Sewak v Killips, 2021 ABQB 64

Court of Queen’s Bench of Alberta Citation: Sewak v Killips, 2021 ABQB 64 Date: 20210126 Docket: 2103 00001 Registry: Edmonton Between: Shaneil Sewak Plaintiff - and - Jennifer Killips, Neil Dehaas, Government of Alberta, Premier Jason Kenney, Judge John Maher, Ryan Jenkins, Hillary Flaherty and Justice and Solicitor General Government of Alberta Defendants _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] On January 4, 2021, Shaneil Sewak (Mr.

Sewak) filed a thirteen-page Statement of Claim naming eight Defendants, and that seeks in total $16,436,000 in damages. The keystone to that Statement of Claim is Mr. Sewak claims he “... was wrongfully convicted in

and around February 2017.” (Statement of Claim, page 7, para 1). The conviction in question was for Obstruction of Justice: Criminal Code , RSC, 1985, c C-46 , s 139(2). Mr. Sewak received a 15 month custodial sentence. As is described by Mr. Sewak in his Statement of Claim, that conviction was appealed to the Alberta Court of Appeal, which in written reasons confirmed Mr. Sewak’s conviction: R v Sewak , 2019 ABCA 303 . Mr. Sewak’s appeal claimed that Mr. Sewak’s trial lawyer was incompetent. [ 2 ] Certain of the Defendants named by Mr.

Sewak were involved in the obstruction of justice proceedings: • Neil Dehaas is an Edmonton Police Service Constable who conducted investigations that led to the charges against Mr. Sewak. Mr. Sewak appears to complain that Constable Dehaas is liable because he “... made the choice to believe [redacted] without any evidence or without questioning the Plaintiff on his side of the story.” (Statement of Claim, page 2, para 10), and because “Constable Dehaas showed a disdained hate for the plaintiff during the charges and the arrest” (Statement of Claim, page 2, para 12). • Ryan Jenkins (Mr.

Jenkins) is the Crown Prosecutor who conducted the obstruction of justice trial in the Provincial Court of Alberta. Mr. Sewak’s Statement of Claim makes difficult to understand allegations concerning documents in that proceeding (Statement of Claim, page 5, paras 45-47), and alleges Mr.

Jenkins “... knew that his witness was lying and continued to lie in court.” (Statement of Claim, page 5, para 48) and “... showed hate and determination to put the plaintiff in jail at the sentence.” (sic) (Statement of Claim, page 6, para 63). • John Maher (Judge Maher) is a judge of the Provincial Court of Alberta who conducted Mr. Sewak’s trial in February 2017. Mr. Sewak reports that his lawyer told Mr. Sewak that Judge Maher “... was known to be a racist judge and the trial could be difficult.” (Statement of Claim, page 3, para 36). Mr.

Sewak’s Statement of Claim complains: 1) about documents at the trial (Statement of Claim, page 5, paras 50-52); 2) that Judge Maher knew a Crown witness was lying (Statement of Claim, page 5, paras 52-53); 3) “Judge Maher decided that the plaintiff was guilty before the trial even began.” (Statement of Claim, page 5, para 54); and 4) “Judge Maher showed hate and determination to put the plaintiff in jail at the sentence.” (sic) (Statement of Claim, page 6, para 64). • Jennifer Killips (Ms. Killips) is a probation officer who prepared a pre-sentence report concerning Mr. Sewak after he was convicted. Mr.

Sewak’s complaint against Ms. Killips is that she did not believe Mr. Sewak and she recommended he should be incarcerated (Statement of Claim, pages 5-6, paras 59-62). [ 3 ] Mr. Sewak’s allegations in relation to Hillary Flaherty (Ms. Flaherty) are that Ms. Flaherty represented the Alberta Government in a “Statement of Claims in the Court of Queen’s Bench in Alberta”. Ms. Flaherty allegedly told Mr. Sewak and Mr. Sewak’s wife that “she has connections” and if Mr. Sewak withdrew his “statement of claims” then Mr. Sewak would be released from jail (Statement of Claim, page 7, paras 81-83). Mr.

Sewak alleges that Ms. Flaherty “tried to send documents to the plaintiff in jail which caused a lot of problems with the plaintiff with other inmates”, no documents were received, and “The plaintiff was completely unaware of any court proceedings to have his claim struck.” (Statement of Claim, page 7, paras 81-86). [ 4 ] The Statement of Claim allegations concerning Premier Jason Kenney (Premier Kenney) are that Mr.

