Pan v Standard (Village), 2022 ABKB 719

Court of King’s Bench of Alberta Citation: Pan v Standard (Village), 2022 ABKB 719 Date: 20221028 Docket: 2202 00016 Registry: Drumheller Between: Peter Zhenguo Pan, Standard Hotel, Sunny Investment Group Inc Plaintiffs - and - The Office of Village of Standard Defendant _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] On April 4, 2022, Peter Zhenguo Pan (Mr.

Pan) and the Standard Hotel and Sunny Investment Group Inc filed a Statement of Claim that names “The Office of Village of Standard” as the Defendant. The Statement of Claim states that Mr. Pan is the owner of the Standard Hotel, and the president and owner of the Sunny Investment Group Inc. The Plantiffs are not represented by a lawyer. In this Memorandum of Decision, I will therefore generally refer to Mr. Pan as the active party directing this litigation.

[ 2 ] On May 9, 2022, Counsel for the Defendant, correctly named the Village of Standard (Village), filed with the Court a “Desk Application” that requested review of the Statement of Claim as a candidate Apparently Vexatious Application or Proceedings (AVAP) pursuant to Civil Practice Note No. 7 (CPN7) paragraph 6.

The Desk Application indicates the basis for the referral is “... the allegations are without merit, previously litigated, and many would be limitations barred.” [ 3 ] This CPN7 referral was first in June 2022 assigned to Justice Price as a desk matter, then referred to Associate Chief Justice Rooke, who is the administrative justice assigned to receive and review CPN7 processes in southern Alberta. [ 4 ] Associate Chief Justice Rooke on August 23, 2022 wrote to Counsel for the Village to request CPN7-compliant materials to evaluate the referral’s claim that the Statement of Claim was re-litigation of earlier proceedings, pursuant to the kinds of materials that are permitted - and in this case necessary - to evaluate the CPN7 referral ( Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 at paras 24-48 ). [ 5 ] On September 10, 2022, the Office of Associate Chief Justice Rooke received the following documents from Counsel for the Village: • Peter Pan v Village of Standard , Alberta Human Rights Commission (AHRC) File No.

S2015/08/0137 ( First AHRC Complaint ): o Mr. Pan’s Complaint against the Village, and other related documents, in a packet dated August 13, 2015; o the Village’s “Respondent’s Response Form”, dated September 17, 2015; o Notice of Dismissal dated December 23, 2015; and o Decision dated March 23, 2016, confirming the August 12, 2015 Dismissal, and refusing that Mr. Pan’s complaint proceed to a hearing. • Peter Zhen Guo Pan v Village of Standard , AHRC File No. S2021/05/0056 ( Second AHRC Complaint ): o Mr.

Pan’s second Complaint against the Village, and other related documents, in a packet dated May 6, 2021; o A June 18, 2021 letter from Counsel for the Village with the Village’s response to Mr.

Pan’s complaint; and o A June 23, 2021 letter from the AHRC instructing that the next step in the Second AHRC Complaint is conciliation. • A December 9, 2021 Judgment of Labrenz J of this Court, in Sunny Investment Group Inc v Village of Standard , Action No. 2002 00081, that concluded the Village is the legal and beneficial owner of a “mobile house” or “skid-shack” seized from the property of Sunny Investment Group Inc. on August 2, 2017; $1,950 shall be added to the Standard Hotel’s property taxes owed to the Village; and Sunny Investment Group Inc shall pay double

Schedule C costs. [ 6 ] The Statement of Claim makes a complex set of allegations. However, as I understand the Statement of Claim, Mr. Pan says that for ten years he has been treated in an inappropriate and discriminatory manner. Mr. Pan, his family, and his business has been harassed and abused by the Village. On that basis Mr. Pan seeks: ... two million dollars ($2,000,000.00) for the damages to his personal, familial, mental, and physical health and wellbeing, as well as for the damages of his business suffered. ... (Emphasis in original, sic.) [ 7 ] Mr. Pan grounds his allegations on racial discrimination.

He is the “... only Asian family in this village of Danish community ...”. In 2012 Mr. Pan purchased the Standard Hotel, in the Village. He says since then he has been the target of “... discrimination of SMALL-TOWN POLITICAL ISSUES ...” that targetted him and his business. These claims include: 1) illegally dumping snow on Mr.

Pan’s properties; 2) refusing to designate the Standard Hotel as a historical site; 3) unfair and/or inappropriate property taxation; 4) unnecessary and harassing inspections, including health, construction, safety code, and liquor sales inspections; 5) complaints about food prepared by Mr. Pan in the hotel dining facilities; 6) clandestine campaigns to induce people to not use the hotel and its services; 7) unfair and/or illegal competition with Mr. Pan’s businesses, that includes:

a) the Village selling liquor in the community hall on certain dates;

b) the Village “convinced” someone to set up another competing restaurant business, and also “convinced” the local grocery story to sell take out lunches, and Mr. Pan notes the persons who own and/or operate these competing businesses are Village officials;

c) the mayor inducing a breach of a tenant’s contract by providing cheaper rent; 8) the Village illegally removed a vending machine that Mr. Pan was using to block a damaged entrance to the hotel; 9) Mr. Pan was blocked from using a local area Facebook page for several years;

10) the Village does not promote and advertise Mr. Pan’s businesses, despite their important economic and tax role in the Village; 11) when Mr. Pan attempted to sell the Standard Hotel, that effort was frustrated by “the legal harassment” by the Village, and due toprior events; and 12) a dispute centered on a structure that Mr. Pan calls a mobile home, and that the Village called a skid shack, discussed in moredetail below. [8] In addition, Mr.

Pan explains that he has taken many good-faith steps as a resident of the Village, attempting to promotesteps inside and outside Canada that would benefit the Village, such as projects to have the hotel designated as a historical site,agricultural projects in coordination with Alberta Agriculture, artistic events, social events, and even a “Miniature Andersen Fairy-taleMuseum Park”. Despite all that, Mr. Pan reports the mistreatment and discrimination he has received continues.

When he raises theseissues with the Village and its elected officials, the correspondence he receives in return is inadequate. [9] I have received and examined the Village’s referral since I am a judge assigned to review AVAPs filed in the Court ofKing’s Bench of Alberta.

CPN7 is reviewable on-line at https://www.albertacourts.ca/qb/areas-of-law/civil/practice-notes. [10] I have reviewed the Statement of Claim, and the materials provide by Counsel for the Village, and conclude that theStatement of Claim is an AVAP because the Statement of Claim has elements that Courts identify as characteristics of hopeless andabusive proceedings. On that basis, I conclude the Statement of Claim should be subject to a CPN7 show-cause document-based reviewunder r 3.68 of the Alberta Rules of Court, AR 124/2010. That means I have decided that Mr.

Pan must file a Written Submission settingout why the Statement of Claim should not be struck out because it is significantly deficient. II. CPN7 [11] 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). [12] 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. [13] 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. [14] 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. [15] 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 [16] The Statement of Claim appears to exhibit a number of issues. A.

Collateral Attack and Duplicate Proceedings [17] 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. [18] 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 para 61 (Unrau #2)).

[19] A related form of litigation misconduct is that conducting duplicate proceedings is an abuse of Court processes: Unrau #2 atpara 613; Piers v Proudman, 2021 ABQB 253 at para 20, litigation struck out by CPN7, 2021 ABQB 349; Ellis v Szawlowski, 2021ABQB 103 at para 13, litigation struck out by CPN7, 2021 ABQB 164; Joshi v Saskatchewan, 2021 ABQB 240 at paras 19, 22,litigation struck out by CPN7, 2021 ABQB 317; Ashraf v Munn, 2021 ABQB 407 at para 13, litigation struck out by CPN7, 2021ABQB 472 at paras 23-30; Selim v Greystone Residential Management Corp, 2021 ABQB 1000 at paras 21-22, litigation struck out byCPN7, 2022 ABQB 59; John v Alberta, 2022 ABQB 193 at paras 33-34, litigation struck out by CPN7, 2022 ABQB 272; Simonovic vShandro, 2022 ABQB 433 at para 26, litigation struck out by CPN7, 2022 ABQB 481; Harrison v McClelland, 2022 ABQB 547 atparas 21-24, litigation struck out by CPN7, 2022 ABQB 589; Perez v Maintenance Enforcement Program, 2022 ABKB 625 at paras25-27, litigation struck out by CPN7, 2022 ABQB 675 , 2022 ABKB 675. [20] The complaints and discrimination alleged by Mr.

