Wousse v Peter Lougheed Hospital Centre, 2021 ABQB 547

Court of Queen’s Bench of Alberta Citation: Wousse v Peter Lougheed Hospital Centre, 2021 ABQB 547 Date: 20210715 Docket: 2101 06845 Registry: Calgary Between: Pierre Hournou Wousse and Ellen Tsaeda, Adahnom Plaintiffs - and - Peter Lougheed Hospital Centre and A. Mohamed Defendants _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D.

Rooke _______________________________________________________ [ 1 ] On June 21, 2021, Pierre Hournou Wousse and Ellen Tsaeda, Adahnom [the Plaintiffs] filed a Statement of Claim naming the Peter Lougheed Hospital Centre [PLHC] and “A. Mohamed” [Mohamed] as Defendants. The Statement of Claim is handwritten, and difficult to read. As best I can determine, the body of the Statement of Claim is: Statement of facts relied on:

March 01/2020/ Mohamed was our tenant at 252, 24 Ave NE Calgary AB Two months later Mohamed was Evicted due to his mental illeness. Mohamed Keep coming back to threating us. We contacted police to remove him from our house Police officers sent Mohamed to Peter Lougheed Hospital (PLH) As soon policers left (PLH). The [illegible] realised Mohamed! Mohamed came back again to threat us. He took a chair at my house and through it on the head of my neighbour’s son. Police [illegible]. Then a Restraining order. We apply for Restraining order on 25 Jun 2020 and we save (1) copy to police and we served the order to Mohamed.

(7) Mohamed came back again by broking the order that was severved to him. Police offices told Mohamed he is no longer Welcome in this House. If he came back again, they sent him to jail.

(8) Since Juil 2020, stopped to see us.

(9) For all those traumatize traumations we are suing (PLH) for $5.000.000-00 Remedy sought:

(1) Mohamed was our tenant at 252, 24 Ave NE Calgary AB.

(2) Mohamed was evicted due to his mental illness

(3) Mohamed keep coming back to threaten us, me and my girlfriend. We contact police officors to remove Mohamed from our house (4) police officers sent Mohamed to (PLH) for a treatment the staff at PLH keep realising Mohamed to come back to threat us. Police officer [illegible] to give them a restraining order.

We are suing PLH staff because they do not Folow police instruction and we so far for one year [Sic.] [ 2 ] On July 9, 2021, Counsel for PLHC by letter referred the Plaintiffs’ 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. PLHC takes the position that the Statement of Claim is frivolous, vexatious, and an abuse of process, indicating deficiencies that include: 1.

Mohamed is inadequately identified, 2. the allegations against PLHC are bald allegations, and do not adequately particularize the Plaintiffs’ factual and legal allegations, so that PLHC cannot make a meaningful response, 3. the $5 million claim has no identified basis and/or is excessive, and 4. the Plaintiffs, as third parties, have no basis to make a claim in relation to the alleged harm to the unnamed son of their also unnamed neighbour. [ 3 ] PLHC also notes a further issue with the Statement of Claim: it provides no service information for the Plaintiffs.

The text entered in the “Address for service and contact information of the party filing this document” portion of Form 10 reads: 10301 Southportione SW To 105 South Court RD Tel (403) 943-4999 1855 - 550 - 2555 [Striking out in original.] [ 4 ] The first line of the service address resembles an address for Alberta Health Services at 10301 Southport Lane SW, Calgary, AB T2W 1S7. The telephone number is the PLHC emergency services phone line.

The final line has no obvious meaning. [ 5 ] Counsel for PLHC reports that a land titles search of the address identified in the body of the Statement of Claim, “252, 24 Ave NE Calgary AB”, determined that neither Plaintiff is an owner of that property. [ 6 ] After review of the Plaintiffs’ Statement of Claim, I conclude that pleading 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 noprospect of success, or is otherwise abusive and vexatious. This practice is intended to provide a timely, proportionate, and cost-effectiveresponse 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 otherwiseabusive and vexatious, then the Court issues a first written decision that identifies the apparent issue(

s) which may be a basis to applyRule 3.68 and strike out the pleading. The party who filed the pleading is then given an opportunity, within 14 days, to provide the Courtwith a Written Submission of up to a total of ten pages in length that responds to, and demonstrates why, the pleading is a legitimateaction 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 restrictedforms 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 Statement of Claim appears to exhibit 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] The Plaintiffs cannot file inadequate pleadings and then either supplement those claims, or expect the Defendants to “fill inthe blanks”: Mancuso v Canada (National Health and Welfare) at para 20.

A lack of specificity is not merely a technical defect, butgoes to the 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 arespondent cannot defend against unclear and non-specific claims and the court cannot control the proceedings, identify the proposedargument, or make findings on the relevant facts: Unrau v National Dental Examining Board, 2019 ABQB 283 at para 629 [Unrau #2]. [13] The Statement of Claim appears to fail to provide adequate alleged facts and claims. For example, it does not identifyMohamed. No remedy is sought against Mohamed. The date(

s) on which the Defendants’ alleged wrongdoing occurred is not identified.No legal basis for a claim against PLHC, such as an alleged duty of care, is identified. Alleged wrongdoing by personnel at the PLHC isnot identified. The nature of Mohamed’s threats are not identified. The Statement of Claim does not identify the police instructions,presumably to PLHC. To the degree that the allegations against PLHC are in any sense indicated, the Statement of Claim complains thatPLHC released Mohamed. The Statement of Claim does not explain why PLHC should be legally liable on that basis.

