1158997 Alberta Inc. v. 1673793 Alberta Ltd. and Partners in Success Mortgage Inc. and, 2013 ABQB 483

Court of Queen ’ s Bench of Alberta Citation: 1158997 Alberta Inc v Maple Trust Company, 2013 ABQB 483 Date: 20130822 Docket: 1201 12187, 1201 14301, 1201 11892 Registry: Calgary Docket: 1201 12187 Between: 1158997 Alberta Inc. and 1673793 Alberta Ltd. and Partners in Success Mortgage Inc. and Joffrey Reynolds Plaintiffs - and - Maple Trust Company and Cass Lintott and Calgary Court of Queen ’ s Bench and Master Judith Hanebury Defendants Docket: 1201 14301 And Between: 1158997 Alberta Inc. and 1691482 Alberta Inc. and Partners in Success Mortgage Inc. Plaintiffs - and - Alberta Treasury Branches and Grant W.D.

Cameron and Terry L. Czechowskyj and Calgary Court of Queen ’ s Bench and Master Keith Laycock Defendants Docket: 1201 11892 And Between: 1158997 Alberta Inc. and 1660112 Alberta Ltd. and Partners in Success Mortgage Inc. and Carla Kells and Ashley Critch Plaintiffs - and - Royal Bank of Canada and Denise Whiteley and Calgary Court of Queen ’ s Bench and Master Judith Hanebury

Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Sal J. LoVecchio _______________________________________________________ I. Introduction [ 1 ] The Courts are an open process and available to all. Unfortunately, some of those who access the Courts have their own agenda. They often portray that agenda as being on the side of equity and fairness. However, far too often these days the reality is quite different. These three cases are vivid examples. [ 2 ] The name of one of the Plaintiffs, Partners in Success Mortgage Inc., really says it all.

We will be the “Partner” of the little guy or gal and help the little guy or gal successfully defend a mortgage foreclosure brought against them by those big bad financial institutions. The problem - they don’t really want to help the little guy or gal. [ 3 ] Quite to the contrary, they often contribute to the misery of the debtor by initially holding out false hopes and then, in the end, taking money from them, thereby increasing not decreasing their misfortune. Along the way, they leave a trail of unpaid cost awards against them when their various actions are dismissed. II.

Background [ 4 ] For simplicity, the three Actions noted above will be referred to as the Maple Trust Action, the ATB Action, and the RBC Action, respectively. [ 5 ] Each of the three actions is predicated on similar circumstances and the overlap in Plaintiffs in the Actions is not a quirk of fate but rather a part of the pattern. [ 6 ] The Defendants/Applicants in each of the actions seek

summary relief of a similar nature against the respective Plaintiffs/Respondents. [ 7 ] By an Order dated April 8, 2013 of the Honourable Chief Justice N.C. Wittmann, their Applications were to be heard together in one special chambers application. That Application took place before me on the 6 th and 17 th days of June, 2013. [ 8 ] I gave an oral decision at that time granting

summary judgment which in effect dismissed the Plaintiffs’ claims and at the same time declared certain corporations and individuals vexatious litigants. I indicated at that time that I would provide some written reasons for my decision. These are those reasons. [ 9 ] I will begin by briefly reviewing each action.

III. The Three Actions a. The Maple Trust Action [ 10 ] On January 15, 2007, Joffrey Reynolds as the sole mortgagor entered into a mortgage agreement with Maple Trust Company in connection with the purchase of a home with the municipal address of 1065 Kincora Dr NW, Calgary, Alberta. [ 11 ] Some time later, and for context only, I note Maple Trust amalgamated with Scotia Mortgage Corporation. This occurred in 2011. [ 12 ] Subsequently, Mr. Reynolds renewed the mortgage on February 10, 2012. [ 13 ] When Mr. Reynolds defaulted on the mortgage, an initial foreclosure action was commenced by Scotia Mortgage.

Cass Lintott was foreclosure counsel for Scotia Mortgage. This initial application did not proceed as Mr. Reynolds brought the mortgage back into good standing. [ 14 ] Subsequently, Mr. Reynolds again defaulted on the mortgage. A second action was commenced by Mr. Lintott on behalf of Scotia Mortgage. During these proceedings, a Certificate of Lis Pendens was registered against title to the property. [ 15 ] After this foreclosure proceeding was commenced, Mr.

Reynolds sold the home to 1158997 Alberta Inc. [ 16 ] Then 115 sold the home to 1673793 Alberta Ltd. 167 obtained a mortgage from Partners in Success Mortgage Inc. Even though a second mortgage was placed on the property, the Applicant says neither 167 nor 115 made any arrangements for payment or assumption of the Scotia Mortgage. [ 17 ] There are facts alleged in the Statement of Claim which suggest that Mr. Reynolds became a tenant in the home, presumably paying rent to the new owner. If that is the case and the new owner made no payments on the mortgage, it is easy to see how the scam would emerge.

