Makis v McEwan, 2023 ABKB 196

Court of King’s Bench of Alberta Citation: Makis v McEwan, 2023 ABKB 196 Date: 20230403 Docket: 1803 16582 Registry: Edmonton Between: Dr. Viliam Makis and Viliam Makes Professional Corporation Plaintiffs/Respondents - and - Dr. Alexander J.B. McEwan, Dr. Richard N. Fedorak, Richard N. Fedorak Professional Corporation, Dr. Matthew Parliament, Matthew Parliament Professional Corporation, Dr. Robert MacEwan, Robert MacEwan Professional Corporation, Dr. Randy Goebel and University Of Alberta Defendants/Applicants _______________________________________________________ Endorsement of the Honourable Justice J.J.

Gill _______________________________________________________ [ 1 ] This is an Application under Rules 7.3(1) and 3.68 (1) and (2) to summarily dismiss or strike the Action. Background [ 2 ] The Plaintiffs/Respondents in this action [the “UA Action”], Dr. Makis and Makis Professional Corporation [“Makis PC”],

are self-represented litigants. They claim damages exceeding $22,000,000.00 for loss of an unpaid academic appointment at the University of Alberta [“UA”] and the failure of Dr. Makis to obtain another separate academic appointment. [ 3 ] Dr. Makis began working for Alberta Health Services (“AHS”) as a nuclear medicine physician in 2013 providing diagnostic imaging and nuclear medicine services to at the Cross Cancer Institute [“CCI”]. In that clinical role he received an academic appointment(“CAC”) from the UA. Dr. Makis further applied for a UA SCAC appointment(“SCAC”). [ 4 ] Complaints about the conduct of Dr.

Makis at Cross Cancer Institute(“CCI”) led to an investigation by AHS and resulted in Dr. Makis taking an administrative leave from CCI. Consequently, his application for a SCAC appointment did not proceed. [ 5 ] Complaints against Dr. Makis were also investigated by the College of Physicians and Surgeons of Alberta (“CPSA”). Dr. Makis did not return to clinical practice at CCI, his Medical Services Agreement (“MSA”) was not renewed, and the CPSA subsequently cancelled his practice permit. [ 6 ] On October 27, 2016, Dr.

Makis and Makis PC commenced an action against AHS (the “AHS Action”) alleging misconduct in handling the complaints and for the non-renewal of the MSA. The UA Action duplicates many of those allegations. Application [ 7 ] Rule 7.3(1) of the Rules permits a party to apply for

summary judgment in respect or all or part of a claim on the grounds that there is no merit to the claim or part of it. [ 8 ] Pursuant to Rule 3.68 (1) and (2), all or part of a claim may be struck out on grounds that, inter alia, that it constitutes an abuse of process. Applications to strike an action pursuant to Rule 3.68(2)(

b) as disclosing no reasonable claim must be determined based on the language of the pleading, without reliance on evidence. [ 9 ] The Applicants request that this action be summarily dismissed or struck in its entirety, as it:

a) Is without merit;

b) Is a collateral attack on the administrative decisions of the UA, which constitutes an abuse of process; and

c) fails to set forth a reasonable claim. [ 10 ] The Respondents did not appear. Dr. Makis advised by email that he would not be participating in what he described as a fraudulent and vexatious proceeding. Decision [ 11 ] Based on the submissions of the Applicants the applications to strike and summarily dismiss this action are granted. Some of the key elements of those submissions are as follows. (

a) The Action is bound to fail and should be summarily dismissed. [ 12 ] The evidence concerning the CAC appointment and the application for a SCAC appointment is clear and uncontroverted and permits a fair disposition of the related claims by way of dismissal pursuant to the

summary judgment rules. [ 13 ] Both the CAC appointment and the application for a SCAC appointment were conditional upon Dr. Makis providing clinical services at the CCI, including the education of UA residents and UA medical students. The CAC appointment of Dr. Makis terminated when he no longer provided clinical services at CCI. Dr. Makis did not receive a SCAC appointment, and his SCAC application became moot when the MSA was not renewed. [ 14 ] The UA academic appointments were personal in nature. The Respondent Makis PC had no role or involvement in the appointments. (

b) The action is an abuse of process since it is, in essence, a collateral attack on the academic administrative decisions of the UA. [ 15 ] The claims in this action essentially challenge various administrative decisions of the UA and its leaders with allegations of procedural improprieties. These decisions are appropriate for a judicial review and therefore the action is in substance a collateral attack on the final decisions of the UA and/or its leaders. That is an abuse of process. Nor does the action present a reasonable private cause of action for damages but rather seeks significant, unsubstantiated damages. (

c) The Action discloses no reasonable claim. [ 16 ] The Respondents have failed to provide relevant particulars of and the basis for the claims it asserts including defamation and conspiracy. Failure to plead such particulars will lead to a claim being struck as disclosing no reasonable claim. (

d) The claims as against the AHS Medical Leaders in the UA Action are statue barred and duplicative of the claims in the AHS Action.

[ 17 ] All acts and conduct alleged against the AHS Medical Leaders, occurred more than two years prior to the issuance of the Statement of Claim . The claims against the AHS Medical Leaders should also be struck on the basis they are duplicative of the allegations advanced against the AHS Medical Leaders in the AHS Action (

e) The claims predicated on allegations that the UA failed to properly manage the FOIPP Requests or comply with order of the OIPC should be struck as they fail to disclose a cause of action, are res judicata or are premature. [ 18 ] The pleadings in the UA Action contain extensive allegations that the UA failed to provide proper responses to the FOIPP Requests or to comply with directions from the OIPC.

The pleadings further allege that the UA responses were contrary to or a breach by the UA of “its duties and responsibilities under the law and under the FOIPP Act. “Insofar as the allegation of breach of the statute is concerned, this allegation discloses no cause of action. [ 19 ] The remaining FOIPP inquiries are ongoing and as such, the claims against the Defendants for alleged misconduct in relation to the FOIPP Requests are premature, the statutory process is not complete, and the claims should be struck on that basis. (

f) The allegations concerning the

Article 16 complaint against Dr. McEwan are inaccurate and a collateral attack on the administrative decision of the UA that were never appealed or judicially reviewed. [ 20 ] The

Article 16 investigation report concluded that, with respect to five [5] of the six [6] individuals alleged by Dr. Makis to have been threatened by Dr. McEwan, there was “no evidence whatsoever to support a finding that any such threats were made.” [ 21 ] The allegations in the UA Action related to the decision by the UA Provost with respect to the

Article 16 complaint are a collateral attack on that decision. Claims that the decision was, in effect, unreasonable because it did not reflect the findings of the investigation, that it was made for ulterior motives, and that it was the result of an irregular process are all clearly matters for judicial review, which was never pursued.

Summary [ 22 ] The applications to strike and summarily dismiss this action are granted with costs to the Applicants. The Applicants shall provide a proposed Bill of costs and written submissions (5 pages maximum) within 7 days. The Respondent may provide written submissions (if any) on costs within 14 days from the date of this endorsement. Heard on the 30 th day of March, 2023. Dated at the City of Edmonton, Alberta this 3 rd day of April 2023. J.J. Gill J.C.K.B.A. Appearances: FIELD LLP Attention: J. Mark Jackson, KC Ania Werbeniuk Counsel for the Applicants, U of A et al