Feeney v TD General Insurance Company, 2021 ABQB 604

Court of Queen’s Bench of Alberta Citation: Feeney v TD General Insurance Company, 2021 ABQB 604 Date: 20210730 Docket: 2101 02349 Registry: Calgary Between: Keenan A. Feeney Respondent / Plaintiff - and - TD General Insurance Company, TD Home and Auto Insurance Company, and Security National Insurance Company Applicants / Defendants _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D.

Rooke _______________________________________________________ [ 1 ] On July 26, 2021, Counsel for TD General Insurance Company, TD Home and Auto Insurance Company, and Security National Insurance Company [the Defendants], by letter to myself and Chief Justice Moreau, requested that the Alberta Court of Queen’s Bench Feeney v TD General Insurance Company Docket 2101 02349 lawsuit be placed into Case Management, and that a Case Management Justice be assigned to this matter. [ 2 ] In brief, on February 18, 2021, Keenan A. Feeney [Mr. Feeney] sued the Defendants, alleging “malicious”

“incomprehensible negligence” for what Mr. Feeney identified as a failure to fulfill insurance contract obligations. This relates to claims Mr. Feeney made for damage to a motor vehicle. Mr. Feeney in total claimed somewhat under $300,000, with $250,000 as “exemplary, aggravated, and punitive damages.” Mr. Feeney subsequently, on March 15, 2021, filed an Amended Statement of Claim that added the third Defendant, Security National Insurance Company.

The Amended Statement of Claim expands the allegations against “TD Insurance”, alleging that the Statement of Defence filed by the first two Defendants is “... professional incompetence and misconduct ... [s]olidifying their incomprehensible Bad Faith procedures and misconduct, at all levels.” [ 3 ] Since filing the Docket 2101 02349 Statement of Claim, Mr. Feeney applied to strike out the Statement of Defence for the Defendant Security National Insurance Company. That Application was dismissed on June 10, 2021. Mr. Feeney was ordered to pay costs. Mr.

Feeney rejected the draft Order capturing the outcome of the June 10, 2021 decision, but that was signed by Justice Nation who had heard and dismissed Mr. Feeney’s Application. Mr. Feeney has also failed to pay costs as ordered by Justice Nation. Mr. Feeney then rejected that outcome, and, on June 25, 2021, filed a Rule 9.15 Application to vary the Order of Justice Nation, alleging Justice Nation exhibited “gross negligence”. That Application was adjourned sine die on July 19, 2021. [ 4 ] Counsel for the Defendants noted that Mr.

Feeney has been the subject of case management in other Alberta Court of Queen’s Bench litigation, and that recently Mr. Feeney was declared a vexatious litigant pursuant to Judicature Act , RSA 2000, c J-2 ss 23-23.1 by Feeney v Her Majesty the Queen in the Right of Alberta , 2021 ABCA 255 . That Decision imposed court access restrictions on Mr. Feeney’s activities in the Alberta Court of Appeal. [ 5 ] The Alberta Court of Appeal was also requested to impose court access restrictions on Mr. Feeney's activity in the Alberta Court of Queen’s Bench.

In Feeney v Her Majesty the Queen in the Right of Alberta , 2021 ABCA 255 at paras 28-30 , Khullar JA considered Mr. Feeney’s activity in the Alberta Court of Queen’s Bench, but refused to further evaluate that activity and the Court’s findings of misconduct by Mr. Feeney, and deferring to the Alberta Court of Queen’s Bench taking steps that would impose prospective litigation management on Mr. Feeney in this Court. [ 6 ] The Defendants’ Application for the Feeney v TD General Insurance Company Docket 2101 02349 lawsuit to be placed into case management is denied.

There is no benefit in attempting to case manage Mr. Feeney’s activities. I concluded, in Feeney v Simon , 2021 ABQB 169 at para 17 , that Mr. Feeney simply circumvents and ignores case management processes. My conclusion in that decision remains unchanged, particularly given the analysis and outcome in Feeney v Her Majesty the Queen in the Right of Alberta , 2021 ABCA 255 . The results of the most recent decision of that Court in relation to Mr. Feeney, Feeney v Her Majesty the Queen in Right of Alberta , 2021 ABCA 261 , simply further confirms Mr.

Feeney’s historical pattern of ignoring court decisions and repeating previous unsuccessful litigation. [ 7 ] The Court has made numerous unfavourable findings about Mr. Feeney’s litigation conduct, how Mr. Feeney’s litigation is hopeless and abusive, and how Mr.

Feeney is an unmanageable, relentless, abusive litigant, see for example: Feeney v Alberta , 2020 ABQB 572 , action struck out as an abuse of process 2020 ABQB 633 ; Simon v Feeney , 2020 ABQB 641 ; Feeney v Simon , 2020 ABQB 759 ; Feeney v Simon , 2021 ABQB 169 . [ 8 ] Khullar JA in Feeney v Her Majesty the Queen in the Right of Alberta , 2021 ABCA 255 also made numerous unfavourable findings concerning Mr. Feeney’s litigation conduct, including: ... there is no expectation that Mr Feeney will voluntarily change his litigation behaviour in this Court.

There is no indication he recognizes there is anything wrong with it. ... The problems caused by Mr Feeney’s litigation misconduct are various. He has taken up a huge amount of time and resources of the Court and the parties.

He has intimidated or attempted to intimidate Court staff in carrying out their duties and judges who have ruled against him. ... [ 9 ] When a court has imposed court access restrictions, then that is a very strong basis to presume that parallel steps are appropriate in a second court in response to analogous or related litigation misconduct: Unrau v National Dental Examining Board , 2019 ABQB 283 at paras 582-586 .