In fairness, that particular issue is not before me and I will not comment further about it here. [ 18 ] On May 31, 2012, Master Hanebury granted an Order for Sale of the property by Scotia Mortgage Corporation. This Order was appealed and set for a special chambers hearing. Eventually, the appeal was struck as neither Mr. Reynolds, nor any other party pursued the appeal. [ 19 ] The Maple Trust Action was then commenced by 115, 167, Partners, and Mr. Reynolds on September 26, 2012. The Plaintiffs allege that Mr.

Lintott, as directed by his client Maple Trust (now Scotia Mortgage), ignored correspondence from 115, 167 and Mr. Reynolds. [ 20 ] It is further alleged that Maple Trust in conjunction with Mr. Lintott refused pay out of the mortgage, ignored conveyance conditions, and moved forward with the marketing and sale of the property.

It is also alleged that the Calgary (sic) Court of Queen’s Bench assisted in this process through the negligence of Master Judith Hanebury. [ 21 ] By Order of Justice William Tilleman dated October 19, 2012, the claims against the Court of Queen’s Bench and Master Judith Hanebury were struck and the Plaintiffs were directed to file an amended Statement of Claim. As well, the Defendants were awarded costs.

To date, the cost awards remain unpaid. [ 22 ] A Civil Notice of Appeal was filed by Derek Johnson on November 7, 2012 with respect to Justice Tilleman’s Order removing Master Judith Hanebury and the Court of Queen’s Bench as Defendants from the Statement of Claim. This appeal has been

struck. [ 23 ] In addition, by a Partial Consent Dismissal Order dated October 19, 2012 (also granted by Justice Tilleman), Mr. Reynolds withdrew from the action so the remaining Plaintiffs in the action (being the Respondents to this Application) became 115, 167 and Partners. [ 24 ] Mr. Derek Johnson is the sole director and voting shareholder of both 115 and Partners. Mr. Sarabjit Singh Sarin is the sole director and voting shareholder of 167. b.

The ATB Action [ 25 ] When Robert James Kelloway and Glenda MacDonald were unable to meet their obligations under their mortgage agreement with Alberta Treasury Branches, ATB commenced foreclosure proceedings on May 22, 2012. The foreclosure proceedings concerned a property municipally located at 236 Queen Alexandra Road SE, Calgary, Alberta. [ 26 ] Grant W.D.

Cameron acted as legal counsel for ATB in those proceedings. [ 27 ] Just like in the Maple Trust Action, subsequent to the commencement of the foreclosure proceedings, the property was sold to 115 and then 115 resold the property, however, this time to a different numbered company. It was sold to 1691482 Alberta Inc. Again, as in the Maple Trust Action, a mortgage was obtained from Partners. [ 28 ] Mr. Jason Mizzoni is the sole director and shareholder of 169. [ 29 ] In October 2012, an application was brought by Mr. Cameron on behalf of ATB to obtain an Order for Sale of the property.

At the hearing before Master Laycock, Mr. Terry L. Czechkowskyj attended as counsel for the original mortgagors, Mr. Kelloway and Ms. MacDonald. Mr. Johnson and Mr. Mizzoni were also in attendance and requested time to pay. [ 30 ] The Order for Sale was granted pending a two week stay to allow 169 to payout the entire balance of the mortgage plus interest and costs. No payments were made to ATB with respect to the outstanding mortgage. [ 31 ] The Order of Master Laycock was not appealed and ATB sold the property on February 14, 2013. [ 32 ] The ATB Action was then commenced by 115, 169 and Partners.

It is alleged that ATB in conjunction with their attorney Mr. Cameron, and Mr. Czechowskyj, attorney for Mr. Kelloway and Ms. MacDonald, ignored the sale of the property and the attempts by the new owners to complete the conveyance and pay out the mortgage. [ 33 ] In addition, alleging that due process was not observed, the Court of Queen’s Bench and Master Keith Laycock were also named as parties to this claim. [ 34 ] By Order of Justice Sandra Hunt McDonald dated December 7, 2012, the claims against the Court of Queen’s Bench and Master Keith Laycock were struck.

