Lymer (Re), 2014 ABQB 696

Court of Queen ’ s Bench of Alberta Citation: Lymer (Re), 2014 ABQB 696 Date: 20141113 Docket: BE03 1446521 Registry: Edmonton In the Matter of the Bankruptcy of Neil Alan Lymer _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Donald Lee _______________________________________________________ I. Introduction [ 1 ] On March 4, 2011 Neil Alan Lymer [“Lymer”] was deemed bankrupt. This was his second bankruptcy. Lymer’s Trustee applied to discharge his bankruptcy on March 5, 2013.

That discharge was challenged by some of his creditors [the “Objecting Creditors”]. On June 18, 2013 Lymer applied to have his March 4, 2011 bankruptcy annulled. [ 2 ] Mr. Lymer owned and controlled a number of corporations [the “Lymer Companies”]. [ 3 ] What follows was a complex series of applications and hearings. Registrar Smart was seized with this matter and was appointed on Feb. 10, 2014 as the case management bankruptcy Registrar for all matters within his jurisdiction.

On the same day I was appointed as case management justice for all remaining issues and to hear appeals from Registrar Smart. [ 4 ] There have been many applications and appeals in this matter, which I do not propose to review in detail. Suffice to say that Mr. Lymer has been repeatedly ordered to provide affidavits of records for himself and the Lymer Companies. One set of these instructions are detailed a decision of Registrar Smart reported as Lymer (Re) , 2014 ABQB 134 . [ 5 ] Mr. Lymer has repeatedly sought that Registrar Smart recuse himself or that I remove him from his role. Mr.

Lymer has made repeated appeals from the orders of Registrar Smart. All have been denied. [ 6 ] On Sept. 19, 2014 Mr Lymer applied to me that I grant a consent judgment in the bankruptcy and an audit of counsel for the Objecting Creditors to determine the source of funds for that firm which “... fuel the [Objecting Creditors] continual objections to all amicable and reasonable resolutions to these Bankruptcy matters.” This application was supported by two Sept. 24, 2014 affidavits. On Oct. 14, 2014 Mr.

Lymer applied to me for an injunction to limit public Internet access to documents that relate to the Lymer bankruptcy. [ 7 ] Mr. Lymer’s Sept. 19 and Oct. 14, 2014 applications were heard by me on Oct. 17, 2014. At that hearing I struck out an Oct. 14, 2014 affidavit as improperly filed. Mr. Lymer’s other applications were adjourned in anticipation of the release by Registrar Smart of

a judgment in response to an application by the Objecting Creditors that Mr. Lymer be found in civil contempt of court for his failure toprepare affidavits of records. [8] Mr. Lymer has subsequently on Nov. 3, 2014 applied once again to Registrar Smart that he recuse himself. [9] Following further review of the Sept. 19 and Oct. 14, 2014 materials filed by Mr. Lymer, and the remainder of thisbankruptcy file, I now on my own motion declare that Neil Alan Lymer is a vexatious litigant per Judicature Act, RSA 2000, c J-2, s23.1(1). Mr.

Lymer’s litigation history discloses persistent misuse of court procedures and processes. His future access to the Albertacourts should now be restricted. II. Vexatious Litigation [10] Vexatious litigation is synonymous with abuse of process: Wong v Leung, 2011 ABQB 688 at para 33, 530 AR 82;Mcmeekin v Alberta (Attorney General), 2012 ABQB 144 at para 11, 537 AR 136.

This interrelationship is described by McLachlin J(as she then was) in R v Scott, (SCC), [1990] 3 SCR 979 at 1007, 116 NR 361: ... abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamentalprinciples of justice underlying the community's sense of fair play and decency.

