Stratkotter v Reitsma, 2022 ABKB 689

Court of King’s Bench of Alberta Citation: Stratkotter v Reitsma, 2022 ABKB 689 Date: 20221019 Dockets: 2101 06662, 2101 11946 Registry: Calgary Between: Docket: 2101 06662 Lorraine Stratkotter Plaintiff - and - Jeffery James Reitsma, Maria Rigura, Michael Peter Slawnych, Michael Hill, Shelagh Coutts, Anand Joshi, Illas Mylonas, Aaron Spooner, David Holloway, Scott McClure, Adrian Harvey, Timothy Pyra, Craig Domka, Alanna Dunn, Roseanne Yeung, Heidi Choi, Katrin Resch, Randal MacDonald, Waleed Alhumaid, Michael Chui, Bushra Muzammal, Nowell Fine, Jaques Rizhallah, Alysha Rasool, Payam Pournazari, Jenny Gu, Derrick Randall, Mouhieddin Traboulsi, Paul Fedak, John James Patrick Kelly, Nathalie Saad, Amita Mahajan, Claire Campion Wright, Karmon Helmle, Evan Jost, Jessica Patzer, Imtiaz Ali, Ganesh Shanmugam, Teresa Kieser, Tania Pannu, Haleh Peiravi, Alberta Health Services owning and operating the University of Alberta Hospital, Alberta Health Services owning and operating the Foothills Hospital, and Alberta Health Services owning and operating the Peter Lougheed Hospital, John Doe I, John Doe II Defendants And between: Docket: 2101 11946 Lorraine Stratkotter Plaintiff - and - Clarissa Wallace, Ellen Toth, Richard Lewanczuk, Kerry Simonoski, David Hanley, Lois Donovan, Caitlain Sinclair, Ralf Paschke, Alberta Health Services, John Doe I, John Doe II Defendants

_______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ [ 1 ] On October 6, 2022, Counsel for many of the Defendants, who are medical doctors, in two lawsuits filed by Lorraine Stratkotter (Ms.

Stratkotter), referred two filings as candidate Apparently Vexatious Applications or Proceedings (AVAPs) pursuant to Civil Practice Note No. 7 (CPN7), paragraph 6: • Stratkotter v Reitsma , Court of King’s Bench of Alberta Action No. 2101 06662 Amended Statement of Claim • Stratkotter v Wallace , Court of King’s Bench of Alberta Action No. 2101 11946 Amended Statement of Claim [ 2 ] Briefly, these filings allege medical malpractice claims against the named Defendants.

The referral letter also attached: 1) the Procedure Cards for each matter; 2) the Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 ( Ubah #4 ) Memorandum of Decision; 3) a March 18, 2018 Order of Applications Judge Schulz in Stratkotter v Catholic Archdiocese of Edmonton, Court of King’s Bench of Alberta Action No. 1403 07172 that dismisses that lawsuit, pursuant to r 4.33 of the Alberta Rules of Court , Alta Reg 124/2010 ; 4) the Stratkotter v Canada , 2020 ABQB 768 and Stratkotter v Canada , 2021 ABQB 45 Memorandums of Decision ( Stratkotter #1 and #2 ) that strike out another lawsuit by Ms.

Stratkotter pursuant to CPN7; and 5) a May 16, 2022 Order of Applications Judge Mattis in the Stratkotter v Reitsma proceeding that extends the time to serve the Statement of Claim. [ 3 ] I have reviewed the materials provided by Counsel for the Defendant physicians, and conclude this CPN7 referral should be rejected. CPN7 is a narrow, document-focused review of a single filed pleading, such as a Statement of Claim, an Originating Application, an Appeal, or an Application: Unrau v National Dental Examining Board , 2018 ABQB 874 ( Unrau #1 ); Ubah #4 .

CPN7 is a streamlined process to evaluate the merit of a court filing by r 3.68 of the Alberta Rules of Court , where a prima facie fatal defect is “apparent on the face of the pleading”, and where the referred pleading is a “clearer case of abuse”: Unrau #1 .

