Klein (Re), 2021 ABQB 687

Court of Queen’s Bench of Alberta Citation: Klein (Re), 2021 ABQB 687 Date: 20210827 Docket: ES03 138897 Registry: Edmonton Court File Number ES03 138897 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Edmonton Estate Name Erna Klein Applicants Raymond Klein and Marilynn Klein Respondent Belinda Ann Klein also known as Ann Klein _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice R.A.

Graesser _______________________________________________________ Introduction [ 1 ] On June 25, 2021, I issued a Procedural Direction regarding this matter ( Re Klein , 2021 ABQB 488 ).

Specifically, I directed the Administrator, Belinda Ann Klein (“Ann Klein”), to provide certain statements for her late mother’s account with the Bank of Montreal. [ 2 ] Ann Klein had already produced a number of statements, as well as correspondence from the Bank explaining that statements were not produced if there was no activity in the account for the month in question. [ 3 ] Eventually, Ann Klein produced a statement for September 2017. In that month, the sum of $99.25 was deposited into the account.

I requested an explanation from Ann Klein as to the source of that deposit, and she indicated that those funds were personal

funds that she deposited in the account to prevent the account from being closed for inactivity. The account was closed by her in October 2017. [ 4 ] Marilynn Klein and Raymond Klein dispute that Ann Klein used personal funds and continue to demand the broad disclosure of financial information ordered earlier this year by Hayes-Richards J and Fraser J. [ 5 ] Ann Klein was asked to produce the September 2017 statement and she eventually did. She was asked to explain the deposit, and she did. I am not in a position to assess her credibility. However, in the context of this matter, I do not think that is necessary.

From the records produced, the bank balance remained the same from May 2016 until September 2017. [ 6 ] In June 2015, the BMO account had $2,144.33 in it. I noted in my June 2021 Direction that Ann Klein had not explained how the account grew to $5299.10 by April 2017. That was partly explained by Victoria Jones, then lawyer for the Estate, in a memo dated September 15, 2016 to Ed Bridges, then counsel for Marilynn Klein and Raymond Klein. Ann Klein had in 2015 reimbursed herself for one of Ms.

Jones’ accounts in the amount of $3,539.58, apparently believing that she had paid the bill herself and that amount was owed to her by the Estate. In fact, the account had been paid from money Ms. Jones was holding in trust from the sale of the house. Ann Klein deposited $3156.57 in the BMO account on May 25, 2016. Copies of the relevant bank statements were provided to Mr. Bridges. [ 7 ] From May 25, 2016 to August 2017, the BMO account stood at $5,299.10. Statements also provided to Mr.

Bridges also show that by June 20, 2016 the BMO account had dropped from $2,144.33 in June 2015 to $1,759.52 before Ann Klein put funds back into the account. That is a difference of $383.91. The communications between counsel indicate that Ann Klein had been partly reimbursing herself for “gas expenses”, which may explain some or all of the difference. It does not appear that the $383.91 was controversial at the time while Mr. Bridges was involved. [ 8 ] From the statements actually produced, the only activity in the account after May 2016 was the September 2017 deposit of $99.25.

While it is I suppose possible that Ann Klein has somehow manipulated the account in some fashion, I view that as highly unlikely. [ 9 ] In reality, there was, by September 2017, no reason for there to be any monies payable by anyone to the Estate. Erna Klein died in 2012. Her only assets were bank accounts and a house. The house was sold in 2015, and the sale proceeds have been fully accounted for. The President’s Choice bank accounts have also been fully accounted for, at least for the period after Ann Klein was appointed Administrator.

There is no reason to think (and certainly no information provided by anyone) that there were other assets other than the ones the parties have been fighting over since Erna Klein’s death. [ 10 ] I note that on January 12, 2018, Henderson J directed Ann Klein to account for the period after June 30, 2021. That has not been “formally” done. I also note, however, that on May 30, 2019, Loparco J directed that the remaining monies in the deVillars Jones trust account be divided equally among the three beneficiaries. Analysis [ 11 ] I see no merit in requiring Ann Klein to provide further information.

In reality, I do not know what more could be produced that would be helpful. I doubt that anything will take away Marilynn Klein’s and Raymond Klein’s distrust of their sister. For Ann Klein’s part, it is very difficult for her to prove a negative (that she did not misappropriate any funds). [ 12 ] I am very mindful of the Foundational Rules of Court, and in particular the proportionality provisions in Rule 1.2(4).

In this case, at the most, there is a possible issue over an undocumented deposit of $99.25, and perhaps $383.91 in withdrawals from the BMO account that have not been fully explained. [ 13 ] Disputes over such small amounts have no place in this Court. There are far too many important matters that should not be delayed by the Court spending its limited time and resources on trivial matters.

While Ann Klein has not accounted perfectly for her activities since June 30, 2015, there is no information before me to suggest that she should be required to do more than she already has done regarding the passing of accounts.

Any further work, by her or by the Courts in receiving and reviewing any further information or submissions, would be completely disproportionate to the magnitude of any possible failings. [ 14 ] This brings me back to the conclusions I expressed in my June 2021 Direction: that any claims by the Estate against Raymond are barred by the Limitations Act , and any claims by Marilynn Klein and Raymond Klein against Ann Klein are barred by Topolniski J’s order of January 18, 2017 passing Ann Klein’s accounts to June 30, 2015. [ 15 ] There is no credible information that there has been any misfeasance since June 30, 2015 and the claims articulated by Marilynn and Raymond Klein all date back before June 30, 2015.