The Plaintiffs were directed to file an amended Statement of Claim and the Defendants were awarded costs. To date, the cost awards remain unpaid. [ 35 ] A Civil Notice of Appeal was filed by Jason Mizzoni on behalf of 169 on January 9, 2013 with respect to Justice Hunt McDonald’s Order removing Master Keith Laycock and the Court of Queen’s Bench as Defendants from the Statement of Claim. This appeal has been struck.

c. The RBC Action [ 36 ] When Carla Kells and Ashley Critch breached their mortgage agreement with the Royal Bank of Canada, RBC commenced foreclosure proceedings on April 5, 2012. The property in question has the municipal address: Unit 8, 609 - 67 Avenue SW, Calgary, Alberta. [ 37 ] The Statement of Claim in this foreclosure action also named 115 and 1660112 Alberta Ltd. as Defendants, as in this case, the timing of the transfer pattern was a little different. [ 38 ] It appears that 115 purchased the property from the defaulting party and then transferred title to 166 before the foreclosure commenced.

Again, Partners provided a mortgage. [ 39 ] Ajay K. Aneja is the sole director and shareholder of 166. [ 40 ] Denise Whiteley acted as legal counsel for RBC with respect to the original mortgage agreement obtained by RBC and in the foreclosure proceedings. [ 41 ] No payments were made in respect of the original mortgage and on August 16, 2012, Master Hanebury granted an Order for Sale. This Order was not appealed. [ 42 ] The RBC Action was then commenced by 115, 166, Partners, Carla Kells, and Ashley Critch. [ 43 ] The Statement of Claim alleges that Ms.

Whiteley through directions from RBC ignored correspondence from the Plaintiffs who were attempting to complete the property conveyance and pay out the mortgage. [ 44 ] It is further alleged, that RBC refused a pay out and instead repossessed the home with the assistance of the Court of Queen’s Bench and the negligence of Master Hanebury. [ 45 ] While nothing in the pleadings for the RBC Action directly addresses an agreement between 115 or other numbered corporations and the original home owners for a lease arrangement, Exhibit B,

Section 8.1 of Mr. Johnson’s unfiled Affidavit of June 14, 2013 references a “Rent-to-Own agreement” but no further details are provided. [ 46 ] An Order was pronounced on October 19, 2012, by Justice Tilleman striking out the claims against the Court of Queen’s Bench and Master Judith Hanebury. The Plaintiffs were directed to file an amended Statement of Claim and the Defendants were awarded costs.

To date, the cost awards remain unpaid. [ 47 ] Justice Tilleman’s Order removing Master Judith Hanebury and the Court of Queen’s Bench as Defendants from the Statement of Claim was appealed on November 7, 2012 by Derek Johnson by way of a Civil Notice of Appeal. This appeal has been struck. [ 48 ] Furthermore, a Partial Consent Dismissal Order was granted by Justice Paul Jeffrey on November 14, 2012, removing Carla Kells and Ashley Critch as Plaintiffs. Therefore, the remaining Plaintiffs in the action (being the Respondents to this Application) are 115, 166 and Partners.

d. The Similarity of the Saga [ 49 ] In each of these actions, there are striking similarities in their history and process. 115 would purchase and obtain title to a residential property that is either in or nearing foreclosure. 115 would then resell the residential property, transferring title to a numbered company. A mortgage would be subsequently registered on title from Partners.

In each action, the first mortgagee, the financial institution, received no payments from 115, Partners, or the respective numbered company involved. [ 50 ] Consequently, foreclosure proceedings were commenced by the respective financial institutions, which led to an Order for Sale for each property. These Orders were either not appealed or the party instituting the appeal failed to submit briefs.

The Orders for Sale form the basis of the Plaintiffs’ actions. [ 51 ] The Court of Queen’s Bench, the Master who granted the Order for Sale in the foreclosure proceedings, counsel for the foreclosing financial institution, and the financial institution itself are all then named in an action. [ 52 ] In each case, the claims against the Court of Queen’s Bench and the respective Master have been struck and costs were awarded against the respective Plaintiffs. The Orders striking the respective Defendants from the Statements of Claim were appealed.

However, all these appeals have been struck. [ 53 ] The original purchaser(

s) of the residential property, the mortgagors, who sold their home to 115 (subject to an existing mortgage) were either not involved as Plaintiffs or have obtained a Partial Consent Dismissal Order removing them as a party in the action. [ 54 ] This fact pattern is strikingly similar to Scotia Mortgage Corporation v Gutierrez [1] , another case involving Mr. Derek Johnson and 115. The material facts in that case are that the Gutierrezs had transferred title of their home, which was in foreclosure, to 115 for no money.

Instead of monetary compensation, the Gutierrezs had an agreement with 115 to remain in the property as renters with the option to repurchase the home in two years for the same price that they had sold the home to 115 for. In regards to this arrangement, Master Laycock at para 8 of the decision stated: None of this make[s] sense. The defendants would be paying less that the regular monthly mortgage payments. I am expected to believe that 115 will make up the difference plus pay the property taxes and then after 2 year[s] of losing money, transfer the property back to the defendants.

