A.N.H. PLAINTIFF - v. -, 2023 SKKB 120

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 120 Date: 2023 06 13 Docket: KBG-SC-00028-2023 Judicial Centre : Swift Current BETWEEN: A.N.H. PLAINTIFF - and - L.D.B. DEFENDANT Appearing: A.N.H. self-represented plaintiff L.D.B. self-represented defendant JUDGMENT KEENE J. JUNE 13, 2023 I. INTRODUCTION [ 1 ] A.N.H. [plaintiff] has sued L.D.B. [defendant] claiming she has committed tortious acts in Swift Current, Saskatchewan. The plaintiff alleges the defendant intentionally inflicted mental suffering with the intent to cause not only personal harm but also financial harm.

The plaintiff’s statement of claim is 36 pages in length, containing 110 paragraphs and appears to offend Rule 13-8(1)(

c) of The Queen’s Bench Rules , which mandates that pleadings only contain a statement in

summary form of the material facts on which the party relies upon and Rule 13-8(1)(

d) which directs that pleadings be as brief as the nature of the claim will permit. [ 2 ] However, despite this I will attempt to distill out of the plaintiff’s pleadings the tortious actions the plaintiff claims the defendant is guilty of as follows: (

a) Engaging in intentional, unlawful acts and omissions that the defendant knew or ought to have known would cause harm to the plaintiff, including mental and financial harm; (

b) Engaging in intentional injurious falsehoods in the course of civil and family litigation that caused the plaintiff to suffer degrading treatment both in the court process and his personal life that also impaired his ability to earn a livelihood; (

c) Intentionally using the court process and otherwise to alienate the parties’ children from the plaintiff which caused harm to himself and their children; and (

d) Intentionally misleading and manipulating Royal Canadian Mounted Police [R.C.M.P.] officers stationed at the city of Swift

Current and rural detachments, staff employed at the Ecole Centennial School in Swift Current and employees of the Chinook School Division to collectively convince them that the plaintiff was, or is, a safety and/or security concern to the parties’ children while at school or otherwise with the intent of causing mental health injury to the plaintiff and to further damage his relationship with their children. [ 3 ] The defendant does not submit to this Court’s jurisdiction regarding this lawsuit.

In so doing, the defendant relies on The Court Jurisdiction and Proceedings Transfer Act , SS 1997, c C-41.1 [ Act ] and argues that British Columbia is the appropriate forum in which to try the proceedings brought against her. The defendant has brought an application requesting that this lawsuit be transferred to the British Columbia Supreme Court [BCSC] which she claims has been the court for all of the parties’ litigation matters since 2010, both in the civil and family courts.

She has brought alternative requests for relief (declarations that the plaintiff’s suit is an abuse of process and that he should be declared a vexatious litigant). However, as a result of the outcome of her application regarding jurisdiction, the court need not consider these alternative forms of relief. [ 4 ] The defendant’s grounds for requesting the plaintiff’s claim be transferred to the BCSC under the Act can be summarized as follows: (

a) There is ongoing case management proceedings in the BCSC and that all matters remain seized by the BCSC; (

b) The plaintiff has been declared a vexatious litigant by the British Columbia Court of Appeal [BCCA]; (

c) There have been numerous actions brought between the parties since 2009; (

d) She has suffered “financial and litigation abuse” as a result of the plaintiff’s continued litigation over the last number of years; (

e) She wishes to avoid multiplicity of court proceedings or re-litigation of previously decided issues. She states the plaintiff has filed similar applications in the past in the BCSC which were dismissed; and (

f) The alleged tortious conduct, particularly the plaintiff’s claim the defendant has misled the British Columbia courts, are based solely on events in British Columbia. [ 5 ] The plaintiff opposes the transfer to British Columbia arguing that the Saskatchewan King’s Bench is the appropriate forum to try the proceeding. II. FACTS [ 6 ] The parties have filed hundreds of pages of affidavit material in this application. I will not attempt to set out all that has occurred in their lives and their tumultuous and unrelenting involvement in the BCSC civil and family court system.

Suffice to say they were in a common law relationship in Vernon, British Columbia from 2005 until their separation in 2010. They have two school aged children. It appears that since their separation, the parties had been in court one way or the other ever since. All of the proceedings (mostly in the BCSC but sometimes in the BCCA) have taken place in British Columbia. The defendant successfully obtained an order in the BCSC in October 2014 to relocate with the two children to Swift Current. It appears this application was hotly contested by the plaintiff. The plaintiff appealed the decision unsuccessfully.

