Canada: Claim Struck And Action Dismissed; Integrity Of The Judicial Process Upheld

The Honourable Madame Justice Hollins recently issued her decision in Torrance v. Calgary Catholic School District No 1, 2017 ABQB 488. Brownlee's David Pick appeared on behalf of the Calgary Catholic School District (the "School District"), and successfully argued the application.

The claim of the Plaintiff, ET, was both struck out under Rule 3.68 and summarily dismissed under Rule 7.3(1). A summary of the decision follows.

Factual Background

ET's claim against the School District arose out of a series of related proceedings, which were largely vexatious:

  • In April 2011, the Plaintiff, ET, retained Mr. Kwan to provide counselling to his then six year old son, M.
  • Mr. Kwan ultimately produced a report with which ET took issue.
  • On June 21, 2012, ET commenced an action against Mr. Kwan alleging defamation, negligence and breach of contract with respect to the counselling services provided (the "Defamation Action").
  • ET also made a complaint against Mr. Kwan to the College of Alberta Psychologists (the "CAP Proceedings").
  • CAP issued a Notice to Attend and Produce dated Sept. 3, 2014, to the school counsellor at M's school (an employee of the School District). The notice required the school counsellor to produce M's counselling file from September 2010 to May 2011.
  • In response to the Notice, Counsel for the School District provided 11 pages of documents to counsel for Mr. Kwan, and other counsel involved, in advance of the hearing. These documents consisted of one page of the school counselor's notes and 10 additional emails and letters (written by M's mother or ET himself).
  • The CAP Proceedings settled the day before the scheduled hearing, as Mr. Kwan admitted to 2 of the 4 allegations, and the remaining 2 were withdrawn.
  • Mr. Kwan sought to use 6 of the 11 records disclosed to him in defence of the Defamation Action. He applied for a Court Order, and Master Mason granted that order on June 22, 2015.
  • ET unsuccessfully appealed that Order to the Court of Queen's Bench, and from there to the Alberta Court of Appeal, again unsuccessfully.
  • ET filed a complaint with the Privacy Commissioner of Alberta alleging breaches of the Freedom of Information and Protection of Privacy Act (FOIP).
  • ET reported Mr. Hokanson, counsel for the School District, to the Law Society of Alberta ("LSA") for misconduct.
  • The FOIP commissioner declined to investigate ET's complaint in the face of Master Mason's decision.
  • ET's complaint to the LSA against Mr. Hokanson was also dismissed.

On November 23, 2015, ET commenced this action against the School District alleging that the School District was not permitted to produce the documents in advance of the CAP hearing to counsel for Mr. Kwan and the other counsel. He also alleged that only one of the 11 pages produced by the School District (i.e. the school counselor's notes) was actually a counselling record.

Abuse of Process

Justice Hollins acknowledged that the propriety of the School District's disclosure of the Records was already confirmed in three separate decisions. While this case did not fit squarely within the doctrine of res judicata (i.e. the parties to the action were not the same) the claim arose from the same facts and events as the CAP Proceedings and the Defamation Action.

  1. Master Mason's Decision: Master Mason concluded that there was no notice required under either FOIP or the Health Professions Act. She rejected ET's argument that it was improper for Mr. Hokanson, counsel for the School District, to provide the Records to CAP in advance of the hearing.
  1. Justice Strekaf's Decision: Justice Strekaf heard ET's appeal of Master Mason's decision. She agreed that there was nothing improper about the Defendant providing the records in advance of the hearing. She further agreed that the records were documents that Mr. Kwan was entitled to use in his defence.
  1. The Alberta Court of Appeal's Decision: The Court of appeal dismissed ET's further appeal of Justice Strekaf's decision. The Court fully awarded indemnity costs against ET because of the serious and offensive nature of his allegations.

Justice Hollins agreed with Mr. Pick's argument that the claim against the School District was merely an attempt by ET to re-litigate the issues brought before Master Mason, and addressed on appeal. Justice Hollins concluded that this attempt at re-litigation constituted an "abuse of process" on the part of ET.

In support of her decision, Justice Hollins quoted Arbour, J in Toronto (City) v. CUPE Local 79 (2003 SCC 63):

"...the doctrine of abuse of process concentrated on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that re-litigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the re-litigation will prove to have been a waste of judicial resources... Finally, if the result of the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality."

Based on her findings, Justice Hollins struck out the claim pursuant to Rule 3.68 of the Alberta Rules of Court, which states that a commencement document or pleading may be struck out if it constitutes an abuse of process.

No Merit

In addition to granting the School District's application under Rule 3.68, Justice Hollins also summarily dismissed ET's claim. Rule 7.3(1)(b) of the Alberta Rules of Court provides that a claim can be summarily dismissed if there is no merit to the claim.

Justice Hollins concluded that there was nothing improper, much less illegal, about the School District's inclusion of the letters as part of M's counselling file. Furthermore, there was no requirement that CAP or the School District notify ET of the response to the Notice to Attend and Produce.  As such, Justice Hollins granted the application for summary judgment because there was no merit to the claim, and in any event, ET did not prove that any damage had occurred. 

Vexatious Litigant

In addition to this application, Brownlee lawyers also worked in conjunction with counsel for Mr. Kwan to have ET declared a Vexatious Litigant. Check out the related blog post to learn more about that decision.

* * *

Brownlee LLP is a member of the Canadian Litigation Counsel, a nationwide affiliation of independent law firms .

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions