Chisan v Fielding, 2017 ABQB 233

Court of Queen’s Bench of Alberta Citation: Chisan v Fielding, 2017 ABQB 233 Date: 20170331 Docket: 1601 06249 Registry: Calgary Between: James Brian Chisan Plaintiff - and - Jeff Fielding, Persons A to E, Wayne Brown, Scott Miller, Person F, Douglas Merchant, C. Wallis Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice J.T. Eamon _______________________________________________________ I. Introduction [ 1 ] The Defendants apply to declare the Plaintiff a vexatious litigant pursuant to

section 23.1 Judicature Act , RSA 2000, c J-2, and to bar him from commencing any further proceedings in his own name or in the name of any other person without leave of the Court. [ 2 ] The application is based on the Plaintiff’s historical conduct in litigation involving the City of Calgary (“ City ”) or its representatives, employees or agents. The Defendants claim Mr.

Chisan’s law suits against the City, or its employees, representatives or agents include collateral attacks on previously decided issues concerning the legality of the use of a building in the City known as 2214/2216 - 42nd Street, SE (“ 2214/2216 ”) and frivolous or vexatious claims. They also point to numerous appeals over the years, most

of which were unsuccessful or abandoned. They say Mr. Chisan’s conduct in legal proceedings demonstrate that he cannot be trusted to use court resources properly and causes those sued by him to incur needless expense and effort in responding to his frivolous claims. [ 3 ] The proceedings relied on by the Defendants include: (

a) A prosecution against Mr. Chisan for committing an offence under the Planning Act in relation to the use of 2214/2216, leading to trial and conviction on September 16, 1992 (the “ 1992 Trial ”), Mr. Chisan’s unsuccessful application to this Court to stay the decision pending appeal to this Court, his unsuccessful appeal of the 1992 Trial decision to this Court (QB no. 9201-0408-S2), and his unsuccessful attempt to further appeal to the Alberta Court of Appeal (no. 14417AC/14462); (

b) Mr. Chisan’s unsuccessful certiorari application attempting to remove the above mentioned prosecution to Queen’s Bench (QB no. 9201-1386-CO) (“ Certiorari Application ”) and his unsuccessful appeal therefrom to the Alberta Court of Appeal (no. 9201-13620-A1- 01); (

c) Mr. Chisan’s civil suit in this Court (action no. 9701-09641 filed July 3, 1997), which was discontinued (“ First 1997 Action ”); (

d) Mr. Chisan’s civil suit in this Court (action no. 9701-16441 filed November 19, 1997), which was dismissed for want of prosecution against several defendants, and has been stayed as against City defendants since 2002 (“ Second 1997 Action ”); (

e) A contempt of Court proceeding against Mr. Chisan in this Court (action no. 9301-02696), which led to Mr. Chisan’s imprisonment and other relief (the “ Contempt Proceeding ”), and Mr. Chisan’s unsuccessful appeal to the Alberta Court of Appeal which was dismissed for failure to prosecute (no. 0201-0106AC); (

f) An application against Mr. Chisan in this Court (action no. 9910-18117), for an order permitting the City to inspect 2214/2216 (“ Inspection Application ”), leading to Mr. Chisan’s unsuccessful appeal to the Alberta Court of Appeal (no. 00-18723) and unsuccessful applications by Mr. Chisan in the appeal; (

g) Mr. Chisan’s civil suit in this Court (action no. 0201-17504 filed October 16, 2002), which has been stayed since 2002 (“ 2002 Action ”); (

h) An injunction application by the City against Susannah Chisan in this Court (action no 0701-13288 filed December 28, 2007) (“ 2007 Injunction Application ”), in which Mr. Chisan participated; (

i) Mr. Chisan’s civil suit in this Court (action no. 1301-15170 filed December 24, 2013) (“ 2013 Action ”). Parts of this action were summarily struck out, and the remainder dismissed by

summary judgment; (

j) Mr. Chisan’s civil suit in this Court (action no. 1601-06249 filed May 10, 2016) (“ 2016 Action ”). This action was summarily struck out by a Master of this Court, leading to Mr. Chisan’s appeal in this Court which was struck out, and Mr. Chisan’s appeal from that decision to the Alberta Court of Appeal (no. 1601-02555AC) which was struck for failure to prosecute. II. The background, procedural objections, and evidence considered a. Background [ 4 ] The present application arises in the 2016 Action. Mr. Chisan sued various named and un-named parties, alleging loss from various allegedly unlawful actions.