The concepts of oppressiveness and vexatiousnessunderline the interest of the accused in a fair trial. ... [11] This Court is authorized by the Alberta Legislature to restrict the activities of vexatious litigants (Judicature Act, ss 23-23.1): 23.1(1) Where ... on its own motion, with notice to the Minister of Justice and Solicitor General, a Court is satisfied that a person isinstituting 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. [12] The Court’s inherent jurisdiction to prevent abuse of its processes provides a parallel and independent jurisdiction to theJudicature Act and Alberta Rules of Court, Alta Reg 124/2010 provisions which relate to vexatious litigation: Canam Enterprises Inc vColes (2000), (ON CA), 51 OR (3d) 481 (Ont CA) at paras 55-56, affirmed 2002 SCC 63 , [2002] 3 SCR307; Mcmeekin v Alberta (Attorney General), 2012 ABQB 144 at para 14, 537 AR 136.

The principle behind this authority wasexplained by Slatter JA in Reece v Edmonton (City), 2011 ABCA 238 at para 16, 335 DLR (4th) 600: Abuse of process is a compendious principle that the courts use to control misuses of the judicial system. Abuses of process can arise inmany different contexts, and there is no universal test or statement of law that encompasses all of the examples. [13] Michalyshyn J of this Court has recently in Chutskoff v Bonora, 2014 ABQB 389 at paras 80-93 conducted a comprehensivereview of the meaning and characteristics of vexatious litigation.

That decision at paras 86-90 explains the context that is relevant to testwhether litigation is vexatious: [86] A vexatious proceeding means “... that the litigant's mental state goes beyond simple animus against the other side, and rises to asituation where the litigant actually is attempting to abuse or misuse the legal process.”: Jamieson v Denman, 2004 ABQB 593 at para127, 365 AR 201. [87] The vexatious or abusive character of litigation is tested via review of the entire history of the matter.

This review potentiallyincludes conduct both inside and outside the court room (Bishop v Bishop, 2011 ONCA 211 at para 9, leave denied [2011] SCCA No239), as the latter may demonstrate whether: ... court proceedings commenced by the litigant are not bona fide but the product of someone who is unreasonably obsessed with a causeand likely to pursue vexatious court proceedings on an indefinite basis unless stopped. ... [88] It is immaterial if at first there was an apparently good cause of action: Dykun v Odinshaw, 2000 ABQB 548 at para 42, 267 AR318, affirmed 2001 ABCA 204 , 286 AR 392, leave denied [2001] SCCA No 442; Del Bianco v 935074 Alberta Ltd., 2007ABQB 150 at para 39, 156 ACWS (3d) 786. [89] A litigant’s entire court history is relevant (McMeekin v Alberta (Attorney General), 2012 ABQB 456, 543 AR 132; Curle v Curle,2014 ONSC 1077 at para 24), which may include litigation in other jurisdictions (Fearn v Canada Customs, 2014 ABQB 114). [90] Since a person is presumed to intend the natural consequences of their acts (Starr v Houlden, (SCC), [1990] 1SCR 1366, 68 DLR (4th) 641)) repeated misconduct is a presumptive indication that a litigant does not intend to follow court rules andprocedure (McMeekin v Alberta (Attorney General), at para 119). [14] Justice Michalyshyn continues at para 92 to identify eleven general indicia of vexatious litigation that have been identifiedeither in Judicature Act, s 23(2) or in Canadian jurisprudence: 1. collateral attacks, 2. hopeless proceedings,

3. escalating proceedings, 4. bringing proceedings for improper purposes, 5. initiating “busybody” lawsuits to enforce alleged rights of third parties, 6. failure to honour court-ordered obligations, 7. persistently taking unsuccessful appeals from judicial decisions, 8. persistently engaging in inappropriate courtroom behaviour, 9. unsubstantiated allegations of conspiracy, fraud, and misconduct, 10. scandalous or inflammatory language in pleadings or before the court, and 11. advancing Organized Pseudolegal Commercial Argument [“OPCA”] strategies. [ 15 ] Any of these indicia are a basis to classify a legal action as vexatious.

III. Vexatious Indicia in the Lymer Bankruptcy Proceedings [ 16 ] Mr. Lymer’s litigation clearly exhibits many of the characteristics of vexatious litigation. A. Collateral Attack [ 17 ] The rule against collateral attack prohibits a litigant from re-raising an issue that was decided in a previous hearing outside a proper procedural context, such as an appeal.