Pan in the First AHRC Complaint appear to broadly duplicate some of theallegations in the Statement of Claim. In the First AHRC Complaint, Mr. Pan alleged he is mistreated and discriminated against becauseof his Chinese/Asian ancestry. Examples of that discrimination identified by the First AHRC Complaint March 23, 2016 decisioninclude: 1) denial of permits; 2) criticism of a burger served by the hotel’s restaurant; 3) unnecessary inspections; 4) opening competing businesses; 5) not declaring the Standard Hotel a historical site; and 6) failure to promote and advertise Mr.

Pan’s business. [21] The AHRC first dismissed Mr. Pan’s complaint in a preliminary review, in a decision issued on December 23, 2015. Mr. Panthen sought a review. That resulted in the First AHRC Complaint March 23, 2016 Decision, in which the Commission Memberconcluded that the documentary records and information provided by the Village confirmed that “... there is no reasonable basis for thecomplaint to proceed to a hearing.” The March 23, 2016 letter from AHRC that accompanied the March 23, 2016 Decision explicitlystates that if Mr. Pan disagrees with the AHRC’s conclusions, then Mr.

Pan should initiate a judicial review before the Court of King’s(then Queen’

s) Bench of Alberta. [22] Mr. Pan submitted his Second AHRC Complaint in May 2021. As I understand the situation, the Second AHRC Complaintprocess is currently underway. The Second AHRC Complaint documents provided by the Village indicate Mr. Pan is complaining that heis being discriminated against on the basis of age, colour, place of origin, and race, specifically, “... discrimination, that related tominority race. I am the only Asian in this community. ...”. Some of the complaints listed in Mr.

Pan’s Second AHRC Complaint include: 1) the Village removing a vending machine from the entrance to the hotel; 2) abusive and harassing inspections; 3) claims that a former mayor “... was a king in my bar ...” and ordered Mr. Pan to engage in illegal actions; 4) the Village made Mr.

Pan pay for an unnecessary building permit; 5) the Village refused to designate the Standard Hotel a historical site; 6) a former mayor criticized a burger served by the hotel’s restaurant; 7) a former mayor “... called everyone in the village, told them not to come to my bar, he tried to destroy my business. ...”; 8) the Village dumped snow on Mr. Pan’s properties; 9) “the Village sent two minors to my bar, then reported to the RCMP accusing me to serve the alcohol ...” (sic); 10) Mr.

Pan and his business were removed from a Facebook community; and 11) the Standard Hotel is not described and advertised on the Village’s website. [23] The complaints in the First AHRC Complaint and Second AHRC Complaint appear to overlap with and/or duplicate those inthe Statement of Claim. I direct Mr. Pan to explain why the Statement of Claim is not a collateral attack on the First AHRC Complaint,since Mr. Pan did not pursue judicial review of the outcome of the First AHRC Complaint. I also direct Mr.

Pan to explain how theStatement of Claim is not a duplicate proceeding of the Second AHRC Complaint. [24] The Statement of Claim describes a dispute between Mr. Pan and the Village concerning a mobile structure that was at onepoint located on Mr. Pan’s property. This item is described and discussed in both the Statement of Claim and the AHRC Complaints. TheVillage calls this an “skid shack” or “ATCO Trailer”, while Mr. Pan refers to this as a “mobile home”. Regardless of the name of thisobject, what is undisputed is that the mobile structure was seized by the Village from Mr.

