Gauld v Swamy, 2021 ABQB 572

Court of Queen’s Bench of Alberta Citation: Gauld v Swamy, 2021 ABQB 572 Date: 20210721 Docket: 2101 08369 Registry: Calgary Between: Douglas Gauld Plaintiff - and - Dr. Genesh Swamy Defendant _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I. Introduction [ 1 ] On July 5, 2021, Douglas Gauld [Mr. Gauld] filed a Statement of Claim naming Dr. Genesh Swamy [Dr. Swamy] as the Defendant. The Statement of Claim is handwritten, and its entire body reads:

Statement of facts relies on: 1. unsanitary operating conditions x 3 2. Letting another Doctor operate on me 3. 4. Remedy sought 5. I am asking for 1.5 million for Pain & Suffering 6. I am asking for 1.5 million for negilengce [Sic, emphasis in original.] [2] On July 19, 2021, Counsel for Dr. Swamy, by letter, referred Mr. Gauld’s Statement of Claim as a candidate ApparentlyVexatious Application or Proceeding [AVAP] pursuant to Civil Practice Note No. 7 [CPN7], paragraph 6. I am designated to receive andreview potential CPN7 processes in Southern Alberta. [3] Counsel for Dr.

Swamy takes the position that the Statement of Claim does not plead a reasonable claim and is frivolous. [4] After review of Mr. Gauld’s Statement of Claim, I conclude that pleading exhibits characteristics of abusive litigation, is anAVAP, 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 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]. [6] 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. [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 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 [8] The Statement of Claim appears to exhibit a number of issues. A. Inadequate Pleadings [9] An application or statement of claim sets the issues to which the opposing party must respond, and alerts that party of thecase it must meet: Whiten v Pilot Insurance Co, 2002 SCC 18 at para 87.

Proper pleadings require more than simply bare assertions, or“bald allegations” of wrongdoing: GH v Alcock, 2013 ABCA 24 at para 58; Mancuso v Canada (National Health and Welfare), 2015FCA 227 at paras 16-20.

Pleadings must provide a basis for the Court and other litigants to make a meaningful response, and indicate tothe responding parties the “... who, when, where, how and what gave rise to its liability.”: Mancuso v Canada (National Health andWelfare) at para 19. [10] The Plaintiff cannot file inadequate pleadings and then either supplement those claims, or expect the Defendant to “fill in theblanks”: Mancuso v Canada (National Health and Welfare) at para 20.

A lack of specificity is not merely a technical defect, but goes tothe 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 a respondentcannot defend against unclear and non-specific claims and the court cannot control the proceedings, identify the proposed argument, ormake findings on the relevant facts: Unrau v National Dental Examining Board, 2019 ABQB 283 at para 629 [Unrau #2]. [11] The Statement of Claim appears to not provide adequate alleged facts and claims. While, in the broadest sense, Mr.

Gauld’sStatement of Claim appears to allege some kind medical malpractice tort claim, the Statement of Claim only makes bald allegations, anddoes not provide the “who, when, where, how and what” required by a valid pleading. For example, the Statement of Claim implies that

there might have been three medical procedures, but does not indicate the date of those procedures, or what the procedures were about.Mr. Gauld seems to claim a second doctor was involved. Who was this doctor? Was this doctor involved in the three procedures, orsomething else? What is the relationship of Dr. Swamy and the other doctor? Is the other doctor an employee? A colleague? [12] Mr. Gauld provides no information at all on what went wrong in the medical treatment, if anything. How was Mr. Gauldinjured, if at all. Mr. Gauld claims $1.5 million for negligence. Was Dr. Swamy negligent? The other doctor?

What was the negligence?Mr. Gauld seeks $1.5 million for “pain & suffering”, but Mr. Gauld does not indicate any injury or how Mr. Gauld experienced pain andsuffering. [13] I therefore request that Mr. Gauld explain how the Statement of Claim provides a basis for the Court and Dr. Swamy to makea meaningful response. B. Excessive or Impossible Remedies [14] Excessive or impossible remedies make litigation a hopeless proceeding that is an abuse of the Court: Unrau #2 at paras 620-625. Mr.

Gauld is seeking a very large sum, but, as previously discussed, provides no legal basis or factual explanation for why $3million should be awarded against Dr. Gauld. [15] To the extent that the alleged basis for the damages claim can be evaluated, Mr. Gauld alleges a general “pain and suffering”damages claim. $1.5 million is over four times the maximum amount of general damages that may be claimed for pain and suffering thatwas set in Andrews v Grand & Toy Alberta Ltd, (SCC), [1978] 2 SCR 229, 83 DLR (3d) 452 at $100,000.

Afterinflation, the Andrews v Grand & Toy Alberta Ltd general damages cap is now about $365,000. That amount was for a young adultwhose injuries led to near total disability. Here, Mr. Gauld does not allege the kinds of injuries that would warrant a maximum $365,000amount. Instead, he alleges no physical injury at all. [16] Thus, Mr. Gauld is asked to indicate how the remedy sought in the Statement of Claim is not excessive or impossible. IV. Conclusion [17] Mr. Gauld’s Statement of Claim appears to be a suitable candidate for review per CPN7.

The Court therefore seeks thePlaintiffs 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 Dr. Swamy can make a meaningful response, and 2 seeks excessive and/or impossible remedies. [18] As a result of this analysis, I order that the Mr. Gauld’s Alberta Court of Queen’s Bench Docket 2101 08369 Statement ofClaim is stayed. CPN7 now advances to its second step: 1. Mr.

Gauld 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 whetherthe Statement of Claim should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(c)). 3. If Mr. Gauld provides and serves a Written Submission, then Dr.

Swamy has seven days to make a Written Reply of up to a totalof 10 pages in length (CPN7, para 3(d)). The Written Reply should be clearly addressed: “To the Attention of Associate Chief JusticeRooke”. 4. After receipt of the Mr. Gauld’s Written Submission, and Dr. Swamy’s Written Replies, if any, the Court will render its finaldecision on whether the Docket 2101 08369 Statement of Claim should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7,para 3(e)). [19] The Court will prepare the Order staying this Action. The parties’ approval of that Order is dispensed with, pursuant to Rule9.4(2)(c).

Dated at the City of Calgary, Alberta this 21st day of July, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances:

Tim Ryan Gowling WLG for the Defendant