Miller v Alberta (Human Rights Commission), 2021 ABQB 696

Court of Queen’s Bench of Alberta Citation: Miller v Alberta (Human Rights Commission), 2021 ABQB 696 Date: 20210831 Docket: 2003 12659 Registry: Edmonton Between: Glenn D. Miller Plaintiff - and - Alberta Human Rights Commission Defendant _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] On August 14, 2020, Glenn D. Miller (Mr. Miller) filed a Statement of Claim that named the Alberta Human Rights Commission (AHRC) as the Defendant. In brief, Mr.

Miller’s Statement of Claim alleges in 2018 Mr. Miller’s landlord cancelled his housing rental subsidy in a manner that Mr. Miller calls illegal, with the effect of increasing Mr. Miller’s monthly rent. Mr. Miller claims that led to the landlord “wrongfully and illegally” taking $13,000 from Mr. Miller. Mr. Miller states he stopped paying rent in August, 2020.

[ 2 ] Mr. Miller filed an AHRC complaint against his landlord, that the AHRC accepted as AHRC Complaint #N2019/05/0061. Mr. Miller alleges that the AHRC is negligent since the AHRC “... never fulfilled its incumbent duty to accommodate to the expedite the complaints ...” (sic). Mr. Miller also claims that the AHRC failed “... to provide an interim decision to grant me financial relief from the illegal housing subsidy cancellation inflicted by my landlord ...”, and that was a breach of the AHRC’s “duty to accommodate”. [ 3 ] Mr.

Miller concludes: The AHRC has acted with reckless, callous, and wanton disregard and with malicious indifference to my financial hardship and mentally stressed condition. On that basis Mr. Miller demands $300,000 in “... damages for nonfeasance, misfeasance, and malfeasance”, and a written apology by the AHRC Director and Chief posted on the AHRC website. [ 4 ] On June 24, 2021 Counsel for the AHRC wrote the Clerk of the Court to refer Mr. Miller’s Statement of Claim as an Apparently Vexatious Application or Proceeding (AVAP) pursuant to Civil Practice Note No. 7 (CPN7), paragraph 6.

I have received and examined that referral since 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. [ 5 ] AHRC identifies a number of issues with Mr. Miller’s Statement of Claim, including: 1) Alberta Human Rights Act , RSA 2000, c A-25.5 , s 41 prohibits litigation against the AHRC and its staff; 2) the Statement of Claim is a collateral attack against AHRC decisions that relate to Mr. Miller’s dispute with his landlord; 3) Mr.

Miller’s complaints are factually inaccurate, since his complaints were expedited; and 4) Mr. Miller has no basis for damages since his complaint against his landlord was successful. [ 6 ] I have reviewed Mr. Miller’s Statement of Claim and conclude that it is an AVAP because this filing has elements that Courts identify as characteristics of hopeless and abusive proceedings. On that basis, I conclude Mr. Miller’s Statement of Claim should be subject to a CPN7 show-cause document-based review under r 3.68 of the Alberta Rules of Court , AR 124/2010 . That means I have decided that Mr.

Miller must file a Written Submission setting out why his Statement of Claim should not be struck out because it is significantly deficient. II. CPN7 [ 7 ] The Court implemented CPN7 to better manage litigation that, on its face, appears to be unmeritorious, has no chance of success, or is otherwise abusive and vexatious.

CPN7 is intended to provide litigants with a timely, proportionate, and cost-effective response: Unrau v National Dental Examining Board , 2018 ABQB 874 ( Unrau #1 ). [ 8 ] If, on initial review by the Court, an AVAP appears to have no merit, have no prospect of success, or is otherwise abusive and vexatious, then the Court issues a first written decision that identifies the apparent issue or issues that may be a basis to strike out the AVAP under r 3.68 of the Alberta Rules of Court . [ 9 ] The party who filed the AVAP is then given an opportunity to, within 14 days, provide to the Court a Written Submission of up to a total of 10 pages in length that responds to, and demonstrates why, the AVAP is a legitimate action and should be permitted to continue.

The Written Submission must be clearly addressed “To the Attention of” the Justice who initiates the CPN7 process, and must also be served on the other parties to the litigation. [ 10 ] CPN7 is not to be used for “close calls”. The Court only intervenes when the defect(

s) in question are “apparent on the face of the pleading”, and the suspect pleadings are “clearer cases of abuse”: Unrau #1 at paras 22 and 24 . [ 11 ] The Court only considers restricted forms of evidence when it conducts a CPN7 review because this process has a very narrow focus and operates to examine a single document and its content: Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 at paras 24-48 ( Ubah #2 ). There are exceptions to that rule.

