Edmonds v First National Financial GP Corporation, 2021 ABQB 344

Court of Queen’s Bench of Alberta Citation: Edmonds v First National Financial GP Corporation, 2021 ABQB 344 Date: 20210430 Docket: 2101 05090 Registry: Calgary Between: Geoff Edmonds Plaintiff - and - First National Financial GP Corporation Defendant _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ [ 1 ] On April 19, 2021, Geoff Edmonds [Mr. Edmonds] filed a Statement of Claim naming First National Financial GP Corporation [FNF] as the Defendant.

On April 28, 2021, Counsel for FNF, by letter, referred Mr. Edmonds’ 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. [ 2 ] Counsel for FNF also provided:

1. a Counterclaim filed by Mr. Edmonds on November 13, 2020, in First National Financial GP Corporation v Edmonds , Alberta Court of Queen’s Bench Docket 2001 08469, and 2. a March 3, 2021 Order of Justice K. D. Nixon that struck out Mr. Edmonds’ Counterclaim pursuant to Rule 3.68. Counsel for FNF say the Counterclaim and Mr. Edmonds’ Statement of Claim have the same subject matter. [ 3 ] Both the Counterclaim and Statement of Claim relate to developments in a mortgage contract between Mr. Edmonds and FNF.

I will discuss that in more detail in the analysis that follows. [ 4 ] After review of the Edmonds’ Counterclaim and Statement of Claim, I conclude that the Edmonds Statement of Claim exhibits characteristics of abusive litigation, is an AVAP, and should be subject to a CPN7 “show cause” document-based review. II. CPN7 [ 5 ] 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 ]. [ 6 ] 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. [ 7 ] 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 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 CPN7 Analysis [ 8 ] The First National Financial GP Corporation v Edmonds , Alberta Court of Queen’s Bench Docket 2001 08469 documents are admissible as evidence that an AVAP is attempting to litigate a settled issue. Mr. Edmonds’ Statement of Claim exhibits several potential issues. A.

Collateral Attack [ 9 ] Both the Counterclaim (paragraphs 10-13) and Statement of Claim (paragraphs 6-11) identify the same alleged wrongdoing by FNF. On April 6, 2020, Mr. Edmonds applied for a mortgage deferral. That was approved. However, on April 16, 2020, the deferral was reversed. Subsequently, FNF restored the deferral, but during that time Mr. Edmonds made two mortgage payments. [ 10 ] The Counterclaim says this was the wrongdoing by FNF: ...

Continuous Collection Department calls from the Defendant were made to the Plaintiff immediately following Payment Deferral commencement, through April, May and June 2020 inclusive, confirming the failure to comply. ... The Canadian Charter Of Rights And Freedoms under Legal Rights states "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment." ... A debt collector cannot apply excessive or unreasonable pressure on you to repay the debt, misrepresent the situation or give false or misleading information. [ 11 ] The Statement of claim frames FNF’s wrongdoing this way: ...

The Supreme Court of Canada has stated; “good faith contractual performance is a general organizing principle of the common law of contract, and that contracting parties must act honestly in the performance of contractual obligations. Failure to abide by this duty can be considered a breach of contract.” ... The Lender exercised the rights and obligations of a deferral contract dishonestly, or in an unreasonable fashion, and in doing so breached the duty of good faith. ...

When carrying out a contract, any misleading behaviour, whether lies, omissions, half-truths, or even silence, depending on the circumstances, can breach the duty of good faith, and if performing in an untrustworthy or ambivalent manner, there is liability for damages for the others loss of worth and opportunity, from reliance on the misleading information. ... The Lender misled the Plaintiff into believing they were running under a deferral agreement for a three month term, when in fact, the

Lender reversed the decision only two weeks after the deferral was put in motion. Then, even after determining it was wrong to havebacked out of the commitment, the Lender did not attempt to correct the false impression it had created. [12] In short, it appears in the Counterclaim that Mr. Edmonds sued because the April-June 2020 events were a breach of hisCharter rights. Now, in the Statement of Claim, Mr.

