Berman v, 2022 ABKB 701

Court of King’s Bench of Alberta Citation: Berman v 905953 Alberta Ltd, 2022 ABKB 701 Date: 20221021 Dockets: 1901 13773, 4801 169252 Registry: Calgary Between: Docket 1901 13773 Stephanie Joy Berman Applicant/Plaintiff - and - 905953 Alberta Ltd, and Boulevard Investments Corp, Richard Bland Berman, and Harold Sicherman Respondents/Defendants And between: Docket 4801 169252 Stephanie Joy Berman Applicant/Plaintiff - and - Richard Daniel Bland Berman, 905953 Alberta Ltd, and Boulevard Investments Corp. Respondents/Defendants

_______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ [ 1 ] On October 6, 2022, Counsel for Richard Daniel Bland Berman, 905953 Alberta Ltd, and Boulevard Investments (Responding Parties) referred two documents for review as candidate Apparently Vexatious Applications or Proceedings (AVAPs) pursuant to Civil Practice Note No. 7 (CPN7), paragraph 6: 1) an “Application” by Stephanie Joy Berman (Ms.

Berman) in the Court of King’s Bench of Alberta Action No. 1901 13773 and Action No. 4801 169252, scheduled to be heard on November 7, 2022 (Application); and 2) a “Notice to Attend Family Docket Court” in the Court of King’s Bench of Alberta Action No. 4801 169252, scheduled to be heard on November 1, 2022 (Notice). [ 2 ] Paragraph 1 of the Application states these filings are adjuncts to other pre-scheduled contempt and oppression applications in the Action No. 1901 13773 and Action No. 4801 169252 proceedings, apparently to be heard the same day.

The AVAPs are further contempt Applications, and, among other things, seek to disqualify the Responding Parties’ Counsel, direct questioning, transfer shares, a fine, and that the Court order elevated costs. [ 3 ] The correspondence from Counsel for the Responding Parties also included several emails. These documents are not within the very limited permitted categories of external non-filing documents that are considered during a CPN7 proceeding: Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 at paras 24-48 .

I have therefore disregarded the emails. [ 4 ] The CPN7 referral is rejected on three bases. [ 5 ] First, the referral letter claims that the Application is “similar” to a prior rejected Application. However, I have not been provided admissible documentation that establishes re-litigation has occurred. [ 6 ] Second, CPN7 is a very limited scope process that targets filings that are “clearer cases of abuse”: Unrau v National Dental Examining Board , 2018 ABQB 874 .

As CPN7 is a mechanism to conduct a r 3.68 of the Alberta Rules of Court , Alta Reg 124/2010 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 ). The Application provides detailed allegations of a type that are not suitable for CPN7 review. [ 7 ] Third, CPN7 is a process the Court adopted to enhance litigation efficiency.

The AVAPs are related to other ongoing litigation processes. I further note that Justice Labrenz appears to be familiar with and has seized himself of at least some aspects of this litigation: Berman v 905952 Alberta Ltd , 2021 ABQB 434 at para 181 . In this circumstance, a separate document-based CPN7 show cause procedure does not promise litigation efficiency, but, instead, risks fragmenting ongoing court processes in a piecemeal manner. [ 8 ] I, therefore, reject this CPN7 referral.

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 Application or the Notice. 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. [ 9 ] No costs will result from this Memorandum of Decision. Dated at the City of Edmonton, Alberta this 21 st day of October, 2022. K.G. Nielsen A.C.J.C.K.B.A.

Appearances by Submissions: Paul M. LeClair Mergen Law LLP for the Defendants/Respondents Richard Daniel Bland Berman, 905953 Alberta Ltd, Boulevard Investments Corp, Paul M. Leclair, Mergen Law LLP