Calder v Sarasin, 2023 ABKB 725

Court of King’s Bench of Alberta Citation: Calder v Sarasin, 2023 ABKB 725 Date: 20231218 Docket: 1303 01748 Registry: Edmonton Between: James Robert Calder and His Majesty the King in Right of Alberta Plantiffs/Applicants - and - Lloyd Marvin Sarasin, Joann Seccafien, also known as Joanna Lynn Sarauer, also known as Joanne Seccafien, also known as Joanna Seccafien Defendants/Respondents _______________________________________________________ Memorandum of Decision of the Honourable Applications Judge L.R.

Birkett _______________________________________________________ [ 1 ] James Calder sues for injuries he sustained when assaulted by Lloyd Sarasin at the home of Joanna Sarauer. Mr. Calder claims that the defendants conspired to commit the assault, in that Ms. Sarauer invited Mr. Calder to her home with the intention of having Mr. Sarasin assault him. Background [ 2 ] Lloyd Sarasin was charged that “On or about the 2nd day of February, 2011 at or near Edmonton, in the Province of Alberta, did unlawfully contravene

Section 266 of the Criminal Code of Canada ( Assault ). He pled guilty to the assault charge and was convicted on June 20, 2013. Mr. Sarasin was placed on probation for 18 months and fined $1500, plus a victim fine surcharge of $225. [ 3 ] James Calder applied for

summary judgment on the issue of liability against the defendant Lloyd Marvin Sarasin. By order dated January 10, 2018, Applications Judge Smart awarded

summary judgment against Mr. Sarasin on the issue of liability only and directed the parties to proceed to an assessment of damages. [ 4 ] Mr. Calder applied for

summary judgment on the issue of liability against the defendant Joanna Lynn Sarauer, with assessment of damages to take place at a later date. That application came before me on April 6, 2021 in morning chambers. I requested further documents be submitted by way of correspondence. I also requested that the correspondence and the further documents be served on Ms. Sarauer. I adjourned the application sine die to look at the materials and give a written decision. This is that decision.

[ 5 ] The documents requested were sent to me by correspondence dated May 31, 2023. They were served on Joanna Sarauer on June 8, 2023. On review, I noted that the Notice to Admit Facts served on this defendant was absent from the materials; that was provided to me on November 8, 2023. [ 6 ] The defendant, Joanna Sarauer did not appear in chambers when I heard the submissions made by counsel for the plaintiff on April 6, 2021, nor did she respond to the additional documents served on June 8, 2023. I am satisfied Ms. Sarauer had adequate notice of the application set for April 6, 2021 and of the additional materials now being considered in support of the application for

summary judgment against her on the issue of liability.

Summary judgment [ 7 ] In support of the application for

summary judgment, Counsel submitted the cases of Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 , and Hannam v Medicine Hat School District No. 76 , 2020 ABCA 343 . [ 8 ] Both refer to the three-part test at para 49 of Hryniak v Mauldin , 2014 SCC 7 , for when

summary judgment is an appropriate procedure: There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [ 9 ] The approach to

summary judgment and the principles to be applied are set out by the Court of Appeal in paragraph 47 of Weir-Jones : The proper approach to

summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating to

summary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties. The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are:

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication.

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute. To repeat, the analysis does not have to proceed sequentially, or in any particular order. The presiding judge may determine, during any stage of the analysis, that

summary adjudication is inappropriate or potentially unfair because the record is unsuitable, the issues are not amenable to

summary disposition, a

summary disposition may not lead to a “just result”, or there is a genuine issue requiring a trial. [ 10 ] To obtain

summary judgment against Ms. Sarauer, Mr. Calder must prove on a balance of probabilities that there is no defence to his claim of conspiracy. I must be left with sufficient confidence in the state of the record that I am prepared to summarily resolve the dispute. [ 11 ] Uncertainties in the facts, the record or the law may reveal a genuine issue requiring a trial. [ 12 ] The record for this application includes the pleadings, the affidavit of James Robert Calder sworn January 31, 2021, and the admissions made by Joanna Sarauer by not responding to the Notice to Admit Facts. It is from this record I must make the necessary findings of fact. [ 13 ] The issue for this

