Prefontaine v. Gosman et al., (2000) 270 A.R. 97 (QB)

• Judge: Jones, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 21, 2000
• Citations: (2000), 270 A.R. 97 (QB)

Prefontaine v. Gosman (2000), 270 A.R. 97 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. AP.022

Rose Prefontaine and Maurice Prefontaine (appellants/respondents) v. Robert Gosman, David Beaubier, Michael Bonner, Jean Claude Courture, Murray Hugh Mogan, Alban Guron, D.E. Taylor, Clara Gaal and Brian Douglas (respondents/applicants)

(9903 11629)

Indexed As: Prefontaine v. Gosman et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Jones, J.

March 21, 2000.

Summary:

The plaintiffs, business persons, com­menced an action against six Tax Court of Canada judges, a federal Department of Justice lawyer and two Federal Government employees. The claim related to an ongoing dispute between the plaintiffs and the defen­dants. The claim alleged, inter alia, that the defendants slandered the plaintiffs by mak­ing numerous false statements about the plaintiffs' financial affairs, defrauded the plaintiffs and caused malicious harm to the plaintiffs. The defendants sought to have the plaintiffs' claim struck. Particularly, the defendants alleged that the plaintiffs' claim lacked sufficient particulars regarding certain allegations, and that it disclosed no cause of action, was scandalous, frivolous and vex­atious and was an abuse of process of the court. In addition, the defendant judges asserted privilege.

A Master of the Alberta Court of Queen's Bench, in a decision not reported in this series of reports, allowed the application. The plaintiffs appealed.

The Alberta Court of Queen's Bench dis­missed the appeal.

Courts - Topic 313

Judges - Independence of judiciary - Judicial immunity - [See Libel and Slan­der - Topic 2928 and second Practice - Topic 2230 ].

Courts - Topic 351

Judges - Exercise of authority - Actions as judge of a court - [See Libel and Slan­der - Topic 2928 ].

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - The plaintiffs, bus­iness persons, commenced an action against six Tax Court of Canada judges, a federal Depart­ment of Justice lawyer and two Federal Government employees - The claim related to an ongoing dispute between the plain­tiffs and the defendants. -The defendants sought to have the plaintiffs' claim struck - Particularly, the defendants alleged that the plaintiffs' claim lacked sufficient par­ticulars regarding certain allegations, and that it disclosed no cause of action, was scandalous, frivolous and vexatious and was an abuse of the court's process - A Master allowed the application - The plaintiffs appealed - The Alberta Court of Queen's Bench dismissed the appeal on the ground that cause of action estoppel (or res judicata) applied - See paragraphs 70 to 74.

Estoppel - Topic 386

By record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Estoppel - Topic 377 ].

Fraud and Misrepresentation - Topic 4084

Practice - Pleadings - What must be pleaded - The plaintiffs, business persons, commenced an action against six Tax Court of Canada judges, a federal Depart­ment of Justice lawyer and two Federal Government employees - The claim related to an ongoing dispute between the plain­tiffs and the defendants - The claim alleged, inter alia, that the defendants defrauded the plaintiffs - The defendant lawyer and government employees sought to strike the action as against them, assert­ing, inter alia, that the plaintiffs failed to set out the particulars of the alleged fraud -The Alberta Court of Queen's Bench agreed and struck the action - See para­graphs 58 to 60.

Fraud and Misrepresentation - Topic 4086

Practice - Pleadings - Fraud - [See Fraud and Misrepresentation - Topic 4084 ].

