Lymer (Bankrupt), Re, 2014 ABQB 696

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 12, 2014
• Citations: 2014 ABQB 696;(2014), 601 A.R. 165 (QB)

Lymer (Bankrupt), Re (2014), 601 A.R. 165 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. NO.101

In The Matter Of the Bankruptcy of Neil Alan Lymer

(BE03 1446521; 2014 ABQB 696)

Indexed As: Lymer (Bankrupt), Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

November 12, 2014.

Summary:

Lymer, a bankrupt, filed numerous applications and appeals in a bankruptcy matter, including making repeated requests that the Registrar recuse himself or be removed from his role.

The Alberta Court of Queen's Bench, on its own motion, declared Lymer to be a vexatious litigant pursuant to s. 23.1(1) of the Judicature Act.

Actions - Topic 2602

Duplicitous or vexatious actions - Vexatious litigant - What constitutes - [See all Practice - Topic 46 ].

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - [See second Practice - Topic 46 ].

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - Lymer, a bankrupt, filed numerous applications and appeals in a bankruptcy matter, including repeated requests that the Registrar recuse himself or be removed - The Alberta Court of Queen's Bench, on its own motion, declared Lymer (who was not represented by counsel), to be a vexatious litigant (Judicature Act, s. 23.1(1)) - The litigation history disclosed persistent misuse of court procedures and process justifying restricting future access to the courts - He had repeatedly violated the rule against collateral attack - Each collateral attack was a hopeless proceeding - He sought unwarranted relief - Proceedings had escalated from simple to complex - The litigation had an improper purpose - There were already two unsuccessful appeals - He made unfounded allegations of misconduct by the Registrar, Court, legal profession and objecting creditors - The pleadings contained scandalous or inflammatory language - See paragraphs 10 to 58.

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - The Alberta Court of Queen's Bench stated that "vexatious litigation is synonymous with abuse of process" - See paragraph 10.

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - The Alberta Court of Queen's Bench stated that s. 23.1(1) of the Judicature Act authorized the court to make a vexatious litigant declaration on its own motion - No application was necessary - See paragraph 57.

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - The Alberta Court of Queen's Bench referred to a discussion of the principles applicable in determining whether litigation was vexatious, including the indicia of vexatious litigation - See paragraphs 13 to 15.

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - The Alberta Court of Queen's Bench noted that "collateral attack" in the context of vexatious litigation was defined in Chutskoff v. Bonora (Alta. Q.B. 2014) as including "a) bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction: Judicature Act, s. 23(2)(a) ... b) using previously raised grounds and issues improperly in subsequent proceedings: Judicature Act, s. 23(2)(c) ... c) conducting a proceeding to circumvent the effect of a court order ..." - See paragraph 18.

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - The Alberta Court of Queen's Bench noted that "hopeless proceedings" in the context of vexatious litigation were defined in Chutskoff v. Bonora (Alta. Q.B. 2014) as including "a) bringing proceedings that cannot succeed or that have no reasonable expectation to provide relief: Judicature Act, s 23(2)(b) ... b) seeking forms of relief that cannot be obtained ... c) seeking relief that is unwarranted or grossly disproportionate to any plausible remedy ... d) advancing excessive cost claims ... e) advancing incomprehensible arguments and allegations ..." - See paragraph 22.

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - The Alberta Court of Queen's Bench noted that one characteristic of vexatious litigation was that the vexatious litigation tended to pick up more and more parties and issues as time went on - That characteristic was described in Chutskoff v. Bonora (Alta. Q.B. 2014) as having two general variations: "a) grounds and issues tend to roll forward into subsequent actions, repeated and supplemented ..., this factor is aggravated where this results in simultaneous active overlapping actions ... b) with an 'accumulative' nature where, as proceedings continue: i) new parties are added, frequently these are lawyers ...; or ii) unrelated issues and subjects which were not a part of the original action are added to the litigation ..." - See paragraph 27.

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - The Alberta Court of Queen's Bench stated that vexatious litigation had an unlawful purpose - The court cited examples of such proceedings as listed in Chutskoff v. Bonora (Alta. Q.B. 2014): "... [bringing proceedings] a) without a legal basis and intended disrupt, pre-empt, or frustrate other litigation ... b) with an ulterior motive or to seek a collateral advantage ... c) intended to extort a settlement or other benefit ... d) intended as revenge, harassment, to oppress, or to inflict harm ...; and e) conducted in retaliation to other persons' successes or their failure to cooperate with the plaintiff, including unwarranted complaints to professional bodies ..." - See paragraph 32.

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - The Alberta Court of Queen's Bench noted that persistent unsuccessful appeals was an indica of vexatious litigation - See paragraph 37.

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - The Alberta Court of Queen's Bench noted that Chutskoff v. Bonora (Alta. Q.B. 2014), described vexatious allegations of conspiracy, fraud and misconduct as having three variants: "a) claims of judge and lawyer deception, fraud, perjury, conspiracy, tampering of records and transcripts, and other conspiratorial misconduct made without the positive evidence ... legally required to support such allegations ... b) sensational claims of conspiracies and intimidation, harassment and racial bias ... c) pleadings that are 'replete with extreme and unsubstantiated allegations, and often refer to far-flung conspiracies involving large numbers of individuals and institutions', 'where the allegations may be unfounded in fact or merely speculative, but the language is vitriolic, offensive and defamatory' ..." - See paragraph 39.

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - The Alberta Court of Queen's Bench stated that scandalous or inflammatory language in pleadings or before the court was an indicum that litigation was vexations - See paragraph 53.

Practice - Topic 1005

Parties - Parties unrepresented by counsel - Vexatious litigant - [See all Practice - Topic 46 ].

Practice - Topic 8855

Appeals - Bar or loss of right of appeal - Vexatious litigants - [See first Practice - Topic 46 ].

Cases Noticed:

V.W.W. v. Leung (2011), 530 A.R. 82; 2011 ABQB 688, refd to. [para. 10].

Wong v. Leung - see V.W.W. v. Leung.

McMeekin v. Alberta (Attorney General) et al. (2012), 537 A.R. 136; 2012 ABQB 144, refd to. [para. 10].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 10].

Canam Enterprises Inc. v. Coles et al. (2000), 139 O.A.C. 1; 51 O.R.(3d) 481 (C.A.), affd. [2002] 3 S.C.R. 307; 296 N.R. 257; 167 O.A.C. 1; 2002 SCC 63, refd to. [para. 12].

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. 12].

Chutskoff Estate v. Bonora et al. (2014), 590 A.R. 288; 2014 ABQB 389, refd to. [para. 13].

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al. (2011), 421 N.R. 338; 311 B.C.A.C. 1; 529 W.A.C. 1; 2011 SCC 52, refd to. [para. 17].

Starr et al. v. Houlden, [1990] 1 S.C.R. 1366; 110 N.R. 81; 41 O.A.C. 161, refd to. [para. 33].

Dahlseide v. Dahlseide et al., [2009] A.R. Uned. 281; 73 R.F.L.(6th) 57; 2009 ABCA 375, refd to. [para. 57].

R. v. Fearn (G.W.) (2014), 586 A.R. 182; 2014 ABQB 233, refd to. [para. 57].

Statutes Noticed:

Judicature Act, R.S.A. 2000, c. J-2, sect. 23.1(1) [para. 11].

Counsel:

No appearances.

This matter was raised on his own motion, by Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on November 12, 2014.