Suspended Vancouver lawyer's lawsuit dismissed as abuse of process with pseudolegal hallmarks

A lawsuit filed by a suspended Vancouver lawyer against her neighbour has been dismissed by a B.C. Supreme Court associate judge, who described it as "frivolous and vexatious" and bearing many hallmarks of a pseudolegal claim.

The resolution to what experts have described as a highly unusual and troubling case came Friday morning, when B.C. Supreme Court Associate Judge Susanna Hughes handed down her judgment in Naomi Arbabi's claim of "trespass" against her neighbour Colleen McLelland.

Arbabi had alleged that McLelland trespassed upon her by obstructing her mountain view when the strata of their Fairview condo building installed a 1.7 metre-high opaque glass privacy divider on McLelland's rooftop deck.

Hughes wrote that Arbabi's claim doesn't have a reasonable legal basis. She said it also bears "many of the hallmarks of claims made by OPCA [Organized Pseudolegal Commercial Arguments] litigants" — a thoroughly debunked and wholly unsuccessful class of legal theory favoured by fringe groups like Sovereign Citizens and Freemen on the Land.

"It is frivolous and vexatious insofar as it denies the authority of the court," Hughes wrote.

"It is an abuse of process insofar as the plaintiff has filed her initiating document as an attempt not to litigate legitimately in this court, but instead to utilize this court's infrastructure for the purposes of her fictional court."

In Arbabi's notice of claim, filed on Oct. 5, she identifies herself as "i, a woman" and says the case would be tried in the "naomi arbabi court."

Arbabi wrote 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 — adding up to more than $130,000 by now. 

When she appeared in court in November to fight McLelland's application to dismiss her claim, Arbabi said she was appearing as "a living, breathing, alive woman," not a lawyer, and denied any association with organized pseudolegal groups.

Hughes pointed to several areas where Arbabi's arguments match those of OPCA litigants, as laid out in the landmark 2012 Meads vs. Meads decision from Alberta. That includes the use of a double or split person strategy wherein she calls herself "the woman: naomi arbabi" rather than Naomi Arbabi; her attempt to establish a "naomi arbabi court"; and her apparent denial of the court's jurisdiction over her.

Hughes has also ordered Arbabi to pay special costs to McLelland for breaching a professional oath promising lawyers "will not promote suits upon frivolous pretences."

In dismissing the claim, the associate judge also said the court doesn't have jurisdiction to hear claims like this, which should properly go to the Civil Resolution Tribunal.

At the time she filed the lawsuit and during her November court appearance, Arbabi was a lawyer in good standing with the Law Society of B.C. But her licence to practise law was suspended on an interim basis at the end of December, after an interim action board of the law society determined extraordinary action was necessary to protect the public. 

CBC has reached out to Arbabi for comment on the judgment.

'Extraordinarily rare' case

Experts in OPCA arguments and pseudolegal groups who reviewed Arbabi's legal filings were all surprised to learn they were prepared by a lawyer.

Richard Warman, an Ottawa human rights lawyer who studies pseudolegal movements, argues it's a breach in a lawyer's professional duty to the public to engage in pseudolaw.

"Engaging in this kind of magical gibberish that has nothing to do with actual law, in fact, bogs down the courts," he said.

Mark Pitcavage, a historian who studies Sovereign Citizens and similar movements at the Anti-Defamation League's Center on Extremism in the U.S., said it was "astounding" to see an accredited lawyer file these documents.

"This is something that is extraordinarily rare. Over the past 30 years, I have come across a very few incidents involving a disbarred attorney or someone similar dabbling with the sovereign citizen movement, but I can't remember offhand another instance of an actual practising attorney trying something like that," he told CBC in an email.

Christine Sarteschi, a professor of social work and criminology at Chatham University in Pennsylvania, says she's done thousands of hours of research on pseudolegal arguments, and searches North American court records every week to find new cases.

"To the very best of my knowledge, after exhaustive research, these arguments have not been successful in any court in the world," she told CBC in an email.

Nonetheless, pseudolegal arguments have had something of a resurgence since the beginning of the COVID-19 pandemic in B.C. 

Last summer, a former family doctor and a group of his supporters unsuccessfully attempted to declare themselves a "common-law grand jury under the Magna Carta" in a lawsuit against the B.C. Supreme Court over his children's vaccination. His claim was dismissed as an abuse of process.

Hughes's judgment also references an unsuccessful attempt by COVID-19 denier Mak Parhar to have his trespass claim against the B.C. government heard in the "Parhar Court."

'I practised law, but I was just practising it'

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

However, Arbabi explained some of her thinking in an appearance on a podcast hosted by former Vancouver radio host Kid Carson.

Describing her approach as "law for mankind," Arbabi said she experienced an "awakening" during the COVID-19 pandemic, and began investigating after taking courses through a website called the Sovereign's Way.

"I practised law, but I was just practising it. Going through this claim, I mastered it. Because now I get exactly where things stand," she explained.

She said she has come to understand the legal system as something like a board game that she has chosen not to play.

"If I identify myself as my name … then I identify myself as a piece in that board game, and the rules of the board game apply to me automatically," Arbabi said.

"We've kind of forgotten that we're playing this game."