Gauld v Swamy, 2021 ABQB 620

Court of Queen’s Bench of Alberta Citation: Gauld v Swamy, 2021 ABQB 620 Date: 20210805 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 _______________________________________________________ [ 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 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. After review of the Mr.

Gauld’s Statement of Claim, I concluded, in a decision reported as Gauld v Swamy , 2021 ABQB 572 [ Gauld #1 ] , that the Statement of Claim exhibited multiple prima facie fatal defects, and therefore should be subject to a document-based show-cause procedure. Mr. Gauld was asked to respond to two questions in an up to ten- page Written Submission: [H]ow 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. [ Gauld #1 at para 17 .] [ 3 ] The deadline for Mr. Gauld to make a Written Submission has passed. No response has been received. I, therefore, conclude that Mr. Gauld has not rebutted the Gauld #1 prima facie conclusion that the Statement of Claim is a hopeless and abusive proceeding. Accordingly, I order the Docket 2101 08369 Statement of Claim is struck out pursuant to CPN7 para 3(

c) and Alberta Rules of Court , Alta Reg 124/2010 Rule 3.68. [ 4 ] When an action, application, or claim is terminated via the CPN7 process, the usual practice of this Court is to award costs in favour of the litigant who referred the matter to the Court: e.g. Ahad v Calgary Housing Company , 2020 ABQB 450 at para 9 ; Phillips v Kenney , 2020 ABQB 452 at para 9 ; Skrypichayko v Law Society of Alberta , 2020 ABQB 604 at para 43 ; Feeney v Alberta , 2020 ABQB 633 at para 6 . I see no reason to depart from that approach in this instance. Taking into account

Schedule C of the Alberta Rules of Court , I order Mr. Gauld pay Dr. Swamy $1,000 in costs, forthwith. [ 5 ] Counsel for Dr. Swamy will prepare the Order giving effect to this decision. Mr. Gauld’s approval of that Order is dispensed with, pursuant to Rule 9.4(2)(c). Dated at the City of Calgary, Alberta this 5 th day of August, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Tim Ryan Gowling WLG for the Defendant