For example, the Court may examine other documents in the same proceeding that are related to the suspect filing ( Ubah #2 at para 35 ), or documents and records that are evidence that the AVAP is an attempt to litigate an issue that has already been decided or closed ( Ubah #2 at para 45 ). III. Analysis A. Preliminary Issue - Admissible Evidence [ 12 ] The AHRC’s referral letter references four decisions of that Tribunal and a June 22, 2021 Affidavit of Madiba Turay.

CPN7 is a method to conduct a r 3.68 of the Alberta Rules of Court process, which limits the evidence that may be considered in evaluating the merit of an AVAP. First, evidence concerning whether a “... pleadings is frivolous, irrelevant or improper ...” is excluded by r 3.68(3) of the Alberta Rules of Court . Second, CPN7 is a process that focusses only on the content and substance of a specific document, with narrow exceptions: Ubah #2 at paras 24-48 . [ 13 ] After review of Ms. Turay’s Affidavit, I conclude that most of that document is inadmissible since most exhibits are communications between Mr.

Miller and various individuals. These items could be relevant to the question of whether Mr. Miller is

conducting his litigation in an abusive manner, but that type of evidence is not admissible to a CPN7 process, given r 3.68(3) of theAlberta Rules of Court. Litigation conduct evidence is also not relevant to the question of whether Mr. Miller’s Statement of Claim is anabuse of the Court. [14] However, the four AHRC decisions identified as potentially targets of collateral attack by Mr. Miller’s lawsuit are relevant tothe question of whether Mr. Miller has engaged in re-litigation, which would make his Statement of Claim an abuse of the Court and itsprocesses. I have therefore reviewed these four decisions. B.

Hopeless Proceeding [15] Alberta Human Rights Act, s 41 reads: No action lies against a member of the Commission or any person referred to in

section 18 for anything done or not done by that personin good faith while purporting to act under this Act. Persons referred to in

section 18 are the Director of the AHRC, and “any employees ... necessary for the purpose of administration of thisAct”. [16] Paragraph 8 of the Statement of Claim explicitly assigns blame. Mr. Miller says the alleged failure to accommodate “... issquarely in the purview of AHRC Director Nancy Henderson ...” and “... continues with the failure of Chief of the Commission andTribunals Michael Gottheil ...”. [17] Mr. Miller is requested to explain how his Statement of Claim is not hopeless in light of the statutory immunity imposed bythe Legislature via Alberta Human Rights Act, ss 18, 41. C.

Collateral Attack [18] A collateral attack is a litigation step or proceeding that challenges, directly or indirectly, a prior court decision or result.Collateral attacks are generally prohibited and an abuse of process: British Columbia (Workers’ Compensation Board) v Figliola, 2011SCC 52 at para 28. Collateral attacks subvert “the orderly and functional administration of justice”: Dagenais v Canadian BroadcastingCorp, (SCC), [1994] 3 SCR 835 at 871, 120 DLR (4th) 12.

Any action or application that is identified as a collateralattack should be terminated, immediately: Alberta v Pocklington Foods Inc, 1995 ABCA 111 at para 14. [19] Examples of prohibited collateral attacks include: 1) bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction; 2) using previously raised grounds and issues improperly in a subsequent proceeding; 3) conducting a proceeding to circumvent the effect of a Court Order; and 4) conducting multiple proceedings with the same litigation objective. (Unrau v National Dental Examining Board, 2019 ABQB 283 at 619 (Unrau #2).) [20] Counsel for the AHRC has identified four AHRC decisions that are potentially relevant to the question of whether Mr.

Milleris re-litigating issues: Miller v Capital Management Ltd, 2020 AHRC 25: the AHRC provided a decision that addressed procedural issues, including admissionof affidavit evidence, witness appearances, and conduct of the impending hearing. Miller v Capital Management Ltd, 2020 AHRC 60: the Tribunal rejected Mr. Miller’s applications to refer a question of law to theAlberta Court of Queen’s Bench, to award interim damages, and that the Director of the AHRC is removed from the complaint becausethe Director has discriminated against Mr. Miller.