The Statement ofClaim provides no explanation for the large damages amount claimed, aside from that the Plaintiffs experienced some kind ofunspecified and uncharacterized trauma. [14] I therefore request that the Plaintiffs explain how the Statement of Claim provides a basis for the Court and Defendants tomake a meaningful response. B. Excessive or Impossible Remedies [15] Excessive or impossible remedies make litigation a hopeless proceeding that is an abuse of the Court: Unrau #2 at paras 620-625.

The Plaintiffs are seeking a very large sum, but, as previously discussed, provides no legal basis or factual explanation for why $5million should be awarded against the PLHC. [16] To the extent that the alleged basis for the damages claim can be evaluated, the Plaintiffs appear to be alleging trauma, whichis a general “pain and suffering” damages claim. On a per-Plaintiff basis, $5 million is nearly seven times the maximum amount ofgeneral 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 cap is nowabout $365,000. That amount was for a young adult whose injuries led to near total disability. Here, the Plaintiffs do not allege the kindsof injuries that would warrant a maximum $365,000 amount. Instead, they allege no physical injury at all. [17] The Plaintiffs are asked to indicate how the remedy sought in the Statement of Claim is not excessive or impossible. C. Fatal Formal Defects [18] Rule 3.68(2)(

e) states that one of the bases for why a pleading may be struck out is “... an irregularity in a commencementdocument or pleading is so prejudicial to a claim that it is sufficient to defeat the claim ...”.

[ 19 ] I accept that the Statement of Claim does not provide service information for the Plaintiffs as required by Form 10. Instead, to the degree the service information is discernable, that information points to the Defendant PLHC, not the Plaintiffs. [ 20 ] Though a statement of claim is not usually described in this manner, in many ways filing and serving a statement of claim is like pointing a gun at the head of the defendant(s). The defendant(

s) in a civil lawsuit have a very tight timeline to make a response, otherwise they immediately and automatically lose. [ 21 ] In the case of PLHC, it had 20 days to file a Statement of Defence, and it did so. However, as indicated on Form 10, PLHC also had the obligation to “... serve your statement of defence or a demand for notice on the plaintiff’s (s’) address for service.” Otherwise, the Plaintiffs could obtain a default judgment without any other litigation steps, and potentially collect the full $5 million claimed. [ 22 ] The Plaintiffs provided no service for address.

That appears to be fundamentally unfair to the Defendants. I conclude, by conducting a land titles search, PLHC made a reasonable effort to compensate for and respond to that issue. PLHC did not need to take that step, but in doing so PLHC demonstrated good-faith conduct in this lawsuit. [ 23 ] The absence of a valid address for service is not a defect that could be detected by the Clerks of the Court.

The Clerks have no obligation, or authority, to evaluate the content of a candidate filing, only whether there appears to be information entered into court forms as required by the Alberta Rules of Court : R v Verma , 2016 BCCA 307 at para 20 ; Unrau #2 at 789; Hayden v Hayden , 2020 ABQB 700 at para 43 ; Chisan v Akers , 2020 ABQB 659 . [ 24 ] I therefore ask the Plaintiffs to explain how their failure to provide an address for service is not a fundamentally unfair defect in their Statement of Claim that warrants their lawsuit being struck out per Rule 3.68(2)(e). IV.

Conclusion [ 25 ] The Plaintiffs’ Statement of Claim appears to be a suitable candidate for review per CPN7.

The Court therefore seeks the Plaintiffs respond to three questions; how is the Statement of Claim not an abuse of the Court because the Statement of Claim: 1. fails to provide adequate particulars so that the Court and Defendants can make a meaningful response, 2. seeks excessive and/or impossible remedies, and 3. is fatally irregular by failing to provide the Plaintiffs’ service information in a manner so prejudicial to the Defendants that the Statement of Claim should be struck out? [ 26 ] As a result of this analysis, I order that the Plaintiffs’ Alberta Court of Queen’s Bench Docket 2101 06845 Statement of Claim is stayed.

CPN7 now advances to its second step. 1. The Plaintiffs have 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 Statement of Claim should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(c)). 3.

If the Plaintiffs provide and serve a Written Submission, then the Defendants have seven days to each 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 the Plaintiffs’ Written Submission, and the Defendants’ Written Replies, if any, the Court will render its final decision on whether the Docket 2101 06845 Statement of Claim should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(e)). [ 27 ] The Court will prepare the Order staying this Action.

The Plaintiffs’ approval of that Order is dispensed with, pursuant to Rule 9.4(2)(c). [ 28 ] What remains is the conundrum of service of this Decision and the corresponding Interim Stay Order. No different from the Defendants, this Court, too, has no way to contact the Plaintiffs and serve this Decision and its corresponding order. That situation is entirely the Plaintiffs’ fault. They erected this obstacle. In light of that, I conclude that the most this Court can do is to publish this Decision on CanLII, as the best available notice it can provide to the Plaintiffs that the current CPN7 process now underway.

If that fails to draw the attention of the Plaintiffs then they have only themselves to blame. Dated at Calgary , Alberta this 15 th day of July, 2021.

J.D. Rooke A.C.J.C.Q.B.A. Appearances: Lauren A. Barteluk Carbert Waite LLP for the Defendant Peter Lougheed Hospital Centre