPN7 procedure. [ 11 ] I come to the same conclusion on balance of probabilities concerning Ms. Doniger’s judicial review. That proceeding was an attempt to derail the disciplinary proceedings underway between the LSA and Ms. Doniger. I note Ms. Doniger had no answer for the issues identified in Doniger #1 . [ 12 ] Furthermore, Ms. Doniger advanced claims that were patently absurd, for example claiming breach of Charter s 11(

c) was a basis for her judicial review. Ms. Doniger was obviously not “[a]ny person charged with an offence”. Ms. Doniger is facing potential disbarment, not criminal charges. Ms. Doniger is trained as a lawyer, and has practiced as a lawyer. Persons may be presumed to intend the natural consequences of their actions: R v RR , 2018 ABCA 287 at para 7 . That is the case with Ms. Doniger, and so I find on a balance of probabilities that Ms. Doniger knew her judicial review had no valid legal basis. [ 13 ] I therefore conclude Ms.

Doniger should be required to pay elevated costs since her judicial review litigation was an attempt to misuse the Courts to interfere with and derail the LSA disciplinary proceedings. A lump-sum costs award is appropriate when responding to abusive litigation “... to bring this proceeding to a conclusion and to send a message that this type of litigation will be dealt with swiftly and decisively ...”: Fiander v Mills , 2015 NLCA 31 at para 56 . I therefore order that Ms.

Doniger pay the LSA elevated litigation costs of $5,000, forthwith. [ 14 ] Counsel for the LSA shall prepare and serve the Order terminating the judicial review. Ms. Doniger’s approval of that Order is dispensed with, pursuant to Rule 9.4(2)(c). Ms. Doniger may be served this Decision and the corresponding Order by email to: hyok@ualberta.ca. Dated at the City of Calgary, Alberta this 17 th day of March, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: H. Kim Doniger Self-represented Litigant Karen Hansen for the Law Society of Alberta