The Tribunal addressed additional witness, document, and scheduling issues. Miller v Capital Management Ltd, 2020 AHRC 78: Mr. Miller unsuccessfully demands the Tribunal member recuse herself as biasedfor not granting Mr. Miller’s Miller v Capital Management Ltd, 2020 AHRC 60 applications. Miller v Capital Management Ltd, 2021 AHRC 38: The Tribunal ruled that Mr. Miller’s landlord had discriminated against Mr. Millerwhen it raised his rent and cancelled his rent subsidy agreement, but rejected Mr. Miller’s allegation that the landlord had retaliatedagainst him. Mr.

Miller was awarded $20,000 in general damages, and $17,500 as the value of the denied rent subsidy between 2018 and2021. Mr. Miller did not challenge the outcomes of these four Decisions. [21] Certain of Mr. Miller’s allegations in his Statement of Claim appear to re-litigate issues raised in the four AHRC proceedings.Mr. Miller alleges he was the subject of retaliation by his landlord. That is contrary to the Tribunal finding in Miller v CapitalManagement Ltd, 2021 AHRC 38. Similarly, Mr.

Miller’s Statement of Claim complains that AHRC wrongly failed to grant him interimfinancial relief, which appears to collaterally attack Miller v Capital Management Ltd, 2020 AHRC 60. That issue was also raised,secondarily, when Mr. Miller’s allegations of bias were rejected in Miller v Capital Management Ltd, 2020 AHRC 78. [22] Beyond that, Mr. Miller was successful in his AHRC complaint proceeding against his landlord. Mr. Miller’s Statement ofClaim complaint is, ultimately, that he was seriously mistreated by the AHRC in the resolution of that dispute - whose result was in his

favour - and that outcome was after the Tribunal had reviewed and rejected Mr. Miller’s complaints about conduct of that proceeding. [23] Mr. Miller is requested to explain how his Statement of Claim is not a collateral attack on the AHRC proceedings and theirfindings. D. Inadequate Pleadings [24] An Application or Statement of Claim sets the issues to which the opposing party must respond, and alerts that party of thecase 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), 2015FCA 227 at paras 16-20. Pleadings must provide a basis for the Court and other litigants to make a meaningful response, and indicate tothe responding parties the “... who, when, where, how and what gave rise to its liability.”: Mancuso v Canada (National Health andWelfare) at para 19, see also Quaye v Law Society of Alberta, 2021 ABCA 167 at para 13. [25] Mr.

Miller cannot file inadequate pleadings and then either supplement those claims, or expect the Defendants to “fill in theblanks”: Mancuso v Canada (National Health and Welfare) at para 20. A lack of specificity is not merely a technical defect, but goes tothe core of the claim: GH v Alcock at para 58, citing AL v Ontario (Minister of Community and Social Services) (2006), (ON CA), 274 DLR (4th) 431, 218 OAC 150 (Ont CA).

Inadequate pleadings abuse the Court’s process because a respondentcannot defend against unclear and non-specific claims and the Court cannot control the proceedings, identify the proposed argument, ormake findings on the relevant facts: Unrau #2 at para 629. [26] Certain aspects of Mr. Miller’s pleadings are clear. Others are not, and, instead, certain of Mr. Miller’s allegations appear tobe bald unparticularized pleadings. For example, Mr. Miller at paragraph 9 of the Statement of Claim claims the AHRC’s actions were“reckless, callous, and wanton disregard”, but provides no basis for that. At most, Mr.

Miller alleges delay in his complaints, and callsthat “negligent”. Mr. Miller in paragraph 9 also calls the AHRC misconduct “malicious”, with no obvious basis to ground a claim ofmalice. As noted above, Mr. Miller specifically blames Nancy Henderson and Michael Gottheil, but makes nothing but bald allegationsagainst either individual. [27] Mr. Miller provides no basis at all for why he has suffered injury that merits a $300,000 award, except for unparticularizedclaims of “financial hardship” and that Mr. Miller was “mentally stressed”. Mr.

Miller at most complains of $13,000 in “illegal” rentpayments, but that omits that, in Miller v Capital Management Ltd, 2021 AHRC 38, Mr. Miller ultimately received nearly three timesthat amount as the result of AHRC proceedings that Mr. Miller complains were “reckless”, “callous”, and “malicious”. Mr. Miller claimsa large sum for “nonfeasance, misfeasance, and malfeasance”, and provides no bases for these claims. [28] Mr. Miller is requested to explain how his pleadings provide an adequate basis for the Court and Defendant to make ameaningful response to his Statement of Claim. E.

