Christofi v Kahane Law Office, 2021 ABQB 608

Court of Queen’s Bench of Alberta Citation: Christofi v Kahane Law Office, 2021 ABQB 608 Date: 20210805 Docket: 2101-02852 Registry: Calgary Between: Mike Christofi and Quality Painting Plaintiffs/Cross-Respondents - and - Kahane Law Office Defendant/Cross-Applicant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice M.H. Hollins _______________________________________________________ [ 1 ] Mr. Christofi and his painting company sued their customer, Ms. Taing, for unpaid invoices under a 2017 contract. Ms. Taing defended and counterclaimed against Mr.

Christofi for damages arising from alleged deficient workmanship. Kahane Law Office (“Kahane”) represented Ms. Taing at that trial in Provincial Court on March 8, 2019. On March 8, 2019 at the conclusion of the trial, Judge Burt dismissed Mr. Christofi’s claim and allowed Ms. Taing’s counterclaim, resulting in a judgment of approximately $12,000 payable by Mr. Christofi to Ms. Taing.

[ 2 ] Kahane now finds itself a Defendant in this action because it acted for Ms. Taing in 2019. It has applied to strike the now- Amended Statement of Claim in this action, arguing that it discloses no reasonable cause of action, is frivolous and improper and is an abuse of process. I agree on all counts. Mr. Christofi’s action herein is hereby struck for the reasons that follow.

The Application to Strike (Rule 3.68) [ 3 ] Rule 3.68 says that the Court may strike a claim or any part of a claim if the pleading: discloses no reasonable claim (R.3.68(2)(b)); is frivolous, irrelevant or improper (R.3.68(2)(c)); or constitutes an abuse of process (R.3.68(2)(d)). [ 4 ] Mr. Christofi is correct in saying that the threshold to strike pleadings is a high threshold, namely that the Plaintiff’s claims are bound to fail. Mr.

Christofi is also correct in saying that pleadings ought not to be struck merely because they are complicated or novel. [ 5 ] Under Rule 3.68(2)(b), no evidence may be considered by this Court in determining whether or not the Plaintiff’s Statement of Claim discloses no reasonable claim, although previous decisions from related litigation are not evidence and must be considered; HOOPP Realty Inc v The Guarantee Company of Canada , 2015 ABCA 336 at paras 19-21 . In addition, the pleading itself must contain facts which, if assumed true, would support the proposed cause of action.

These facts cannot be mere bald assertions, nor can it be highly implausible that the plaintiff will be able to prove them; Arabi v Alberta , 2014 ABQB 295 at paras 72-72 . [ 6 ] On applications to dismiss claims as being frivolous (R.3.68(2)(c)) or an abuse of process (R.2.68(2)(d)), evidence may be considered. Here, both parties filed Affidavits in respect of those parts of the application. The Litigation History [ 7 ] As there have been a number of related lawsuits, a brief explanation of the litigation history will be helpful.

As mentioned, there was an original Provincial Court Action (P1790104251) in which Ms. Taing’s counterclaim was allowed and judgment entered against Mr. Christofi. He unsuccessfully attempted to appeal that decision. [ 8 ] Mr. Christofi then filed a new action in the Court of Queen’s Bench against both Ms. Taing and Kahane (Action No: 1901- 15377). On Kahane’s application, that claim was summarily dismissed on August 19, 2020. It appears that Mr.

Christofi is still attempting to appeal the dismissal of that claim, as he attached a Notice of Appeal in that Action to a supplemental Affidavit filed for this application. [ 9 ] In fact, Mr. Christofi, in defiance of a previous Court Order in this Action, filed a cross-application returnable with the Kahane motion to strike, seeking the same relief as is in his Statement of Claim. As this may have been done in an attempt to simply advise this Court of his pending appeal of Action 1901-15377, I allowed the filing and hearing of that cross-application must dismiss that cross-application. The ground for Mr.

Christofi’s cross-application is that the application to strike “has no reasonable grounds”. That will obviously be addressed in the decision on Kahane’s motion so the cross-application was not necessary. [ 10 ] Mr. Christofi was intent on proving to me that he had managed to get his Notice of Appeal in Action No. 1901-15377 filed. That Notice of Appeal does references this Action. However, he obviously cannot be appealing my decision before it is made. Further, as I pointed out to Mr.

