Ashraf v Munn, 2021 ABQB 472

Court of Queen’s Bench of Alberta Citation: Ashraf v Munn, 2021 ABQB 472 Date: 20210616 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 a second 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. The Defendants submitted 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. [ 3 ] In a decision reported as Ashraf v Munn , 2021 ABQB 407 [ Ashraf #1 ], I concluded, at para 9, as a preliminary point, that I would make no reference to the Docket No. 1901 11903 materials, except for the 1 st S of C, since CPN7 is a process that focusses on the validity of a single document to evaluate whether, on its face, that document is an abuse of the Court and its processes: Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 at paras 24-48 . [ 4 ] I also concluded that, prima facie , the 2 nd S of C was a duplicate proceeding to the 1 st S of C, and, therefore, an abuse of the Court, citing 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 paras 19 , 22, litigation struck out as an abuse of court processes, 2021 ABQB 317 . [ 5 ] Mr.

Ashraf was asked to provide an up to ten-page Written Submission to explain why that was not the case, and to indicate how his 2 nd S of C is valid non-abusive litigation: Ashraf #1 at para 14 . [ 6 ] A Written Submission was received from Mr. Ashraf on June 4, 2021. The Defendants submitted a Written Reply on June 9, 2021. The same day Mr. Ashraf responded with a further letter that attached an unfiled Notice of Discontinuance of the Docket No. 1901 11903 action. The following day Counsel for the Defendants responded, objecting to Mr. Ashraf’s June 9, 2021 correspondence, saying it should be disregarded. II.

Analysis [ 7 ] I will first address the question of whether the 2 nd S of C is a duplicate, abusive pleading, and then examine what response, if any, should result from Mr. Ashraf’s June 9, 2021 correspondence. A. Duplicate Proceedings 1. Mr. Ashraf’s Written Submission [ 8 ] Mr. Ashraf’s Written Submission first provides a narrative of his litigation against the Defendants. He describes filing the 1 st S of C, but that service was rejected by the Defendants as being late. Mr. Ashraf then says he filed a Rule 3.27(1)(

c) Application to extend the time for service, but that Application was adjourned sine die on March 31, 2020. Mr. Ashraf, however, also stated “... the expired 1 st S of C which had died in its embryonic phase of life undelivered, and its service was not possible and ineffective.” [ 9 ] Mr. Ashraf reports he then filed and served the 2 nd S of C “... in good faith with a following undertaking to discontinue the 1 st S of C. ...”. Mr. Ashraf says he unsuccessfully attempted to arrange a consent order to terminate the 1 st S of C action. [ 10 ] Mr.

Ashraf complains that the CPN7 approach that I adopted in Ashraf #1 at para 9 by refusing to consider Docket No. 1901 11903 documents is incorrect, and, on that basis, attached further documents to his Written Submission, including: 1. correspondence with Counsel for the Defendants, some of which has content that is redacted; 2. an Affidavit of Mr.

Ashraf affirmed on May 11, 2021 and filed in the Docket No. 1901 11903 action; 3. a document titled “Notice of Discontinuance” filed in the Docket No. 1901 11903 action on May 28, 2021; and 4. correspondence with the Calgary Masters Chambers; and 5. an Affidavit of Service for the 2 nd S of C. [ 11 ] With that background, Mr. Ashraf makes two arguments. First, Mr. Ashraf argues that the 2 nd S of C is not a duplicate proceeding because the 1 st S of C is “dead”. The reason it is “dead” is because the 1 st S of C was not served within the timeline set by Rule 3.26(1).

Since the 1 st S of C is “dead”, any Notice of Discontinuance or consent order to terminate the Docket No. 1901 11903 action “... would be without merits, unnecessary and abuse of the court system ...”. Despite Mr. Ashraf having filed and adjourned the

Docket No. 1901 11903 Rule 3.27(1)(

c) Application, “... it would not be unreasonable to have a closure on its faith. ...”. [12] Mr. Ashraf concludes: In conclusion, the 1st S of C did not see light of the day. It expired before it was served and any preliminary attempts out of panic for itsrevival in the form of an Application filed on March 31, 2021, has been discontinued and aborted by the Plaintiff. [13] Second, Mr. Ashraf argues that since no court decision was made concerning the merits or issues of the 1st S of C, the 2nd Sof C does not collaterally attack previously decided issues.