This prohibition was recently defined by Justice Abella in British Columbia (Workers’ Compensation Board) v Figliola , 2011 SCC 52 at para 28 , [2011] 3 SCR 422: The rule against collateral attack similarly attempts to protect the fairness and integrity of the justice system by preventing duplicative proceedings.

It prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route … [Emphasis added.] [ 18 ] Collateral attack in vexatious litigation is summarized in Chutskoff v Bonora , at para 92 : ... collateral attack:

a) bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction: Judicature Act , s 23(2)(a); Dykun v Odinshaw at para 42;

b) using previously raised grounds and issues improperly in subsequent proceedings: Judicature Act , s 23(2)(c); Dykun v Odinshaw at para 42;

c) conducting a proceeding to circumvent the effect of a court order: Stout v Track, at paras 79-82, 84-87; [ 19 ] Mr. Lymer has engaged in a number of collateral attacks thus far in this proceeding: Jan. 7, 2014 : Mr. Lymer applied to me to have his bankruptcy annulled even though that issue was still before Registrar Smart. I refused that application. April 4, 2014 : Mr. Lymer applied to Registrar Smart that Mr. Rutman disclose communications that would allegedly reveal conflicts of interest with the Trustee and Bank of Montreal. I had previously denied a parallel application on Feb. 24, 2014.

June 6, 2014 : I concluded that Mr. Lymer was re-arguing previously decided and unappealed issues, and that was both an abuse of process and a waste of court time. [ 20 ] The Sept. 19, 2014 application for a consent judgment to discharge the Lymer bankruptcy is a further collateral attack on the proceedings before Registrar Smart. This application is intended to bypass the lawful bankruptcy review underway by the Objecting Creditors, and the document disclosure and review orders made by the Registrar. [ 21 ] This alone is a basis by which I conclude that Mr. Lymer’s litigation activities are vexatious. B.

Hopeless Proceedings [ 22 ] Hopeless proceedings are described in Chutskoff v Bonora as having five subcategories: ... hopeless proceedings:

a) bringing proceedings that cannot succeed or that have no reasonable expectation to provide relief: Judicature Act , s 23(2)(b); Dykun v Odinshaw at para 42;

b) seeking forms of relief that cannot be obtained: Fearn v Canada Customs, at para 106 ; McMeekin v Alberta (Attorney General), 2012 ABQB 456 at paras 196 , 203, 543 AR 132; Onischuk v Alberta, at paras 14, 35;

c) seeking relief that is unwarranted or grossly disproportionate to any plausible remedy: Stout v Track, at paras 68-71; Arabi v Alberta, 2014 ABQB 295 , at paras 101-103 ; McMeekin v Alberta (Attorney General), 2012 ABQB 456 at paras 196 , 203, 543 AR 132;

d) advancing excessive cost claims: McMeekin v Alberta (Attorney General), 2012 ABQB 456 at paras 196 , 203, 543 AR 132; Arabi v Alberta at paras 101-103 ;

e) advancing incomprehensible arguments and allegations: R v Fearn, 2014 ABQB 233 at paras 22-23 ; [ 23 ] By definition no collateral attack can succeed, making each of Mr. Lymer’s collateral attacks a hopeless proceeding. I further note that Mr. Lymer in his most recent applications has advanced unwarranted or unavailable forms of relief. The most remarkable is a demand that he learn who is funding counsel for the Objecting Creditors.

He seeks an order: ... authorizing an audit of the Denton’s LLP Law Firm billing ledgers, in relation to Court File # 24-1446521, to determine the origins of the retainer funds being provided to fuel the [Objecting Creditors] continual objections to all amicable and reasonable resolutions to these Bankruptcy matters. [ 24 ] While arguably this is within the Court’s jurisdiction this remedy is entirely inappropriate as the source of the funds for the Objecting Creditors litigation is irrelevant, provided that litigation has a legitimate purpose.

