Piers v Proudman, 2021 ABQB 253

Court of Queen’s Bench of Alberta Citation: Piers v Proudman, 2021 ABQB 253 Date: 20210401 Docket: 2103 02301 Registry: Edmonton Between: Navia Rose Piers Plaintiff - and - Kenneth J. Proudman Defendant _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] On February 24, 2021, Navia Rose Piers (Ms. Piers) filed a Statement of Claim that named Kenneth J. Proudman (Mr. Proudman) as the Defendant. Counsel for Mr. Proudman, by letter, referred to the Court Ms.

Piers’ Statement of Claim, along with an Affidavit of Ms. Piers sworn and filed on February 24, 2021, 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. [ 2 ] Counsel for Mr. Proudman also clarified a point that was otherwise not obvious from Ms. Piers’ Statement of Claim. Mr. Proudman is counsel for Ms. Piers’ former husband in a family law proceeding ( Piers v Piers , Alberta Court of Queen’s Bench Docket FL03 59878) and in a second civil lawsuit in which Ms.

Piers and her ex-husband are both Defendants ( Piers v Piers , Alberta Court of Queen’s Bench Docket 1803 18687). [ 3 ] The intention behind Ms. Piers’ Statement of Claim is difficult to identify. Paragraph 1 states Mr. Proudman has committed crimes: Kenneth J. Proudman committed a crime (

s) punishable under the Criminal Law Act. Perjury 131 (1) & 132, Conspiracy 465 (l)(c), Extortion 1.1 (b), Harassment 372 (1), and Defamation 298 (1) by way of actions taken within an illegal case that fall under the

definitions of these listed crimes. (Sic.) No further mention is made of these allegations, nor is “the illegal case” identified. [ 4 ] Other allegations may relate to the litigation between Ms. Piers and her ex-husband, including: 1. “Kenneth breached an order made by court by directing TD bank to refreeze accounts from which the entirety of funds were already transferred out to harass me and throw me in the struggle to convincing the bank to return normality to my accounts as per the order so that auto-payment can reduce my stress.” (Sic.) 2. Mr.

Proudman “filed a case under Matrimonial Property Act” after a limitations period had expired. 3. “Kenneth has filed les pendens on the properties i purchased after my divorce with his client.” (Sic.) 4. “... Kenneth came up with a settlement offer within only 5 days trying to force me to make a hasty decision that would benefit his client outside of the law.” 5. Mr. Proudman gave improper advice to “his client” (presumably the ex-husband) and “... how to proceed with further lies. ...”. 6. Mr. Proudman made “... false misleading statements to judges ...”. 7. Mr.

Proudman has tried “... to manipulate my current counsel ...” and made excuses to delay questioning, while advancing an “... unsigned response affidavit full of conspiracy and lies.” [ 5 ] Another allegation advanced in the Statement of Claim is Mr. Proudman took illegal actions in relation to Ms.

Piers’ confidential information: Kenneth has gained access to and has distributed my personal, private and financial information to third parties not entitled to all such information and in doing so, has violated my privacy and rights as per the governing laws and charter of rights and freedom. (Sic.) [ 6 ] A further complaint is that Mr. Proudman has “... taken actions and made statements that damage the integrity of the law profession and its members.” Ms. Piers’ also makes a tort claim that Mr.

Proudman affected her medical and psychological health: Kenneth has caused my medical and psychological health to be compromised which includes within the period when i was pregnant with my child in which i almost suffered a miscarriage, I suffered high blood pressure, stress and anxiety and postpartum depression. (Sic.) [ 7 ] The Statement of Claim seeks as remedies: ... An order for Law Society of Alberta to suspend or revoke the License to practice of Kenneth J. Proudman. ...

An order to cease further actions and to have him withdraw from his illegally constructed case (FL0359878) that he has dragged for 1.5 years through criminal actions. ... An order to dismiss les pendens placed by Kenneth J. Proudman on the properties under my name, my company’s name and my current husband’s name. ... costs of damages incurred by his actions. (Sic.) [ 8 ] I have reviewed Ms. Piers’ 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 Ms.