Pan’s property, and subsequently there was alengthy dispute about the status of the mobile structure, and potential tax and expense implications of that structure. [25] The available record makes clear that the mobile structure and legal and tax implications of the mobile structure were thesubject of the Sunny Investment Group Inc v Village of Standard, Action No. 2002 00081 lawsuit. The December 9, 2021 Judgment ofLabrenz J appears to resolve the status of the mobile structure, and tax and fee implications of the dispute between Mr. Pan’s business

and the Village. If Mr. Pan disagreed with the outcome of that proceeding, then Mr. Pan’s remedy is to appeal that decision to the Courtof Appeal of Alberta. [26] Mr. Pan is directed to explain why the Statement of Claim is not a collateral attack on the Sunny Investment Group Inc vVillage of Standard, Action No. 2002 00081, December 9, 2021 Judgment. B. No Jurisdiction Over Human Rights Complaints [27] The complaints by Mr. Pan in the Statement of Claim are explicitly that he has been discriminated against by the Village, andthat has had adverse effects. He is the only Asian in Standard, and Mr.

Pan says his unfavourable interactions with the Village are aproduct of racial bias. [28] Civil claims that are based on discriminatory conduct are not within this Court’s jurisdiction because that jurisdiction wasdisplaced by legislation that makes the AHRC the proper forum for complaints of this kind: Seneca College v Bhadauria, (SCC), [1981] 2 SCR 181, 124 DLR (3d) 19; Hamilton v Rocky View School Division No 41, 2009 ABQB 225 at paras 23-24, 192CRR (2d) 22, aff’d 2010 ABCA 217, 487 AR 66, leave to appeal to SCC refused, 34151 (18 August 2011); Ubah v Canadian NaturalResources Limited, 2019 ABQB 155 at paras 21-23, litigation struck out by CPN7, 2019 ABQB 347. [29] I direct Mr.

Pan to explain how this Court has jurisdiction over Mr. Pan’s complaints. C. Inadequate Pleadings [30] Mr. Pan’s Statement of Claim does not appear to provide adequate pleadings. An Application or Statement of Claim sets theissues to which the opposing party must respond, and alerts that party of the case it must meet: Whiten v Pilot Insurance Co, 2002 SCC18 at para 87. Proper pleadings require more than simply bare assertions, or “bald allegations” of wrongdoing: GH v Alcock, 2013ABCA 24 at para 58; Mancuso v Canada (National Health and Welfare), 2015 FCA 227 at paras 16-20.

Pleadings must provide a basisfor the Court and other litigants to make a meaningful response, and indicate to the responding parties the “... who, when, where, howand what gave rise to its liability.”: Mancuso v Canada (National Health and Welfare) at para 19. [31] Mr. Pan 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 v National Dental Examining Board, 2019 ABQB 283 at para 629. [32] Some of what Mr.

Pan indicates is very specific, particularly his complaints concerning the municipal and Court processesthat involved the mobile structure. However, other claims are bald allegations, or omit necessary elements to understand what Mr. Panclaims. For example, Mr. Pan complains that the Village operated a “... temporary Bar in the community hall during the annual SportsDay celebration ...”. Mr. Pan appears to allege that was an intentional discriminatory step directed against him, and to harm his business,but Mr. Pan does not explain why that step was illegal.

Another complaint about competition is the Village “... convinced someone toestablish another restaurant ...”. Who was that “someone”? How did this “convincing” occur? Why does Mr. Pan know that theappearance of a new business was intentional discrimination against him, and that it was the Village which was behind that illegal anddiscriminatory conduct? [33] Another problematic claim is that “The mayor Mr. Larsen also provided cheaper rent and convinced the Plaintiff’s tenant tobreak the rental contract ...”. Who was the tenant? What was the nature of the rental contract? When did this occur?

How is the Villageresponsible for the actions of an elected official? Was this newly occupied rented property something that was owned by the Village? Orwas this a property owned personally by the mayor? [34] Other allegations appear entirely unrelated to the Village. Why is the Village liable in some manner to Mr. Pan for theoperation of a Facebook website? Other times there is no apparent “who, when, where, how and what” linkage between what Mr. Pansays is discrimination on the basis of race and origin, such as Mr.