He says that distinguishes the current litigation from cases that I cited inAshraf #1. Mr. Ashraf also says: The 2nd S of C has similar pleadings to the 1st S of C, but its litigation is not duplicate to 1st S of C. It is litigating a matter which was notbrought to the attention of the Defendants while it stood valid within the requirements of its service deadline of one year and anotherthree months on application before expiry of the first year. I do not understand how “the attention of the Defendants” is relevant in the context of whether two statements of claim are duplicateproceedings. [14] Mr.

Ashraf claims that the Alberta Rules of Court do not prohibit identical proceedings, since that is analogous “... torevalidate pleadings by way of amendment ... where pleadings have not closed ...”, citing Rule 3.62(1)(a). [15] Mr. Ashraf seeks termination of the Ashraf #1 para 15 interim stay order, an order that the 2nd S of C is not a duplicateproceeding, and solicitor/client costs. 2. The Defendants’ Written Reply [16] The Defendants in their Written Reply make a number of points.

First, they stress that the Docket No. 1901 11903 action initiated by the 1st S of C has not been discontinued, and that is the result of Mr. Ashraf’s decisions.

The Defendants re-affirm their position is that the 1st S of C cannot be served, but the Docket No. 1901 11903 action continues until it is formally discontinued orotherwise terminated. [17] The Written Reply stresses that the key facts are that: 1. the 2nd S of C duplicates the 1st S of C, and 2. both actions initiated by these Statements of Claim are active. [18] The Defendants state the principles of collateral attack and res judicata do not apply, but, instead, that the 2nd S of C is anabuse of the court because of “... the rule against multiple prosecution, where a new suit is brought while another is pending ...”:German v Major, 1985 ABCA 176 at para 6, followed Edmonton Northlands v Edmonton Oilers Hockey Club, (Alta QB), aff’d 1994 ABCA 40; Urban Landmarks Master Builder Inc v Lloyd’s Underwriters, 2012 ABQB 224 at paras 16-37.

Thefact that the Alberta Rules of Court do not explicitly reject duplicate proceedings does not affect or displace the common law rule thatduplicate proceedings are an abuse of court processes. [19] Furthermore, the Defendants note that Mr. Ashraf has admitted his litigation is for substantially the same damages, and thatboth Statements of Claim relate to the same alleged wrongdoing.

That offends the Supreme Court of Canada’s ruling in Cahoon vFranks, (SCC), [1967] SCR 455 that “... there is only one cause of action for a single wrongful or negligent act anddamages resulting from the single tort must be assessed in the one proceeding ...”. [20] Finally, the Defendants argue that the statements of intent made by Mr. Ashraf in his Written Submission should bedisregarded, and that documents attached to the Written Submission should be excluded, in parallel to my excluding documents from theDocket No. 1901 11903 action in Ashraf #1. 3. Analysis a.

Preliminary Issues [21] Prior to evaluating whether the 2nd S of C is a duplicate proceeding to the 1st S of C, as a preliminary issue, I reject Mr. Ashraf’s claim, made in his Written Submission at paragraph 5, that Ashraf #1 “dismissed” the Defendants’ claim that the 2nd S of Cwas filed outside the relevant Limitations Act, RSA 2000, c L-12 deadline. That is false.

Instead, in Ashraf #1 at para 10, I explicitlydetermined that the Defendants’ right to raise that issue is not extinguished. [22] The second preliminary issue, before evaluating whether the 2nd S of C is an abuse of the Court, is what weight should begiven to Mr. Ashraf’s and the Defendants’ statements of intent, and the non-judgment and court Rules documents Mr. Ashraf attached tohis Written Submission. First, I agree with the Defendants that the additional documents and communications that Mr.

Ashraf attached tohis Written Submission are inadmissible because CPN7 is a process that focuses on the merit (or lack-there-of) of a single document. Inaddition, Rule 3.68(3) prohibits evidence on whether “... a commencement document or pleading discloses no reasonable claim ordefence to a claim ...”. I conclude that evidence on the two proceedings, and in this instance unsworn evidence, is excluded fromconsideration during this CPN7 analysis.

b. The 2 nd S of C initiates a Duplicate Abusive Lawsuit [ 23 ] Moving to the question of whether the 2 nd S of C ought to be struck out as a duplicate proceeding and an abuse of process, I conclude the analysis of that issue is very simple: 1. Are the alleged subject matters, injury, and remedies in the 1 st S of C and the 2 nd S of C the same? 2. Was the 2 nd S of C filed while the lawsuit initiated by the 1 st S of C was not terminated? [ 24 ] In Ashraf #1 at paras 11-12 , I compared the 1 st S of C and 2 nd S of C and concluded: 1. The same parties are named in each action. 2.

Paragraphs 3-17 of the 1 st S of C and 2 nd S of C 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 Statements of Claim, 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. [ 25 ] The only paragraph that is substantially different between the 1 st S of C 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.] [ 26 ] Mr. Ashraf has not rebutted my conclusion in Ashraf #1 that the 1 st S of C and the 2 nd S of C are, in fact, duplicate lawsuits that attempt to litigate the same subject matter. [ 27 ] The second point is also clear. The 1 st S of C was filed on August 26, 2019. No documents were filed with the Court to formally terminate the Docket No. 1901 11903 action prior to May 5, 2021, the date Mr.

Ashraf filed the 2 nd S of C. Neither party disputes that fact. That means the 2 nd S of C is a duplicate proceeding, and an abuse of process, and should be struck out on that basis pursuant to Rule 3.68 and CPN7 paragraph 3(e). [ 28 ] The Court’s inherent jurisdiction includes the authority to control its own processes, and to avoid and prevent misuse and abuse of its limited and stressed capacity to address litigation in this Province. From the perspective of the Court, it does not matter in this context whether an action is hopeless, or “dead”.

In fact, the potential merit of a lawsuit is completely irrelevant to the duplicate abusive lawsuit question I have just addressed above. I am not ruling on whether the 1 st S of C has merit, or is hopeless because it was not served in time. That analysis is simply not relevant to whether proceedings are, or are not, duplicative, and as a consequence of the first alternative, abusive. [ 29 ] What matters is that Mr.

Ashraf chose to initiate a lawsuit in 2019, left that lawsuit active through to the present, and then in 2021 filed a statement of claim that initiated a second lawsuit with the very same subject matter. The 2 nd S of C is, independent of anything else, an abuse of the Court for that reason, no matter whether the underlying alleged facts, wrongdoings, and injuries for both lawsuits are meritorious or hopeless, of if there is some procedural defect in this litigation. [ 30 ] Mr. Ashraf started and maintained both the Docket No. 1901 11903 and Docket No. 2101 05341 actions.

He has always had the unilateral capacity (before service) to terminate either of those lawsuits. He chose not to do so, with the result that he conducted duplicate litigation in those two actions. I therefore strike out the 2 nd S of C as an abusive duplicate lawsuit pursuant to Rule 3.68 and CPN7 paragraph 3(e). The 2 nd S of C was an abuse of the Court and an improper and illegal waste of the Court’s resources from the day it was filed. B. Other Issues [ 31 ] In the event I am incorrect in my conclusion that the 2 nd S of C is an abusive duplicate lawsuit that should be struck out

pursuant to Rule 3.68 and CPN7 paragraph 3(e), and in an excess of caution, I will briefly address several more points and make a number of additional conclusions relating to Mr. Ashraf’s litigation and arguments. [ 32 ] First, Mr. Ashraf has argued that Mr. Ashraf filing the 2 nd S of C is analogous to him filing an amended statement of claim prior to the pleadings closing for the 1 st S of C. That right to amend is broad: Rule 3.62(1)(a). I reject this analogy, because Rule 3.67(2) defines when pleadings close: 3.67(2)(

b) Pleadings close when ... the time for filing and serving a reply expires, [ 33 ] Mr. Ashraf, by his own admission, acknowledges he did not file the 1 st S of C in a timely manner. Combining Rules 3.62(1) (

a) and 3.67(2)(

b) means the 2 nd S of C cannot be a continuation, in some form, of the original Docket No. 1901 11903 action. It is something else: a duplicate proceeding, and an abuse of the Court. [ 34 ] Second, there is the question of Mr. Ashraf’s June 9, 2021 letter, and the attached Notice of Discontinuance for the Docket No. 1901 11903 action. In brief, Mr. Ashraf repeats in his letter that his first lawsuit is “dead”: “... can be anymore dead when its heart and brain, being the 1st S of C, is already dead and expired ...”. Mr.

Ashraf offers to prepare new affidavits and Notices of Discontinuance, “... as may be needed to satisfy any legal technicalities the court may require before ending this CPN7 proceeding.” [ 35 ] I put no relevance on Mr. Ashraf’s letter and the attached Notice of Discontinuance for several reasons. First, his offer to file more affidavits is not productive, since no new evidence can be introduced at this point that would be relevant, given the limited focus of Rule 3.68 and CPN7. Second, Mr. Ashraf has essentially repeated his arguments in the Written Submission.

What he offers is nothing new. [ 36 ] Then there is the question of whether Mr. Ashraf should be allowed to “un-duplicate” his 2 nd S of C by unilaterally discontinuing the Docket No. 1901 11903 action after the CPN7 process is essentially closed. I conclude that would be improper, because the 2 nd S of C was an abuse of process from the point it was filed. To permit Mr.

Ashraf to validate his second lawsuit at this point, after pleadings have closed in the first lawsuit, is contrary to the rule in Cahoon v Franks . [ 37 ] Further, I conclude the 2 nd S of C should be struck out given the overarching purpose and intention of the Alberta Rules of Court identified in Rule 1.2, and, more specifically, the obligations that it places on parties to: 1. facilitate the quickest and least expensive ways to resolve a dispute ( Rule 1.2(3)(a)), 2. refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules ( Rule 1.2(3)(c)), and 3. use court resources effectively ( Rule 1.2(3)(d)). [ 38 ] Mr.

Ashraf’s overall pursuit of his actions against the Defendants has not been consistent with these principles. I conclude, in particular, that his June 9, 2021 correspondence, and the unilateral discontinuance of the Docket No. 1901 11903 action, should not change the outcome of this CPN7 process. It is too late for that. Mr. Ashraf could have taken that step in the preceding nearly two years, but he did not. [ 39 ] Further, Mr.

Ashraf, in his June 9, 2021 correspondence, has not acknowledged he is potentially required to pay costs to the Defendants, if he unilaterally discontinues the Docket No. 1901 11903 action: Rule 4.36(4). If I were to permit the Docket No. 2101 05341 action to continue, I would only do so with the requirement that Mr. Ashraf pay any costs applied for by and assessed to the Defendants, pursuant to Rule 4.36(4), for Mr. Ashraf discontinuing the Docket No. 1901 11903 action. Payment of any such costs in full would be a precondition for Mr. Ashraf continuing the Docket No. 2101 05341 action. III.

Conclusion [ 40 ] The Alberta Court of Queen’s Bench Docket No. 2101 05341 lawsuit is struck out entirely as an abuse of the Court’s processes. I will not take any steps in relation to the Docket No. 1901 11903 action. If Mr.

Ashraf seeks to discontinue that matter, I note that a proper Notice of Discontinuance pursuant to Rule 4.36 must be use Form 23 of the Alberta Rules of Court , which requires it to be subject to costs or otherwise be without costs, by consent of the Defendants. [ 41 ] When an action is terminated via the CPN7 process, the usual practice of this Court is to award costs in favour of the litigant who referred the matter to the Court: e.g.

Ahad v Calgary Housing Company , 2020 ABQB 450 at para 9 ; Phillips v Kenney , 2020 ABQB 452 at para 9 ; Skrypichayko v Law Society of Alberta , 2020 ABQB 604 at para 43 ; Feeney v Alberta , 2020 ABQB 633 at para 6 . I see no reason to depart from that approach in this instance. Given the quantum of damages sought by Mr. Ashraf, and Alberta Rules of Court

Schedule C, I order Mr. Ashraf pay the Defendants $1,350 in costs, forthwith. [ 42 ] Counsel for the Defendants shall prepare and serve the court Order giving effect to this Decision. Mr. Ashraf’s approval of that Order is not required, pursuant to Rule 9.4(2)(c). This Decision and the Order may be served on Mr. Ashraf by email to the address listed on the Second Statement: shidon.ashraf@shaw.ca. Dated at the City of Calgary, Alberta this 16 th day of June, 2021.

J.D. Rooke A.C.J.C.Q.B.A. Appearances: Shidan Ashraf Self-represented Litigant R. J. Daniel Gilborn for the Defendants