However matters did not end there. The plaintiff filed several civil lawsuits for damages against the defendant. The plaintiff ended up being declared a vexatious litigant by the BCCA in A.N.H. v L.D.G. , 2022 BCCA 155 at paras 9-12 . This decision provides a useful

summary of the unusually active litigation that has taken place between the parties in British Columbia. [ 7 ] It is to be noted that a reading of the decision of the BCCA reveals that the plaintiff took particular exception with Justice Cole, who presided over the mobility application. [ 8 ] The short of this is, it is clear that almost all of the plaintiff’s complaints contained in his present Saskatchewan lawsuit allegedly arose in British Columbia and not Saskatchewan. [ 9 ] It is with this background that I turn to the defendant’s request that this Court decline jurisdiction and transfer the proceedings to British Columbia under the Act .

III. ISSUE [ 10 ] Is British Columbia the more appropriate forum in which to try these proceedings? IV. RELEVANT SECTIONS OF THE ACT [ 11 ] The relevant sections of the Act are: Proceedings against persons 4 A court has territorial competence in a proceeding that is brought against a person only if: (

a) that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim; (

b) during the course of the proceeding, that person submits to the court’s jurisdiction; (

c) there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding; (

d) that person is ordinarily resident in Saskatchewan at the time of the commencement of the proceeding; or

(

e) there is a real and substantial connection between Saskatchewan and the facts on which the proceeding against that person is based. … Real and substantial connection 9 Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between Saskatchewan and the facts on which a proceeding is based, a real and substantial connection between Saskatchewan and those facts is presumed to exist if the proceeding: … (

g) is brought for a tort committed in Saskatchewan; … Discretion as to the exercise of territorial competence 10(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to try the proceeding.

(2) A court, in deciding the question of whether it or a court outside Saskatchewan is the more appropriate forum in which to try a proceeding, shall consider the circumstances relevant to the proceeding, including: (

a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum; (

b) the law to be applied to issues in the proceeding; (

c) the desirability of avoiding multiplicity of legal proceedings; (

d) the desirability of avoiding conflicting decisions in different courts; (

e) the enforcement of an eventual judgment; and (

f) the fair and efficient working of the Canadian legal system as a whole. V. ANALYSIS [ 12 ] The defendant does not argue that the Court of King’s Bench does not have territorial jurisdiction over these proceedings. However she does assert that British Columbia is the more appropriate forum in which to try these proceedings. [ 13 ] Therefore, this analysis will utilize s. 10 of the Act , which is the codification of the common law doctrine forum non conveniens ( Boychuk v Hampton , 2019 SKCA 65 at para 14 , 26 RFL (8 th ) 1 [ Boychuk ]).

The common law doctrine “focuses on the contexts of individual cases, and its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient” ( Club Resorts Ltd. v Van Breda , 2012 SCC 17 at para 105 , [2012] 1 SCR

Section 10 of the Act reflects the same purpose ( SSAB Alabama Inc. v Canadian National Railway Company , 2020 SKCA 74 at para 88 , [2021] 4 WWR 22 [ SSAB ]. [ 14 ] The defendant bears the burden of demonstrating why British Columbia is the more appropriate forum ( Lapointe Rosenstein Marchand Melancon LLP v Cassels Brock & Blackwell LLP , 2016 SCC 30 at para 52 , 400 DLR (4 th ) 1. The existence of an appropriate forum must be “clearly” established to displace the forum selected by the plaintiff ( Spar Aerospace Ltd. v American Mobile Satellite Corp. , 2002 SCC 78 , [2002] 4 SCR 205.

Therefore, to consider these submissions made by the defendant, I will weigh the factors enumerated under s. 10(2) of the Act keeping this burden in mind. [ 15 ] I am mindful that in considering s. 10 of the Act , it is necessary to have regard to all causes of action advanced.

The proper approach is to consider the whole of the action, as “An approach that does not consider the whole of the action may fail to take account of factors that could significantly impact the assessment of the fairness and efficiency of proceeding in one jurisdiction versus another” ( SSAB at para 82 ; Saskatchewan Power Corporation v Mitsubishi Power Canada Ltd. , 2022 SKQB 147 at para 163 .

i) The Whole of the Action [ 16 ] The plaintiff amended his statement of claim to make reference to what he deems the “History of L.D.B.’s Manipulative Unlawful Conduct”. This conduct seemingly began in January 2008 and includes claims of the defendant contacting the Canada Revenue Agency, the Vernon R.C.M.P., Insurance Corporation of British Columbia [ICBC] and the Chief Electoral Officer of British Columbia [CEO BC].