The underlying complaint in the action is described in para 1 of the Statement of Claim: “The cause of this Action is that the Defendants failed to effect disclosure respecting their actions and omissions, trespassed, and impaired the Plaintiff’s constitutional rights not in accordance with the principles of fundamental justice.” [ 5 ] Generally speaking, the allegations relate to seizure of various properties, without “disclosure”. The Plaintiff says he was the owner of a property in the City referred to in these reasons as “ Lots 19 to 24” , before the lots were seized by “Defendants A to E”.

Another property (2214/2216) was allegedly seized by a City investigator and a City bylaw officer. “Defendant F” was another bylaw officer allegedly engaged to seize personal property and renovation materials at the same address. Neither allegation specifies the type of seizure. It is further alleged in para 5 of the Statement of Claim that a City manager has the obligation to effect disclosure and “facilitate actions of The City Actors that demonstrate compliance with the Plaintiff’s right to be secure against unreasonable seizure”.

The Plaintiff also complains about a notice issued by a City corporate security officer prohibiting him from being on lands owned or occupied by the City. Finally, Mr.

Chisan sued a City lawyer for allegedly committing fraud by failing to disclose that he did not have a solicitor and client relationship with the individual defendants in the 2013 Action. [ 6 ] The Plaintiff seeks various damages and “an order for disclosure”. [ 7 ] The named Defendants and un-named Defendant F are alleged to be various representatives of the City -- two investigators, a manager, a corporate security officer, and a lawyer. [ 8 ] The Statement of Claim does not explicitly allege a nexus between the seizure of Lots 19 to 24 and activities of the City (or identify the persons who effected seizure of Lots 19 to 24 as the City or its personnel), but in fact that nexus exists. [ 9 ] Lots 19 to 24 were under enforcement proceedings commenced by a writ of enforcement issued by the City, who as instructing creditor instructed that they be sold in the enforcement proceedings.

The City is a corporation ( Municipal Government Act ,

RSA 2000, c. M-26, s. 4), and therefore a person. With that context and the allegations of para 5 of the Statement of Claim, it is obvious that the un-named Defendants are the instructing creditor (the City) and perhaps individual representatives or agents of the City. [ 10 ] The 2016 Action was struck by a Master in Chambers on June 10, 2016. The Plaintiff appealed that order.

His appeal was returnable in morning Chambers on August 19, 2016. [ 11 ] This caused the Defendants to file the present vexatious litigant application on August 9, 2016 in the 2016 Action, also returnable on August 19, 2016. [ 12 ] At the return of the applications on August 19, 2016 Campbell J adjourned the vexatious litigant application to a full day special chambers application. [ 13 ] Notice of the present application was provided to the Minister of Justice and Solicitor General, as required by

section 23.1 of the Judicature Act . By letter dated August 10, 2016 Alberta Justice and Solicitor General acknowledged notice to the Attorney General of Alberta (who is also the Minister of Justice and Solicitor General) and advised the Attorney General of Alberta would not be taking a position or appearing. [ 14 ] The Court raised during the special chambers application whether it might be an irregularity to make a motion in a struck action. However, Rule 6.3(1) permits such an application. Even if it did not, Campbell J’s order obviously was meant to continue the application so that it could be heard on its merits. A

section 23.1 application would be an appropriate response in the 2016 Action to ongoing efforts by the Plaintiff to try to keep the action alive. In any case, it would now be too late to complain about such an irregularity, if it was irregular: Rule 1.5(3). b. Mr. Chisan’s procedural objections [ 15 ] At the outset of the application before me, Mr. Chisan raised various procedural objections. [ 16 ] First, he noted Ms. Sinclair (a lawyer with the City of Calgary Law Department, who appeared on behalf of counsel for the Defendants at the application) is a “corporate lawyer” for the City of Calgary.

