Rana v Baker, 2021 ABQB 277

Court of Queen’s Bench of Alberta Citation: Rana v Baker, 2021 ABQB 277 Date: 20210412 Docket: 2001 13453 Registry: Calgary Between: Salim Rana Plaintiff - and - Erin Baker Defendant _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I. Introduction [ 1 ] On November 4, 2020, Salim Rana [Mr. Rana] filed with the Alberta Court of Queen’s Bench a Statement of Claim naming Erin Baker [Ms. Baker] as the Defendant. Ms.

Baker is Counsel for the Defendant, Zahir Rana, Attorney for Gulzar Rana, in a second lawsuit initiated in 2015 by Mr. Rana: Rana v Rana , Alberta Court of Queen’s Bench Docket 1501 02379.

[ 2 ] On April 7, 2021, Counsel for Ms. Baker by letter referred the Statement of Claim 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. [ 3 ] The Statement of Claim commences: Defendant's acts and practices, as described herein, constitute professional misconduct, legal malpractice, unlawful discrimination or unfair professional practices, in that

(1) Defendant's practices violate numerous statutes as described in this Statement of Claim; (2) the justification for Defendant's conducts are outweighed by the gravity of the consequences to Plaintiff;

(3) Defendant's conducts are immoral, unethical, oppressive, discriminatory, unconscionable, or substantially injurious to Plaintiff: and/or; (4) the uniform conduct of Defendant's has a tendency to harm Plaintiff. ... Erin Baker ESQ was the lawyer to the Defendants, Gulzar Rana and Zahir Rana. And at all times relevant, acting alone or in concert with others, formulated, directed, controlled, conspired, substantially assisted, enabled and/or participated in the acts and practices set- forth in this Statement of Claim. ...

This Court has personal jurisdiction over Defendant because Defendant has transacted business or offer professional legal service in this Province, this Court has jurisdiction over this matter pursuant to the Rules of Professional Conduct of the province of Alberta or the Model Code of Professional Conduct of the Federal of Law Societies of Canada on the state claims asserted herein. ... All conditions precedent to this action have been performed, satisfied or waived. [ 4 ] What follows is a

section titled “PLAINTIFF EXPERIENCE”, that alleges, among other things: 1. Ms. Baker “tendered several surreptitious documents” and “false certifications”; 2. Ms. Baker made false statements, which “... continue to harm Plaintiff in multiple aspects of his life till this moment.”, and caused “great emotional stress.”; 3. Ms. Baker’s ignored that her client lied in a counterclaim, with the intention of “... defrauding not only the Plaintiff but also the presiding judges of the trial courts.”; 4. Ms.

Baker received large amounts as legal fees in exchange for “... little or no legal service ...”; 5. “Un-account payments were made to Erin Baker until May 2017. Upon information and belief, Plaintiff was informed that Erin Baker intends to take approximately another $500,000 from the sale of the Plaintiff’s mothers house since Plaintiff’s mother has no more cash.”; and 6. Ms. Baker intentionally caused Mr.

Rana to suffer “emotional distress and financial loss ... fear, humiliation, embarrassment, mental pain, suffering, inconvenience, and financial injury, including lost business profits.” [ 5 ] The Statement of Claim says these actions are “... a clear violation of Rules of Professional Conduct of the province of Alberta and the Model Code of Professional Conduct of the federation of law societies of Canada ...”, and are “... grounds for discipline ...”. Mr. Rana specifically alleges breaches of certain rules of the Model Code: 3.6-1, 3.2-7, 5.4-2, 5.6-1.

The remedies sought on that basis include: 1. $500,000 in general damages, 2. $100,000 in special damages, 3. $100,000 in aggravated damages, 4. $1 million in “restitutionary damages”, and 5. $10 million in “punitive and exemplary damages”. [ 6 ] After review of Mr. Rana’s Statement of Claim, I conclude it exhibits characteristics of abusive litigation, is an AVAP, and should be subject to a CPN7 “show cause” document-based review. II.