summary judgment application is whether Ms. Sarauer conspired with Mr. Sarasin to assault Mr. Calder. The law of conspiracy must be applied to the facts. The pleadings [ 14 ] The statement of claim filed February 1, 2013 pleads in paragraph 3: On or about February 2, 2011 the Defendant Seccafien [Sarauer] repeatedly invited the Plaintiff Calder to come to the Premises. The Plaintiff Calder drove to the Premises. The Defendant Seccafien [Sarauer] was inside the Premises and invited the Plaintiff in.

The Plaintiff did not know that the Defendant Sarasin would be inside the Premises. [ 15 ] The statement of claim sets out the assault by Sarasin and the injuries suffered by Calder, which included facial lacerations and head, nose, and ear injuries.

[ 16 ] Conspiracy is plead in paragraph 6 of the statement of claim: Further, or in the alternative, the injuries were caused by the Defendant Seccafien [Sarauer] and the Defendant Sarasin conspired to commit the Assault . The Defendant Seccafien [Sarauer] repeatedly invited the Plaintiff Calder to the Premises with the intention of having the Defendant Sarasin assault the Plaintiff Calder.

The Defendant Seccafien [Sarauer] knew or ought to have known that the Defendant Sarasin would assault the Plaintiff Calder upon his entering the Premises. [ 17 ] Paragraph 8 of the statement of claim states the injuries were caused by the assault committed by one or both defendants, or by the conspiracy between the defendants or by the negligence or breach of statutory duty of the defendant Sarauer, or some combination thereof. [ 18 ] The negligence or breach of statutory duty, pursuant to the provisions of the Occupiers Liability Act , RSA 2000, c O-4 , of the defendant Sarauer as owner of the premises for failure to take reasonable care that the premises were reasonably safe for Mr.

Calder as a visitor are plead in paragraphs 2 and 7 of the statement of claim. However, this was not the basis for liability pursued on the

summary judgment application. [ 19 ] At the application on April 6, 2021, Counsel for Mr. Calder sought a finding of liability against Joanna Sarauer on the basis of conspiracy. [ 20 ] A statement of defence was filed July 9, 2013 on behalf of the defendant Joanna Sarauer, wherein she specifically denies that she invited Calder to her residence. Rather, Ms.

Sarauer alleges that Calder was a close friend of her former spouse, Mario, and in breach of a restraining order Calder persisted in contacting and harassing Sarauer on behalf of her former spouse. [ 21 ] Further, in paragraphs 5 and 6 of Sarauer’s statement of defence, it is plead: On February 2, 2011, Calder entered the Residence without Sarauer’s consent, at which time he stated “Mario said to come by and take care of you”. Calder then, without Sarauer’s consent, attempted to hug her, kiss her, and stick his hand up her shirt.

At that time, acquaintances of Sarauer ejected Calder from the Residence and thereby brought an end to his unlawful actions. [ 22 ] In her statement of defence, Ms. Sarurer states the claim of the plaintiff is defeated as Calder was a trespasser who entered the residence unlawfully for the purpose of committing an assault on her and criminal harassment in breach of the restraining order against her former spouse. The relevant facts [ 23 ] Mr. Calder attaches the redacted Edmonton Police Service file to his affidavit sworn January 31, 2021. Mr.

Calder notes on page 43 of the EPS file that the police officers investigating this claim believed his version of events over the defendant Sarauer’s version of events. Constable Harrigan’s Narrative states: Based on my investigations I have come to the following conclusions: Complainant James Calder’s version of events is the most accurate and has most credibility.

James indicated that Joanna had contacted him on 11FEB02 which is confirmed by phone records obtained from two telephones owned by Joanna… Furthermore, Joanna indicated in a KGB interview that it was her that had struck James with a ladle after he allegedly put his hand up her shirt. This statement is refuted in a KGB interview with James who indicates Lloyd was the only person who had assaulted him. James also indicated that at the time of the assault only him, Joanna and Lloyd were present in the house. Joanna indicated that Trevor… and Lloyd had shown up to the residence.