As CPN7 is a mechanism to conduct a process pursuant to r 3.68 of the Alberta Rules of Court , claims about the factual merit of proceedings is prohibited by: 1) r 3.68 of the Alberta Rules of Court ; and 2) generally, the principle that, in a r 3.68(3) of the Alberta Rules of Court process, alleged facts are presumed to be true ( R v Imperial Tobacco Canada Ltd , 2011 SCC 42 at para 17 ), with the narrow exception where allegations are absurd, highly implausible, or hyperbole: Arabi v Alberta , 2014 ABQB 295 at paras 74-78 ; VWW v Wasylyshen , 2013 ABQB 327 at para 52 , leave refused 2014 ABCA 121 . [ 4 ] While the Stratkotter #1 and #2 Memorandums of Decision may have some relation to the Amended Statements of Claim in Action No. 2101 06662 and Action No. 2101 11946, these are not “clearer cases” of a collateral attack.

Further, in Dous v Viskat Tubular Technologies Inc , 2022 ABQB 395 at para 6 , Associate Chief Justice Rooke concluded that limitations period defences are usually incompatible with CPN7 review: ... in most instances a limitations-based claim is not a basis for a CPN7 review for several reasons: 1. Because whether a limitations period applies or not involves evidence, and evidence is excluded during Rule 3.68 processes. A limitations argument is usually better pursued via a Rule 7.2-7.3

summary judgment application. 2. The Limitations Act operates as a defence where: “... the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim.”: Limitations Act , s 3. Thus, while Mr. Taylor may have a basis to challenge the proposed Amended Amended Statement of Claim, that is by Mr. Taylor introducing and pursuing this defence. Again, issues of this type are better accomplished under Rules 7.2-7.3.

[ 5 ] I, therefore, reject the CPN7 referral of the Amended Statements of Claim in Action No. 2101 06662 and Action No. 2101 11946. To be explicit, my drawing that conclusion is not a finding of fact and/or law concerning the potential merit (or lack of merit) of the Amended Statements of Claim in Action No. 2101 06662 or Action No. 2101 11946.

Those pleadings may be subject to other forms of challenge under the Alberta Rules of Court , so this CPN7 paragraph 6 referral rejection does not affect other litigation steps, including a r 3.68 of the Alberta Rules of Court application conducted by a formal application. [ 6 ] In the referral letter, Counsel for the Defendant physicians also sought an Order that prohibits Ms. Stratkotter from “any further applications” concerning certain Defendants in Action No. 2101 06662 and Action No. 2101 11946, except with leave of the Court.

In Jonsson v Lymer , 2020 ABCA 167 , Slatter JA ruled that this Court only possesses a residual inherent jurisdiction to impose prospective litigant gatekeeping steps on persons appearing before the Court of King’s Bench of Alberta. Thus, if the Defendant physicians seek to have the identified court access restrictions imposed on Ms. Stratkotter, they should make an application under Judicature Act , RSA 2000, c J-2 ss 23-23.1. [ 7 ] No costs will result from this Memorandum of Decision. Ms.

Stratkotter shall be served this Memorandum of Decision to the email address on her Amended Statements of Claim: familyfirst@live.ca. Dated at the City of Edmonton, Alberta this 19 th day of October, 2022. K.G. Nielsen A.C.J.C.K.B.A. Appearances by submissions: Andrea L.

Froese Bennett Jones LLP for the Defendants Heidi Choi, Michael Chiu, Shelagh Coutts, Craig Domke, Lois Donovan, Alanna Dunn, Paul Fedak, Maria Figura, Nowell Fine, Jenny Gu, David Hanley, Adrian Harvey, Karmon Helmle, Michael Hill, Daniel Holloway, Anand Joshi, Evan Jost, John James Kelly, William Kidd, Teresa Kieser, David Lewanczuk, Randal MacDonald, Amita Mahajan, Scott McClure, Bushra Muzammal, Ilias Mylonas, Tania Pannu, Ralf Paschke, Haleh Peiravi, Payam Pournazari, Timothy Pyra, Derrick Randall, Jeffrey Reitsma, Katrin Resch, Jacques Rizkallah, Nathalie Saad, Ganesh Shanmugam, Caitlin Sinclair, Michael Slawnych, Aaron Spooner, Mouhieddin Traboulsi, Clarissa Wallace, Claire Campion Wright, Roseanne Yeung