CPN7 [ 7 ] CPN7 is a practice implemented by the Court to better manage litigation that, on its face, appears to be unmeritorious, has no prospect of success, or is otherwise abusive and vexatious. This practice is intended to provide a timely, proportionate, and cost-effective response to the litigants: Unrau v National Dental Examining Board , 2018 ABQB 874 [ Unrau #1 ]. [ 8 ] If, on initial review by the Court, the pleading appears to be unmeritorious, has no prospect of success, or is otherwise abusive and vexatious, then the Court issues a first written decision that identifies the apparent issue(

s) which may be a basis to apply Rule 3.68 and strikeout the pleading. The party who filed the pleading is then given an opportunity, within 14 days, to provide the Court with a Written Submission of up to a total of ten pages in length that responds to, and demonstrates why, the pleading is a legitimate action and should be permitted to continue. The Written Submission must be served on the other parties to the litigation. [ 9 ] CPN7 is not for “close calls”, but instead the Court intervenes by this mechanism 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, 24 . Only restricted

forms of evidence are considered by the Court when it conducts a CPN7 review, since this process has a very narrow focus, and operatesto 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 thesuspect filing (Ubah #2 at para 35), or documents and records that are evidence that the AVAP is an attempt to litigate an issue that hasalready been decided or closed (Ubah #2 at para 45). III CPN7 Analysis [10] The Mr.

Rana’s Statement of Claim exhibits a number of issues. A. Inadequate Pleadings [11] An application or statement of claim sets the issues to which the opposing party must respond, and alerts that party of the caseit must meet: Whiten v Pilot Insurance Co, 2002 SCC 18 at para 87. Proper pleadings require more than simply bare assertions, or “baldallegations” of wrongdoing: GH v Alcock, 2013 ABCA 24 at para 58; Mancuso v Canada (National Health and Welfare), 2015 FCA227 at paras 16-20.

Pleadings must provide a basis for the Court and other litigants to make a meaningful response, and indicate to theresponding parties the “... who, when, where, how and what gave rise to its liability.”: Mancuso v Canada (National Health andWelfare) at para 19. [12] Mr. Rana 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]. [13] Much of the Statement of Claim are simply bald allegations.

For example, paragraph 8 of the Statement of Claim reads: During the proceedings, Defendant, Erin Baker knowingly and intentionally tendered several surreptitious documents and made severalclaims about Plaintiff to the Trial Court Judge that contained false statements and led the court to issue orders that continue to harmPlaintiff in multiple aspects of his life till this moment. What is a “surreptitious document”? What were the “false statements”, and when did they occur? What in those statements was false?What problematic orders resulted? How was Mr.

Rana harmed “in multiple aspects of his life” by those orders? [14] The Statement of Claim seems to provide no information to establish the basis for the damages claimed. Mr. Rana seeks $1million in “restitutionary damages”, but does no identify why restitution in that amount should occur. What did Ms. Baker steal ormisappropriate? How was that worth $1 million? Similarly, what was the “loss of business profit”? [15] I therefore ask that Mr. Rana explain how his Statement of Claim provides a basis for the Court and Defendant to make ameaningful response. B. No Valid Action [16] Mr.

Rana seems to base his litigation on alleged breaches of Model Code of Professional Conduct [Model Code] published bythe Federation of Law Societies of Canada. The Model Code is not legislation, nor does the Model Code provide the guidelines for howAlberta lawyers’ conduct. The Model Code is simply that: a proposed scheme to guide lawyer conduct created by a non-governmentalassociation. The Law Society of Alberta Code of Conduct is instead what is binding on lawyers in Alberta. Mr. Rana is requested toidentify how the Model Code is a basis for awarding damages, or even relevant to Ms.

Baker. [17] Alternatively, if Mr. Rana is alleging that Ms. Baker has acted in conflict with the Law Society of Alberta Code of Conduct,then that does not appear to be a basis for Mr. Rana to access this Court. Breaches of the Code of Conduct are the jurisdiction of the LawSociety of Alberta, pursuant to the Legal Profession Act, RSA 2000, c L-8. I therefore request Mr. Rana indicate how his complaints thatMs.

