Bains v Day, 2022 ABKB 844

Source: Court of King's Bench of Alberta

Date: 2022-12-16

Jurisdiction: Federal

Docket: 1901 01056

Citation: 2022 ABKB 844

Opinion

Court of King’s Bench of Alberta Citation: Bains v Day, 2022 ABKB 844 Date: 20221216 Dockets: 1901 01056, 1901 03639, 1901 06857 Registry: Calgary Between: Docket: 1901 01056 Jagdev Singh Bains Plaintiff - and - Roderick A. Day, John Doe I, John Doe II Defendants And between: Docket: 1901 03639 Jagdev Singh Bains Plaintiff - and - Kevin William Geary, Olive Odile Rawlyk, John Doe I, John Doe II Defendants

And between: Docket: 1901 06857 Jagdev Singh Bains Plaintiff - and - Hassan Y. Adam, Youssouf Adam Abakar , John Doe I, John Doe II Defendants _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I. Introduction [ 1 ] Dr. Jagdev Singh Bains [Dr.

Bains] has initiated three civil actions that are interrelated in a manner I will subsequently detail: • Bains v Day , Alberta Court of King’s Bench Docket No. 1901 01056 [ Action 1 ] • Bains v Adam , Alberta Court of King’s Bench Docket No. 1901 03639 [ Action 2 ] • Bains v Geary , Alberta Court of King’s Bench Docket No. 1901 06857 [ Action 3 ]. [ 2 ] On May 27, 2022, the Defendants in Actions 1-3 [Collective Defendants] filed an Application that: 1. Dr.

Bains be subject to court access gatekeeping pursuant to Judicature Act , RSA 2000, c J-2 ss 23-23.1 by what is sometimes called a “vexatious litigant order”; 2. Dr. Bains be declared to be in contempt of Court for failing to comply with a May 28, 2021 Order, and a July 16, 2021 Decision; 3. Dr. Bains be arrested and incarcerated for his failure to discontinue a Statement of Claim in Alberta Court of King’s Bench Docket No. 2101-10824 [ Lawyers Lawsuit ]; 5. the Lawyers Lawsuit Statement of Claim be struck out;

4. Dr. Bains be fined $5,000 for civil contempt; 5. Dr. Bains and related parties be prohibited from direct and indirect communications and interactions with Collective Defendants’ insurers; 6. the Collective Defendants be each permitted to file Amended Statements of Defence; and 7. costs. [ 3 ] The May 27, 2022 Application was heard before me on June 23, 2022. After receiving oral submissions, I took the following steps: 1. filing of the Collective Defendants’ Amended Statements of Defence was granted; 2. the Lawyers Lawsuit initiated by Dr. Bains was stayed on an interim basis; and 3. Dr.

Bains was prohibited from initiating any new action, counterclaim, applications, notices to attend, or subpoenas that name any of the Collective Defendants, Counsel for the Collective Defendants, associated firms, and witnesses scheduled to be heard in Actions 1- 3 . At the June 23, 2022 hearing I reserved on whether Dr. Bains should be subject to court access gatekeeping, and what steps should be taken in response to Dr. Bains filing the Lawyers Lawsuit . This Decision responds to that Application. II. Background [ 4 ] Between March and May of 2017, Dr. Bains was involved in three motor vehicle accidents.

Actions 1-3 are lawsuits that resulted from these incidents. I will not go into further detail concerning the subject of the trials, other than these matters share certain common facts, and involve potentially interrelated injuries. [ 5 ] The Collective Defendants applied for case management and other logistical steps. Dr. Bains strenuously rejected that application. This resulted in a May 28, 2021 hearing before myself. Dr. Bains attempted to cancel that appearance, and, on the date of the hearing, did not appear. When contacted by the Clerk to inform Dr. Bains that the hearing had commenced, Dr.