The math and economics do not work. [ 55 ] In the case of Scotia Mortgage Corporation v Gutierrez , Master Laycock provides a historical overview of unscrupulous individuals which he refers to as “Dollar Dealers”. He then summarized the scheme as it related to the facts of that case at paras 23-26: We now find that history repeats itself. The Calgary real estate market boomed again until the recession in 2008. Homeowners began defaulting on their mortgages and walking away from their properties. Some desperate homeowners sought help to maintain their properties.

A new type of Dollar Dealer has emerged on the scene to take advantage of the unwary and desperate homeowner. This scheme involved a homeowner transferring title to a numbered Alberta corporation with the promise that the property would be reconveyed at some future time. The transferee corporation was to bring the mortgage into good standing. The homeowner was to pay rent. The advantage of this new scheme was that the scoundrel didn’t have to go to the trouble of locating a tenant. The new scoundrel, while collecting rent would appear in court and make outlandish statements to obfuscate and delay the proceedings.

The scoundrel obtained a substantial cash flow from numerous desperate homeowners. While the homeowner was able to remain in the residence, the mortgage debts and legal costs increased substantially because of the activity of the scoundrel. Eventually the mortgage company would obtain title to the property and, in many cases, obtain a deficiency judgment against the homeowner. In many of these foreclosures, the mortgage company would also obtain judgment against the numbered Alberta corporation. It is clear that Mr.

Johnson is a scoundrel for holding out hope to desperate homeowners in order to enrich himself. 115 has in many cases been

added as a defendant and several judgments has [sic] been obtained against 115. A search at the Personal Property Registry reveals that eight judgments have been assigned by the mortgage company to Canada Mortgage and Housing Corporation in the total amount of $624,655. Another insurer, Genworth Financial Mortgage Insurance Company has six judgments assigned to it in the total amount of $729,920. Two other lenders have judgments against 115 totalling $157,083. When Mr.

Johnson advises the court that he has years of experience in the Calgary real estate market and that the Court has not kept up with and does not understand the current real estate practices, he makes a vexatious argument. My grandfather’s generation would describe him as a snake oil salesman. There is no merit to any of his arguments. His appearances cause unnecessary costs and delay. He shows a lack of understanding of basic real estate and mortgage practice and procedures.

His arguments have been rejected repeatedly by both Masters and Justices on appeal. [ 56 ] While the facts at bar are slightly different, the underlying plot has the same flavour. Many of the players are the same, namely, Mr. Johnson and 115. Outstanding judgments remain unpaid. [ 57 ] Further, Xceed Mortgage Corporation and Xceed Funding Corp v 1158997 Ltd [2] and HSBC Finance Mortgages Inc v Strand [3] are two additional cases involving Mr. Johnson and 115 with similar fact scenarios. Both are matters where 115 purchased property involved in foreclosure proceedings (subject to an existing mortgage).

In both cases, 115 was declared to be a vexatious litigant. e. Ty Griffiths [ 58 ] In each action, an individual named Ty Griffiths is identified as agent for all of the remaining Plaintiffs. Mr. Rooney, Q.C. (who is one of the Counsel for the Applicants) indicated that he received an e-mail in all 3 actions stating that Ty Griffith is the agent for the Respondent parties. [ 59 ] Based on the Affidavit of Mr.

Lintott, the Respondent corporations, 115, Partners, and 167 are not represented by an active member of the Law Society of Alberta and the Applicants also submit that Ty Griffiths is not an active member of the Law Society of Alberta. [ 60 ] A Ty Griffiths was not present at the hearings and I do not know whether or not he is a real person. To further complicate the matter, Ms. Evanna Ellis said at the hearing that she was the agent for Ty Griffiths. IV.

The Applications [ 61 ] While the Applicants have each structured their arguments a little differently in their respective briefs and there are slight differences in the remedies sought, generally, each of the Applicants seek in effect the same result. [ 62 ] Firstly, the Applicants seek to have the Respondents’ pleadings struck on the basis of Rule 3.68 of the Alberta Rules of Court [4] for failing to disclose any, or any reasonable, claim, being improper, and constituting an abuse of process. [ 63 ] Alternatively, the Applicants seek to have the claim dismissed on the basis of Rule 7.3(1)(

b) as there is no merit to the claim. During oral argument, the Applicants indicated that this would be their preferred remedy. [ 64 ] In support of the Applicants’ arguments to strike or dismiss the claims, the Applicants submit that the Statements of Claim do not disclose a reasonable cause of action that is supported by facts.

