Arabi v. Alberta et al., (2014) 589 A.R. 249 (QB)

• Judge: Gill, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 23, 2014
• Citations: (2014), 589 A.R. 249 (QB);2014 ABQB 295

Arabi v. Alta. (2014), 589 A.R. 249 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MY.071

Mouner Arabi (plaintiff) v. Her Majesty the Queen in Right of the Province of Alberta, Attorney General of Alberta, Alberta Justice (operating as Edmonton Remand Centre), Mr. Sternhaugen, Mr. Rose, Mr. Zube, Mr. Niel, Mr. Romesh Persaud, Mr. Johnson, Mr. Simms, Mr. Kosack, Mr. Buchsdrueker, Mr. McDowell, J. Stewart, W. Gardner, K. Logan, S. Emmes, S. Brown, Julie Roy, J. Pickard, D. Hollingshead, A. Finlayson, J. Kidd ("Alberta" defendants); Alberta Justice (operating as Edmonton Police Services), David Schening, Steve Horchuk, Natelie Pereault, Norman Cameron, Steve Crosby, Cst. Booth, Cst. Epps, Cst. Surrowy, Cst. N. Lieke, Cst. Hewson (Project Kare), Mr. Schrader, Cst. Edge, Mr. G. Fiorilli, Mr. J. Nash, Mr. G. Cook ("EPS" defendants); Chief Knecht (defendant); Alberta Justice (Operating as Prosecutors), Michael Lippe, Naidu Barrett Shivani ("Federal" defendants); Walter Raponni, Tarribean Company, Shawn King, Knisely and Company, Anna Konye, Pringle and Associates, Ron Morin, Doug Vegin ("Lawyer" defendants); Law Society of Alberta, Kathleen Atkins, and Rick Hilborn ("Law Society" defendants)

(1303 11926; 2014 ABQB 295)

Indexed As: Arabi v. Alberta et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Gill, J.

May 14, 2014.

Summary:

The plaintiff was the subject of criminal proceedings in 2012 and 2013 (see [2012] A.R. Uned. 879 (Q.B.) and [2013] A.R. Uned. 229 (Q.B.)). He was found guilty of some offences in each trial. In this action, he sued several parties, including government agencies, police officers and remand centre personnel, both provincial and federal Crown lawyers, the plaintiff's own defence lawyers, and the Law Society of Alberta and its employees. The defendants applied to have that action terminated as hopeless, frivolous and vexatious, and as an abuse of process. In the alternative, the defendants sought an order that the plaintiff pay into court $150,000 in security for costs.

The Alberta Court of Queen's Bench allowed the application. The action was entirely struck out per rule 3.68 of the Rules of Court (Alta.) as it was: 1. factually and legally hopeless; 2. an abuse of process, and 3. frivolous and vexatious litigation.

Barristers and Solicitors - Topic 7662

Regulation - Liability of governing bodies - Negligence (incl. duty of care) - The plaintiff was the subject of criminal proceedings in 2012 and 2013 - He was found guilty of some offences in each trial - In this action, he sued several parties, including, inter alia, the plaintiff's own lawyers and the Law Society of Alberta (LSA) and its employees - The defendants applied to have the action terminated - The Alberta Court of Queen's Bench allowed the application - The LSA's activities could not be a basis for an action in tort - Similarly, the various private individuals sued could not be liable for any award of damages that flowed from a Charter breach - The lawyer defendants were also immune to any Charter-based claim as the Charter only restricted the actions of government actors - See paragraphs 50 and 51.

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - General - Application - Nongovernmental or private interference - [See Barristers and Solicitors - Topic 7662 ].

