Ashraf v Munn, 2021 ABQB 407

Court of Queen’s Bench of Alberta Citation: Ashraf v Munn, 2021 ABQB 407 Date: 20210525 Docket: 2101 05341 Registry: Calgary Between: Shidan Ashraf Plaintiff - and - Jean Munn and Caron & Partners LLP Defendants _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I. Introduction [ 1 ] On May 18, 2021, Counsel for Jean Munn and Caron & Partners LLP [Defendants], by letter, referred to the Court a Statement of Claim filed by Shidan Ashraf [Mr. Ashraf] in Ashraf v Munn , Docket No. 2101 05341 [2 nd S of C] 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 ] The Defendants also included certain documents from an earlier lawsuit, Ashraf v Munn , Docket No. 1901 11903: 1. a Statement of Claim filed on August 26, 2019 [1 st S of C], 2. an Application by Mr. Ashraf filed on March 31, 2021, 3. an Affidavit of Mr. Ashraf affirmed on April 26, 2021, and filed on April 28, 2021, and 4. three Exhibits attached to the April 28, 2021 Affidavit. [ 3 ] The Defendants submit Mr.

Ashraf’s 2 nd S of C is a duplicate proceeding, and is hopeless, as the 2 nd S of C was filed outside the limitations period. [ 4 ] Prior to my issuing this decision, Mr. Ashraf on May 18, 2021, by letter, stated he is undergoing a full day medical procedure on May 19, 2021, and, therefore, could not respond until the following week. Mr. Ashraf indicates he was unclear on what steps should follow. I will later in this decision comment on Mr.

Ashraf’s obligations, and describe explicitly the steps that will follow from this Decision. [ 5 ] I have reviewed the materials provided by the Defendants and conclude that the 2 nd S of C is a candidate AVAP, and, therefore, that AVAP should be subject to a CPN7 “show cause” document-based review. II. CPN7 [ 6 ] 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 ]. [ 7 ] 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. [ 8 ] 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 A. Preliminary Step - Relevant Materials for CPN7 [ 9 ] For the purposes of this CPN7 analysis, I have excluded all Ashraf v Munn , Docket No. 1901 11903 documents, except for the 1 st S of C.

The reason for that step is that CPN7 is an accelerated and restricted process to conduct a Rule 3.68 application that focuses on a single document, and whether that document, on its face, is apparently an abuse of the Court and its processes: Ubah #2 at paras 24-48 . Any reference to other documents is the exception, rather than the rule. [ 10 ] I conclude that the Defendants’ submission that the 2 nd S of C ought to be dismissed as filed out of time, as evidenced by the Docket No. 1901 11903 filings, is incompatible with the CPN7 procedure.

Evaluating the limitations period issue goes outside the single document focus of CPN7. However, in coming to that conclusion, I am not deciding the issue of whether the 2 nd S of C was filed outside the appropriate Limitations Act , RSA 2000, c L-12 deadline. The Defendants are therefore not limited in arguing that issue in another subsequent court proceeding. B. Duplicate Proceedings [ 11 ] I have compared the 1 st and 2 nd S of Cs and agree with the Defendants that these two pleadings are largely the same: 1. The same parties are named in each action. 2.

Paragraphs 3-17 of the 1 st and 2 nd S of Cs describe the exact same series of events that allegedly occurred between Mr. Ashraf and the Defendant, Ms. Munn, while Ms. Munn was acting as a lawyer for Mr. Ashraf in an earlier lawsuit. In both S of Cs, Mr. Ashraf appears to allege the same misconduct by Ms. Munn. In most instances the wording of each paragraph is exactly the same.

3. Paragraphs 18-27 of the 1 st S of C, and paragraphs 19-27 of the 2 nd S of C, appear to seek the same remedies, except that the 2 nd S of C does not seek “exemplary damages”. The chief damages claims are: 1 st S of C : Damages for pain and suffering of the Plaintiff as the result of Ms. Munn's breach of trust, failure in duty of care in tort, breach of contracts and breach of fiduciary duty in the amount of $140,000.00. 2 nd S of C : General damages for pain and suffering of the Plaintiff as the result of Ms.

Munn’s breach of trust, failure in duty of care in tort, breach of contracts and breach of fiduciary duty in the amount of $200,000. [ 12 ] The only paragraph that is substantially different between the 1 st and 2 nd S of C is that the 2 nd S of C has a new paragraph, paragraph 18: Upon the decisions of the Supreme Court of Canada , and the Court of Appeal of Alberta in Zinner action 1401-03230, dated January 14, 2021 and May 14, 2020, respectively, Mr.

Ashraf acquired the knowledge for the first time that the liability for damages he suffered including but not limited to loss of opportunity to go to trial in the SNC action and claim damages accordingly, warrants in accordance to s.3(2) (b)(

i) of the Limitations Act, RSA 2000, c.L-12 [“ Limitations Act ”], bringing an action against the Defendants Jean Munn and Caron & Partners LLP, and not otherwise Zinner and Zinner Law Office. [Italics in original.] [ 13 ] Conducting duplicate proceedings is an abuse of court processes: Unrau v National Dental Examining Board , 2019 ABQB 283 at para 613 ; Piers v Proudman , 2021 ABQB 253 at para 20 , litigation struck out as an abuse of court processes 2021 ABQB 349 ; Ellis v Szawlowski , 2021 ABQB 103 at para 13 , litigation struck out as an abuse of court processes 2021 ABQB 164 ; and Joshi v Saskatchewan , 2021 ABQB 240 at para 19 , 22, litigation struck out as an abuse of court processes, 2021 ABQB 317 .

IV. CPN7 Analysis [ 14 ] The 2 nd S of C appears to be a suitable candidate for review per CPN7. The Court therefore seeks a response from Mr. Ashraf as to why the 2 nd S of C is not a duplicate proceeding to the 1 st S of C, and, on that basis, an abuse of court. [ 15 ] As a result of this analysis, I order that the Alberta Court of Queen’s Bench Docket 2101 05341 Action is stayed. CPN7 now advances to its second step. 1. Mr. Ashraf 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 2 nd S of C should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(c)). 3. If Mr. Ashraf provides and serves a Written Submission, then the Defendants have 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. Ashraf’s Written Submission, and the Defendants’ Written Reply, if any, the Court will render its final decision on whether the 2 nd S of C should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(e)). [ 16 ] I stress to Mr. Ashraf that his Written Submission should respond to this Decision, and not the May 18, 2021 correspondence from the Defendants. CPN7 is a methodology used by this Court to conduct Rule 3.68 proceedings. Mr. Ashraf is only required to respond to the issue identified by the Court in this Decision. I am also mindful of Mr.

Ashraf indicating he recently has undergone medical treatment. Mr. Ashraf may request a timely and reasonable extension of the CPN7 14-day Written Submission deadline, by a letter to Associate Chief Justice Rooke, with a copy to the Defendants. [ 17 ] The Court will prepare and serve the Order staying the Docket 2101 05341 Action. Mr. Ashraf’s approval of that Order is dispensed with, pursuant to Rule 9.4(2)(c). Mr. Ashraf may be served this Decision and the interim stay Order by email to the address listed on the 2 nd S of C: shidon.ashraf@shaw.ca.

Dated at the City of Calgary, Alberta this 25 th day of May, 2021. J.D. Rooke A.C.J.C.Q.B.A.

Appearances: R. J. Daniel Gilborn for the Defendants