Furthermore, it is the Applicants’ position that the Statements of Claim are stated to contain purported hypothetical situations and bare allegations. [ 65 ] The Applicants also take the position that these actions are a collateral attack on foreclosure proceedings that are now concluded and that appeals in those actions were either unsuccessful or not pursued. Accordingly, these matters are now res judicata ; the

matters have been concluded with finality. [ 66 ] As authority for this latter proposition, the Applicants cite Onischuk v Alberta [5] . [ 67 ] As a matter of procedure, some of the Applicants also raised the argument that the Respondents, as corporate entities, commenced the above actions independently without a legal representative who is an active member of the Law Society of Alberta.

Section 106 of the Legal Professions Act [6] is cited as authority for this point. [ 68 ] In addition to having the claims struck or dismissed, the Applicants seek that the Respondents in these actions, as well as the individuals associated with the Respondents in these actions, be declared as vexatious litigants pursuant to

Section 23.1 of the Judicature Act [7] . [ 69 ] As required by

Section 23.1 of the Judicature Act , notice was provided to the Minister of Justice and Attorney General by a letter dated March 22, 2013. [ 70 ] The Onischuk case lists the characteristics that are indicative of vexatious proceedings. They are: (

a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction; (

b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief; (

c) they are often brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings for purposes other than the assertion of legitimate rights; (

d) generally, cases where the grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings, or the judiciary involved in rulings on previous cases; (

e) the failure of the person instituting the subsequent proceedings to pay the costs of unsuccessful earlier proceedings; and (

f) persistently taking unsuccessful appeals from judicial decisions. [ 71 ] The indicia listed in the Onischuk case are a textbook precis of the three actions. [ 72 ] Furthermore, the Applicants note that 115 has previously been declared a vexatious litigant in two Court of Queen’s Bench decisions. They reference the cases of Xceed Mortgage Corporation and Xceed Funding Corp v 1158997 Ltd and HSBC Finance Mortgages Inc v Strand . As reviewed earlier, these cases contain similar fact patterns and both declare 115 to be a vexatious litigant. [ 73 ] As well, the Applicants state that both 115 and Mr.

Johnson’s related companies may only be represented by a lawyer authorized to practice, pursuant to the Court of Queen’s Bench decision in Scotia Mortgage Corporation v Gutierrez . [ 74 ] The Applicants also submit that Mr. Johnson was fined by the Real Estate Council of Alberta for being in contravention of the

Real Estate Act [8] . The fine was levied for deceiving people by acting in contravention of the Real Estate Act . [ 75 ] The Applicants also cite

Section 23.1(4) of the Judicature Act in support of their application to declare individuals and entities associated with the Respondents in these actions as vexatious litigants. It reads:

(4) The Court may at any time on application or on its own motion, with notice to the Minister of Justice and Attorney General, make an order under subsection (1) applicable to any other individual or entity specified by the Court who in the opinion of the Court is associated with the person against whom an order under subsection (1) is made. [ 76 ] Meads v Meads [9] is also submitted as an authority by the Applicants for the vexatious litigant declaration. They submit that the Respondent corporations and their directors are Organized Pseudolegal Commercial Argument litigants.

Ty Griffiths, if he exists, would be a classic “guru” of OPCA litigants. [ 77 ] Further in the alternative, some of the Applicants request that the Respondents be ordered to pay security for costs if the claims are to proceed. Among other arguments, it is submitted that 115 has outstanding judgments in the range of $1.5 million. In support of the application for security for costs,

Section 254 of the Business Corporations Act [10] is cited as authority. This

section says the court may make an order for security for costs if it appears that a corporate Plaintiff will be unable to pay the costs of a successful Defendant. a. Respondents/Plaintiffs [ 78 ] No briefs were filed by the Respondents in this application. During oral argument, Mr. Derek Johnson submitted that as a director of his corporation, Partners, he is able to represent his corporation. No legal arguments or jurisprudence was provided by him with respect to his standing before this Court. He also referred on occasion to his unfiled Affidavit. [ 79 ] Mr.

Johnson acknowledged that in each of the actions, the home owners sold their homes to his corporation subject to an existing mortgage. Furthermore, Mr. Johnson stated that finance conditions were in place in each of the respective actions but that the respective financial institutions in each of the actions ignored correspondence and stalled the Respondents’ attempt to obtain conveyance conditions.

The Respondents submit that they made efforts to pay out the mortgages by contacting the respective financial institutions and their counsel. [ 80 ] Notwithstanding his assertions just noted, he also made it clear in response to a question from the Court that no payments were ever made and that no financing commitments were ever obtained. He said that was all the fault of the foreclosing financial institutions.

