Written By Kristina Roberts 

In recent decision from the Alberta Court of Queen’s Bench, ET v Rocky Mountain Play Therapy Institute Inc., 2017 ABQB 475, the Honourable Madame Justice Hughes  declared that  the Plaintiff is a vexatious litigant; this means he will no longer be able to file any actions without leave of the Court.

Brownlee’s John Gescher appeared on behalf of the Calgary Catholic School District (the “School District”), and successfully argued the application in conjunction with counsel for a related matter.

Factual Background

• In April 2011, the Plaintiff, ET, retained Mr. Kwan to provide counselling to his then six year old son, M. Rocky Mountain Play Therapy Institute (“RMPTI”) was Mr. Kwan’s employer.
• On June 21, 2012, ET commenced an action against Mr. Kwan and RMPTI alleging defamation, negligence and a 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. A hearing was scheduled for October 15, 2014 (the “CAP Proceedings”).
• Counsel for Mr. Kwan served a Notice to Attend and Produce on a counsellor at M’s school (a school within the School District). Counsel for the School District provided 11 pages of documents for M’s file to counsel for Mr. Kwan and other counsel involved in advance of the hearing.
• 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 Kwan admitted to 2 of the 4 allegations, and the remaining 2 were withdrawn.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). The FOIP commissioner declined to investigate ET’s complaint in light of Master Mason’s decision.
• ET reported Mr. Hokanson, counsel for the School District, to the Law Society of Alberta (“LSA”) for misconduct. This complaint was also dismissed.
• On November 23, 2015, ET commenced an action against the School District alleging that the School District was not permitted to produce the documents in advance of the 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 were actually counselling records. ET sought general damages in the amount of $475,000 and punitive damages in the amount of $100,000.

The Law

Section 23.1 of the Judicature Act, RSA 2000, c. J-2, (the “Act”) sets out the procedure to obtain a declaration that an individual is a vexatious litigant. Section 23(2) of the Act establishes that instituting vexatious proceedings or conducting a proceeding in a vexatious manner includes any one or more of the following:

• Persistently bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction;
• Persistently bringing proceedings that cannot succeed or that have no reasonable expectation of providing relief;
• Persistently bringing proceedings for improper purposes;
• Persistently using previously raised grounds and issues in subsequent proceedings inappropriately;
• Persistently failing to pay the costs of unsuccessful proceedings on the part of the person who commences those proceedings;
• Persistently taking unsuccessful appeals from judicial decisions; and
• Persistently engaging in inappropriate courtroom behaviour.

Clearly, persistent behaviour is key to the application of section 23(2) of the Act. In her decision, Justice Hughes clarified that the above is not an exclusive list; she also relied quite heavily on the conduct stereotypical of vexatious litigation identified in Chutskoff v. Bonora, 2014 ABQB 389.

Persistent Vexatious Behaviour 

ET has a long history of litigious behavior dating back to 2006 with allegations against his estranged wife.

In 2009, ET commenced an action against Alberta claiming damages of $5,000,000 for a variety of alleged wrongs arising from his child custody litigation. He alleged that “the entire family court process is bias [sic] and discriminatory to men/fathers and clearly, in this case, clearly demonstrated inequality to [ET] as a father and as a man.” The Statement of Claim was struck because it did not disclose a cause of action. ET attempted to appeal the decision all the way up to the Supreme Court of Canada. Leave was denied.

 Escalating Proceedings and Collateral Attacks

In addition to this application, Brownlee lawyers also filed an application for summary judgement and to have ET’s claim against the School District struck. This application was granted because ET’s action was considered to be a collateral attack on the decision of Master Mason and an abuse of process.  To learn more about this decision read the related blog post.

Justice Hughes found that the complaints ET filed with the Office of the Privacy Commissioner, the Law Society of Alberta, and the Calgary Police Service, all of which arose out of the use of the documents provided by the School District, also constituted collateral attacks on the initial decision of Master Mason.

Despite his numerous attempts at unsuccessfully arguing this issue in various forums, and his persistent unsuccessful appeals of the original decision, ET indicated on July 18, 2017, that he was in the process of pursuing criminal charges against the parties involved in this litigation.

Scandalous and Inflammatory Language

Justice Hughes recognized that ET’s language and allegations became progressively more scandalous and inflammatory with every document he filed. For example, in his factum filed in the Appeal of the decision to allow for the production of certain records in the Defamation Action (2016 ABCA 320), ET claims that Mr. Kwan committed “numerous serious criminal acts against my child and me” and “serious child abuse.” ET provided no evidence to support these serious and offensive allegations.

Unsubstantiated Allegations of Conspiracy, Fraud, and Misconduct

ET’s claim against the School District and the related parties arose because of his perception that the parties were conspiring to intentionally release documents improperly. For instance, in his pleadings filed on July 13, 2017, which Justice Hughes attached to her decision, ET stated: “it appears a CONSPIRACY was in the making between Hokanson and Kwan and lawyers to ILLEGALLY AND CRIMINALLY go beyond the Scope of the LEGAL SUBPOENA…”

He continued in the same application to make allegations of misconduct on the part of Justice Strekaf: “For reasons only known to Madam Justice Strekaf, these crimes, which ARE DIRECTLY RELATED TO THE PRIVATE AND CONFIDENTIAL DOCUMENTS were not even assessed and my clear evidence was not even considered or referred to in her decision. WHY?”

In the appeal of his 2009 action against Alberta, relating to his child custody litigation, ET alleged that “the Chamber’s Judge was not impartial, he did not allow the appellant to speak, and he arbitrarily and unreasonably decided in favor of Alberta prior to the hearing.”

In general, ET has a tendency to allege bias against any decision maker who does not rule in his favor.

Failure to Honour Court-Ordered Obligations

Justice Hughes calculated the total amount ET owes in costs: $41,199.11. Some of this amount has been outstanding since 2015, and ET has not paid any of it. ET advised Justice Hughes in a case management meeting that is unable to pay any of the costs awarded against him. Yet, he continued to file applications.

The Order

In light of Justice Hughes’ decision, ET is now prohibited from commencing any action or appeal in any Court in Alberta on his own behalf or on behalf of anyone else, without the order of a judge. If ET wishes to commence any proceedings, he must (among other requirements): apply in writing; provide an accompanying affidavit with a copy of the vexatious litigant order attached; and appear in open court to make the application. A judge will then decide whether the proposed proceeding is an abuse of process and whether there are reasonable grounds for commencing it.

Concluding Thoughts

While the decision to deny a person unfettered access to the justice system should not be taken lightly, vexatious litigant orders have historically only been granted in relatively extreme circumstances. These orders are necessary to prevent wasted time and resources, and are often the only way of stopping individuals who have become obsessed with a cause. ET himself admitted that he has racked up hundreds of thousands of dollars in legal bills pursuing these matters, as he was represented by counsel during certain portions of previous actions. He also owes a significant amount in costs to other parties, not to mention the financial and administrative burden he has placed on judicial and public resources. Vexatious litigation prevents other, legitimate claims from being dealt with, and further clogs up our already backlogged court system.