James indicates this is false and is certain that no other party was present when he was assaulted. Thus, Joanna has committed obstruction by being deceitful about denying making phone calls to James; about committing the assault against James; about Trevor being present at the time of the assault and misleading myself as to her actual relationship with Lloyd and the events which occurred on 11FEB02.… Charges for Assault Causing Bodily Harm will be laid against Sarasin, Lloyd for committing the assault on James Calder. [ 24 ] A Notice to Admit Facts was served on Joanna Sarauer on November 24, 2020.

There was no response.

Pursuant to Rule 6.37(3), each of the matters for which an admission is requested is presumed to be admitted unless the party to whom the notice is addressed denies the fact or sets out an objection on the ground that the matters are privileged or irrelevant, improper or unnecessary. [ 25 ] Accordingly, Joanna Sarauer has admitted the following: At all material times, she resided at… the Residence; she was in a relationship with the defendant, Lloyd Marvin Sarasin; she was the owner of a phone account associated with the phone number 780…; At all material times, she had known the plaintiff James Robert Calder for over 20 years; On the evening of February 2, 2011, she contacted Calder numerous times; she invited Calder to the Residence; she was aware Sarasin was in the Residence; and She invited Calder to the Residence on February 2, 2011 with the intent that Sarasin or another individual at the Residence would harm

Calder. [26] Mr. Calder states in paragraph four of his affidavit: It is my belief that the Defendant Joanna invited me to her residence with the knowledge and the intent that the Defendant Sarasin to hitme, and that the Defendants conspired between themselves to cause me physical harm.

The tort of conspiracy [27] Counsel for the plaintiff submitted the case of Lipinski v Speranza, 2020 ABQB 445, where I examined the tort of conspiracyand the doctrine of merger in the context of allegations of defamation and unlawful interference with the economic relations. [28] The elements for the tort of conspiracy are set out at paragraph 74 of Lipinski, quoting from Canada Cement LaFarge Ltd vBritish Columbia Lightweight Aggregate Ltd, (SCC), [1983] 1 S.C.R. 452 at pages 471-72: Although the law concerning the scope of the tort of conspiracy is far from clear, I am of the opinion that whereas the law of tort does notpermit an action against an individual defendant who has caused injury to the plaintiff, the law of torts does recognize a claim againstthem in combination as the tort of conspiracy if: (1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to causeinjury to the plaintiff; or, (2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and thedefendants should know in the circumstances that injury to the plaintiff is likely to and does result.

In situation (2) it is not necessary that the pre-dominant purpose of the defendants' conduct be to cause injury to the plaintiff but, in theprevailing circumstances, it must be a constructive intent derived from the fact that the defendants should have known that injury to theplaintiff would ensue. In both situations, however, there must be actual damage suffered by the plaintiff. [29] Counsel for Mr. Calder argues that on a balance of probabilities the test for conspiracy has been met. Ms.

Sarauer invited Mr.Calder over with ulterior motive and should have known harm would come to him, and it did. [30] Indeed, as I concluded at paragraph 107 in Lipinski: The elements of the tort of conspiracy, as set out in Canada Cement Lafarge Ltd, permit an action against defendants in combination,firstly, if the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff, whether the means used by thedefendants are lawful or unlawful, and secondly, if the defendants’conduct is unlawful. [31] The record, which includes Mr. Calder’s affidavit evidence and the admissions made by Ms.

Sarauer, supports the tort ofconspiracy. But does the law? The conspiracy claim may have merged with the underlying assault claim. The doctrine of merger [32] Where the elements of conspiracy are properly plead, the doctrine of merger must be examined to determine if the conspiracyallegations can stand.