Bains hung up on the Clerk. The proceeding continued in Dr. Bains’ absence, and, among other steps, I appointed myself as the Case Management Justice for this matter, and made a number of additional directions. [ 6 ] Dr. Bains immediately appealed the May 28, 2021 Order. That led to three Alberta Court of Appeal decisions. In Bains v Adam , 2021 ABCA 263 [ Bains ABCA #1 ], Antonio JA denied a stay except for one limited issue, and concluding that Dr. Bains’ complaints had “no realistic possibility” of raising arguable issues.

Justice Antonio also imposed this court access gatekeeping restriction at Bains ABCA #1 , para 25 : ... I order that pending the determination of the appeal, [Dr. Bains] shall require leave of a Justice of the Court of Queen’s Bench before filing any statement of claim naming as defendants the respondents’ insurers, any employee of the insurers, or any lawyer who is representing or has represented the respondents or their insurers. [ 7 ] Dr. Bains then sought to appeal Bains ABCA #1 to a panel, but that was denied, since all Dr.

Bains did was repeat “... the same arguments he made for the stay application, often verbatim ...”: Bains v Adam , 2021 ABCA 378 at para 4 [ Bains ABCA #2 ]. Dr. Bains had not made any argument at all in relation to his application for a panel hearing. [ 8 ] When Dr. Bains’ full appeal of the May 28, 2021 Order was heard by a three-judge panel, the resulting Decision, reported as Bains v Adam , 2022 ABCA 72 [ Bains ABCA #3 ], uniformly rejected Dr. Bains’ claims, and concluded that prospective gatekeeping was necessary to manage Dr. Bains, ordering: ... [Dr.

Bains] shall require leave of the case management judge before filing any statement of claim naming as defendants the respondent’s insurers, any employee of the insurers, or any lawyer who is representing or has represented the respondents or their insurers. [ Bains ABCA #3 at para 13 .] [ 9 ] The Court, at para 15, also commented negatively on Dr. Bains’ conduct, observing Dr. Bains had “... made inappropriate and inflammatory comments about many participants in this judicial process, which in many cases would warrant a cost award against him. ...”. No such costs were made only because Dr.

Bains’ claims he has no money. [ 10 ] The Combined Defendants’ Application was heard on June 23, 2022. As noted above, I reserved my Decision on whether Dr. Bains should be subject to indefinite and global court access restrictions, and as to the treatment of the Lawyers Lawsuit . [ 11 ] Actions 1-3 were heard together in a trial that commenced on September 12, 2022, with Yamauchi J as the trial judge. Though scheduled for nine days, this trial has not yet completed. In brief, on September 22, 2022, during cross-examination, Dr. Bains claimed to unilaterally adjourn the trial until 2023. Dr.

Bains was ordered to continue with his cross-examination. Dr. Bains: ... was not happy with this order and advised the court that he was feeling ill and that he would be leaving for the day. This Court again ordered Dr. Bains to take a stand. He refused and began noisily packing up his materials. Bains v Day (22 September 2022), Calgary 1901-01056, 1901 03639, 1901 06857 (Alta KB).

[12] Dr. Bains exited the courtroom, and did not return. Yamauchi J on that date ordered Dr. Bains to appear on October 3, 2022 toshow cause why he should not be found in civil contempt: Bains v Day. Dr. Bains did not appear on that date, and was declared in civilcontempt of court. Each of the three Action 1-3 Defendant(

s) were awarded thrown-away costs, totaling $31,956.75. [13] The trial was set to continue on February 6-24, 2023. Justice Yamauchi ordered no further adjournments would be permitted.The October 3, 2022 Order instructs that if Dr. Bains does not continue his cross-examination by the Combined Defendants’ counsel, andpay the thrown-away costs, “... the Court will sentence the Plaintiff for his civil contempt, which includes dismissing his claims againstthe Defendants pursuant to Alberta Rules of Court, Rule 10.53(d)(iii).” [14] Dr. Bains has not appealed Justice Yamauchi’s October 3, 2022 Bains v Day Decision. III.