I note not one shred of evidence was provided to support that allegation of fault or the existence of any financing arrangements other than the assertion he originally made which he was then required to subsequently recant. [ 81 ] In regards to the vexatious litigant portion of the application, Mr. Johnson alleges a conflict of interest between the Court of Queen’s Bench and the respective financial institutions.

He submits that the Court of Queen’s Bench is a registered corporation that profits from the sale of debt. [ 82 ] Evanna Ellis, appearing as an agent for Ty Griffiths, during oral argument directed a number of submissions with respect to the vexatious litigant portion of the application. She added that the OPCA portion of the Applicants’ argument was not applicable. Ms. Ellis argued that to apply the label of vexatious litigants to investors in a private enterprise in a capitalistic society was erroneous. Ms.

Ellis submits that they were denied due process and that the denial of due process has lead to the current proceedings. [ 83 ] Furthermore, she also submitted that the Applicants’ argument was based on family law and family issues. In fairness, the OPCA portion of the Applicants’ argument relied in part on the Meads case where the factual background arose in the context of family law.

[ 84 ] As well, Ms. Ellis submitted that the respective financial institutions had a responsibility to respond to the Respondents’ requests earlier in the process, or alternatively, that the financial institutions be more specific in regards to their arguments against accepting the Respondents’ offer. It was submitted that this would have provided the Respondents an opportunity to amend their conveyance conditions as needed. She did not appear at the second day of the hearing. [ 85 ] Mr. Jason Mizzoni was only in attendance on the first day of the hearing on behalf of 169 and no submissions were made by him. V. Discussion and Analysis a. Application for

Summary Judgment [ 86 ] Rule 7.3 of the Rules of Court states the test for

summary judgment. It reads: 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded.

(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met. [ 87 ] The Alberta Court of Appeal in Condominium Corp No 0321365 v 970365 Alberta Ltd [11] reviewed the test for

summary judgment. It said: The Old Rules have now been replaced by the New Rules of Court which became effective November 1, 2010. Under transitional New Rule 15.2(1), the New Rules apply to this appeal. New Rule 7.3.1(

b) provides that

summary judgment is available when "there is no merit to a claim or part of it". It is unnecessary on this appeal to consider whether there exists a subtle difference in the

summary judgment rule under the New Rules as opposed to the Old Rules . That is not in issue on this appeal and I leave it for another day. It is clear under both the New Rules and the Old Rules that

summary judgment may be granted where there is "no merit" to a claim or part of it. In the first instance, a

summary judgment application involves two steps. First, the moving party must adduce evidence to show there is no genuine issue for trial. This is a high threshold. If there is no genuine issue for trial, then there will be no merit to a claim. Accordingly, if the evidentiary record establishes either that there are missing links in the essential elements of a cause of action or that there is no cause of action in law, then there will be no genuine issue for trial.

The fact there is no genuine issue for trial must be proven; relying on mere allegations or the pleadings will not suffice: Canada (Attorney General) v Lameman , 2008 SCC 14 (SCC) at para 11 , [2008] 1 SCR 372. Second, once the burden on the moving party has been met, the party resisting

summary judgment may adduce evidence to persuade the court that a genuine issue remains to be tried: Murphy , supra at para 25. That effectively means showing that the claim has what is often referred to as "a real chance of success". This may be accomplished by establishing the existence of disputes on material questions of fact, including inferences to be drawn therefrom, or on points of law that cannot be readily resolved given the factual disputes. [ 88 ] In each of the actions, an individual or individuals obtained a mortgage from a financial institution to purchase residential property.

Each of the mortgages were in default and foreclosure proceedings were commenced. 115 purchased homes in foreclosure (or nearing foreclosure) with outstanding mortgages that were in default.

[ 89 ] Each sale and subsequent transfer of title for each residential property was subject to the original mortgage. In each of the actions, the respective financial institutions did not have any agreement with 115 or the other Respondents. The respective financial institutions remained as the first mortgagee on title through their mortgage agreements with the original mortgagor. [ 90 ] In each action, the respective financial institutions have affirmed that it did not have an agreement with 115 or the other Respondent corporations respecting these sales.

Consequently, the respective conveyance conditions are not binding on the financial institutions.

The Respondents pleaded no material facts and presented no evidence to support the position that there was ever any agreement in place between the financial institutions and the Respondent corporations. [ 91 ] The respective Respondents who claim title to the property were afforded an opportunity for due process at the respective foreclosure hearings prior to the various Orders for Sale being granted. [ 92 ] In each action, the solicitors for each of the financial institutions commenced with foreclosure proceedings as directed by their respective clients. These proceedings resulted in an Order for Sale.