The doctrine of merger is discussed at paragraphs 78 through 88 of Lipinski. [33] According to Lord Denning in Ward v Lewis, [1955] 1 All E.R. 55 (C.A.), “… The conspiracy adds nothing when the tort hasin fact been committed.” See paragraph 86 of Lipinski: Out of this inconsistency and confusion, I conclude that where the plaintiff sues a defendant based on facts and legal argument and alsoclaims the defendant conspired with others against the plaintiff based on the same facts in the same legal argument, the conspiracy claimwill merge with the underlying claim.

The conspiracy claim adds nothing and cannot be continued. This is the doctrine of merger. [34] In some of the cases reviewed, the court declined to apply the doctrine of merger to strike pleadings but rather direct thematter to trial. See paragraph 87 of Lipinski: On the other hand, as set out in Jevco, the law supports allowing the conspiracy claim to be pleaded along with the underlying tortand applying the doctrine of merger only at the end of trial. Then it will be known whether the plaintiff has successfully proven the tortclaim and whether anything was added by the conspiracy claim.

The trial judge may determine if the causes of action overlap to such adegree that one merges with the other or whether the fact that parties may have acted in concert has the impact of increasing the harm oris relevant to punitive damages. [35] The factors considered and the cases reviewed in Lipinski are in the context of an application to strike pleadings. The balanceis between striking a claim if it is plain and obvious that the pleading discloses no reasonable cause of action and allowing a novel claimwhich has a reasonable prospect of success to proceed ultimately to trial.

See paragraphs 51 through 56 of Lipinski. [36] This is a

summary judgment application on the issue of liability. I am guided by Hryniak v Mauldin: “There will be nogenuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summaryjudgment.”

Analysis and conclusion [ 37 ] One of the key considerations for

summary disposition is set out in paragraph 47(

a) of Weir-Jones : “Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?” [ 38 ] The record before me supports a finding on a balance of probabilities that Ms. Sarauer and Mr. Sarasin conspired to injure Mr. Calder by having him assaulted. [ 39 ] Applying the law as set out in Lipinsk to the record before me, I conclude that liability for conspiracy cannot be found against Ms. Sarauer. The doctrine of merger applies to merge the tort of conspiracy with the assault. [ 40 ] The application for

summary judgment against Joanna Sarauer on the issue of liability for conspiracy is dismissed. Further, I conclude that neither the record nor the law reveal a genuine issue requiring a trial. [ 41 ] Mr. Calder has alleged in paragraph 14 of the statement of claim that the assault was malicious, unprovoked, premeditated, and designed to inflict injury and for which he claims aggravated and punitive damages against both defendants. However, the injuries suffered by Mr. Calder as plead in the statement of claim and supported in the affidavit evidence are a direct result of the assault by Mr. Sarasin.

The involvement of Ms. Sarauer in inviting Mr. Calder to her residence where Mr. Sarasin was waiting did not add to the harm suffered by Mr. Calder. [ 42 ] The plaintiff, Mr. Calder, has successfully proven the tort claim of assault, however I have concluded nothing was added by the conspiracy claim. I have found the causes of action overlap to such a degree that one merges with the other.

It is not necessary for a trial judge to determine “whether the fact that the parties may have acted in concert has the impact of increasing the harm or is relevant to punitive damages.” See paragraph 34 above. [ 43 ] I find dismissal of the

summary judgment application and the further finding there is no genuine issue as to Joanna Sarauer’s liability for conspiracy a proportionate, more expeditious and less expensive means to achieve a just result than a trial. [ 44 ] The

summary judgment application brought on behalf of James Robert Calder against Joanna Sarauer is dismissed. As Ms. Sarauer did not appear on April 6, 2021 or otherwise oppose the application, there will be no costs. Heard on the 6 th day of April, 2021 with written submissions received by November 8 th , 2023 . Dated at the City of Edmonton, Alberta this 18 th day of December, 2023. L.R. Birkett A.J.C.K.B.A. Appearances: Jillian M. Gamez and Ian A. Miller Weir Bowen LLP for the Applicants Respondent Joann Seccafien, also known as Joanna Lynn Sarauer, also known as Joanne Seccafien, also known as Joanna Seccafien (No Appearance)