Written by Kristina Roberts

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 Kwan admitted to 2 of the 4 allegations, and the remaining 2 were withdrawn.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.

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.

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.

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 our website for an upcoming blog post to learn more about that decision.