3.68: Court options to deal with significant deficiencies
10.29: General rule for payment of litigation costs
10.33: Court considerations in making costs award

Case Summary

In 2020, Mr. Weidenfeld filed a Statement of Claim (“2020 Lawsuit”) naming Alberta and Canada as Defendants, demanding a number of declarations and that the Court order Alberta to implement certain steps to provide for and fund housing.

Justice Rooke A.C.J. issued Weidenfeld v Alberta, 2020 ABQB 451 (“Weidenfeld #1”) which concluded that Mr. Weidenfeld’s claims in the 2020 Lawsuit were prima facie hopeless and illegal, and an abuse of the Court. Mr. Weidenfeld voluntarily discontinued his Action against Alberta and Canada. In a later written Decision reported as Weidenfeld v Alberta, 2020 ABQB 472 (“Weidenfeld #2”), Rooke A.C.J. did not assess Costs against Mr. Weidenfeld. His Lordship took note that Mr. Weidenfeld acknowledged his actions against Alberta and Canada had no basis in law, and apologized to the Court and Premier Kenny.

In 2021, Mr. Weidenfeld filed an Application (“2021 Application”), seeking Court declarations that: (1) certain sections of the Residential Tenancies Act, RSA 2000, c R-17 are unconstitutional as they breach section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) (2) housing is a “necessity of life”, protected by section 7 of the Charter and therefore the Alberta Housing Act, RSA 2000, c A-25 must be amended accordingly and that regulations are enacted in relation to “unreasonable” “deprivation of housing” and “degradation ... of housing”; and (3) section 7 of the Charter includes “adequate and affordable housing”, with rents of no more than 30% of monthly income.

Alberta applied to strike out the 2021 Application pursuant to Rule 3.68 on the basis that Mr. Weidenfeld was re-litigating issues decided in Weidenfeld #1 and Weidenfeld #2. Alternatively, Alberta argued that the remedies sought were non-justiciable and hopeless.

Justice Kendell noted that evaluation of the 2021 Application under Rule 3.68 had two discrete and separate aspects that yielded two separate questions: (1) was the 2021 Application a prohibited collateral attack and re-litigation of issues decided by Weidenfeld #1 and #2;  and (2) were the claims made in the 2021 Application legally hopeless and/or non-justiciable, and therefore was the 2021 Application an abuse of the Court and Alberta?

Under the first aspect, Kendell J. found that the 2021 Application was a collateral attack in two separate senses: (1) Mr. Weidenfeld was re-litigating issues, and (2) Mr. Weidenfeld was attacking the Court’s conclusions on those issues. Either was held to be an independent basis to strike out the 2021 Application. Kendell J. therefore ordered that the 2021 Application be struck out pursuant to Rule 3.68.

Under the second aspect the Court agreed with Alberta that Mr. Weidenfeld had not raised any valid claim because: (1) the Charter does not provide for property and economic rights, including a right to housing, and (2) the issues and remedies sought were non-justiciable.

Kendell J. concluded under Rule 10.29(1) that Alberta had been completely successful in the Application, and therefore was presumptively due Costs. Considering the broad implications of Mr. Weidenfeld’s claims, that Mr. Weidenfeld had engaged in three-fold re-litigation, and that Mr. Weidenfeld had persisted in continuing his claims in the face of settled law that he was entirely aware of, Kendell J. further concluded that the litigation implicated many of the criteria for an elevated Cost Award as identified in Rule 10.33. Based on the foregoing, Kendell J. ordered that Mr. Weidenfeld pay Alberta $4,000 in Costs.

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