In each of the actions, the Order for Sale was either not appealed, or the appeal was unsuccessful. Furthermore, the respective financial institutions have not received any payments with respect to their mortgages in default. Nor, as stated, have any payments been made on any of the cost awards. [ 93 ] Having reviewed the Statements of Claim for each action, I agree that there is no merit to the Respondents’ claims. Furthermore, the Respondents have presented no evidence to rebut the Applicants’ position. I hereby order

summary judgment be directed as per Rule 7.3(1)(

b) of the Rules of Court in favour of all Applicants and that all actions be dismissed. [ 94 ] If I were wrong in that conclusion, I would strike the claims under Rule 3.68 of the Rules of Court . Under this rule, the Court may order that all or any part of a claim or defence be struck out if: [...] (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; [...] [ 95 ] The test for striking out pleadings has not changed under the new Rules of Court : See Donaldson v Farrell [12] . The test is affirmed in MacKay v Farm Business Consultants Inc [13] which quotes Korte v Deloitte, Haskins & Sells [14] in stating that: “the test for striking pleadings under Rule 129 [now Rule 3.68 ] is not in issue.

It is whether it is plain and obvious or beyond reasonable doubt that the claim cannot succeed.” [ 96 ] In the case at bar, the Plaintiffs’ Statements of Claim is riddled with speculative facts and hypothetical scenarios and I am satisfied that it is plain and obvious that the claims cannot succeed. Therefore, the claims may be struck under Rule 3.68(2)(b). [ 97 ] Further in the alternative, for reasons that will be further explored in my analysis concerning a declaration of vexatious litigants, the Plaintiffs’ Statements of Claim may also be struck under Rule 3.68(2)(

c) or Rule 3.68(2)(d). b. Application for Declarations of Vexatious Litigants [ 98 ] Section 23(2) of the Judicature Act , defines vexatious proceedings or conducting a proceeding in a vexatious manner as:

(2) For the purposes of this Part, instituting vexatious proceedings or conducting a proceeding in a vexatious manner includes, without limitation, any one or more of the following: (

a) persistently bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction; (

b) persistently bringing proceedings that cannot succeed or that have no reasonable expectation of providing relief; (

c) persistently bringing proceedings for improper purposes; (

d) persistently using previously raised grounds and issues in subsequent proceedings inappropriately; (

e) persistently failing to pay the costs of unsuccessful proceedings on the part of the person who commenced those proceedings; (

f) persistently taking unsuccessful appeals from judicial decisions; (

g) persistently engaging in inappropriate courtroom behaviour. [ 99 ]

Section 23.1 of the Judicature Act provides in part: 23.1(1) Where on application or on its own motion, with notice to the Minister of Justice and Attorney General, a Court is satisfied that a person is instituting vexatious proceedings in the Court or is conducting a proceeding in a vexatious manner, the Court may order that (

a) the person shall not institute a further proceeding or institute proceedings on behalf of any other person, or (

b) a proceeding instituted by the person may not be continued, without leave of the Court. [...]

(4) The Court may at any time on application or on its own motion, with notice to the Minister of Justice and Attorney General, make an order under subsection (1) applicable to any other individual or entity specified by the Court who in the opinion of the Court is associated with the person against whom an order under subsection (1) is made. [...] [ 100 ] As required by

Section 23.1(1) of the Judicature Act , notice was provided to the Minister of Justice and Attorney General [15] by a letter dated March 22, 2013 that the Applicants would be seeking an Order declaring the Respondents, as well as the various individuals associated with the Respondents, as vexatious litigants. A representative of the Minister of Justice and Attorney General was not present at these hearings. [ 101 ] As noted, the Onischuk case lists a number of indicia which are indicative of vexatious proceedings. These indicia are

consistent with the definition of vexatious proceedings or conducting a proceeding in a vexatious manner, as defined in Section 23(2) of the Judicature Act . As I said, these criteria are met. [ 102 ] In particular, 115 and its sole director and shareholder, Mr. Derek Johnson, have brought and continue to bring actions where no reasonable cause of action is pleaded and in matters that have been decided. Furthermore, actions were brought in contravention of previous court orders declaring 115 and Mr. Derek Johnson‘s related companies as a vexatious litigant. [ 103 ] Therefore, pursuant to

Section 23.1(1) of the Judicature Act , 115, Partners, and the corporations’ sole corporate director and shareholder, Mr. Derek Ryan Johnson are declared as vexatious litigants. Each is prohibited from commencing or attempting to commence, or from continuing, any appeal, action, application, or proceeding in the Court of Appeal, the Court of Queen’s Bench or the Provincial Court of Alberta (Civil), on their own behalf or on behalf of any other entity or estate without an Order of the appropriate court in which the proceeding is conducted or to be conducted. [ 104 ] Furthermore, pursuant to