This rule was established by Stratas JA of the Federal Court of Appeal, who in Canada v Olumide , 2017 FCA 42 at para 37 concluded: ... other courts’ findings of vexatiousness under similarly-worded provisions can be imported into later applications against the same litigant and can be given much weight ... The wheel needn’t be reinvented. [Emphasis added.] [ 10 ] This rule has been repeatedly applied by the Alberta Court of Queen’s Bench.

For example, Anderson J in Hill v Bundon , 2018 ABQB 506 , at para 79 expressed the principle in this manner: I conclude as a point of law that where a court in another jurisdiction has imposed court access restrictions on a person then that creates a presumption that analogous court access restrictions are also warranted , either on application or the court’s own motion, in Alberta, unless that presumption is rebutted by the alleged abusive litigant . [Emphasis added.] [ 11 ] Similarly, Moreau CJ in Peters v Keef , 2019 ABQB 85 , at para 17 , concluded: ...

When a court has already concluded that court access restrictions are necessary to manage a litigant, then that is, of itself, a very strong factor in support of additional court access restrictions that respond to additional anticipated litigation misconduct ... [Emphasis added.] [ 12 ] Slatter JA in Jonsson v Lymer , 2020 ABCA 167 , ruled that despite this Court having an explicit authority granted by the Legislature via Judicature Act , RSA 2000, c J-2 , s 23.1 to initiate court access restriction processes on its own motion, that this “own motion” authority should be “read down” into a residual form: ...

The court should only act where the parties have for some reason failed to act, and the broader interests of the administration of justice are compromised.

Vexatious litigant applications should primarily be litigant driven.

While the court has a residual ability to trigger a vexatious litigant application on its own motion, the court should only initiate the process where the litigants have failed to do so after invitation and the overall interests of the administration of justice are engaged, or there is another justification for doing so. [ Jonsson v Lymer at paras 48, 85 (d), emphasis added.] [ 13 ] The unfortunate result of this ruling is that persons who have engaged in persistent, repeated, abusive litigation of the Alberta Court of Queen’s Bench now do so largely without restriction, because opposing litigants do not care about how the Court itself is harmed by abusive litigants and their misconduct: Dmyterko v Nissan Canada Inc , 2021 ABQB 405 at paras 11-17 .

Associate Chief Justice Gangé of the Federal Court has recently observed a related issue in Templanza v Canada , 2021 FC 689 at paras 30-31 , that the Attorney General of Canada similarly ignores abusive litigation where Canada is not directly involved in that litigation. Gangé ACJ concludes one possible cause of that is “political optics”. [ 14 ] Thus, this Court cannot, on its own motion, at present, initiate a Judicature Act , ss 23-23.1 proceeding, despite the fact that there is a very strong basis to conclude that Mr. Feeney should be subject to court access restrictions.

Pursuant to Lymer , I therefore request that the Defendants file and serve a Judicature Act , ss 23-23.1 application and supporting materials to impose court access gatekeeping restrictions on Mr. Feeney via what is sometimes called a “vexatious litigant” order by August 20, 2021. [ 15 ] In the meantime, I impose interim court access restrictions on Mr. Feeney that will continue until the latter of September 30, 2021, or the completion of the requested Judicature Act , ss 23-23.1 process, unless extended by the Court. [ 16 ] That leaves a single additional issue.

In Ubah v Canadian Natural Resources Limited , 2021 ABCA 5 at para 7 [ Ubah ], the Alberta Court of Appeal determined: “... Except in unusual circumstances, the courts should not ... invite or seek to introduce new parties ... to [ Judicature Act , ss 23-23.1] proceedings.” [ 17 ] That creates a perplexing situation. In Feeney v Her Majesty the Queen in the Right of Alberta , 2021 ABCA 255 , Khullar JA declined to evaluate the submissions and evidence of parties who in that matter sought court access restrictions that respond to Mr.

Feeney’s misconduct at the Alberta Court of Queen’s Bench, and, effectively, referred that issue to this Court. Nevertheless, Justice Khullar expressly relied on Mr. Feeney’s persistent, repeated, and aggressive litigation misconduct in the Alberta Court of Queen’s Bench to support court access restrictions at the Alberta Court of Appeal: para 35. [ 18 ] The binding ruling in Ubah means, although there are several parties who would appear to have an interest in the prospective management of Mr.

Feeney’s litigation in this Court, and who have submitted evidence accepted by the Alberta Court of Appeal as valid and that established bad litigation conduct by Mr. Feeney, that I am prohibited from inviting their participation and/or submissions in relation to the Judicature Act , ss 23-23.1 application that I have requested from the Defendants. It appears the most this Court can hope is that by some happenstance this Decision will come to those parties’ attention.

The same would apply for other persons who also may have a potential role in this litigation, given their interests in the prospective management of Mr. Feeney’s Alberta Court of Queen’s Bench activities. [ 19 ] The Court will prepare and serve the interim court access restriction Order imposed on Mr. Feeney by to this Decision. Mr. Feeney’s approval of that Order is waived pursuant to Rule 9.4(2)(c). Mr. Feeney shall be served this Decision and the corresponding Interim Court Access Restriction Order to his email address: keenan.feeney@gmail.com.

Dated at the City of Calgary, Alberta this 30 th day of July, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Desiree Winters Whitelaw Twining LLP for the Defendants