Edmonds frames the April-June 2020 events as a breach of contract. [13] 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. [14] 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 v National Dental Examining Board, 2019 ABQB 283 at 619 [Unrau #2].] [15] I ask Mr.

Edmonds to indicate how the Statement of Claim is not a collateral attack on the March 3, 2021 Order of JusticeNixon that struck out Mr. Edmonds’ Counterclaim. D. Excessive or Impossible Remedies [16] Excessive or impossible remedies make litigation a hopeless proceeding that is an abuse of the Court: Unrau #2 at paras 620-625. [17] The Statement of Claim seeks: ... Compensation awarded of the amount of $1,000,000.00, paid within ten days following judgement, to cover the Plaintiff’s damage toreputation and credit, and the loss of worth and opportunity. ...

Punitive damages of $1,400,000.00, also paid within ten days following judgement, for the wrongful actions of abandoning thecontract even after the Defendant acknowledged it was improper to have done so, subsequently causing added stress and hardship at atime of already widespread uncertainty. [18] What Mr. Edmonds calls “punitive damages” appears to be more correctly called general “pain and suffering” damages, sinceMr. Edmonds says he seeks these damages for “... added stress and hardship ...”.

The $1.3 million general damages claim exceeds themaximum amount of 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 Ltdgeneral damages cap is now about $365,000. The cap amount awarded in Andrews v Grand & Toy Alberta Ltd was for a young adultwhose injuries led to near total lifelong disability. [19] Mr. Edmonds’ claims are 3.5-fold over that cap. Mr. Edmonds does not allege the kinds of injury that would merit a largegeneral damages claim.

I therefore request Mr. Edmonds explain why his $1.3 million claim is not an impossible and illegal remedy. [20] Mr. Edmonds provides no alleged factual basis for his $1 million claim. Mr. Edmonds has not indicated how his reputationand credit were damaged. Mr. Edmonds does not identify how he experienced a “loss of worth” that is over twice the total mortgageamount in 2014 of $424,000. Mr. Edmonds does not say how he lost any opportunities. Instead, Mr.

Edmonds reports in paragraph 7 ofthe Statement of Claim that he had been unemployed for the two years prior to April, 2020. [21] In light of these observations, Mr. Edmonds is requested to explain how his Statement of Claim does not seek excessive and/orimpossible remedies. IV. CPN7 Conclusion [22] The Docket 2101 05090 Statement of Claim appears to be a suitable candidate for review per CPN7. The Court thereforeseeks a response from Mr. Edmonds to two questions: 1.

How is the Statement of Claim not a collateral attack on the March 3, 2021 Order of Justice Nixon in the First NationalFinancial GP Corporation v Edmonds, Alberta Court of Queen’s Bench Docket 2001 08469 Action? 2. How are the remedies sought in the Statement of Claim not excessive and/or impossible? [23] As a result of this analysis, I order that Mr. Edmonds’ Alberta Court of Queen’s Bench Docket 2101 05090 Action is stayed.CPN7 now advances to its second step.

1. Mr. Edmonds 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 whether the Docket 2101 05090 Statement of Claim should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(c)). 3. If Mr.

Edmonds provides and serves a Written Submission, then the Defendant has seven days to make a Written Reply of up to a total of 10 pages in length (CPN7, para 3(d)). The Written Reply should be clearly addressed: “To the Attention of Associate Chief Justice Rooke”. 4. After receipt of Mr. Edmonds’ Written Submission, and the Defendant’s Written Reply, if any, the Court will render its final decision on whether the Docket 2101 05090 Statement of Claim should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(e)). [ 24 ] The Court will prepare and serve the Order staying this Action. Mr.

Edmonds’ approval of that Order is dispensed with, pursuant to Rule 9.4(2)(c). This Decision and the Interim Stay Order may be served on Mr. Edmonds by his email address: gedmonds@protonmail.com. Dated at the City of Calgary, Alberta this 30 th day of April, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Kari L. Sejr Bishop & McKenzie LLP for the Defendant