He requested a clear statement of who she represents and how that comes to be. Second, he said the Defendants needed leave to allegedly limit Mr. Chisan’s freedom of expression rights under the Canadian constitution. Third, he submitted the City cannot initiate proceedings under the Judicature Act . [ 17 ] The Court dismissed the first objection, relating to Ms. Sinclair’s role as counsel, during the hearing. [ 18 ] Pursuant to Rule 2.24(1) of the Alberta Rules of Court, a lawyer becomes a lawyer of record by filing a record in an action. Ms.

Sinclair or the City of Calgary Law Department became the lawyer of record for the Defendants in the 2016 Action by filing the motion to strike the action, and continued to be described in that capacity in the present vexatious litigant application. [ 19 ] This Court has jurisdiction to embark on the inquiry requested by Mr. Chisan. Courts of inherent jurisdiction have supervisory power over lawyers as officers of the court and may exercise this power to ensure the proper administration of justice: Canadian National Railway Co v.

McKercher LLP , 2013 SCC 39 at paras 13 - 16 . [ 20 ] Generally speaking, the Court should be reluctant to inquire into the retainer of counsel who becomes a lawyer of record. Lawyers are officers of the Court who have ethical obligations, including of competence and candour, which makes reliance on their representations of authority appropriate in most cases. The terms of their retainers with their clients are privileged from disclosure. [ 21 ] Mr. Chisan did not articulate an intelligible basis to inquire into Ms. Sinclair’s authority. [ 22 ] Mr.

Chisan’s second objection was that the application will limit his constitutional right to freedom of expression so the Defendants would require leave of the Court. Later in his submissions, he acknowledged that he was not challenging the validity of the applicable provisions of the Judicature Act . Rather, he was submitting that his constitutional rights are to be considered in the balance in deciding whether to make an order. [ 23 ] There is no requirement on the Defendants, who are parties to the action, to get leave to apply under

section 23.1 of the Judicature Act . [ 24 ] It may be that Mr. Chisan is referring to the requirement in sub-section 23.1(2) that a person, other than a party, a clerk of the Court or the Minister of Justice and Solicitor General, obtain permission to apply. The City is not explicitly named as a Defendant, so Mr. Chisan might perceive that permission is required where counsel making the application was a member of the City law department. [ 25 ] As explained above, the application has been made by the Defendants. The City is obviously one of the Defendants.

No permission is required. [ 26 ] There is no merit to the second objection. [ 27 ] The third objection is that the City cannot initiate proceedings under the Judicature Act or bring a proceeding to limit one’s freedom of expression. [ 28 ] A municipality has the powers of a natural person except to the extent they are limited by an enactment: Municipal Government Act , s. 6. No limitation was cited to me that the City cannot protect itself from vexatious litigation arising from enforcement or litigation proceedings that arise in the course of its governmental operations.

I conclude that there are no such gaps in its powers. In any case, other Defendants also made the application. [ 29 ] The third objection is without merit.

c. The evidence tendered by the Defendants [30] The motion proceeded on the basis of books tendered by the Defendants containing copies of numerous pleadings, orders andother records in previous court proceedings and the 2016 Action. These were served on Mr. Chisan on August 17, 2016 with a letterinforming him that they would be relied on in support of the application. Additional records were appended to the Defendants’ writtenbrief later served on Mr. Chisan.

There was no clerk’s certificate authenticating the records as true copies of records on the Court’s file.Counsel, who is an officer of the Court, represented that these records are true copies of the original court proceedings by tendering themto the Court. [31] Mr. Chisan did not object before me to the manner in which the Defendants provided these materials for use in theapplication.

He did not suggest any individual records were not authentic or complete copies. [32] It would have been preferable that the Defendants obtain and provide copies of records obviously bearing an originalcertification or authentication under Rule 13.29(2) or the Evidence Act RSA 2000, C.A-18,

section 33, 44 or by following the procedurein R v Tatomir (1990), 1989 ABCA 233 , 69 Alta. L.R. (2d) 305 (CA), leave refused [1989] S.C.C.A. No. 448. [33] For each transcript, it would be preferable to provide transcripts certified by the reporter, including digitally certified versions.Those are admissible in evidence, without proof of the signature of the reporter: Recording of Evidence Act, RSA 2000, c.

R-7.5 and theRecording of Evidence Regulation, A.R. 169/2009 and predecessor regulations; Rule 13.47. [34] Notwithstanding the preferable procedures, it is not unusual for counsel to rely on photocopies of court records because anyobjection will typically result in a brief adjournment to obtain a certified or authenticated record. The present matter was booked forhearing on the special list for many months. Mr. Chisan knew the City would rely on the records. Mr.

Chisan did not file any writtenbrief prior to the application as required by Queen’s Bench Practice Note 2, and did not otherwise object to the admissibility orauthenticity of the copies. Mr. Chisan has frequently represented himself in the Alberta Courts since at least 1992, including inChambers and Special Chambers applications and should know the rules by now. [35] In this case, not all records were authenticated in the ordinary ways. However, there is really no doubt that the recordssubmitted by the Defendants are authentic for the reasons outlined below.

Asking for the formality of additional certifications would beuseless and would cause further delay. The Court therefore accepts the records tendered by the City as true copies of the originalproceedings as represented by counsel and given the absence of objection by Mr.

Chisan. [36] The following explains why there is no real doubt over the authenticity of the records. [37] All of the records provided by the Defendants, other than transcripts of proceedings, reasons for decision, a letter from theRegistrar of the Alberta Court of Appeal dated April 4, 2003, and a Struck Certificate - Late Appeal Record dated January 31, 2017issued by the Registrar of the Alberta Court of Appeal, appear to be photocopies of stamped office copies of court filed documents or, insome cases, photocopies of court certified copies. [38] All of the transcripts, save two, were proceedings in the Court of Queen’s Bench.

The two exceptions were: (

a) A transcript of the 1992 Trial in the Provincial Court. A certified copy of that transcript was filed in this Court in relation to variousproceedings in this Court following Mr. Chisan’s conviction. (

b) An extract from a transcript of a provincial offence proceeding on September 23, 2008 against Mr. Chisan’s spouse in the ProvincialCourt.

That document appears to be a photocopy of a certified copy. [39] Transcripts provided by the Defendants for pre-2015 proceedings in Queen’s Bench were photocopies of certified transcripts,other than the oral reasons for judgment of Phillips J on April 19, 2002 and an extract of reasons delivered October 23, 2002 where nocertificates were provided. [40] Transcripts provided by the Defendants for 2015 and 2016 proceedings in Queen’s Bench were digitally certified. [41] Most of the reasons for decision reproduced by the Defendants in their books are published versions of previous reasons fordecision of the Alberta courts in matters concerning Mr.

Chisan or are copies from the Court: (

a) R v Chisan, [1992] A.J. No. 1108, the decision of the Alberta Court of Appeal in appeal no. 13266 dismissing Mr. Chisan’s appealfrom a decision by Power J wherein Mr. Chisan argued that the court lost jurisdiction in a provincial offence proceeding; (

b) R v Chisan, (AB KB), [1992] A.J. No 1267, 7 Alta. L.R. (3d) 254, the decision of Montgomery J refusing Mr.Chisan’s application to stay the decision of Stevenson PCJ in the 1992 Trial pending appeal; (

c) R v Chisan, (AB KB), [1993] A.J. No. 509, 142 A.R. 201, 15 M.P.L.R. (2d) 275, the decision of Dixon Jdismissing Mr. Chisan’s appeal from conviction in the 1992 Trial (The original reasons for this reported decision are on the Queen’sBench appeal file, and are the same as the reported version other than the paragraph numbers added); (