Status of the Lawyers Lawsuit [15] As a first point I will address the status of the Lawyers Lawsuit Statement of Claim. The Statement of Claim was filed by Dr.Bains on September 3, 2021, and names Simrat Chhina, Thomas Percy, Cynthia Aoki, Daniel Downe, and David J. Corrigan asDefendants [Lawyers Lawsuit Defendants]. These are lawyers for the Combined Defendants and their insurers. [16] Briefly, the Statement of Claim alleges that the Lawyers Lawsuit Defendants have intentionally intimidated, threatened, andinflicted pain and suffering on Dr. Bains, and did so in their “professional dealings” with Dr. Bains.

The Statement of Claim continues toallege that the Lawyers Lawsuit Defendants lied to and misled the Court concerning Dr. Bains, and provided a number of allegedexamples. On this basis, Dr. Bains argued that he should receive $900,000 in general damages, additional specific damages, such as lossof housekeeping, and punitive and aggravated damages. [17] As indicated above, on July 16, 2021, Antonio JA imposed court access gatekeeping restrictions on Mr. Bains: ... I order that pending the determination of the appeal, [Dr.

Bains] shall require leave of a Justice of the Court of Queen’s Bench beforefiling any statement of claim naming as defendants the respondents’ insurers, any employee of the insurers, or any lawyer who isrepresenting or has represented the respondents or their insurers. [Bains ABCA #1 at para 25] The Lawyers Lawsuit falls within those prohibitions. [18] In his June 23, 2022 oral submissions, Dr. Bains denied he has done anything wrong. He argued the fact that the Clerksaccepted his Lawyers Lawsuit filing proves his initiating that lawsuit was lawfully done.

He says as a self-represented litigant he can relyon the Clerks. In his opinion, the fact a Clerk filed the Lawyers Lawsuit means he was granted leave to take that step: “I just went to thecourt clerk to ask the leave.” In any case, Dr. Bains concluded that an unserved Statement of Claim cannot be an abuse of process. Dr.Bains is wrong. An abuse of process includes an abuse of the court, regardless of consequences to litigants and other actors. [19] Dr. Bains also says I have no jurisdiction in relation to the Lawyers Lawsuit because I am not case managing that particularaction.

That claim ignores this Court’s inherent jurisdiction to intervene at any time when confronted by abusive litigation and misuse ofcourt processes: I H Jacob, “The Inherent Jurisdiction of the Court” (1970), 23 Curr Legal Probs 23. [20] As noted above, Dr. Bains was in breach of the Bains ABCA #1 litigant management step when he filed the Lawyers LawsuitStatement of Claim.

Since I am mindful of the very high standards of proof that the Supreme Court of Canada has set for contempt ofcourt in Pintea v Johns, 2017 SCC 23, particularly when litigation involves self-represented litigants, I do not think it is productive toevaluate whether or not filing the Lawyers Lawsuit Statement of Claim satisfies the beyond a reasonable doubt standard for contempt.Furthermore, meaningful steps can be taken in response to this clearly illegal filing by other means, that I will discuss below. [21] I conclude the Lawyers Lawsuit is an abusive proceeding on multiple bases.

First, the Statement of Claim was filed in breachof Bains ABCA #1, and is an abuse of court on that basis. However, that is only one of several issues with this pleading. [22] The Statement of Claim targets opposing lawyers in Actions 1-3. Dr. Bains is explicit that the wrongful actions were in a“professional” context, and involved interaction with and activities that involve the Court. Thus, Dr. Bains is suing the Lawyers LawsuitDefendants as lawyers, and for doing litigation-related things. However, the law is very clear that no potential liability can exist in thisscenario.

The Court of Appeal of Alberta has repeatedly ruled that no legal liability can result from actions by counsel for opposingparties: e.g. Hanson v Hanson, 2009 ABCA 222; Rana v Baker, 2022 ABCA 180. [23] Second, excessive or impossible remedies make litigation a hopeless proceeding that is an abuse of court: Unrau v NationalDental Examining Board, 2019 ABQB 283 at paras 620-625. Dr. Bains seeks $900,000 in general damages, what are sometimes called“pain and suffering damages”.