The claim that Ann Klein’s actions wasted $100,000 of estate assets that were used to pay court-ordered legal fees was a battle lost when Topolniski J passed accounts and awarded Ann Klein an executor’s fee of $8,000. Any claims advanced now are res judicata and barred by the principles of issue estoppel. Describing the claims differently does not change their character. [ 16 ] Ann Klein remains convinced that she has not received the costs awarded in her favour by Nielsen J (as he then was) in April 2014. She has received those costs. Her lawyer explained that to her, and I explained that in my June Direction.

Further litigation is not necessary or appropriate to satisfy Ann Klein in that regard. From my review of the matter, this case does not warrant further judicial intervention, let alone case management as is being pursued by Marilynn Klein and Raymond Klein. [ 17 ] I was initially of the view that the result of this case conference should be that Ann Klein’s claims against Raymond Klein should be dismissed as being statute barred. Further, Marilynn Klein’s and Raymond Klein’s claims against Ann Klein should be dismissed on the bases of res judicata and issue estoppel.

[ 18 ] I am mindful that the Foundational Rules empower a judge to dismiss claims determined to be frivolous or without merit. Rule 1.2(2) provides:

(2) Without limiting subrule (1), and in addition to any specific authority the Court has under these rules, the Court may, unless specifically limited by these rules, do one or more of the following: (

a) grant, refuse or dismiss an application or proceeding; (

b) set aside any process exercised or purportedly exercised under these rules that is (

i) contrary to law, (ii) an abuse of process, or (iii) for an improper purpose; (

c) give orders or directions or make a ruling with respect to an action, application or proceeding, or a related matter; (

d) make a ruling with respect to how or if these rules apply in particular circumstances or to the operation, practice or procedure under these rules; (

e) impose terms, conditions and time limits; (

f) give consent, permission or approval; (

g) give advice, including making proposals, providing guidance, making suggestions and making recommendations; (

h) adjourn or stay all or any part of an action, application or proceeding, extend the time for doing anything in the proceeding, or stay the effect of a judgment or order; (

i) determine whether a judge is or is not seized with an action, application or proceeding; (

j) include any information in a judgment or order that the Court considers necessary. [ 19 ] The Court has for the last few years been dismissing frivolous claims where it determines that a claim is essentially an abuse of the court process. See for example ACJ Rooke’s decision in Unrau v National Dental Examining Board , 2019 ABQB 283 . I subscribe to his comments about the need for a culture shift in civil litigation and to save the Courts and the litigants themselves from frivolous litigation: [512] In

summary, if Judicature Act , ss 23-23.1 only operates where litigation misconduct is ‘persistent’, then I conclude that authority will only capture and restrain, via gatekeeping processes, a subset of abusive litigants for whom court access restrictions are fair, proportionate, and necessary. The Court’s response will be too late. This is a reason why the Court’s inherent jurisdiction should enter, operate, and address this lacuna.

The broader, prospective, litigation management approach to vexatious litigant orders available under this Court’s inherent jurisdiction not only provides a superior methodology to respond to abusive litigation, but is consistent with the “culture shift” mandated by the Supreme Court of Canada. [ 20 ] I am aware that Rule 4.10 (the case conference Rule that commenced the proceedings before me) contemplates procedural orders being the result of the case conference. That is the usual result. However, in my view, remedies for conferences brought under Rule 4.10 are not limited to procedural orders.

In appropriate circumstances, the presiding judge has the full array of remedies available to a superior court judge. I also recognize the need to allow the litigants to respond before any claims or proceedings are struck. That is clear from Lymer v Jonsson , 2016 ABCA 32 . Unilateral action by a judge, without notice to the litigants, especially where it results in a final order, may offend principles of natural justice. Conclusion and Directions [ 21 ] Accordingly, I continue the stay of proceedings in this matter ordered by me on June 25, 2021.

It is unnecessary for Ann Klein to take any further action to pass accounts for the administration period following June 30, 2015. There is no evidence of any significant steps in the administration after that date, other than the passing of accounts in 2017 and ultimate distribution of funds. [ 22 ] No further steps may be taken by either party against the other without my leave, or the leave of the Chief Justice of the Court of Queen’s Bench or her designate. [ 23 ] However, I do permit the parties to make the following applications: 1.

Ann Klein may bring an application to dismiss all claims against her by Marilyn Klein and Raymond Klein as presently advanced on the bases that they are barred by the provisions of Topolniski J’s January 2017 order passing account to June 30, 2015, by principles of res judicata or issue estoppel, or by the operation of the Limitations Act , RSA 2000, C L-12 ; and 2.

Raymond Klein may bring an application to dismiss all claims against him by the Estate of Erna Klein, or by Belinda Ann Klein as administrator of the Estate of Erna Klein, or in her capacity as a beneficiary of that Estate, and do not encourage either side to take any further proceedings. [ 24 ] I do not encourage the parties to continue their disputes in Court. From my extensive review of the Court file from its

beginning, I am satisfied that the parties have nothing to gain by continuing their fight. [ 25 ] But if they choose to do so, these applications will have to be managed so that they can be heard in a single special chambers application with the same judge. I will retain jurisdiction to manage any such applications, but will not hear them myself. [ 26 ] Since the parties are self-represented, I should advise them that this order is binding on them, unless it is set aside or varied by the Alberta Court of Appeal. Any appeal to that Court must be initiated within one month from the date of this Direction and Order.

Dated at Edmonton, Alberta this 27 th day of August, 2021. Justice R.A. Graesser J.C.Q.B.A. Appearances: Raymond Klein and Marilynn Klein Applicants Belinda Ann Klein Respondent