Smith v Perrin, 2021 ABQB 570

Court of Queen’s Bench of Alberta Citation: Smith v Perrin, 2021 ABQB 570 Date: 20210721 Docket: 1903 19855 Registry: Edmonton Between: Ron Smith Plaintiff - and - Nancy Kathleen Perrin and Terry Douane Finch Defendants _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ [ 1 ] On July 8, 2021, Ron Smith (Mr.

Smith) referred by email a Dispute Note with Counterclaim filed by Nancy Kathleen Perrin and Terry Douane Finch (the Defendants) for review as an Apparently Vexatious Application or Proceeding (AVAP) pursuant to Civil Practice Note No. 7 (CPN7), paragraph 6. I am the judge assigned to review the AVAPs filed in Edmonton at the Court of Queen’s Bench of Alberta. CPN7 is reviewable on-line at https://www.albertacourts.ca/qb/areas-of-law/civil/practice-notes. [ 2 ] Mr. Smith’s materials also seek a “permanent injunction against Nancy Perrin” and “court access restrictions such as a

vexatious litigant order”. This decision will not respond to those items since CPN7 is a very specialized process that only is intended to test the legal merit of a single filing. If Mr. Smith wishes to pursue those steps, he should make formal applications pursuant to the Alberta Rules of Court , Alta Reg 124/2010 and the Judicature Act , RSA 2000, c J-2 . [ 3 ] The action between Mr. Smith and the Defendants did not start in the Court of Queen’s Bench of Alberta. Rather, this litigation began when Mr. Smith on February 12, 2019 filed a Civil Claim in the Provincial Court of Alberta: Smith v Finch Docket No.

P1904000019 (Alta PC). Mr. Smith claimed damages of $6,000.00 against the Defendants, alleging “civil trespass”. The Defendants on July 18, 2019 responded with a Dispute Note that included this Counterclaim: ... The Defendant(

s) Counterclaim(

s) or claim(

s) a set-off from the Plaintiff(

s) in the amount of $ 100,000.00, not including interest and costs, for the following reasons: -The amount of $50 000.00 in punitive damages by Nancy Kathleen Perrin -The amount of $50 000.00 in punitive damages by Terry Douane Finch -The Plaintiff is a vexatious litigant in the following proceedings PC 1304000119, QB 140304877, QB 140306604, PC 170400006, QB 180319887, PC S10475023R, PC 131287583P, QB 170308142 -The Plaintiff’s behavior demonstrated by filing this claim and within the above listed is harassment against the Defendants. (Sic.) [ 4 ] The amount of $100,000 claimed in the Dispute Note with Counterclaim is greater than the maximum claim amount permitted by the Provincial Court Act , RSA 2000, c P-31 , s 9(1)(i).

On September 26, 2019, the Provincial Court Docket No. P1904000019 file was transferred to the Court of Queen’s Bench of Alberta and became Smith v Perrin , Court of Queen’s Bench of Alberta Docket No. 1903 19855. [ 5 ] Mr. Smith’s email attached a number of documents: (1) the Dispute Note with Counterclaim from Alberta Provincial Court No. P1904000019 Action; (2) a December 7, 2017 Order of myself in the Lac Ste.

Anne County v Perrin , Court of Queen’s Bench of Alberta Docket No. 1703 22794 Action; (3) a Dispute Note in the Smith v Perrin Alberta Provincial Court No. 17040 000097 Action; (4) seven Court Orders in the Smith v Perrin , Court of Queen’s Bench of Alberta Docket No. 1803 19887 Action; (5) a “Without Prejudice” letter from Counsel for the Defendants to Mr.

Smith in relation to the Court of Queen’s Bench of Alberta Docket Nos. 1803 19887 and 1903 19855 Actions; (6) two Court Orders in the Perrin v Smith , Court of Queen’s Bench of Alberta Docket No. 1403 06604 Action; and (7) a July 12, 2018 Court Order of Burns J in the Smith v Perrin , Court of Queen’s Bench of Alberta Docket No. 1703 08142 Action. [ 6 ] CPN7 is a specialized and expedited process to evaluate whether a pleading is defective on its face, and has no chance of success, or is otherwise abusive and vexatious: Unrau v National Dental Examining Board , 2018 ABQB 874 ( Unrau #1 ).

CPN7 is not to be used for “close calls”. The Court only intervenes 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 . [ 7 ] Further, CPN7 may only consider very restricted forms of evidence. A CPN7 review 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 . That means that the documents that Mr. Smith has included, aside from the Smith v Finch Docket No.

P1904000019 Dispute Note with Counterclaim, may only be referenced if those filings established that the Defendants had no legal basis to make the Counterclaim, for example because that was a collateral attack on the result of an earlier proceeding. Here that does not appear to be the case for Mr. Smith’s additional documents. I therefore put no weight upon documents submitted by Mr. Smith, other than the Smith v Finch Docket No. P1904000019 Dispute Note with Counterclaim. [ 8 ] Both Mr. Smith and the Defendants claim that the parties are vexatious litigants.

If that finding had been made by an Alberta Court, and Court access restrictions limited filing by the parties, then that could be relevant to a CPN7 analysis. However, I have reviewed the RCAS Vexatious Litigant & Other Restricting Orders database, and neither Mr. Smith, nor the Defendants are listed.

Alleged vexatious litigant status is also therefore not a basis to conclude that a CPN7 process is appropriate in this instance. [ 9 ] Finally, I conclude that the Dispute Note with Counterclaim is not a suitable target for CPN7 review because of the unusual path this action has taken to end up in the Court of Queen’s Bench of Alberta. Civil Claims proceedings in the Provincial Court of Alberta use a different streamlined approach and procedure to identify claims, make filings, and introduce evidence.

In contrast, the Court of Queen’s Bench of Alberta follows a much more formal and complex approach to civil procedure. [ 10 ] I do not believe that CPN7 is suitable to evaluate the merit of a process that started and was pled in the Provincial Court of Alberta, then was transferred to the Court of Queen’s Bench of Alberta. The potentially different standards for legally valid pleadings in the two Courts is a question that cannot be adequately addressed in a simplified, expedited process such as CPN7. [ 11 ] That said, in coming to this conclusion, I do not find that Mr.

Smith has no basis to advance a r 3.68 of the Alberta Rules of

Court Application in relation to the Dispute Note with Counterclaim. However, CPN7 is not the appropriate mechanism to evaluate that possibility. Mr. Smith is therefore permitted to make a r 3.68 of the Alberta Rules of Court Application pursuant to a usual formal application in relation to the Defendants’ Dispute Note with Counterclaim, and that a hearing process evaluate that issue, if he so chooses. [ 12 ] Mr. Smith’s CPN7 referral is denied. No costs follow from this decision. Dated at the City of Edmonton, Alberta thi s 21 st day of July, 2021. K.G. Nielsen A.C.J.C.Q.B.A. Appearances: None