Libel and Slander - Topic 2928

Defences - Absolute privilege - State­ments made in the course of judicial or legal proceedings - The plaintiffs, business persons, commenced an action against six Tax Court of Canada judges, a federal Department of Justice lawyer and two Federal Government employees - The claim related to an ongoing dispute between the plaintiffs and the defendants - The defendant judges sought to strike the action as against them, asserting privilege -The Alberta Court of Queen's Bench agreed - The claims against the judge related to actions by them acting in their capacity as judges - The law was clear - "[A] judge acting in her or is judicial capacity will not be liable civilly for any actions done in such judicial capacity whether the judge was acting within or outside of her or his jurisdiction, and even if the judge was acting out of hatred, envy or malice, if the judge believed that he or she was acting with jurisdiction and in the course of his or her judicial duties" - See paragraphs 39 and 55 to 56.

Libel and Slander - Topic 6126

Practice - Pleadings - Statement of claim - Setting out slanderous words - The plaintiffs, business persons, commenced an action against six Tax Court of Canada judges, a federal Department of Justice lawyer and two Federal Government employees - The claim related to an ongoing dispute between the plaintiffs and the defendants - The claim alleged, inter alia, that the defendants slandered the plaintiffs by making numerous false state­ments about the plaintiffs - The defendant lawyer and government employees sought to strike the action as against them, assert­ing, inter alia, that the plaintiffs failed to set out the alleged slanderous words - The Alberta Court of Queen's Bench agreed and struck the action - See paragraphs 57 and 58.

Practice - Topic 2228

Pleadings - Striking out pleadings - Grounds - Res judicata - [See Estoppel - Topic 377 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action - The plaintiffs, business persons, commenced an action against six Tax Court of Canada judges, a federal Depart­ment of Justice lawyer and two Federal Government employees - The claim alleged, inter alia, that the defendants slandered the plaintiffs by making numer­ous false statements about the plaintiffs financial affairs, defrauded the plaintiffs and caused malicious harm to the plaintiffs - The defendants sought to have the plaintiffs' claim struck - Particularly, the defendants alleged that the plaintiffs' claim lacked sufficient particulars regarding certain allegations, and that it disclosed no cause of action, was scandalous, frivolous and vexatious and was an abuse of process of the court - A Master allowed the appli­cation - The Alberta Court of Queen's Bench dismissed the plaintiffs' appeal.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action - The plaintiffs, business persons, commenced an action against six Tax Court of Canada judges, a federal Depart­ment of Justice lawyer and two Federal Government employees - The claim related to an ongoing dispute between the plain­tiffs and the defendants - The defen­dant judges sought to strike the action against - They argued that the plaintiffs failed to disclose a cause of action as against them because of judicial immunity - The Alberta Court of Queen's Bench agreed, and in striking the action, can­vassed the law relating to judicial immun­ity - See paragraphs 35 to 53.

Practice - Topic 2230.3

Pleadings - Striking out pleadings - Grounds - Failure to plead material facts -[See Libel and Slander - Topic 6126 and Fraud and Misrepresentation - Topic 4084 ].

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - [See first Practice - Topic 2230 ].

Practice - Topic 2233

Pleadings - Striking out pleadings - Grounds - Privilege or immunity - [See Libel and Slander - Topic 2928 and second Practice - Topic 2230 ].

Practice - Topic 2239.1

Pleadings - Striking out pleadings - Grounds - Abuse of process - Hopeless suit - [See first Practice - Topic 2230 ].

Practice - Topic 5361

Dismissal of action - Grounds - General and want of prosecution - Abuse of legal process - [See Estoppel - Topic 377 ].

Cases Noticed:

Sirros v. Moore, [1974] 3 All E.R. 776, refd to. [para. 39].

Ringrose v. Stevenson; Ringrose v. MacDonald; Ringrose v. Haddad; Ring­rose v. Clement (1982), 35 A.R. 62 (Q.B. Master), refd to. [para. 39].

Kopyto v. Ontario, [1995] O.J. No. 601 (Gen. Div.), refd to. [para. 39].

Royer v. Mignault (1988), 13 Q.A.C. 39; 50 D.L.R.(4th) 345 (C.A.), refd to. [para. 39].

Janson v. King (1979), 4 Sask.R. 311; 103 D.L.R.(3d) 189 (Q.B.), refd to. [para. 39].