The plaintiff also includes a claim he labels “Bogus Victimhood” in which he alleged, amongst other things, an incident involving the defendant sending a letter to the Vernon R.C.M.P. which was intended to harm the plaintiff. He alleges this intentional harm took place between January 1, 2010 to July 17, 2012. The plaintiff alleges that commencing in early 2010, the defendant has taken

part in various activities he deems “public mischief”. [ 17 ] After the first 19 pages of the amended statement of claim, the plaintiff adds additional allegations to both his “public mischief” and “Bogus Victimhood” claims. These include claims that the defendant spoke to the principal and vice principal of Ecole Centennial School in Swift Current and members of the R.C.M.P. about the plaintiff. The plaintiff alleges this resulted in him being escorted off the property of the school by a member of the Swift Current R.C.M.P. The plaintiff further alleges these discussions resulted in the Swift Current R.C.M.P. opening and closing three files against him.

[ 18 ] The incidents alleged to have happened in Swift Current also include a claim that the defendant is misleading the Canadian Pension Plan because she does not have a disability. The plaintiff ties this act to Swift Current because the defendant allegedly swore her affidavit to receive disability benefits in Swift Current.

What relevance this information, even if true, would have to this tort claim based on his mental suffering is unclear. [ 19 ] The plaintiff also claims that because the defendant allegedly swore false affidavits for a proceeding before the BCCA while she resided in Swift Current, then this shows the defendant intentionally engaged in tortious misconduct while residing in Swift Current. [ 20 ] As I have stated, the cause of action as pled seems to be overwhelmingly situated in British Columbia. ii) The Comparative Convenience and Expense for the Parties to the Proceeding [ 21 ] The plaintiff is currently residing in British Columbia.

The defendant is currently residing in Saskatchewan with their two children. Both the principal and vice principal of Ecole Centennial School, members of the Swift Current R.C.M.P., the notary public who witnessed the defendant’s affidavits and the defendant’s family, all presumably reside in Saskatchewan. Members of the Vernon R.C.M.P., the defendant’s former spouse, the CEO BC and associated parties, employees of ICBC, the plaintiff’s family and the plaintiff’s former legal counsel, all presumably reside in British Columbia.

Justice Cole has sadly passed away. [ 22 ] The plaintiff’s former counsel seems to be a key witness for the plaintiff in these proceedings. Indeed the plaintiff peremptorily brought a without notice application to get a Saskatchewan extra-judicial order to allow the plaintiff to examine this gentleman. The court decided this matter should proceed by way of notice and the application has been adjourned by the court to July 6, 2023.

It appears the plaintiff’s purpose of involving his former counsel was that he was present at three pre-trial conferences and the 2014 chambers proceedings concerning the mobility judgment. It is unclear what the plaintiff disagrees with in regards to the defendant’s affidavit submitted to the BCCA. However, it appears as though the majority of the relevant witnesses would reside in British Columbia.

I do recognize that there are some potential witnesses that may live in Saskatchewan but because almost all of the plaintiff’s claims arise in British Columbia, this results in most of any potential witnesses or documents being situated in British Columbia. Therefore the comparative convenience and expense for the parties to the proceeding pulls towards British Columbia. iii) The Law to be Applied to Issues in the Proceedings [ 23 ] In Saskatchewan, the tort of intentional infliction of mental suffering may be assessed less strictly than it would be in British Columbia.

In Saskatchewan, there are three elements that a plaintiff must establish to prove intentional infliction of mental suffering.

They are: (1) the conduct alleged to be tortious was flagrant or outrageous; (2) intended to cause harm to the plaintiff; and (3) resulted in visible and provable mental injury to him or her ( McLean v McLean , 2019 SKCA 15 at para 80 , [2019] 5 WWR 67; Reed v Dobson , 2021 SKQB 252 at para 156 [ Reed ]. [ 24 ] In Saskatchewan, the second element “is met if it is shown the defendant acted with reckless disregard as to whether such harm would occur or if the consequences flowing from these actions are known to be substantially certain to follow” ( Reed at para 158 ). [ 25 ] However, in British Columbia, the second element is distinguishable and follows the line of authority established in Ontario, which states that “the defendants’ conduct must be shown to be intentional; reckless indifference is insufficient to establish liability” ( Johnson v Smith , 2018 BCSC 836 at para 35 relying on Piresferreira v Ayotte , 2010 ONCA 384 at para 75 , 319 DLR (4 th ) 665). [ 26 ] Despite these differences, “ section 10(2) (

b) is intended to be focused on the appropriateness of the court in relation to the applicable laws and not the fairness of the potentially applicable laws to the ultimate proceeding” ( Boychuk at para 24 ). If the British Columbia standard were found to apply, then a Saskatchewan court would presumptively be capable and competent of applying this law. iv) The Desirability of Avoiding Multiplicity of Legal Proceedings [ 27 ] When assessing multiplicity allegations, the case of Canadian Pacific Railway Company v Kelly Panteluk Construction Ltd. , 2020 SKCA 123 , 17 CLR (5 th ) 138 [ CPR ] provides guidance.

The Court of Appeal in CPR stated at para. 59 that: [59] … the initial task of the court in each case of an allegation of multiplicity is to determine whether the multiple actions relate to the same dispute or matter and the extent of that relationship. The ultimate task is to determine, given any multiplicity, whether on the whole the process of the court has not been invoked properly, honestly and in good faith, or whether the court’s function has been misused as a means of vexation or oppression in the process of litigation.

In short, an allegation of multiplicitous litigation must be measured against the criteria indicative of abuse. [ 28 ] Both the plaintiff and defendant agree that there are ongoing judicial management conferences in British Columbia concerning the parties’ family matters. Further, it is agreed by the plaintiff and defendant that the affidavit material challenged as being fraudulent is relevant to a proceeding that was held in the BCCA. However it is not alleged that the plaintiff is pursuing civil damages for allegedly fraudulent affidavits.

Therefore this would not constitute a multiplicity of proceedings. [ 29 ] The allegations about the investigations of the Vernon R.C.M.P. and the discussions with the principal and vice principal of Ecole Centennial School and Swift Current R.C.M.P. appear distinct. As such this would not necessarily form multiplicitous claims. [ 30 ] However, despite the above, I conclude that this lawsuit filed in Saskatchewan is a continuation of what appears to be unsuccessful actions filed in British Columbia and amounts to unnecessary multiplicity of legal proceedings.

In my view the litigation should be appropriately limited by sticking to the British Columbia court system and not widening much of the same litigation

into Saskatchewan. In my view there is a real concern that allowing the plaintiff’s claims to remain in Saskatchewan would lead to multiplicity of legal proceedings. [ 31 ] For want of a more convenient spot I place this finding here. While the defendant did swear her affidavit in Swift Current, “the jurisdiction where the alleged tort took place is not always determinative in a form convenience analysis” ( Blonde Ambition Investments Inc. v RJM Ventures LLC , 2019 SKQB 275 at para 37 ).

In Farmer’s Business Network Canada, Inc. v Univar Canada Ltd. , 2019 SKQB 83 , 89 BLR (5 th ) 89, a party swore an affidavit in British Columbia; however, Justice Meschishnick found that there was still very little connecting the claim to British Columbia. In my view this answers the issue of the defendant swearing affidavits in Saskatchewan that were filed in the British Columbia court system.

v) The Desirability of Avoiding Conflicting Decisions [ 32 ] The desirability of avoiding inconsistent verdicts favours transferring the matter to British Columbia. As asserted by both the plaintiff and the defendant, there is an ongoing dispute between the parties that is continuing in British Columbia. Essentially the plaintiff seems to be challenging the mobility judgment made by Justice Cole.

This lawsuit appears to be a collateral attack on decisions made or to be made in the BCSC. [ 33 ] In my opinion a Justice sitting in the Saskatchewan King’s Bench Court should not be making findings of fact concerning the truth or fabrication of an affidavit filed in the BCSC. In my opinion this is a strong consideration resulting in a need to transfer the proceeding to the British Columbia court system. vi) The Enforcement of an Eventual Judgment [ 34 ] The plaintiff seeks monetary damages.

The presumption is that because the defendant has resided in Swift Current since 2014, any assets available for satisfaction of an eventual judgment would be found in this province as opposed to British Columbia. If the defendant does have assets here, it would likely be easier to enforce a Saskatchewan judgment here. However, The Enforcement of Canadian Judgments Act, 2002 , SS 2002, c E-9.1001 allows for the enforcement of civil monetary judgments granted in other provinces such as British Columbia.