Civil Rights - Topic 8320.8

Canadian Charter of Rights and Freedoms - General - Application - Law societies (incl. discipline committees) - [See Barristers and Solicitors - Topic 7662 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Barristers and Solicitors - Topic 7662 , Torts - Topic 77 and Torts - Topic 6152 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The plaintiff was the subject of criminal proceedings in 2012 and 2013 - He was found guilty of some offences in each trial - In this action, he sued several parties including government agencies, police officers and remand centre personnel, both provincial and federal Crown lawyers, the plaintiff's own defence lawyers, and the Law Society of Alberta and its employees - In the decision in R v Arabi (2013 Alta. Q.B.), Justice Burrows concluded that the plaintiff was not guilty of two charges of breach of a no-contact order issued by Justice Henderson - Burrows, J., concluded that the no-contact order was made without proper jurisdiction - The plaintiff used this conclusion as the basis for several of his complaints of unauthorized legal action, "wilful blindness" and his more specific allegation that "[t]he judge, crown, and lawyer all knew and acted outside the law of jurisdiction, without argument, only agreeing on the unlawful judge's order, the abuse of process continued." - The defendants applied to have the action terminated - The Alberta Court of Queen's Bench allowed the application - All defendants were required to act as though the no-contact order was in operation until instructed otherwise - This was precisely what they did - These facts did not support any cause of action - See paragraphs 65 to 67.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The plaintiff was the subject of criminal proceedings in 2012 and 2013 - He was found guilty of some offences in each trial - In this action, he sued several parties including government agencies, police officers and remand centre personnel, both provincial and federal Crown lawyers, the plaintiff's own defence lawyers, and the Law Society of Alberta and its employees - The plaintiff asserted that the defendants acted without jurisdiction - The defendants applied to have the action terminated - The Alberta Court of Queen's Bench allowed the application - A litigant had the obligation to prove that an otherwise presumptively authorized government or court actor did not have jurisdiction to engage in a function - The plaintiff offered no such proof - See paragraph 68.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The plaintiff was the subject of criminal proceedings in 2012 and 2013 - He was found guilty of some offences in each trial - In this action, he sued several parties including government agencies, police officers and remand centre personnel, both provincial and federal Crown lawyers, the plaintiff's own defence lawyers, and the Law Society of Alberta and its employees - The defendants applied to have the action terminated - The Alberta Court of Queen's Bench allowed the application - The action was hopeless because of issues with the alleged factual matrix - The statement of claim made (1) no indication of misconduct by certain defendants; (2) bald, absurd or scandalous allegations and "gibberish allegations" (allegations that made no sense) - The statement of claim failed to link the defendants to the alleged injuries - The plaintiff complained about detention conditions that arose from his own misconduct - See paragraphs 69 to 85.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - The plaintiff was the subject of criminal proceedings in 2012 and 2013 - He was found guilty of some offences in each trial - In this action, he sued several parties including government agencies, police officers and remand centre personnel, both provincial and federal Crown lawyers, the plaintiff's own defence lawyers, and the Law Society of Alberta and its employees - The defendants applied to have the action terminated - The Alberta Court of Queen's Bench allowed the application on the basis that the action was a frivolous and vexatious proceeding - The action included many collateral attacks on the various interlocutory and trial decisions in the 2012 and 2013 criminal actions - The action had no prospect of success - The plaintiff's motivation for the action was financial gain: this lawsuit was intended to create such expense that the plaintiff hoped to be paid off by the defendants so as to end this litigation - Further, the plaintiff's damages claims were outrageous and in no way related to his claimed injuries - See paragraph 97 to 105.

Practice - Topic 2239.1

Pleadings - Striking out pleadings - Grounds - Abuse of process - Hopeless suit - The plaintiff was the subject of criminal proceedings in 2012 and 2013 - He was found guilty of some offences in each trial - In this action, he sued several parties including government agencies, police officers and remand centre personnel, both provincial and federal Crown lawyers, the plaintiff's own defence lawyers, and the Law Society of Alberta and its employees - The defendants applied to have the action terminated - The Alberta Court of Queen's Bench allowed the application on the basis that the action was an abuse of process - The action offended the community's standards of fair play and decency, and brought the administration of justice into disrepute - It was wrong for the plaintiff to first shield himself from criminal sanction by his illegal conduct, then use that result as a sword to attack the persons involved in the investigation and litigation that led to the 2012 and 2013 criminal actions and findings of guilt - Beyond all the many legal and factual defects, the simple purpose of this litigation was wrong - The plaintiff should not be permitted to continue to exploit his strategy of intimidation, bribery, threats, and abduction as a basis to harass the defendants and cause unnecessary, purposeless, and costly litigation - See paragraphs 89 to 96.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - The plaintiff was the subject of criminal proceedings in 2012 and 2013 - He was found guilty of some offences in each trial - In this action, he sued several parties including government agencies, police officers and remand centre personnel, both provincial and federal Crown lawyers, the plaintiff's own defence lawyers, and the Law Society of Alberta and its employees, asserting that the defendants failed in what could be called a 'duty to supervise', that they "... failed in their ethical duties to correct colleagues in matters of law." - The defendants applied to have the action terminated - The Alberta Court of Queen's Bench allowed the application - A duty of care arose where: "(1) the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care; and (2) there are no residual policy considerations which justify denying liability" - An alleged duty of care that extended in an excessively broad manner was negated on policy grounds as it caused "indeterminate liability" - This was precisely the effect of the plaintiffs's alleged and unrestricted 'duty to supervise', and on that basis the court struck out all claims that only flowed from an alleged failure to supervise their colleagues by named defendants against whom the plaintiff made no specific allegations - See paragraphs 52 to 54.