Failure to Exhaust Alternative Remedies [29] Alberta Human Rights Act, s 35 provides how a decision of the AHRC may be subject to Court review: A decision of the Chief of the Commission and Tribunals or another member of the Commission under section 26(3)(

a) is final andbinding on the parties, subject to a party’s right to judicial review of the decision. [30] Mr. Miller’s complaints are clearly directed at the AHRC and its decisions, and, specifically, two of AHRC officials: DirectorNancy Henderson and Chief of the Commission and Tribunals Michael Gottheil. [31] Pursuing a civil lawsuit without first exhausting the administrative regime is an abuse of process and the Court: Al-Ghamdi vAlberta, 2017 ABQB 684 at paras 126-128, aff’d 2020 ABCA 81, leave to appeal to SCC refused, 39389 (25 February 2021). [32] Mr.

Miller is requested to explain why his Statement of Claim is not an abuse of the Court by failing to exhaust Mr. Miller’sjudicial review remedy for what Mr. Miller says was improper conduct by the AHRC and its officials. F. Excessive or Impossible Remedies [33] Excessive or impossible remedies make litigation a hopeless proceeding that is an abuse of the Court: Unrau #2 at paras 620-625. As I have previously indicated, Mr. Miller’s Statement of Claim seeks $300,000, which he calls “damages”. Mr. Miller hasprovided no basis at all for that amount. Instead, the only clearly identified illegality and harm that Mr.

Miller reports in the Statement ofClaim is much less than the amount Mr. Miller received in Miller v Capital Management Ltd, 2021 AHRC 38. [34] To the limited extent that Mr. Miller’s damage claim has a discernable basis, it appears Mr. Miller has no real financial loss-based claim given the award in Miller v Capital Management Ltd, 2021 AHRC 38. That leaves Mr. Miller was “mentally stressed”, ageneral damages claim. The maximum amount of general damages that may be claimed for pain and suffering was set in Andrews vGrand & Toy Alberta Ltd, (SCC), [1978] 2 SCR 229, 83 DLR (3d) 452 at $100,000.

After inflation, the Andrews vGrand & Toy Alberta Ltd general damages cap is now about $365,000. That amount was for a young adult whose injuries led to neartotal disability. Mr. Miller’s claim nearly reaches that cap. Mr. Miller does not allege injury that would warrant the near maximum$365,000 amount, but, instead, his Statement of Claim only makes bald allegations he was “mentally stressed”. [35] Mr. Miller is requested to explain why the $300,000 “damages” award sought in his Statement of Claim is not excessive orimpossible.

IV. Conclusion [ 36 ] Mr. Miller’s Statement of Claim appears to be a suitable AVAP candidate for review pursuant to CPN7. The Court requests Mr. Miller respond to five questions: 1) Why is any claim by Mr. Miller against the AHRC not prohibited by Alberta Human Rights Act , ss 18, 41? 2) Why is the Statement of Claim not a collateral attack on unchallenged decisions of the AHRC? 3) How does the Statement of Claim provide an adequate basis for the Court and Defendant to make a meaningful response? 4) Why is the Statement of Claim not an abuse of the Court because Mr.

Miller had an alternative judicial review remedy? 5) How is the remedy sought in the Statement of Claim not excessive or impossible? [ 37 ] CPN7 now advances to its second step. This step consists entirely of written submissions; there will be no Court appearances or oral argument. The next steps are: 1) Mr. Miller has 14 days to prepare a Written Submission of no more than a total of 10 pages, to be filed and served, as described in para 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 of Claim 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. Miller provides and serves a Written Submission, then the Defendant has seven days to file and serve a Written Reply of up to 10 pages in length (see CPN7, para 3(d)).

The Written Reply must be clearly addressed “To the Attention of Associate Chief Justice K.G. Nielsen”. 4) After the Court receives Mr. Miller’s Written Submission and the Defendant’s Written Reply, if any, the Court will make its final decision 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 (see CPN7, para 3(e)). [ 38 ] Court of Queen’s Bench of Alberta Action No. 2003 12659 is stayed until further notice. The Court will prepare and serve an Interim Order staying this action (see CPN7, para 7). Mr.

Miller’s approval of the Interim 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 31 st day of August, 2021. K.G. Nielsen A.C.J.C.Q.B.A. Appearances: Scott Matheson Field Law for the Alberta Human Rights Commission