Boland v Benke, 2021 ABQB 27

Court of Queen’s Bench of Alberta Citation: Boland v Benke, 2021 ABQB 27 Date: 20210112 Docket: 2003 13342 Registry: Edmonton Between: Paulus Henrikus Boland Plaintiff - and - Adam Benke (Re/Max elite brokerage) Defendant Corrected judgment: A corrigendum was issued on January 14, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________

I. Introduction [ 1 ] On August 27, 2020, Paulus Henrikus Boland (Mr. Boland) filed a Statement of Claim naming “Adam Benke (Re/Max elite brokerage)” (Mr. Benke) as the Defendant. The entire body of the Statement of Claim reads: Statement of facts relied on: l. Paulus’s House was sold in April 2018 2. Mr. Banke was the real estate brokerage, he received a gross amount of 16150.00$ commission for his role. 3. The contract and sale agreement terms were breached. 4. The sale went through with out a legal amendment being signed. Mr. Banke was the individual who had sent the final amendment to be authorized. 5.

The amendment remained unsigned, the sale was pushed through. Mr. Banke was the "false" witness to the illegal transcation 6. He collected the remaining amount of his commission in the amount of 6957.50 from the proceeds from the unauthorized transaction. Knowing that the amendment he sent was never signed and approved. As a result of this breach of duty, negligence, and breach of contract Paulus became homeless and suffered astonishing medical distress. 7. Paulus did not touch the proceeds from this illegal sale until 2020 in an attempt to demonstrate He never agreed to the sale.

The pandemic and the consequences (incarceration) of becoming homelessness effected his ability to seek prompt “justice” Remedy sought 8. 1000000.07 for emotional and medical distress suffered as a result of an unauthorized real estate sale. (Sic.) [ 2 ] Counsel for Mr. Benke on December 12, 2020 by letter referred Mr. Boland’s Statement of Claim to me as a candidate 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. [ 3 ] I have reviewed the Statement of Claim and determined it is an AVAP because this filing contains elements that Courts identify as characteristics of hopeless and abusive proceedings. On that basis, I conclude the 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.

Boland must file a Written Submission setting out why his Statement of Claim should not be struck out in whole or in part as being significantly deficient. II. CPN7 [ 4 ] 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 Boar d , 2018 ABQB 874 ( Unrau #1 ). [ 5 ] 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 . [ 6 ] 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. [ 7 ] 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 . [ 8 ] The Court only considers restricted forms of evidence when it conducts a CPN7 review because this process has a very narrow focus and operates to examine a single document and its content: Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 at paras 24-48 ( Ubah #2 ). There are exceptions to that rule.

For example, the Court may examine other documents in the same proceeding that are related to the suspect filing ( Ubah #2 at para 35 ), or documents and records that are evidence that the AVAP is an attempt to litigate an issue that has already been decided or closed ( Ubah #2 at para 45 ). III. Analysis [ 9 ] Mr. Boland’s Statement of Claim exhibits a number of apparent issues.

A. Inadequate Pleadings [10] A Statement of Claim sets the issues to which the opposing party must respond, and alerts that party of the case 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), 2015 FCA 227 at paras16-20.

Pleadings must provide a basis for the Court and other litigants to make a meaningful response, and indicate to the respondingparties the “... who, when, where, how and what gave rise to its liability.”: Mancuso v Canada (National Health and Welfare) at para19. [11] Inadequate pleadings abuse the court’s process because a Defendant cannot defend against unclear and non-specific claimsand the Court cannot control the proceedings, identify the proposed argument, or make findings on the relevant facts: Unrau v NationalDental Examining Board, 2019 ABQB 283 at para 629 (Unrau #2). [12] Mr.

Boland’s Statement of Claim does not appear to meet the minimum pleadings threshold for a meaningful response. Foxexample, Mr. Boland says there was a breach of contract, but does not indicate what that was. “[A] legal amendment” was not signed.What was the amendment? Who did not sign it? How was Mr. Benke a ““false” witness”, and what is the relevance of that? “[T]he salewas pushed through.” By whom? How? How does the ill-defined alleged wrongdoing relate to the large damages claim? [13] Mr.

Boland’s Statement of Claim therefore appears to be an abuse of the Court’s processes as it does not appear to provide abasis for a meaningful response by the Court and the Defendant. B. Disproportionate or Impossible Remedies [14] Mr. Boland seeks $1 million “for emotional and medical distress”. The maximum amount of general damages that may beclaimed for pain and suffering was set in Andrews v Grand & Toy Alberta Ltd, (SCC), [1978] 2 SCR 229, 83 DLR (3d)452 at $100,000. That was for a young adult whose injuries led to near total disability.

After inflation, the Andrews v Grand & ToyAlberta Ltd general damages cap is now approximately $365,000. [15] Mr. Boland’s claim is much greater than the maximum permitted by the Supreme Court of Canada. Mr. Boland has notidentified alleged pain and suffering that would qualify for a large general damages award. Impossible or disproportionate claims are acharacteristic of a hopeless action that warrants a lawsuit being terminated as an abuse of court processes: Unrau #2 at paras 620-25. [16] This is a second independent basis on which I conclude Mr.

Boland’s Statement of Claim may be an abuse of the processes ofthis Court. IV. Conclusion [17] Mr. Boland’s Statement of Claim appears to be a suitable AVAP candidate for review pursuant to CPN7. The Court seeks aresponse from Mr. Boland on 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) How does the Statement of Claim not seek disproportionate or impossible remedies? [18] 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. Boland 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. Boland provides and serves a Written Submission, then the Defendant has seven days to provide a Written Reply of up to10 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 Mr. Boland’s Written Submission and the Defendant’s Written Reply, 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)). [19] The Court will prepare and serve an Interim Order staying this action (see CPN7, para 7). Mr. Boland’s approval of that Orderis not required, pursuant to r 9.4(2)(

c) of the Alberta Rules of Court. Mr. Boland may be served with this Memorandum of Decision andthe Interim Order by the email address indicated in his Statement of Claim. Dated at the City of Edmonton, Alberta this 12th day of January, 2021.

K.G. Nielsen A.C.J.C.Q.B.A. Appearances: Kyle C McKinney Veria Law for the Defendant _______________________________________________________ Corrigendum of the Memorandum of Decision of The Associate Chief Justice K.G. Nielsen _______________________________________________________ In paragraph 2, “Counsel for Mr. Boland” was corrected to “Counsel for Mr. Benke”.