And that is the case - the Objecting Creditors have a right to investigate the finances of Mr. Lymer and the Lymer Companies. That right flows from the Bankruptcy and Insolvency Act , RSC 1985, c B-3, and the orders of Registrar Smart and myself. [ 25 ] Another example of an unwarranted form of relief was Mr.

Lymer’s application to have the Objecting Creditors pay a very large sum to him ($108,000.00) so that he could hire a law firm to prepare affidavits of records for the Lymer Companies, even though the obligation to prove the value of those companies and provide the evidentiary basis for a mortgage annulment falls on Mr. Lymer . Nevertheless, he has insisted that opposing parties pay to prepare evidence that instead he is obliged to provide . This demand for cost- shifting is absurd and was rejected both by Registrar Smart and myself. [ 26 ] This is a second basis on which I conclude Mr.

Lymer’s litigation activities in this proceeding are vexatious. C. Escalating Proceedings [ 27 ] Another characteristic of vexatious litigation is that vexatious litigation tends to pick up more and more parties and issues as time goes on. In Chutskoff v Bonora this characteristic is summarized as having two general variations: ... escalating proceedings :

a) grounds and issues tend to roll forward into subsequent actions, repeated and supplemented (Dykun v Odinshaw at para 42; McMeekin v Alberta (Attorney General), 2012 ABQB 456 at paras 203 , 205, 543 AR 132), this factor is aggravated where this results in simultaneous active overlapping actions (Wong v Leung, 2010 ABQB 628 at para 16 );

b) with an ‘accumulative’ nature where, as proceedings continue:

i) new parties are added, frequently these are lawyers: Dykun v Odinshaw at para 42; Big Bear Hills Inc v Bennett Jones Alberta LLP, 2010 ABQB 764 , 507 AR 21; McMeekin v Alberta (Attorney General), 2012 ABQB 456 at paras 203 , 205, 543 AR 132; Arabi v Alberta, at para 104 ; or ii) unrelated issues and subjects which were not a part of the original action are added to the litigation: this decision, see paras 110-111; [ 28 ] Here there is only one action but it has escalated from a relatively simple, discrete question into something much more complex. Mr.

Lymer’s basic claim is that he is not and has never been a bankrupt. He says his companies have more than enough assets to pay off all his debts. His task before this Court is to prove that. But instead all manner of secondary issues, disputes, and processes have emerged and now dominate this proceeding. [ 29 ] He (unsuccessfully) accuses the lawyers who represent the Objecting Creditors of conflicts of interest, or in having engaged in inappropriate and unprofessional conduct. On Feb. 6, 2014 he applied to me to have Mr. Rutman held in contempt. I refused.

He has made complaints about opposing counsel to the Law Society of Alberta. Mr. Lymer has repeatedly applied to have Registrar Smart recuse himself or that I remove him from his case management role. [ 30 ] There are many ancillary issues that have emerged and disrupted this proceeding. For example, Mr. Lymer claims he does not control or cannot care for the Lymer Companies’ documentation. He has offered various narratives on that point. Mr.

Lymer then went so far as to without warning abandon 36 boxes of those materials at the Edmonton Dentons Canada LLP office on July 9, 2014, the day before his contempt of court hearing. He complains in his Oct. 14, 2014 Application that his privacy rights have been infringed. All this is collateral to the central issue before the Court and Mr. Lymer’s own purported objective – to prove he is solvent. Instead, the litigation to date has addressed everything else but that. [ 31 ] This is a third separate basis on which I conclude that Mr. Lymer’s litigation is vexatious.

It is difficult to see any possible objective to these collateral steps except to frustrate the advance of this proceeding, and incur costs to the opposing parties. If Mr. Lymer desired a different outcome he would minimize the issues in play and focus on what he claims is his objective. Instead, he has done the opposite.