Torts - Topic 6152

Abuse of legal procedure - Malicious prosecution - Elements of - The plaintiff was the subject of criminal proceedings in 2012 and 2013 - He was found guilty of some offences in each trial - In this action, he sued several parties including government agencies, police officers and remand centre personnel, both provincial and federal Crown lawyers, the plaintiff's own defence lawyers, and the Law Society of Alberta and its employees, asserting the tort of malicious prosecution - The defendants applied to have the action terminated - The Alberta Court of Queen's Bench allowed the application - There were four necessary elements for the tort of malicious prosecution: "a) the proceedings must have been initiated by the defendant; b) the proceedings must have terminated in favour of the plaintiff; c) the absence of reasonable and probable cause; d) malice, or a primary purpose other than that of carrying the law into effect" - The findings of fact made in the 2012 and 2013 criminal actions not only demonstrated that there was reasonable and probable cause for investigators and Crown prosecutors to direct their attention to the plaintiff, but he was actually guilty of the majority of the alleged misconduct - Where he was not found guilty there was nevertheless evidence of complainants to support his misconduct - Further, the plaintiff admitted in court much of the critical factual foundation of the cases against him - As a consequence, there was no basis to conclude that the prosecutions on any of the charges where the plaintiff was found not guilty represented a "fraud on the process of criminal justice" - The defendants involved in the plaintiff's proceedings were simply doing their jobs - See paragraphs 55 to 64.

Cases Noticed:

Young v. Ewatski (2012), 280 Man.R.(2d) 239; 548 W.A.C. 239; 351 D.L.R.(4th) 81; 2012 MBCA 64, leave to appeal denied (2013), 452 N.R. 398; 303 Man.R.(2d) 323; 600 W.A.C. 323 (S.C.C.), refd to. [para. 27].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 34].

Stout v. Track (2013), 574 A.R. 59; 2013 ABQB 751, refd to. [para. 37].

Envision Edmonton Opportunities Society et al. v. Edmonton (City) (2011), 507 A.R. 275; 2011 ABQB 29, refd to. [para. 38].

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al., [2011] 3 S.C.R. 422; 421 N.R. 338; 311 B.C.A.C. 1; 529 W.A.C. 1; 2011 SCC 52, refd to. [para. 39].

Workers' Compensation Board (B.C.) v. Figliola - see Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al.

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 42].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 45].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 45].

Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841; 225 N.R. 297; 158 D.L.R.(4th) 577, refd to. [para. 51].

R. v. Dell (B.M.) (2005), 367 A.R. 279; 346 W.A.C. 279; 2005 ABCA 246, refd to. [para. 51].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 53].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 53].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Design Services Ltd. et al. v. Canada, [2008] 1 S.C.R. 737; 374 N.R. 77; 2008 SCC 22, refd to. [para. 53].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161; 60 D.L.R.(4th) 609, refd to. [para. 55].

Banks v. Bliefernich (1988), 24 B.C.L.R.(2d) 397; 44 C.C.L.T. 144 (S.C.), refd to. [para. 56].

Radford v. Stewart (2006), 384 A.R. 167; 367 W.A.C. 167; 2006 ABCA 157, refd to. [para. 56].

Boudreault v. Barrett et al. (1998), 219 A.R. 67; 179 W.A.C. 67; 1998 ABCA 232, refd to. [para. 58].

R. v. Sydel (E.N.M.), [2010] B.C.T.C. Uned. 1473; [2011] 1 C.T.C. 200; 2010 BCSC 1473, affd. [2011] B.C.A.C. Uned. 34; 2011 BCCA 103, leave to appeal refused (2011), 428 N.R. 389; 313 B.C.A.C. 320; 533 W.A.C. 320 (S.C.C.), refd to. [para. 67].

Fearn v. Canada Customs (2014), 586 A.R. 23; 2014 ABQB 114, refd to. [para. 67].

R. v. Crischuk (K.-C.) et al., [2010] B.C.T.C. Uned. 716; 2010 BCSC 716, affd. [2010] B.C.A.C. Uned. 70; 2010 D.T.C. 5141; 2010 BCCA 391, refd to. [para. 68].