Sewak wrote letters to Premier Kenney “... in regards to his provinces corrupt system and racism ...” (sic), but those letters were ignored, and Premier Kenney “... is supposed to make sure our judicial system is not corrupt and full of bigotry.” (Statement of Claim, page 10, paras 65-68). [ 5 ] The Statement of Claim does not appear to make specific allegations in relation to the Government of Alberta (Alberta) or Alberta Justice and Solicitor General (Alberta Justice), other than certain other Defendants are employed by Alberta and Alberta Justice. [ 6 ] Mr.

Sewak describes at length a range of events he says occurred while Mr. Sewak was detained prior to and after his conviction, including conflicts and fights with other inmates. Mr. Sewak describes how he allegedly experienced harsh conditions while detained and incarcerated. He missed his wife and dog. Mr. Sewak describes how he became friends with a fellow inmate, by the name of Krishneil, who was found in a field, murdered. The Statement of Claim states Mr.

Sewak’s incarceration had many negative effects, including it disrupted his business, led to psychological injury, prevented him from having children, and concludes: “This trial, this conviction and this jail experience destroyed The Plaintiff, as a person and continues to do so.” (Sic.) (Statement of Claim, page 12, para 96). [ 7 ] The Statement of Claim damages sought include: 1) $5,000,000 “for the psychological, physical and emotional damages”; 2) $500,000 “for loss of income”; 3) payment of Mr. Sewak’s criminal defence legal bills (total $67,000); 4) payment of $54,000 in relation to Mr.

Sewak’s bills while incarcerated; 5) payments of $200,000 and $100,000 to Mr. Sewak’s wife and parents, respectively, for psychological and emotional stress; 6) $7,000,000 for loss of income from Mr. Sewak’s businesses and $3,500,000 when a building in Lintlaw, Saskatchewan was not sold. [ 8 ] Mr. Sewak’s Statement of Claim was referred to me by the Clerk of the Court as an Apparently Vexatious Application or Proceeding (AVAP) pursuant to Civil Practice Note No. 7 (CPN7), paragraph 5. I am the judge assigned to review the AVAPs filed in Edmonton at the Court of Queen’s Bench.

CPN7 is reviewable on-line at https://www.albertacourts.ca/qb/areas-of-law/civil/practice- notes.

[9] I have reviewed Mr. Sewak’s Statement of Claim and conclude it is an AVAP because this filing has elements that Courtsidentify as characteristics of hopeless and abusive proceedings. On that basis, I conclude Mr. Sewak’s Statement of Claim should besubject to a CPN7 show-cause document-based review under r 3.68 of the Alberta Rules of Court, AR 124/2010. That means I havedecided that Mr. Sewak must file a Written Submission setting out why his Statement of Claim should not be struck out because it issignificantly deficient. II.

CPN7 [10] The Court implemented CPN7 to better manage litigation that, on its face, appears to be unmeritorious, has no chance ofsuccess, or is otherwise abusive and vexatious.

CPN7 is intended to provide litigants with a timely, proportionate, and cost-effectiveresponse: Unrau v National Dental Examining Board, 2018 ABQB 874 (Unrau #1). [11] If, on initial review by the Court, an AVAP appears to have no merit, have no prospect of success, or is otherwise abusive andvexatious, then the Court issues a first written decision that identifies the apparent issue or issues that may be a basis to strike out theAVAP under r 3.68 of the Alberta Rules of Court. [12] The party who filed the AVAP is then given an opportunity to, within 14 days, provide to the Court a Written Submission ofup to a total of 10 pages in length that responds to, and demonstrates why, the AVAP is a legitimate action and should be permitted tocontinue.

The Written Submission must be clearly addressed “To the Attention of” the Justice who initiates the CPN7 process, and mustalso be served on the other parties to the litigation. [13] CPN7 is not to be used for “close calls”. The Court only intervenes when the defect(

s) in question are “apparent on the face ofthe pleading”, and the suspect pleadings are “clearer cases of abuse”: Unrau #1 at paras 22 and 24. [14] The Court only considers restricted forms of evidence when it conducts a CPN7 review because this process has a very narrowfocus and operates to examine a single document and its content: Ubah v Canadian Natural Resources Limited, 2019 ABQB 347 atparas 24-48 (Ubah #2). There are exceptions to that rule.

For example, the Court may examine other documents in the same proceedingthat are related to the suspect filing (Ubah #2 at para 35), or documents and records that are evidence that the AVAP is an attempt tolitigate an issue that has already been decided or closed (Ubah #2 at para 45). III. Analysis [15] Mr. Sewak’s Statement of Claim exhibits a number of issues. A. Collateral Attack [16] Mr. Sewak’s action is based on a central allegation. Mr. Sewak says he was “wrongfully convicted” in his 2017 ProvincialCourt obstruction of justice proceeding, and that many bad things happened to him downstream of that. Mr.

Sewak alleges wrongdoingby certain individuals in relation to his conviction, but, specifically, that evidence of a Crown witness was accepted by the Court, and, atother times, preferred to evidence from Mr. Sewak. [17] The Court of Appeal confirmed Mr. Sewak’s conviction in R v Sewak. Mr. Sewak did not seek leave to appeal from theSupreme Court of Canada. What Mr.

Sewak appears to be seeking is that this Court reverse findings of fact and credibility made by theProvincial Court, and that are otherwise unchallenged, or unchallengeable, by any court appeal. [18] A litigation step or proceeding that directly or indirectly challenges a prior court decision or result outside an appeal process isa collateral attack. Collateral attacks are generally prohibited and an abuse of process: British Columbia (Workers’ CompensationBoard) v Figliola, 2011 SCC 52 at para 28.

Collateral attacks subvert “the orderly and functional administration of justice”: Dagenais vCanadian Broadcasting Corp, (SCC), [1994] 3 SCR 835 at 871, 120 DLR (4th) 12. Any action or application that isidentified as a collateral attack should be terminated, immediately: Alberta v Pocklington Foods Inc, 1995 ABCA 111 at para 14. [19] I therefore request that Mr. Sewak provide an explanation of how his Statement of Claim is not a collateral attack on hisearlier, concluded criminal proceedings where Mr. Sewak was found guilty of obstruction of justice. B.

Defendant Immunity [20] A number of Defendants appear to be immune in law to the claims Mr. Sewak has advanced. [21] First, Mr. Sewak has sued a judge alleging misconduct that involves exercise of the judge’s judicial capacity. Canadian lawprovides that judges have absolute immunity to legal proceedings that base claims on judicial decision-making: Jordan v Nation, 2013ABCA 117, leave to appeal to SCC refused, 35405 (19 September 2013), citing Morier v Rivard, (SCC), [1985] 2 SCR716, 23 DLR (4th) 1. [22] Second, Mr. Sewak has sued Mr.

Jenkins in his capacity as the Crown Prosecutor who conducted the proceeding against Mr.Sewak (Statement of Claim, page 5, paras 43-48). Canadian courts have repeatedly ruled that lawyers have no duty of care to opposingparties: e.g. Templanza v Ford, 2018 ABQB 168 at paras 69-72, appeal abandoned 2019 ABCA 309, reinstatement denied 2019 ABCA345, leave to appeal to SCC refused, 39034 (30 April 2020); Kumar v Korpan, 2020 SKQB 256 at paras 46-49; 9383859 Canada Ltd vSaeed, 2020 ONSC 4883. Manderscheid J in Wong v Leung, 2011 ABQB 688 at paras 23-24 concluded:

There can be absolutely no legal duty of care owed by a Defendant's counsel to a Plaintiff. If such duty were to exist, it would strike atthe very heart of the adversarial system, which forms the very foundation of litigation under the common law. ... [23] This rule is the same for Crown Prosecutors in relation to accused persons: Henry v British Columbia (Attorney General),2015 SCC 24 at para 74; Hyra v Manitoba, 2015 MBCA 55 at para 33. [24] Third, Mr.

Sewak’s allegation against Premier Kenney is that Premier Kenney somehow has a legally binding obligation toensure Alberta’s “... judicial system is not corrupt and full of bigotry.” (Statement of Claim, page 10, paras 65, 68). However, thatallegation ignores the constitutional division of authority between the legislative and judicial branches. Premier Kenney (and Alberta,and Alberta Justice) do not control the conduct of Provincial Court judges: Manson (Estate) v Obsidian Energy Ltd, 2020 ABQB 370 atpara 39.

Jurisdiction over the conduct of the Alberta Provincial Court judges belongs to the Judicial Council: Judicature Act, RSA 2000,c J-2, ss 30-41.2. [25] I therefore request that Mr. Sewak provide an explanation of the legal basis for how Judge Maher, Mr. Jenkins, and PremierKenney are potentially liable in relation to Mr. Sewak’s allegations in the Statement of Claim. C. Inadequate Pleadings [26] A Statement of Claim sets the issues to which the opposing party must respond, and alerts that party of the case 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), 2015 FCA 227 at paras16-20.