D. Improper Purposes [ 32 ] Vexatious litigation has an unlawful purpose. Chutskoff v Bonora , at para 92 lists examples of that: ... bringing proceedings for improper purposes ( Judicature Act , s 23(2)(c); Dykun v Odishaw at para 42), including proceedings:

a) without a legal basis and intended disrupt, pre-empt, or frustrate other litigation: R v Fearn, 2014 ABQB 233 at para 48 ; O’Neill v Deacons, 2007 ABQB 754 at para 25 , 83 Alta LR (4th) 152; McDonald Estate (Re), 2013 ABQB 602 at para 44 ;

b) with an ulterior motive or to seek a collateral advantage: Hughes Estate v Hughes, 2006 ABQB 159 at para 20 , 396 AR 250, varied on other grounds 2007 ABCA 277 , 285 DLR (4th) 57;

c) intended to extort a settlement or other benefit: Allen v Gray, 2012 ABQB 66 at para 41 , 532 AR 252, appeal dismissed for want of prosecution 2013 ABCA 176 , 553 AR 124; Arabi v Alberta at para 100 ; McMeekin v Alberta (Attorney General), 2012 ABQB 625 at paras 32 , 38, 41, 543 AR 11

d) intended as revenge, harassment, to oppress, or to inflict harm: Stout v Track, at paras 79-82; Serdahely Trust (Trustee of) v Serdahely Estate; Haljan v Serdahely Estate, 2008 ABQB 472 , 453 AR 337; Wong v Leung; V.W.W. v Leung, 2011 ABQB 688 at para 36 , 530 AR 82; and

e) conducted in retaliation to other persons’ successes or their failure to cooperate with the plaintiff, including unwarranted complaints to professional bodies: McDonald Estate (Re), 2013 ABQB 602 at para 45 ; [ 33 ] It is a well-established principle of law that a person can be presumed to intend the natural result of their actions: Starr v Houlden . Mr. Lymer says he wants to prove he is not a bankrupt, but instead has done everything except address that question. [ 34 ] Mr. Lymer has repeatedly made applications that frustrate or bypass that objective.

Further, his true intent emerges from both the language of his applications and affidavits, and their objectives. On Jan. 7, 2014 he applied to disallow the debt claims of the Objecting Creditors and require they pay costs. Naturally, I denied that application. [ 35 ] If Mr. Lymer is indeed a fair-minded businessman who only seeks to clear his name and repay his debts then he would not have sought to deny the debts of his creditors who seek to verify the status of the Lymer Companies’ and his own finances.

Instead, the Jan. 7, 2014 application implies a different intent: revenge. [ 36 ] In any case, what is obvious from the litigation history to date is that Mr. Lymer clearly has some other, different objective than discharging or annulling his bankruptcy. That is yet another basis on which I conclude Mr. Lymer’s litigation activities are vexatious. E.

Persistent Unsuccessful Appeals [ 37 ] Justice Michalyshyn in Chutskoff v Bonora at para 92 describes the unsuccessful appeal vexatious litigation indicium as: ... persistently taking unsuccessful appeals from judicial decisions ( Judicature Act , s 23(2)(f); Dykun v Odinshaw, at para 42), spurious appeals intended to incur cost and cause delay are an aggravating factor (McMeekin v Alberta (Attorney General), 2012 ABQB 625 at paras 38 , 41, reflex, 543 AR 11); [ 38 ] Mr. Lymer has challenged the decisions of Registrar Smart. To date he has made two unsuccessful appeals (May 17, 2011, June 6, 2014).

I do not consider these activities alone as a basis to conclude Mr. Lymer’s litigation activities are vexatious, however these unsuccessful appeals are a factor that could suggest vexatious court activity, when combined with other indicia of vexatious litigation. F. Allegations of Conspiracy, Fraud, and Official Misconduct [ 39 ] Chutskoff v Bonora at para 92 describes vexatious allegations of conspiracy, fraud, and misconduct as having three varients: ... unsubstantiated allegations of conspiracy, fraud, and misconduct, including:

a) claims of judge and lawyer deception, fraud, perjury, conspiracy, tampering of records and transcripts, and other conspiratorial misconduct made without the positive evidence (reviewed in Fearn v Canada Customs, at paras 73, 76-78, 85 ) legally required to support such allegations: Onischuk v Alberta, at para 35; Koerner v Capital Health Authority, 2011 ABQB 462 at para 21 , 518 AR 35; McMeekin v Alberta (Attorney General), 2012 ABQB 625 at paras 27-29 38, reflex, 543 AR 11;

b) sensational claims of conspiracies and intimidation, harassment and racial bias: Allen v Gray, at para 42 ; V.W.W. v Wasylyshen, 2013 ABQB 327 at para 59 , 563 AR 281, leave refused 2014 ABCA 121 ; Wong v Giannacopoulos, at para 4;

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”: Del Bianco v 935074 Alberta Ltd., at para 35 ; [ 40 ] Mr. Lymer portrays himself as an innocent, a man who can “create magic” if only left to his own devices (June 30, 2014 Affidavit at para 208). He has the money to repay all his own and his companies’ debts.

The overwhelming majority of his creditors know that and support him. His obstacle is a malevolent fraction who have conspired with the Court (more specifically Registrar Smart), a succession of unethical lawyers, the Law Society of Alberta, and the Edmonton Oilers.

[ 41 ] Mr. Lymer’s most recent filings include escalating allegations of Court misconduct. For example, the Sept. 19, 2014 Application calls the Court a “bully” (para 4(k)), that produces “bizarre ruling and punitive Orders, in the hopes of destroying [Mr. Lymer’s] life ...” (para 4(q)). [ 42 ] Mr. Lymer now identifies Registrar Smart as a hostile and prejudiced figure (Oct. 14, 2014 Affidavit at para 13): On September 25, 2014, I appeared before Registrar Smart seeking his assistance with my public and worldwide humiliation, and I was taken aback by his satisfaction in my misfortune.

Registrar Smart was giddy with delight that I was experiencing this level of global embarrassment. This has caused me to realize for the 1st time how much distain Registrar Smart has for me and why I have not been able to get a fair hearing before him. See also Mr. Lymer’s Nov. 3, 2014 Application at para 21. [ 43 ] He is the subject of unique persecution (Oct. 14, 2014 Application, at para 32): There is no precedent, in all of Canada, that could compare to the abuse the Court of Queen’s Bench has brought upon Neil A.

Lymer. [ 44 ] The supporting Oct. 14, 2014 Affidavit states (paras 4, 12, 27-28): The Court has continually taken steps that have prevented me from going to work for the Lymer Companies, and has further made punitive Orders that force me to live like a pauper ... ... It is highly unlikely that my reputation will ever recover from the world wide humiliation that the Courts have laid upon me. At all time, the Court should have focused on recovering the most money to the Creditors of the Lymer Companies, rather than punishing me with unrealistic, harsh and punitive Orders. ...

The Bankruptcy process was enacted to recover the most money for Creditors, and to rehabilitate an unfortunate Bankrupt. In my situation, the Courts have chosen to pound me into oblivion and have destroyed my life rather than help the lost majority of forgotten Creditors ... There is no precedent, in all of Canada, that could compare to the abuse the Court of Queen’s Bench has brought upon me, my life has been changed forever and I have certainly deserved better. ... [ 45 ] Mr.

Lymer concludes at para 30 that he believes he will be imprisoned for life: I believe that if my Appeals are unsuccessful before Justice Lee, that Registrar Smart will hammer me with a very punitive and hard hitting Order that I will never recover from. I further believe that this Order will lead me to be incarcerated for the rest of my natural life, and I will never recover. See also the Sept. 24, 2014 nine page Affidavit [“Affidavit #1”] at para 2. [ 46 ] Lawyers and the legal profession are also depicted in an unfavourable manner. Mr.