R. v. Lemieux (G.) et al., [2007] Sask.R. Uned. 124; [2008] 2 C.T.C. 291; 2007 SKPC 135, refd to. [para. 68].

G.H. v. Alcock et al., [2013] A.R. Uned. 38; 2013 ABCA 24, refd to. [para. 72].

Wong v. Leung et al. (2013), 563 A.R. 281; 2013 ABQB 327, leave to appeal refused (2014), 572 A.R. 235; 609 W.A.C. 235; 2014 ABCA 121, refd to. [para. 77].

V.W.W. v. Wasylyshen et al. - see Wong v. Leung et al.

R. v. Kruger and Manuel, [1978] 1 S.C.R. 104; 15 N.R. 495; 75 D.L.R.(3d) 434, refd to. [para. 78].

Trang et al. v. Edmonton Remand Centre (Director) et al. (2010), 475 A.R. 1; 2010 ABQB 6, refd to. [para. 80].

R. v. Summers (S.) (2014), 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 80].

R. v. Wust (L.W.) et al., [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 80].

Kisikawpimootewin v. Canada, [2004] F.T.R. Uned. 818; 134 A.C.W.S.(3d) 396; 2004 FC 1426, refd to. [para. 84].

R. v. Fearn (G.W.) (2014), 586 A.R. 182; 2014 ABQB 233, refd to. [para. 85].

Reece et al. v. Edmonton (City) (2011), 513 A.R. 199; 530 W.A.C. 199; 335 D.L.R.(4th) 600; 2011 ABCA 238, refd to. [para. 90].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 91].

Canam Enterprises Inc. v. Coles et al. (2000), 139 O.A.C. 1; 51 O.R.(3d) 481; 194 D.L.R.(4th) 648 (C.A.), refd to. [para. 92].

Canam Enterprises Inc. v. Coles et al., [2002] 3 S.C.R. 307; 296 N.R. 257; 167 O.A.C. 1; 2002 SCC 63, refd to. [para. 92].

Dykun v. Odishaw et al. (2000), 267 A.R. 318; 2000 ABQB 548, affd. (2001), 286 A.R. 392; 253 W.A.C. 392; 2001 ABCA 204, leave to appeal denied (2002), 289 N.R. 194; 299 A.R. 317; 266 W.A.C. 317 (S.C.C.), refd to. [para. 97].

MBNA Canada Bank v. Luciani, [2011] O.T.C. Uned. 6347; 2011 ONSC 6347, refd to. [para. 100].

Tailleur et al. v. Grande Prairie General and Auxiliary Hospital and Nursing Home District No. 14 et al. (1996), 180 A.R. 389; 38 Alta. L.R.(3d) 112 (Q.B.), revd. in part (1999), 228 A.R. 274; 188 W.A.C. 274; 1999 ABCA 2, leave to appeal refused (1999), 252 N.R. 194; 255 A.R. 397; 220 W.A.C. 397 (S.C.C.), refd to. [para. 101].

Layden and J.B. Layden Oilfield Contractors Ltd. v. Cope et al. (1984), 52 A.R. 70; 28 C.C.L.T. 140 (Q.B.), refd to. [para. 101].

Maldonado v. Bourassa (1988), 92 A.R. 337; 13 A.C.W.S.(3d) 153 (Q.B.), varied in part (1990), 108 A.R. 321; 22 A.C.W.S.(3d) 1045 (C.A.), refd to. [para. 101].

Andrews et al. v. Grand and Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452, refd to. [para. 101].

Brown v. Silvera (2010), 488 A.R. 22; 2010 ABQB 224, refd to. [para. 108].

Authors and Works Noticed:

Truzzi, Marcello, On the Extraordinary: An Attempt at Clarification (1978), 1 Zetetic Scholar 11, p. 11 [para. 78].

Counsel:

Mourner Arabi, for himself;

Kate Bridgett (Alberta Justice - Civil Litigation), for the "Alberta" defendants;

Lorena K. Harris (Dentons Canada LLP), for the "EPS" defendants;

Jeremy L. Taylor (Field LLP), for Chief Knecht;

Bruce Hughson and Cameron Regehr, for the "Federal" defendants;

Phyllis A. Smith, Q.C. (Emery Jamieson LLP), for the "Law Society" and "Lawyer" defendants.

This application was heard on April 23, 2014, by Gill, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on May 14, 2014.