Pleadings must provide a basis for the Court and other litigants to make a meaningful response, and indicate to the respondingparties the “... who, when, where, how and what gave rise to its liability.”: Mancuso v Canada (National Health and Welfare) at para19. [27] Inadequate pleadings abuse the court’s process because a Defendant cannot defend against unclear and non-specific claimsand the Court cannot control the proceedings, identify the proposed argument, or make findings on the relevant facts: Unrau v NationalDental Examining Board, 2019 ABQB 283 at para 629 (Unrau #2). [28] Mr.

Sewak’s pleadings do not appear to meet the minimum criteria for a valid action. For example, many allegations aresimply unclear. Mr. Sewak says that at the trial, Judge Maher and Mr. Jenkins somehow mishandled or mismanaged “documents handedto the witness” (Statement of Claim, page 5, paras 43-41). What are these documents? Mr. Sewak says Judge Maher and Mr. Jenkinswere motivated by “hate and determination”, but provides no explanation of that. [29] Similarly, with respect to Ms. Flaherty, Mr. Sewak alleges some kind of conspiracy, or quid pro quo arrangement, thatinvolved other litigation.

What is that other litigation? No style of cause or docket was identified. Who was sued? The Defendants arenot named. How did the litigation end? Some claims are on their face contradictory, and so need further explanation. Mr. Sewak saysMs. Flaherty “... tried to send documents to the plaintiff in jail which caused a lot of problems with the plaintiff with other inmates ...”but then continues that he “... did not receive any documents in jail.” (Statement of Claim, page 7, paras 84-85). How could documentsthat were not received “cause a lot of problems” with other inmates? What were those “problems”?

This claim appears to be an exampleof abusive pleadings that Snider J in kisikawpimootewin v Canada, 2004 FC 1426 at para 9 said meant the Defendant “... is left bothembarrassed and unable to defend itself.” [30] What is the obligation, relationship, or legislation that is the basis for Mr. Sewak’s claims? He does not identify, for example,whether he claims damages for negligence, and, if so, who owed him a duty of care, and why? Mr. Sewak does not link events that healleged occurred during detention and incarceration to the Plaintiff, except via the wrongful conviction allegation addressed in

part III(A)above. [31] Mr. Sewak seems to have made no allegations at all against Alberta and Alberta Justice. Why are these named parties? [32] This is a third independent basis on which it appears Mr. Sewak’s litigation may be an abuse of the Court’s procedures, and Itherefore request Mr. Sewak provide an explanation for how his Statement of Claim provides an adequate basis for the Court andDefendants to make a meaningful response. D. Impossible or Excessive Remedies [33] Mr. Sewak seeks over $16,000,000 in damages. Of those, $5,000,000 are general damages, for “psychological, physical andemotional damages”.

The maximum amount of general damages that may be claimed for pain and suffering was set in Andrews v Grand& Toy Alberta Ltd, (SCC), [1978] 2 SCR 229, 83 DLR (3d) 452 at $100,000. That was for a young adult whose injuriesled to near total disability. After inflation, the Andrews v Grand & Toy Alberta Ltd general damages cap is now about $365,000. Mr.Sewak’s claim is nearly 14 times the maximum permitted by the Supreme Court of Canada. [34] Mr. Sewak demands what are essentially lawyer account refunds for criminal litigation that he lost. As previously indicated,Mr.

Sewak appears to have no legal basis to challenge his conviction. That means the lawyer account refund claims appear to beimpossible or excessive. [35] Mr. Sewak seeks large sums totaling $10,500,000 in relation to a businesses and sale of a building in Lintlaw, Saskatchewan.Little in his pleadings substantiate or provide an explanation of these amounts. For example, the Lintlaw building claim is difficult tounderstand. Mr. Sewak says he “had a deal” to sell that building for $3,500,000 (Statement of Claim, page 10, para 69), but he “... had notime to close the sale.” (Statement of Claim, page 11, para 70).

Assuming this is true, why are the Defendants liable for $3,500,000,when presumably the entire value of a building did not disappear when a real-estate transaction did not proceed?

[36] The apparently impossible and excessive remedies sought by Mr. Sewak are a further separate basis why it appears Mr.Sewak’s Statement of Claim is an abuse of court processes. E. Busybody Litigation [37] Mr. Sewak seeks large “psychological and emotional stress” general damages claims for his parents and wife, who are thirdparties to this litigation. Attempts by third-parties to advance claims on behalf of other persons are “busybody” litigation, a kind ofproceeding with an improper purpose, and an abuse of court processes: Unrau #2 at para 664. [38] I therefore request that Mr.

Sewak provide an explanation as to why he may advance damages claims on behalf of personswho are not named parties to this litigation? F. Unsubstantiated Allegations of Decision-Maker Bias and Misconduct [39] Mr. Sewak’s Statement of Claim at a minimum implies that his conviction was the result of racial prejudice and bias. Mr.Sewak identifies many involved individuals and Defendants as “Caucasian”. He states that Caucasian judges exhibited “hate”, “rage”,and “anger” towards Mr. Sewak. [40] Mr. Sewak explicitly claims that Judge Maher decided the outcome of Mr.

Sewak’s trial before the trial commenced, butprovides no evidence to support that allegation. The Statement of Claim states that his trial lawyer reported to Mr. Sewak that JudgeMaher is “known to be a racist judge”. Subsequently, Mr. Sewak says his appeal counsel reported that the R v Sewak Court of Appealpanel of three Caucasian female appeal judges “... are known to be racist.” (Statement of Claim, page 6, paras 68-69). [41] Later, Mr.

Sewak makes it explicit that in his view the judicial system is corrupt and full of bigotry, and, implicitly, Mr.Sewak’s experiences and trial outcome were the result of that. (Statement of Claim, page 10, paras 65, 68). Mr. Sewak demands damagesfrom Premier Kenney on that basis. [42] Mr. Sewak’s claims of bias, bigotry, racism, and discrimination are, at most, allegedly established by Mr. Sewak beingconvicted.

However, unfavourable litigation outcomes are not a basis to allege bias, prejudice, and decision-maker misconduct: R vS(RD), (SCC), [1997] 3 SCR 484 at para 19, 151 DLR (4th) 193; Alberta Health Services v Wang, 2018 ABCA 104 atpara 9. Instead, claims of this type are a characteristic of abusive litigation that warrant court intervention: Chutskoff v Bonora, 2014ABQB 389 at para 92, aff’d 2014 ABCA 444. [43] I therefore request that Mr.

Sewak provide an explanation of how his Statement of Claim provides a basis to substantiate hisclaims of decision-maker bias, racism, and misconduct, so that those claims are not an abuse of process. IV. Conclusion [44] Mr. Sewak’s Statement of Claim appears to be a suitable AVAP candidate for review pursuant to CPN7. The Court seeksresponses from Mr. Sewak to the following questions: 1) Why is his Statement of Claim not a prohibited collateral attack on now concluded criminal proceedings? 2) What law provides a basis for liability for Judge Maher, Mr.

Jenkins, and Premier Kenney? 3) How does the Statement of Claim provide an adequate basis for the Court and Defendant to make a meaningful response? 4) How does the Statement of Claim not seek disproportionate or impossible remedies? 5) What is the legal basis on which Mr. Sewak may advance damages claims on behalf of persons who are not named parties to thislitigation? 6) How does the Statement of Claim provide a basis to substantiate Mr. Sewak’s claims of decision-maker bias and misconduct? [45] CPN7 now advances to its second step.

This step consists entirely of written submissions; there will be no Court appearancesor oral argument. The next steps are: 1) Mr. Sewak has 14 days to prepare a Written Submission of no more than a total of 10 pages, to be filed and served, as described inpara 3(

b) of CPN7. The Written Submission must be clearly addressed “To the Attention of Associate Chief Justice K.G. Nielsen”. 2) If this Court receives no Written Submission by that deadline, the Court will make its final decision on whether the Statement ofClaim should be struck out in whole or in part under r 3.68 of the Alberta Rules of Court (see CPN7, para 3(c)). 3) If Mr. Sewak provides and serves a Written Submission, then the Defendants each have seven days to provide a Written Reply of upto 10 pages in length (see CPN7, para 3(d)).

The Written Replies must be clearly addressed “To the Attention of Associate Chief JusticeK.G. Nielsen”. 4) After the Court receives Mr. Sewak’s Written Submission and the Defendants’ Written Replies, if any, the Court will make its finaldecision on whether the Statement of Claim should be struck out in whole or in part, under r 3.68 of the Alberta Rules of Court (seeCPN7, para 3(e)).

[ 46 ] The Court will prepare and serve an Interim Order staying this action (see CPN7, para 7). Mr. Sewak’s approval of that Order is not required, pursuant to r 9.4(2)(

c) of the Alberta Rules of Court . Dated at the City of Edmonton, Alberta thi s 26 th day of January, 2021. K.G. Nielsen A.C.J.C.Q.B.A. Appearances: None