Piers’ 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 Ms. Piers must file a Written Submission setting out why her Statement of Claim should not be struck out because it is significantly deficient. 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 andvexatious, then the Court issues a first written decision that identifies the apparent issue or issues that may be a basis to strike out theAVAP 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 ofup to a total of 10 pages in length that responds to, and demonstrates why, the AVAP is a legitimate action and should be permitted tocontinue.

The Written Submission must be clearly addressed “To the Attention of” the Justice who initiates the CPN7 process, and mustalso 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 ofthe 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] Ms. Piers’ Statement of Claim exhibits a number of issues. Prior to evaluating those issues, I note that in conducting myanalysis I have not considered Ms. Piers’ Affidavit for three reasons: 1.

Rule 3.68(3) of the Alberta Rules of Court prohibits admission of evidence as to whether “... a commencement document orpleading discloses no reasonable claim or defence to a claim ...”, and an affidavit’s purpose is to introduce evidence in a documentaryform; 2. much of the Affidavit is legal argument, rather than Ms. Piers’ deposing alleged facts, and is therefore is inadmissible (R v Eddy,2015 ABQB 744); and 3. to the degree that the Affidavit makes allegations those either duplicate or are related to complaints in Ms. Piers’ Statement ofClaim. A.

Inadequate Pleadings [15] An Application or 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. The Supreme Court of Canada in Mackay v Manitoba, (SCC), [1989] 2 SCR 357, 61 DLR (4th)485, instructed that a factual foundation, or an alleged factual foundation, is an absolute requirement for pleadings that seek potentialCanadian Charter of Rights and Freedoms,

Part 1 of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982,c 11. (Charter) relief. [16] Ms. Piers 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] Many of Ms. Piers claims are bald allegations, particularly with respect to how Mr. Proudman has allegedly engaged inimproper conduct.

For example, paragraph 7 of the Statement of Claim reads: Kenneth has gained access to and has distributed my personal, private and financial information to third parties not entitled to all suchinformation and in doing so, has violated my privacy and rights as per the governing laws and charter of rights and freedoms. [18] The Statement of Claim does not identify the confidential information in question, how Mr. Proudman “gained access” to thatconfidential information, who are the “third parties”, when and how this occurred, and what laws or Charter rights are implicated.

TheStatement of Claim does not appear to meet the Mackay v Manitoba requirement to plead facts or alleged facts in relation to Charterrelief. Furthermore, the Charter has no application to non-governmental actors, such as Mr. Proudman: Charter, s 32(1); RWDSU vDolphin Delivery Ltd, (SCC), [1986] 2 SCR 573, 33 DLR (4th) 174, 71 NR 83. [19] Other times critical information is simply missing. Ms. Piers states Mr. Proudman has “filed les pendens”, and seeks to havethose removed. However, the properties in question are not identified, nor does Ms. Piers indicate why that step should occur. Ms.

Piersseeks “[c]osts of damages”, but the nature or quantum of those damages is not identified. [20] Given these apparent issues Ms. Piers is requested to identify how the content of the Statement of Claim provides a basis forthe Court and Defendant to make a meaningful response.

B. Collateral Attack and/or Duplicate Proceedings [21] A collateral attack is a litigation step or proceeding that challenges, directly or indirectly, a prior court decision or result.Collateral attacks are generally prohibited and an abuse of process: British Columbia (Workers’ Compensation Board) v Figliola, 2011SCC 52 at para 28. Collateral attacks subvert “the orderly and functional administration of justice”: Dagenais v Canadian BroadcastingCorp, (SCC), [1994] 3 SCR 835 at 871, 120 DLR (4th) 12.

Any action or application that is identified as a collateralattack should be terminated, immediately: Alberta v Pocklington Foods Inc, 1995 ABCA 111 at para 14. [22] Examples of prohibited collateral attacks include: 1. bringing proceedings to determine an issue that has already been determined by a Court of competent jurisdiction; 2. using previously raised grounds and issues improperly in a subsequent proceeding; 3. conducting a proceeding to circumvent the effect of a Court Order; and 4. conducting multiple proceedings with the same litigation objective. (Unrau #2 at 619.) [23] At least some of the misconduct Ms.