The maximum amount of general damages that may be claimed in Canada 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 Andrewsgeneral damages cap is now about $365,000. Thus, what Dr. Bains claims is nearly three times the maximum amount permitted byCanadian law. [24] Furthermore, the Andrews maximum amount is reserved for cases of severe impairment, such as near total disability and/orparalysis in a young healthy individual. Mr. Bains does not detail any physical harm to himself, and instead, to the extent that Dr.

Bainsparticularizes injury that has resulted from the Lawyers Lawsuit Defendants’ alleged misconduct, that is “... aggravation of medicalconditions and furthering my anxiety and depression, and medical conditions.” [25] Dr. Bains also seeks “cancellation of professional licensure”, that I interpret to mean termination of the Lawyers LawsuitDefendants’ professional status with the Law Society of Alberta, and/or other Canadian law societies. This Court has no authority to takeany such step. In Alberta that is the sole jurisdiction of the Law Society of Alberta: Rana v Baker, 2021 ABQB 352, aff’d 2022 ABCA

180 . [ 26 ] Thus, I conclude, on multiple bases, that Dr. Bains’ Lawyers Lawsuit is an abusive proceeding, and should be struck out pursuant to Rule 3.68 on that basis. Taking into account

Schedule C of the Alberta Rules of Court , and the quantum of damages sought by Dr. Bains, I conclude that Dr. Bains shall pay the Lawyers Lawsuit Defendants $2,000 each, for a total of $10,000, forthwith. [ 27 ] Counsel for the Combined Defendants shall prepare and serve the Order giving effect to this Decision. Dr. Bains’ approval of that Order is dispensed with, pursuant to Rule 9.4(2)(c). IV. Court Access Restrictions [ 28 ] As described above, the Actions 1-3 lawsuits trial has become complicated.

The central focus for this Court in relation to the Actions 1-3 lawsuits is that the trial be completed, so that Dr. Bains’ claimed legal rights to compensation for his injuries are evaluated and determined. In these circumstances, I am taking the admittedly unusual step of holding the Combined Defendants’ Judicature Act ss 23-23.1 Application in abeyance. [ 29 ] My decision to do so is intended so that the Court, Dr.

Bains, and the Combined Defendants can focus on completion of the Actions 1-3 trial in a timely manner, and with the minimum of potential secondary and tangential issues that could complicate that proceeding. I also take this step because: 1. Dr. Bains’ potentially problematic litigation activity is already subject to prospective court management steps, specifically,

a) the Bains ABCA #3 at para 13 court access gatekeeping requirement, and

b) my Order on June 23, 2022 that restricted Dr. Bains from initiating certain processes, pending completion of the trial; and 2. I have already addressed with the problematic Lawyers Action lawsuit, above. [ 30 ] In these circumstances, I direct that the Combined Defendants’ Judicature Act ss 23-23.1 Application will be decided after the completion of the Actions 1-3 trial. Since my retirement is pending, I assign that task to the current Case Management Justice for Actions 1-3 , Justice Yamauchi. [ 31 ] I note to Dr.

Bains that his entire litigation record will be relevant at that point, and I, therefore, encourage Dr. Bains to participate in the steps to complete his trial, since that will be very relevant to the outcome of the Judicature Act ss 23-23.1 Application. Heard on the 23 th day of June, 2022. Dated at the City of Calgary, Alberta this 16 th day of December, 2022. J.D. Rooke A.C.J.C.K.B.A. Appearances: Dr. Jagdev Singh Bains Self-represented Litigant Cynthia A. Aoki McLennan Ross LLP for the Defendant Roderick A. Day David J. Corrigan, K.C. HMC Layers LLP for the Defendants Hassan Y. Adam and Youssouf Adam Abakar

Daniel Downe, K.C. Field Law LLP for the Defendants Kevin William Geary and Olive Odile Rawlyk

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