Lymer claims to have been victimized by lawyers who engage in “ethical abuse”, all of which is shielded by the Law Society of Alberta (Sept. 24, 2014 three page Affidavit [“Affidavit #2”], at para 1). Objecting Creditor lawyer Ryan Quinlan fabricates evidence (Sept. 24, 2014 Affidavit, at paras 12, 14, 17). I have previously commented on Mr. Lymer’s earlier and unsubstantiated allegations that counsel for the Objecting Creditors are in a conflict of interest. [ 47 ] Mr. Lymer certainly has nothing good to say about the Objecting Creditors.

In his Sept. 24, 2014 Affidavit #1 he at paras 58- 59 denies he or his companies owe debts to specific Objecting Creditors (even though those claims have been accepted by the Trustee). At para 65 he alleges that one creditor, Natalie Minckler, has control of a wide array of Edmonton Oiler media resources and “... would have the power to continue and fabricate fiction, and to further create an unfair bias impression that Neil A.

Lymer is a dishonest individual.” Another Objecting Creditor is a “... power broker within the Conservative Party of Alberta ...” (para 70). [ 48 ] Not only are these powerful individuals set on ruining Mr. Lymer and as a consequence harming the creditors as a whole; they are also criminal and amoral. At para 253 of his June 30, 2014 Affidavit Mr. Lymer contrasts those who support him, “the forgotten Creditors”, with the Objecting Creditors: The heinous acts of “marital infidelity, spousal abuse, and criminal activity” factually exist amongst members of the [Objecting Creditors].

However, more importantly these sad acts do not exist amongst the families of the long ago forgotten vast majority of Creditors. The forgotten Creditors are made up of intelligent, well healed, reasonable and lawful people with no acts of volatility amongst them this making their wish for an amicable resolution to these matters to be more reasonable. [ 49 ] Mr. Lymer further complains he is followed by stalkers (para 272) and one creditor has (allegedly) threatened to kill Mr. Lymer as his dying act (paras 254-258): 256. I have been told that Keith Porozni is telling people he has an incurable form of cancer.

If true, that would be horribly sad and I continue to pray often for him. Many years ago, Keith Porozni told me that he would “kill me” during the last hours of his exit from the earth. That threat has resonated with me for many, many years. 257. I continually believe that “my future death will be caused by a heinous act involving Keith Porozni” and I have filed numerous Affidavits to overwhelmingly support those fears. ...

[ 50 ] But Mr. Lymer alleges the Objecting Creditors are but a cat’s paw for an even greater conspiracy. He claims secret funds are channeled from persons who are third-parties to the litigation (Sept. 19, 2014 Application at paras 4(y-z)):

y) The [Objecting Creditors] legal fees may be being paid by unrelated third parties who are not Creditors of Neil A. Lymer. Natalie Minckler is a Director of the Edmonton Oilers and may have access to money from the Hockey Club and/or their owners, Katz Group.

z) If the legal fees of the Applicant Creditors are being paid by an unrelated third party, it would tilt the fairness of justice to an unethical level, thus placing Neil A. Lymer, the Trustee BCO Canada, and the vast majority of the forgotten Creditors at a distinct and unfair advantage. [ 51 ] This bald allegation of conspiracy is the basis for Mr. Lymer’s demand to audit Dentons Canada LLP. [ 52 ] I believe there is no point to providing further examples (though there are many.) Mr. Lymer’s allegations are ridiculous, unsupported, and betray his motivation as a whole.

He sees himself unfairly persecuted and beset. These statements help explain the reason for his actions to date. Mr. Lymer wants to frustrate and exhaust those he sees as his enemies, the creditors who seek to verify the status of the Lymer Companies. As I have previously commented, he has no basis to impede that legal right. This is another reason why I conclude Mr. Lymer’s litigation conduct is vexatious. G.

Scandalous or Inflammatory Language [ 53 ] “Scandalous or inflammatory language in pleadings or before the court” is another indicium that litigation is vexatious: Chutskoff v Bonora , at para 92 ; Wilson v Canada (Revenue) , 2006 FC 1535 at para 31 , 305 FTR 250; McMeekin v Alberta (Attorney General) , 2012 ABQB 456 at para 205 , 543 AR 132; Onischuk v Alberta , 2013 ABQB 89 at paras 14 , 35, 555 AR 330. [ 54 ] I see no need to detail how Mr. Lymer’s conduct meets this criterion given the passages I have extracted above from Mr. Lymer’s court documents. This also favours my conclusion that Mr.