Pan’s complaints about municipal advertising and promotion activities. [35] A further issue is with the damages claimed by Mr. Pan. He seeks $2 million for personal and business damages. However,the Statement of Claim is explicit that the Standard Hotel was purchased for $500,000. How is Mr. Pan due four times the value of hishotel, in relation to alleged steps to impede operation of that business. At another point Mr. Pan says he billed the Village $200,000 forsnow that was placed on Mr. Pan’s land by the Village. How does that snow result in a liability on that scale? [36] I direct Mr.

Pan to explain how the Statement of Claim provides a basis for the Court and Village to make a meaningfulresponse. D. Excessive and/or Impossible Damages [37] Excessive or impossible remedies make litigation a hopeless proceeding that is an abuse of the Court: Unrau #2 at para 620-625. I have already indicated that the Statement of Claim provides a limited basis to explain the very substantial damages amounts thatMr. Pan has claimed against the Defendants. Furthermore, Mr.

Pan provides no explanation of how he might have suffered four timesthe value of his hotel in damages, when the hotel apparently remains an operational business. [38] Mr. Pan also claims an unquantified amount of damages due to health issues. The Statement of Claim describes how Mr.Pan’s hair has turned white, he has experienced skin irritation, and suffers from insomnia. Mr. Pan explains how his difficult relationship

with the Village has led to him having suicidal thoughts, though Mr. Pan does not appear to have acted on those. “Pain and suffering”damages such as these are called “general damages” in Canadian law. The maximum amount of general damages that may be claimed inCanada was set in Andrews v Grand & Toy Alberta Ltd, (SCC), [1978] 2 SCR 229, 83 DLR (3d) 452 (Andrews) at$100,000. After inflation, the Andrews general damages cap is now about $365,000. [39] The $2 million claim is much more than the legally permissible maximum for general damages.

Furthermore, the Andrewsmaximum amount is warranted only in cases of severe impairment, such as near total disability and/or paralysis in a young healthyindividual. Mr. Pan does not allege any physcial injury, so there is no basis to see why Mr. Pan could receive any award in the $365,000maximum range. [40] I direct Mr. Pan to explain why the $2 million amount sought in the Statement of Claim is not excessive and/or impossible. IV. Conclusion [41] The Statement of Claim appears to be a suitable AVAP candidate for review pursuant to CPN7. The Court directs Mr. Pan toexplain: 1) why the Statement of Claim is not:

a) a collateral attack on the First AHRC Complaint;

b) a duplicate proceeding of the Second AHRC Complaint; and

c) a collateral attack on the Sunny Investment Group Inc v Village of Standard, Action No. 2002 00081, December 9, 2021 Judgment. 2) how this Court has jurisdiction over a complaint grounded on allegations of racial and point of origin discrimination; 3) how the Statement of Claim provides a basis for the Court and Defendants to make a meaningful response; and 4) why the remedies sought in the Statement of Claim are not excessive and/or impossible? [42] 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. Pan 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. Pan provides and serves a Written Submission, then the Village has seven days to provide a Written Reply of up to 10pages 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 a Written Submission and the Village’s Written Reply, if any, the Court will make its final decision onwhether 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, para3(e)). [43] Court of King’s Bench of Alberta Action No. 2202 00016 stayed until further notice. The Court will prepare and serve anInterim Stay Order staying this Action (see CPN7, para 7). The approval of Mr.

Pan, the Standard Hotel and Sunny Investment GroupInc of the Interim Stay Order is not required, pursuant to r 9.4(2)(

c) of the Alberta Rules of Court. Mr. Pan, the Standard Hotel, and theSunny Investment Group Inc shall be served this Memorandum of Decision and the corresponding Interim Order to the email addresslisted on the Statement of Claim: sunnyinvestment1668@gmail.com. Dated at the Town of Drumheller, Alberta this 28th day of October, 2022. K.G. Nielsen A.C.J.C.K.B.A. Appearances by Submission:

Kristina D. Persaud Brownlee LLP for the Defendant