Section 23.1(4) of the Judicature Act , 167, 169, 166 and their respective directors, Sarabjit Singh Sarin, Jason Mizzoni, and Ajay K. Aneja are also declared as vexatious litigants as individuals and entities “[...] associated with the person against whom an order under subsection (1) is made”. [ 105 ] As I noted already, Ty Griffiths, who has been identified as agent for the Respondents, has not appeared before this Court and I have no idea whether or not he actually exists. [ 106 ] If he does, Ty Griffiths, an individual associated with the corporate Respondents and being a person they have identified as their agent, is declared as a vexatious litigant pursuant to

Section 23.1(4) of the Judicature Act . [ 107 ] As I noted earlier, during oral argument, Ms. Ellis said she was appearing as an agent for Ty Griffiths. Consequently, by extension, pursuant to

Section 23.1(4) of the Judicature Act , Evanna Ellis, as an individual who is “[...] associated with the person against whom an order under subsection (1) is made”, is declared as a vexatious litigant. [ 108 ] If he does not exist, she has misled the Court in a very a material way and as such should be declared a vexatious litigant in her own right. [ 109 ] The above Orders declaring vexatious litigants are effective as of June 17, 2013. VI. Conclusion [ 110 ]

Summary judgment dismissal is granted as per Rule 7.3(1)(

b) of the Rules of Court for all three actions, the Maple Trust Action, the RBC Action, and the ATB Action in favour of the Applicants. [ 111 ] Alternatively, I would strike the claims under Rule 3.68 of the Rules of Court . [ 112 ] 115, Partners, and Mr. Derek Ryan Johnson are declared to be vexatious litigants pursuant to

Section 23.1(1) of the Judicature Act . [ 113 ] Furthermore, the remaining corporate Respondents in this action 167, 169, 166 and their respective directors, Sarabjit Singh Sarin, Jason Mizzoni, and Ajay K. Aneja are declared as vexatious litigants pursuant to

Section 23.1(4) of the Judicature Act as individuals and entities “[...] associated with the person against whom an order under subsection (1) is made”.

[ 114 ] Ty Griffiths and Evanna Ellis are also declared vexatious litigants pursuant to

Section 23.1(4) of the Judicature Act . VI. Costs [ 115 ] In each of the ATB Action and the RBC Action, one set of costs is awarded under

Schedule C Column 3 of the Rules of Court . In the Maple Trust Action, costs are awarded under

Schedule C Column 4 of the Rules of Court . [ 116 ] In each of the actions, each of the respective Respondents shall be jointly and severally liable for the costs award. Heard on the 6 th day of June, 2013 and the 17 th day of June, 2013. Dated at the City of Calgary, Alberta this 22 nd day of August, 2013 . Sal J. LoVecchio J.C.Q.B.A. Appearances: James B. Rooney, Q.C. / Rachel A. Howie Dentons Canada LLP for Cass Lintott, Denise Whiteley, Grant W.D. Cameron, and Terry L. Czechowskyj Joe D. Spelliscy Duncan & Craig LLP for Maple Trust Company Tara L.

Petersen/Jennifer Faircloth Warren Tettensor Amantea LLP for Royal Bank of Canada Wesley M. Pedruski, Q.C. Reynolds, Mirth, Richards & Farmer LLP for Alberta Treasury Branches

Derek Johnson for 1158997 Alberta Inc. and Partners in Success Mortgage Inc. Evanna Ellis for 1660112 Alberta Inc. and 1673793 Alberta Ltd.

Jason Mizzoni for 1691482 Alberta Inc. [1] 2012 ABQB 683. [2] (December 3, 2010), Calgary 1001-08610 (ABQB). [3] (February 9, 2011), Calgary 1001-14143 (ABQB). [4] Alta Reg 124/2010. [5] 2013 ABQB 89, aff’d 2013 ABCA 129 where at para 32 it is stated that a Statement of Claim which seeks to re-litigate a matter thathas been determined renders the plaintiffs’ claim as frivolous, irrelevant or improper. [6] RSA 2000, c L-8. [7] RSA 2000, c J-2. [8] RSA 2000, c R-5. [9] 2012 ABQB 571. [10] RSA 2000, c B-9. [11] 2012 ABCA 26, 519 AR 322, at paras 42-43. [12] 2011 ABQB 11 at paras 9, 30. [13] 2006 ABCA 316, 397 AR 301 at para 7. [14] 1993 ABCA 78 , 135 AR 389 at para 26 (ABCA). [15] As required at the time the Applications were made.

The Notice would now be given to the Minister of Justice and Solicitor General.