d) R v Chisan, 1994 ABCA 14 , [1994] A.J. No. 63, 149 A.R. 394, 16 Alta. L.R. (3d) 371 (CA), leave to appeal dismissed[1994] S.C.C.A. No. 109, the dismissal of Mr. Chisan’s appeal from the decision of Waite J in the Certiorari Application; (

e) R v Chisan, 1994 ABCA 209 , [1994] A.J. No. 515, [1994] 9 W.W.R. 147, 21 Alta. L.R. (3d) 95, 155 A.R. 264, thedecision of the Alberta Court of Appeal finding that court did not have jurisdiction to entertain Mr. Chisan’s appeal from the decision ofa single judge refusing leave to appeal from the decision of Dixon J; (f) 478370 Alberta Inc v. Chisan, 1998 ABCA 169, 219 A.R. 6, leave to appeal dismissed [1998] SCCA No 485, the decision of the

Alberta Court of Appeal dismissing Mr. Chisan’s appeal from a Queen’s Bench chambers decision granting an application for judgmentagainst Mr. Chisan. This decision reviews the “difficult history” of that litigation, including the contempt finding against Mr. Chisan forrefusing to answer questions on cross-examination, Mr. Chisan’s abandonment of an appeal of a contempt order, and Mr. Chisan’sfailing to call oral evidence at the final application after obtaining an order for viva voce evidence in the application. Mr. Chisan wasrepresented by counsel in the application and on the appeal; (

g) Calgary v Chisan, 2000 ABCA 313, 271 A.R. 384, 4 C.P.C. (5th) 222, 16 M.P.L.R. (3d) 178, the decision of the Alberta Court ofAppeal in appeal no. 99-18427 allowing the City’s appeal from the decision of Lutz J striking out the Contempt Proceeding for want ofprosecution, and restoring the Contempt Proceeding; (

h) Calgary v Chisan, 2001 ABCA 14, 286 A.R. 85, 21 M.P.L.R. (3d) 194, the decision of the Alberta Court of Appeal on Mr. Chisan’sappeal from the Order of Wilkins J in the Inspection Application; (

i) Calgary v Chisan, [2002] A.J. No. 1713, 32 M.P.L.R. (3d) 256, the decision of Phillips, J. issued March 1, 2002 in the ContemptProceeding finding Mr. Chisan in contempt of court; (

j) R v Chisan, 2003 ABCA 19, [2003] A.J. No. 49, the decision of O’Leary JA granting Mr. Chisan judicial interim release fromimprisonment ordered by Phillips J; (

k) R v Chisan, 2003 ABCA 68, [2003] A.J. No. 241, the January 31, 2003 decision of the panel imposing conditions on Mr. Chisan’sappeal from the decision of Phillips J finding Mr. Chisan in contempt of court and sanctioning him; (

l) Calgary v Susannah Chisan, 2008 ABQB 320, [2008] A.J. No. 807, the decision of Erb J in the 2007 Injunction Applicationagainst Susannah Chisan. [42] The Court may take notice of court records in appropriate cases: Wong v Giannacopoulos, 2011 ABCA 277 at para 6;Calgary (City) v. Alberta (Energy and Utilities Board), 2010 ABCA 132, at para 193, Kin Franchising v. Donco (1993), 1993 ABCA 7, 7 Alta. L.R. (3d) 313 (C.A.) at para 7 (C.A.). This principle applies to published reasons for decision and records on theCourt’s proceedings file.

It also applies to records of lower courts removed to this Court by certiorari: Stevenson and Côté, CivilProcedure Encyclopedia (Edmonton: Juriliber, 2003), p 45-55. Similarly, the principle obviously applies to records of proceedings of alower court deposited in this Court in connection with an appeal to this Court, or to records of a higher court placed on the files of thisCourt in the course of an appeal from this Court. Examples are transcripts filed in connection with a

summary conviction appeal to thisCourt, or a notice of appeal from an order in this Court to the Alberta Court of Appeal. [43] The Court may take notice of proceedings in the Court and did so.