Lymer has engaged in vexatious litigation misconduct. H. Conclusion [ 55 ] I have no difficulty in concluding that Mr. Lymer’s litigation activities in this proceeding are vexatious. He has engaged in seven of the eleven indicia categories identified in Chutskoff v Bonora , at para 92 . This is not an instance of a few isolated incidents of problematic activity, but rather is a campaign. Worse, it is escalating. In particular, Mr. Lymer’s rhetoric has moved from restrained to strident.

He is demonizing those whom he sees as standing in his way. [ 56 ] I therefore conclude that this is an appropriate point to restrict Mr. Lymer’s future litigation activities. I therefore order: 1. Mr. Lymer is prohibited from commencing, or attempting to commence, or continuing any appeal, action, application or proceeding in the Court of Appeal, the Court of Queen’s Bench or the Provincial Court of Alberta, on his own behalf or on behalf of any other person or estate without an order of a judge of the court in which the proceeding is conducted. 2.

Any application for leave to file an appeal or application in the Alberta Court of Queen’s Bench action Lymer (Re) , Docket BE03 1446521 shall be made:

a) before case management Registrar Smart if that application relates to a matter in his bankruptcy jurisdiction, or

b) before myself as case management Justice for any subject that falls outside Registrar’s jurisdiction, or which is an appeal of Registrar Smart. 3. The presiding judge or Registrar in bankruptcy may at any time direct that notice of the application to commence or continue an appeal, action, application or proceeding be given to any other person. 4. Mr. Lymer must describe himself in the application and any pleadings by his full name, and not by using initials or a pseudonym. 5. An application to commence any appeal, action, application or proceeding must be accompanied by an affidavit: (

i) attaching a copy of the order declaring Mr. Lymer to be a vexatious litigant, (ii) attaching a copy of the appeal, pleading, application or process Mr. Lymer proposes to issue or file, (iii) deposing fully and completely to the facts and circumstances surrounding the proposed claim or proceeding, so as to demonstrate that the proceeding is not an abuse of process, and that there are reasonable grounds for it, (iv) indicating whether Mr. Lymer has ever sued some or all of the defendants or respondents previously in any jurisdiction or court, and if so providing full particulars, (

v) undertaking that, if leave is granted, the authorized appeal, pleading, application or process, the order granting leave to proceed, and the affidavit in support of the order will promptly be served on the defendants or respondents, and (vi) undertaking to diligently prosecute the proceeding. 6. The application shall be made in open court before a regularly assigned duty or chambers judge, or Registrar in bankruptcy (not in private chambers), and shall be recorded. Leave to commence proceedings may be given on conditions, including the posting of

security for costs. An application that is dismissed may not be made again before another judge or Registrar in bankruptcy unless Mr. Lymer discloses in writing that the application has previously been dismissed. 7. An application to vary or set aside this vexatious litigant order must be made on notice to the Attorney General, and any other person as directed by the Court. [ 57 ] The Judicature Act , s 23.1(1) authorizes this Court to make a vexatious litigant declaration on its own motion.

No application is necessary: Dahlseide v Dahlseide , 2009 ABCA 375 at para 36 , 73 RFL (6th) 57; R v Fearn , 2014 ABQB 233 at para 53 ; Chutskoff v Bonora at para 136 . [ 58 ] I adopt the procedure used in R v Fearn , at para 54 and Chutskoff v Bonora at para 138 . This Order is stayed for 30 days until December 12, 2014 to allow the Minister of Justice and Solicitor General to make submissions to change or vary this order, per Judicature Act , s 23.1(3), should the Minister of Justice and Attorney General wish to do so within that period of time.

Dated at the City of Edmonton, Alberta this 12 th day of November, 2014. Donald Lee J.C.Q.B.A. Appearances: None