R. v. Germain (1984), 53 A.R. 264 (Q.B.), refd to. [para. 39].

Maharaj v. Trinidad (Attorney General) and Tobago (No. 2), [1978] 2 All E.R. 670 (P.C.), refd to. [para. 39].

Morier et al. v. Rivard, [1985] 2 S.C.R. 716; 64 N.R. 46; 23 D.L.R.(4th) 1, refd to. [para. 39].

Royal Aquarium and Summer and Winter Garden Society v. Parkinson, [1982] 1 Q.B. 431, refd to. [para. 55].

Moss v. Boisvert et al. (1990), 107 A.R. 385 (Q.B. Master), refd to. [para. 56].

Lougheed v. Canadian Broadcasting Corp., [1978] 4 W.W.R. 358; 11 A.R. 55 (T.D.), refd to. [para. 56].

Rosen v. Alberta Motor Association Insur­ance Co. et al. (1993), 146 A.R. 219; 13 Alta. L.R.(3d) 356 (Q.B.), refd to. [para. 57].

Pepsi-Cola Canada Inc. and Pizza Hut Inc. v. P.M. Foods Ltd., Roach, Malloy, Dietrich and Smith (1985), 61 A.R. 340 (Q.B.), refd to. [para. 59].

Suncor Inc. v. Canada Wire and Cable Ltd. (1993), 7 Alta. L.R.(3d) 182 (Q.B.), refd to. [para. 61].

Osborne v. Pinno and Milligan (1997), 208 A.R. 363 (Q.B.), refd to. [para. 68].

420093 B.C. Ltd. v. Bank of Montreal, (1995), 174 A.R. 214; 102 W.A.C. 214; 34 Alta. L.R.(3d) 269 (C.A.), refd to. [para. 71].

German v. Major (1985), 62 A.R. 2; 39 Alta. L.R.(2d) 270 (C.A.), refd to. [para. 74].

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. 76].

Milgaard v. Kujawa et al. (1994), 123 Sask.R. 164; 74 W.A.C. 164; 118 D.L.R.(4th) 653 (C.A.), refd to. [para. 76].

Prete v. Ontario et al. (1993), 68 O.A.C. 1; 110 D.L.R.(4th) 94 (C.A.), refd to. [para. 76].

Morier v. Rivard, [1985] 2 S.C.R. 716; 64 N.R. 46; 17 Admin. L.R. 230; 23 D.L.R.(4th) 1, refd to. [para. 76].

Excelsior Life Insurance Co. v. Zurich Investments Ltd. and Drucker et al. (1988), 89 A.R. 14; 59 Alta. L.R.(2d) 209 (C.A.), refd to. [para. 76].

Chhabra v. R., [1992] 2 C.T.C. 13, refd to. [para. 76].

Carlic v. R. (1967), 65 D.L.R.(2d) 633 (Man. C.A.), refd to. [para. 76].

Rempel v. Althouse and Wickstrom, [1984] 5 W.W.R. 246; 34 Sask.R. 281 (Q.B.), refd to. [para. 179].

Edmonton Northlands v. Edmonton Oilers Hockey Corp. (1993), 147 A.R. 113; 15 Alta. L.R.(3d) 179 (Q.B.), refd to. [para. 79].

Authors and Works Noticed:

Gately on Libel and Slander (8th Ed. 1981), pp. 159, 160 [para. 55].

Counsel:

Patrick D. Bendin, for the respondents, Robert Gosman, Clara Gaal and Brian Douglas;

Rose Prefontaine and Maurice Prefontaine, unrepresented by counsel;

Harold W. Veale, Q.C., and Rod J. Wasy­lyshyn, for the respondents, David Beaubier, Michael Bonner, Jean Claude Courture, Murray Hugh Mogan, Alban Guron, and D.E. Taylor.

This appeal was heard before Jones, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 21, 2000.