Baker allegedly breached of her professional duties is an issue for this Court and a basis to impose damages. [18] A further apparent issue is that Canadian courts have repeatedly ruled that lawyers have no duty of care to opposing parties:e.g.

Templanza v Ford, 2018 ABQB 168 at paras 69-72, appeal abandoned 2019 ABCA 309, reinstatement denied 2019 ABCA 345,leave to appeal to SCC refused, 39034 (30 April 2020); Kumar v Korpan, 2020 SKQB 256 at paras 46-49; 9383859 Canada Ltd vSaeed, 2020 ONSC 4883; Sewak v Killips, 2021 ABQB 64 at paras 22-23. [19] 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. ... [20] Given these authorities, I request Mr. Rana indicate why him suffering injuries that allegedly flow from Ms. Baker’s actionsin the 2015 lawsuit would be a basis for damages. C. Excessive or Impossible Remedies

[21] Excessive or impossible remedies make litigation a hopeless proceeding that is an abuse of the Court: Unrau #2 at paras 620-625. Mr. Rana is seeking very large sums, but, as previously discussed, provides no bases for those amounts. Why should Ms. Baker besubject to over $10 million in damages for deterrent purposes? How is this award justified? [22] Mr. Rana seeks $500,000 for general “pain and suffering” damages.

That amount substantially exceeds the maximum amountof general damages that may be claimed for pain and suffering that was set in Andrews v Grand & Toy Alberta Ltd, (SCC), [1978] 2 SCR 229, 83 DLR (3d) 452 at $100,000. After inflation, the Andrews v Grand & Toy Alberta Ltd general damages capis now about $365,000. That amount was for a young adult whose injuries led to near total disability. Mr. Rana’s claim exceeds that cap.Mr.

Rana does not allege injury that would warrant the maximum $365,000 amount, but instead his Statement of Claim only makes baldallegations of “pain, suffering, and mental distress”, and “inconvenience, frustration and anxiety”. [23] Mr. Rana is asked to indicate how the remedies sought in his Statement of Claim are not excessive or impossible. IV. CPN7 Analysis [24] Mr. Rana’s Statement of Claim appears to be a suitable candidate for review per CPN7. The Court therefore seeks a responsefrom Mr. Rana to five questions: 1.

How does the Statement of Claim provide an adequate basis for the Court and Defendants to make a meaningful response? 2. How is the Model Code relevant or a basis for the Court to award damages against Ms. Baker? 3. Why does the Court, rather than the Law Society of Alberta, have the authority to enforce the Code of Conduct? 4. How in law do opposing counsel have a duty of care to Mr. Rana? 5. How are the damages sought by Mr. Rana not excessive or impossible? [25] As a result of this analysis, I order that Mr. Rana’s Alberta Court of Queen’s Bench Docket 2001 13453 Statement of Claim isstayed.

CPN7 now advances to its second step. 1. Mr. Rana has until 14 days after this decision is filed to file and serve a Written Submission of no more than a total of 10 pages,pursuant to CPN7, para 3(b). The Written Submission should be clearly addressed: “To the Attention of Associate Chief Justice Rooke”. 2. If no Written Submission is received by the Court by that deadline, the Court will proceed to render its final decision on whetherthe Statement of Claim should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(c)). 3. If Mr.

Rana provides and serves a Written Submission, then the Defendant has seven days to each make a Written Reply of up toa total of 10 pages in length (CPN7, para 3(d)). The Written Replies should be clearly addressed: “To the Attention of Associate ChiefJustice Rooke”. 4. After receipt of Mr. Rana’s Written Submission, and the Defendant’s Written Reply, if any, the Court will render its finaldecision on whether the Docket 2001 13453 Statement of Claim should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7,para 3(e)). [26] The Court will prepare and serve the Order staying this Action. Mr.

Rana’s approval of that Order is dispensed with, pursuantto Rule 9.4(2)(c). Dated at the City of Calgary, Alberta this 12th day of April, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Stuart J. Weatherill Emery Jamieson LLP for the Defendant