Piers attributes to Mr. Proudman is in relation to the Piers v Piers FL03 09878 Action.As previously indicated, identifying exactly what Ms. Piers alleges is difficult. The FL03 09878 Action appears to be still ongoing, withmultiple Orders and decisions made between 2019 to the present date. Ms. Piers in her current lawsuit seeks Orders that: 1. require Mr. Proudman withdraw from the FL03 09878 Action and cease representing Ms. Piers’ ex-husband; and 2. to “dismiss les pendens” on unspecified properties. [24] I request Ms.

Piers indicate why her lawsuit does not either duplicate the FL03 09878 proceeding, or is a collateral attack ondecisions in that Action. C. Impossible Remedies [25] Excessive or impossible remedies make litigation a hopeless proceeding that is an abuse of the Court: Unrau #2 at paras 620-625. Ms. Piers seeks that this Court issue an Order that causes the “... Law Society of Alberta to suspend or revoke the License topractice of Kenneth J. Proudman.” [26] Lawyers in Alberta are regulated by the Law Society of Alberta pursuant to the Legal Profession Act, RSA 2000, c L-8.

Thatlegislation gives the Law Society of Alberta sole jurisdiction to determine who may practice law in Alberta. I therefore request Ms. Piersindicate the basis on which this Court would have jurisdiction to compel the Law Society of Alberta in relation to Mr. Proudman. [27] Ms. Piers seems to be advancing a claim in tort that Mr. Proudman caused Ms. Piers medical distress or injury during a recentpregnancy. Though Ms. Piers’ Statement of Claim allegations are sometimes difficult to understand, it appears her complaints are thatMr. Proudman acted improperly in his role representing Ms.

Piers’ ex-husband in the FL03 09878 Action. If so, then the tort claimwould be blocked, since Canadian courts have repeatedly ruled that lawyers have no duty of care to opposing parties: e.g.

Templanza vFord, 2018 ABQB 168 at paras 69-72, appeal abandoned 2019 ABCA 309, reinstatement denied 2019 ABCA 345, leave to appeal toSCC refused, 39034 (30 April 2020); Kumar v Korpan, 2020 SKQB 256 at paras 46-49; 9383859 Canada Ltd v Saeed, 2020 ONSC4883; Sewak v Killips, 2021 ABQB 64 at paras 22-23. [28] 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. ... [29] Given these authorities, I request Ms. Piers identify the legal basis for how Mr. Proudman’s conduct was in breach of a dutyof care to Ms. Piers. IV. Conclusion [30] Ms. Piers’ Statement of Claim appears to be a suitable AVAP candidate for review pursuant to CPN7. The Court seeksresponses from Ms.

Piers to the following questions: 1) How does the Statement of Claim provide an adequate basis for the Court and Defendant to make a meaningful response? 2) Why is the Statement of Claim not a duplicate proceeding and/or collateral attack on the Alberta Court of Queen’s Bench FL0309878 Action? 3) How does the Alberta Court of Queen’s Bench have the authority to suspend or revoke the licence of a lawyer? 4) Why in law does Mr. Proudman, while operating as a lawyer representing an opposing party, have a duty of care to Ms. Piers? [32] CPN7 now advances to its second step.

This step consists entirely of written submissions; there will be no Court appearances or

oral argument. The next steps are: 1) Ms. Piers has 14 days to prepare a Written Submission of no more than a total of 10 pages, to be filed and served, as described in 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 of Claim 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 Ms. Piers provides and serves a Written Submission, then the Defendant has seven days to provide a Written Reply of up to 10 pages in length (see CPN7, para 3(d)).

The Written Reply must be clearly addressed “To the Attention of Associate Chief Justice K.G. Nielsen”. 4) After the Court receives Ms. Piers’ Written Submission and the Defendant’s Written Reply, if any, the Court will make its final 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 (see CPN7, para 3(e)). [33] The Court will prepare and serve an Interim Order staying this action (see CPN7, para 7). Ms. Piers’ approval of the Interim Stay Order is not required, pursuant to r 9.4(2)(

c) of the Alberta Rules of Court . Dated at the City of Edmonton, Alberta this 1 st day of April, 2021. K.G. Nielsen A.C.J.C.Q.B.A. Appearances: Jennifer E. Halloran Kingsgate Legal for the Defendant Kenneth J. Proudman