The Court reviewed Queen’s Bench files in action no.9201-0408-S2, 9201-1386-CO, 9301-02696, 9701-09641, 9701-16441, 9901-18117, 0201-17504, 0701-13288, 1301-15170, and 1601-06249 to ensure that the copies of records tendered by the Defendants which were on those files were authentic. [44] In reviewing the Queen’s Bench files, the Court did not take note of other records in the files except: (1) a warrant ofcommittal issued October 23, 2002 reflecting the decision of Phillips J contained in the extract of the transcript of proceedings of thesame date submitted by the Defendants; and (2) an Order of Master Laycock made May 26, 2005 dismissing the Second 2007 Actionagainst Her Majesty, as noted in a procedure record print of that action from the Clerk of the Court and submitted by the Defendants. [45] The Court concluded there was no real doubt over authenticity because: (

a) the pleadings, affidavits, motions, discontinuance of the First 1997 Action, formal orders filed in Queen’s Bench, transcript of the1992 Trial, reasons for decision of Dixon J dated June 21, 1993, Mr. Chisan’s Notice of Appeal filed July 22, 1993 from the decision ofDixon J, Mr. Chisan’s Notice of Appeal filed March 10, 2000 from the decision of Wilkins J in the Inspection Application (appeal no.00-18723), Order of Hunt JA made October 31, 2000 in appeal no. 99-18427 and 00-18724, Mr. Chisan’s Notice of Appeal filed March27, 2002 from decisions of Phillips J in the Contempt Proceeding, and Mr.

Chisan’s Notice of Appeal from the decision of Campbell J inAction no. 1601 - 06249, were confirmed to be authentic by comparing them to the Court copies on the Queen’s Bench files; (

b) the transcripts of all proceedings taking place in 2015 and 2016 attached to the special Defendants’ chambers brief are digitallycertified and admissible under the Recording of Evidence Act; (

c) the rest of the transcripts (other than two extracts from transcript being reasons of Phillips J on October 19, 2002 and October 23,2002 re further sanction of 6 months imprisonment, the latter attached to the Defendants’ special chambers brief) purport to bear a signedcertification and no objection was taken to their admission or use in the present application; (

d) the contempt findings and sanction decisions of Phillips J described in the transcripts referenced in sub-para 45(

c) are accuratelyreflected in her formal Order of April 19, 2002, and a subsequent a warrant of committal that she signed dated October 23, 2002. Noobjection was taken by Mr. Chisan to the use or admission of those transcripts; (

e) the Court can take and has taken judicial notice of the published reasons for decision listed in para 41; (

f) the remainder of the records tendered by the Defendants is a small group of photocopies of records not found filed on the Queen’sBench files:

(1) Mr. Chisan’s filed Notice of Appeal in the Alberta Court of Appeal, 1992, in appeal no 13266 (appeal dismissed - seepara 41(

a) above);

(2) Mr. Chisan’s filed Notice of Motion in appeal no. 14417 seeking leave to appeal (leave refused - see para 41(e)above);

(3) Mr. Chisan’s filed motions, July 25, 2000 and October 26, 2000, Mr. Chisan’s filed affidavit, October 26, 2000, and theOrders of Hunt JA filed August 3, 2000, in appeal no. 99-18427 and 00-18723;

(4) Order of Paperny JA dated March 13, 2003 and letterfrom the Registrar of the Alberta Court of Appeal dated April 4, 2003 in appeal no. 02-0106AC;

(5) Struck Certificate – Late AppealRecord, January 31, 2017, in appeal no. 1601-0255AC. No objection was taken by Mr. Chisan to their use or admission into evidence. [46] Moving from authenticity to use of the records, the Court was mindful of limitations on the evidence:

(

a) Mr. Chisan suggested that the Court should not refer to Madam Justice Erb’s reasons for decision in the 2007 InjunctionApplication. Mr. Chisan said he was not a party to that proceeding. The records provided by the Defendants do not provide sufficientinformation to make a finding that he was a privy to that proceeding. Therefore, the Court has not considered the findings in MadamJustice Erb’s reasons for judgment in its deliberations; (

b) A similar issue arises with respect to an Order of Romaine J in the 2007 Injunction Application disqualifying Mr. Chisan fromrepresenting Mrs. Chisan in those proceedings. It is not apparent from the face of the Order that Mr. Chisan participated in thesubmissions concerning disqualification or was privy to it. The Court has not considered that part of the Order in its deliberations; (

c) A similar issue arises with respect to the September 23, 2008 transcript in the City’s materials recording a provincial court judge’sdisqualification of Mr. Chisan from representing Susannah Chisan in a prosecution in Provincial Court. Again, it is not apparent from thematerials tendered by the City whether Mr. Chisan participated in that disqualification application. So the Court has disregarded it; (

d) Where transcripts were reviewed, they were taken as proof of what was said or found by the court, but not otherwise as proof of thetruth of the contents. For this distinction, see for example, R. v. WBC, (ON CA), [2000] O. J. No 397 (CA) at paras30 - 34. [47] Mr. Chisan provided an affidavit sworn April 15, 2008 supporting Susannah Chisan in the 2007 Injunction Application. TheCourt has considered all of Mr. Chisan’s affidavits provided in the Defendant’s supporting materials in considering whether he is avexatious litigant. III. Applicable Law a. General principles [48]

Section 23.1 of the Judicature Act authorizes a judge of this Court to restrict the right of a person start or continue litigation inAlberta courts where that person has initiated or engaged in vexatious proceedings: 23.1(1) Where on application or on its own motion, with notice to the Minister of Justice and Solicitor General, a Court is satisfied that aperson 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 the permission of the Court.

(2) An application under subsection (1) may be made by a party against whom vexatious proceedings are being instituted or conducted, aclerk of the Court or the Minister of Justice and Solicitor General or, with the permission of the Court, any other person. …

(7) A person against whom an order has been made under subsection (1) or (4) may apply to a Court for permission to institute orcontinue a proceeding in that Court and the Court may, subject to any terms or conditions it may impose, grant permission if it issatisfied that the proceeding is not an abuse of process and that there are reasonable grounds for the proceeding. [49] Section 23(2) of the Judicature Act provides a non-exclusive definition of instituting vexatious proceedings or conducting aproceeding in a vexatious manner: For the purposes of this Part, instituting vexatious proceedings or conducting a proceeding in a vexatious manner includes, withoutlimitation, 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. [50] Any one or more of those indicia is a basis to find a person has engaged in vexatious misconduct: Chutskoff v. Bonora, 2014ABQB 389 at para 131, leave to appeal refused, 2014 ABCA 444. [51] In Chutskoff at para 92, Justice Michalyshyn provided a catalogue of potential features of vexatious litigation or abusiveproceedings, which provides a useful guide to assessing a litigant’s conduct. The Court was mindful of this catalogue in assessing Mr.Chiasan’s litigation history. [52] In determining whether to make an order the Court was also mindful of the difference between vexatious proceedings andvexatious litigants.

Section 23.1 contemplates persistent conduct: O. (R.) v F. (D.), 2016 ABCA 170 at para 38.

[ 53 ] The entire history of the matter must be reviewed, to determine if there is a principled basis to make an order.

That basis is demonstrated where the litigation history demonstrates a need to have litigation activities restricted to prevent future abuses of court processes: 644036 Alberta Ltd v Morbank Financial Inc , 2014 ABQB 681 , at paras 51 - 97 . [ 54 ] In Hok v Alberta , 2016 ABQB 651 , leave to appeal refused 2017 ABCA 63 , Verville J describes the issues that should be considered relating to the impact or scope of a vexatious litigant order: 36 I conclude that when a court considers limits to future court access by a person with a history of litigation misconduct the key questions for a court are: 1.