Accordingly this limits this concern. vii) The Fair and Efficient Working of the Canadian Legal System as a Whole [ 35 ] The plaintiff has been found to be a vexatious litigant both in the BCCA pursuant to s. 29 of the Court of Appeal Act , RSBC 1996, c 77 (rep by the Court of Appeal Act, SBC 2021, c 6 , s 22, and the BCSC pursuant to s. 18 of the Supreme Court Act , RSBC 1996, c 443 . [ 36 ] Furthermore, pursuant to s. 18 of the Supreme Court Act , the plaintiff is enjoined from instituting any legal proceedings in the BCSC without first obtaining leave of a judge and then can only file applications for leave that are limited to three pages or less in length and accompanied by only one affidavit not exceeding five pages in length.

The present proceedings in Saskatchewan exceed that interdiction. [ 37 ] The BCCA also made an order that prohibited the plaintiff from filing any document in any new or existing file in any registry of the BCCA, except as allowed under set conditions.

This prohibition ordered by the BCCA applied to actions taken by the plaintiff against the defendant, her family, the parties’ children and members of the judiciary. [ 38 ] The following comments were made by the Federal Court of Appeal in Canada v Olumide , 2017 FCA 42 from paras 20-21 , [2018] 2 FCR 328 illuminates several issues that vexatious litigants pose to the fair and efficient working of the Canadian legal system: [20] … A single vexatious litigant gobbles up scarce judicial and registry resources, injuring tens or more innocent litigants.

The injury shows itself in many ways: to name a few, a reduced ability on the part of the registry to assist well-intentioned but needy self- represented litigants, a reduced ability of the court to manage proceedings needing management, and delays for all litigants in getting hearings, directions, orders, judgments and reasons. [21] On occasion, innocent parties, some of whom have few resources, find themselves on the receiving end of unmeritorious proceedings brought by a vexatious litigant. They may be hurt most of all.

True, the proceedings most likely will be struck on a motion, but probably only after the vexatious litigant brings multiple motions within the motion and even other motions too. In the meantime, the innocent party might be dragged before other courts in new proceedings, with even more motions, and motions within motions, and maybe even more. [ 39 ] Given the restrictions the plaintiff is under in the British Columbia court system, there is a strong argument that the plaintiff is only instigating matters in Saskatchewan as an attempt to circumvent these restrictions.

I recognize that this is part of the alternative request made by the defendant. However I add this for context and because this is a distinct factor to consider under s. 10(2) of the Act . The vast majority of the plaintiff’s claim relies on incidents that took place between himself and the defendant, while the defendant resided in British Columbia. Even after the defendant moved to Swift Current, the majority of interactions claimed to have caused mental suffering to the plaintiff appear to be in relation to court proceedings in British Columbia.

All of this pulls towards the transfer of this matter to British Columbia.

VI. DECISION [ 40 ] After considering the interests of the parties and the ends of justice, this Court declines to exercise its territorial competence in this proceeding on the ground that the BCSC is a more appropriate forum in which to try the proceeding. Accordingly I order that this proceeding be transferred to the BCSC, sitting in the judicial centre of Vernon (or as otherwise directed by the BCSC).

I therefore order that the local registrar of the judicial centre of Swift Current shall send to the court registry of the BCSC, sitting in Vernon, British Columbia, the entire Saskatchewan King’s Bench file recorded as KBG-SC-00028-2023. [ 41 ] As a result of this decision, the adjourned matter returnable July 6, 2023 in the judicial centre of Swift Current has no longer any juridical purpose and therefore I order the plaintiff’s application be dismissed and the parties should not appear on that return date.

However this dismissal of that application is on a without prejudice basis and the plaintiff may advance such an application in the BCSC if he chooses. [ 42 ] The defendant should issue an order reflecting this decision and Rule 10-4 of The Queen’s Bench Rules is waived. The local registrar shall provide the order to me for my review before issuing the order. [ 43 ] The defendant requested that this Court follow the same approach taken by the British Columbia courts – to anonymize the parties’ names to attempt to shelter their children from litigation.

I am prepared to do this and accordingly the distributed and published copies will reflect this. [ 44 ] There shall be no order as to costs. J. T.J. KEENE