Vancouver lawyer who sued neighbour over deck divider accused of pseudolegal 'paper terrorism'

A Vancouver woman is asking for the courts to make an example of her neighbour, a practising lawyer she alleges has filed a baseless pseudolegal lawsuit against her in an attempt to "provoke a state of fear."

Colleen McLelland stood before a B.C. Supreme Court master on Wednesday asking for a notice of claim filed by real estate lawyer Naomi Arbabi to be struck as "scandalous, frivolous or vexatious." McLelland also called on the court to refer a complaint against Arbabi to the Law Society of B.C.

"I feel that the court needs to make an example of this case where a self-represented litigant made arguments in law and followed the proper court procedure, but a lawyer advanced a pseudolegal claim and abused the court's process," McLelland told the master.

"I estimate that my legal fees in this matter, based on the billing of lawyers I've retained in the past, would be approximately $15,000 to date had I not self-represented. This pseudolegal claim has taken months of my time, resulting in unnecessary costs, and more importantly caused extreme stress to me, my family and friends."

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Arbabi's notice of claim, filed on Oct. 5, accuses McLelland of "trespass" for installing a privacy divider on her rooftop deck in their Fairview condo building. Arbabi identifies herself as "i, a woman" in the claim and says the case would be tried in the "naomi arbabi court."

She writes that "this is a claim based on law of the land, and not a complaint based on legal codes acts or statutes" and asks for compensation equal to $1,000 a day for every day the glass divider has been in place — totalling close to $70,000 by now. 

McLelland argued the lawsuit is a clear example of what Canadian courts have termed an organized pseudolegal commercial argument (OPCA) — a thoroughly debunked and wholly unsuccessful class of legal theory favoured by fringe groups like Sovereign Citizens and Freemen on the Land.

"In dealing with Ms. Arbabi's notice and claim, I truly feel a victim of paper terrorism and believe the public needs to be protected from such litigation tactics," McLelland said.

On Wednesday, Master Susanna Hughes reserved her decision on McLelland's application to strike the notice of claim, saying she would release written reasons at a later date.

Lawyer says courts misunderstand 'natural law'

In her submissions on Wednesday, Arbabi denied any association with organized pseudolegal groups, but told the court "I do think that our legal system has a lot of flaws." She argued that she was appearing in court as "a living, breathing, alive woman," not a lawyer, and said she would refer to herself using a lowercase "i."

"That i possess a licence to practice law in the legal jurisdiction of the province of British Columbia does not make i into a lawyer, the same way that having a driver's licence to drive a motor vehicle does not make i into a driver," Arbabi said.

A spokesperson for the Law Society of B.C. said in an email she could not comment on this specific case, "but in general, pseudolaw arguments do not encourage respect for the administration of justice and could become the basis for an investigation and discipline."

The code of conduct for lawyers in B.C. requires them to encourage respect for the justice system, and says they should not weaken public confidence in legal institutions though irresponsible claims.

In her submissions, McLelland referred to the 2012 Meads vs. Meads decision from Alberta, which has been called a "field guide" for identifying OPCA litigation.

"Ms. Arbabi's claim has all the elements of being OPCA including, but not limited to: It's a claim of trespass based on common law rights; Ms. Arbabi rejects her name and uses the split-person motif; and she requests a vigilante court process," McLelland told the court.

"I submit that Ms. Arbabi knew she doesn't have standing for a claim against me and used a pseudolegal notice … to intimidate me and provoke a state of fear."

She also argued that her strata was responsible for installing the divider after the previous one was removed without permission by another owner, and said B.C. law only allows lawsuits to be filed by or against strata corporations, not between individual owners.

For her part, Arbabi claimed that Canadian judges who've ruled on OPCA litigants, as in Meads vs. Meads, don't really grasp the concepts of "natural law" and "trespass" that she bases her lawsuit on.

"Many courts, including the claimant, have trouble understanding what is often referred to as natural law.... Natural law — or as i call it, just law — is that which is so obvious that it is not required to be written down into an act or statute," Arbabi said.

She went on to say that "a trespass occurs when a man or a woman knowingly does the wrong deed … not by accident, not by ignorance, but with intention and without authority and does not provide remedy or lawful excuse."

Arbabi alleged that trespass "bestows one a dishonourable status which i do not wish upon anyone," and said she filed the lawsuit to give McLelland a chance to clear her name.

"I did not want to walk away indignantly and leave the mark of a trespass on her," Arbabi said.

She also denied that her claim has anything to do with the building's strata corporation, saying that it has "no standing, legally or lawfully." 

Arbabi said her case is based rather on an argument of proprietary estoppel, a legal concept based in English common law that protects people who have been negatively affected after relying on assurances related to land. She told the court there was no deck divider when she purchased her condo, and its installation has ruined her home's "crown jewel" — its view of the North Shore mountains.

'I, a woman, am not Naomi Arbabi'

Before Wednesday's hearing, McLelland told CBC that dealing with this claim has felt like "a comedy of errors."

An affidavit of service filed by McLelland says when a process server knocked on Arbabi's door to serve her with McLelland's response to the claim, the woman who answered said she was not Naomi Arbabi.

The process server writes in the affidavit that she found Arbabi's photo online, and confirmed it was the person she'd just met, so she emailed Arbabi to ask for an explanation.

Arbabi responded: "When you ask i if i am Naomi Arbabi the answer is always no as Naomi Arbabi is an incorporated name and does not refer to a living breathing woman."

According to the affidavit, Arbabi expanded on her theory in another email later the same day, explaining that Naomi Arbabi was a "dead entity corporation" created by her birth certificate.

"I, a woman, am not Naomi Arbabi, but Naomi Arbabi is the name i am called. There is a subtle but crucial difference between the two. Unfortunately, this is not common knowledge yet," she wrote.

Last month, Arbabi agreed to meet with a CBC reporter to discuss her lawsuit, but upon arrival, declined to answer any questions. Instead, she read out a notice warning of consequences if a story is published without her consent.

"As such harm is a very grievous trespass, i, shall claim remedy in the amount of $500,000 for such trespass plus $5,000 a day for as long as the trespass continues," it reads.