Christofi in oral argument, that appeal is in a different action and is an appeal of a different Judge’s Order so is not relevant to the Statement of Claim in this Action. [ 11 ] In any event, contemporaneous with the aforementioned appeal of Action No: 1901-15377, Mr. Christofi filed a third claim, this one. The Statement of Claim in this Action is 2 paragraphs long. It seeks $150,000 for “emotional and financial damages for taking me to court for many years without reasonable grounds and humiliated me in courts many times since 2017”. The grounds set out in the Statement of Claim can be summarized as follows: (

a) Objections to the testimony of Marton [ sic ] Losher in the Provincial Court Action, as Mr. Christofi maintains he should not have been qualified as an expert witness; and (

b) Objections to the failure of the lawyers at Kahane Law Office to drop their defence to the Provincial Court Action and settle with him. Disclosing No Cause of Action [ 12 ] Without addressing any of the evidence filed, it is clear that the above claim must be struck under Rule 3.68(2)(

b) as disclosing no cause of action. Any issues with the qualifications of any expert witness must be dealt with at the time of the hearing in which that witness is testifying and by the judge being asked to accept that testimony. While I appreciate that Mr. Christofi is self- represented, his objections to Mr. Losher’s expertise needed to be made during the Provincial Court trial or perhaps on appeal. Both of those avenues have long since been exhausted and this Court has no jurisdiction to consider alleged errors in a matter already decided.

[13] The second ground of Mr. Christofi’s claim similarly provides no viable claim for him to pursue. He obviously felt stronglythat, when presented with his information about Mr. Losher’s qualifications after the trial, the Kahane lawyers should have capitulatedand, on their own, agreed to reverse the decision they had obtained in favour of their client. It does not work that way. [14] His cross-application says “I believe Kimperly [sic] Holland made many regal [sic] Mistakes that’s why she never came backto support her success”.

His Statement of Claim says he would “like Kimperly [sic] Holland to come back to court with her witness toconfirm what she said on March 8, 2019”. Ms. Holland owes no such obligation to Mr. Christofi, nor does the Kahane Law Office. [15] Lawyers do not generally owe a duty of care to the opposing clients. All lawyers are bound by the Code of ProfessionalConduct of the Law Society of Alberta, which regulates lawyers in the interests of the public, including Mr. Christofi.

However, thatdoes not create a stand-alone duty of care from a lawyer to an opposing client and certainly imposes no obligation on counsel for anopposing party to agree after-the-fact that their client should not have been successful. [16] In Martel v Spitz, 2005 ABCA 63, the plaintiff sued her husband’s lawyers for their representation of him in a matrimonialproperty lawsuit. She alleged that the lawyers had engaged in unmeritorious litigation, which was harassing and abusive to her. She alsoalleged that the lawyers had filed an Affidavit of her husband which they knew to be false.

Her claims were struck by the Master inChambers which was upheld by this Court and then by the Court of Appeal. In addressing the lawyers’ duties to opposing clients, theCourt of Appeal said: Further, the duty to the court is a public duty and owed as an officer of the court to the court and not a private duty owed to the oppositeside in a lawsuit. There is ample authority that the duties that a lawyer owes to the opposing party are viewed very restrictively: Germanv Major (1985), 1985 ABCA 176 , 62 AR 2 (CA). There are good policy reasons for this in the adversarial system.

If it wereotherwise, the conflicting duties owed by a lawyer would make the adversarial system impossible; para 12. [17] Other similar attempts to impose a duty of care on opposing counsel, beyond that owed to his or her clients and to the LawSociety, have also failed; ESA Holdings Ltd v Shea Nerland Canlan LLP, 2007 ABQB 78 at para17 and Stanfield v Schneider, 2017ABQB 543 at paras 44-45. Frivolous or Abusive Pleadings [18] As mentioned, under Rule 3.68(2), subsections (

c) and (d), the Court must consider the Affidavit evidence of both parties. Mr.Christofi’s March 31, 2021 Affidavit repeats his complaints that Mr. Losher should not have been qualified as an expert and that Ms.Holland “never came back to support her successful judgment”. [19] I sympathize with Mr. Christofi’s frustration at losing a court case that he felt later he should have won.

However, this is botha vexatious, improper pleading and a clear attempt to re-litigate an issue already decided, which is a legal abuse of process; ChutskoffEstate v Bonora, 2014 ABQB 389 at para 92, affirmed 2014 ABCA 444. [20] The rationale for striking pleadings which attempt to re-litigate the same issues is plain; we do not allow duplicateproceedings in part to avoid inconsistent legal results based on the same facts, which is precisely the risk here if the Plaintiff's Action isallowed to proceed.

As stated by Arbour, J in Toronto (City) v CUPE Local 79, 2003 SCC 63 at para 51: Rather than focus on the motive or the status of the parties, the doctrine of abuse of process concentrates on the integrity of theadjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation willyield a more accurate result than the original proceeding.

Second, if the same result is reached in the subsequent proceeding, therelitigation will prove to have been a waste of judicial resources as well as an unnecessary expense….Finally, if the result in thesubsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, willundermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. Conclusion [21] The Statement of Claim in this Action (2101-02852) is dismissed in its entirety.

The Defendant, Kahane Law Office, shallhave its costs of this Action as against Mr. Christofi on Column 2 of

Schedule “C” to the Alberta Rules of Court. Heard on the 27th day of April, 2021. Dated at the City of Calgary, Alberta this 5th day of August, 2021. M.H. Hollins J.C.Q.B.A.

Appearances: Mr. Mike Christofi, for himself Mr. Chadwick Newcombe for the Respondent, Kahane Law Office