Can the court determine the identity or type of persons who are likely to be the target of future abusive litigation? 2. What litigation subject or subjects are likely involved in that abuse of court processes? 3. In what forums will that abuse occur? [ 55 ] The Order should be a proportional response to the conduct proved on the application. Where the vexatious litigant focussed their litigation efforts on an identified group, it may not be justifiable to regulate that litigant’s access to Courts to pursue claims against others: O.(R.) at para 39 - 40. b. Mr.

Chisan’s constitutional objections [ 56 ] As stated above, Mr. Chisan suggests the Court take into account his freedom of speech interests in deciding whether to make an order. [ 57 ] No authority was cited to the Court that the act of filing a statement of claim is a form of speech that is protected under the Charter. Whether or not filing a statement of claim is protected speech, there is no doubt access to a Canadian superior court is protected: Trial Lawyers Association of British Columbia v.

British Columbia (Attorney General) , 2014 SCC 59 , at para 18 to 43 . [ 58 ] However, the Court is satisfied that whatever the source of the right to file or bring legal proceedings, the right does not extend to vexatious or abusive litigation. [ 59 ] In Trial Lawyers Association of British Columbia , McLachlin CJC speaking for the majority stated: 47 Of course, hearing fees that prevent litigants from bringing frivolous or vexatious claims do not offend the Constitution.

There is no constitutional right to bring frivolous or vexatious cases, and measures that deter such cases may actually increase efficiency and overall access to justice. [ 60 ] A vexatious litigants order is a reasonable screening procedure: 8 The applicant argues that the vexatious litigant order denies her the basic right of a Canadian citizen to commence a legal action. That is not the true effect of the order.

The applicant can still commence any legitimate action; she is only subject to a screening procedure to make sure that any action she proposes is properly founded in fact and law, and will be diligently prosecuted. The vexatious litigant order does not substantially prejudice the applicant.

Wong , at para 8. [ 61 ] Given the Court’s focus, in deciding whether to make a vexatious litigant order, on the nature of the litigant and the need to protect from anticipated abuse of court process, the control of frivolous, vexatious, and abusive litigation is a valid exercise of legislative and court authority: Hok , at para 37 of 2016 ABQB 651 . c.

Form of order [ 62 ] In KE v CSM , 2016 ABQB 342 at para 36 the Court provided recommendations for court orders to assist persons who are typically self-represented litigants to make informative and focussed applications for permission to commence an action, for example: 1. The legislation that authorizes the restriction to access court processes. 2. A description of what activity has been restricted, for example, whether the vexatious litigant has been restricted from filing any application, or instead certain kinds of applications. 3.

What preliminary requirements or preconditions may be necessary prior to a leave application. 4. The documents and information that are required for a proper leave application to obtain permission to file and application. 5. To what judge or judges the application should be directed. 6. In what forum the application will be heard, typically in open court and on the record or thorough paper appreciation. 7. That notice of the leave application to other parties is required, and to any other persons as the court directs.

[ 63 ] The reported cases show differing approaches to whether an unsuccessful applicant for permission to sue may apply more than once. Some orders provide that an application for permission shall not be made again before another judge unless the applicant discloses in writing to the second judge that the application has previously been dismissed (for example , Wong v. Giannacopoulos, 2011 ABCA 206 at para 11 ; Chutskoff at para 135 ).

Others provide that an application for permission which is dismissed shall not be made again ( Re Boisjoli , 2015 ABQB 629 at para 110 ; Hok , at para 51 of 2016 ABQB 651 ). [ 64 ] A permission application engages the same values of finality and prudent use of court resources as any other application. An applicant should be obliged to diligently assemble his or her evidence and arguments on the first application, and should not be permitted or encouraged to make multiple applications if new evidence or theories of the claim are later developed.

However, sometimes legitimate claims must be commenced out of concern for an expiring limitation period or other good reason where not all the evidence is yet discovered and could not be discovered using due diligence. [ 65 ] The Court is reluctant to permanently prohibit what may be a meritorious action only because the applicant may have applied prematurely and been refused leave for that reason.

A vexatious litigant order should provide some ground rules about what the applicant must establish if there has been a previous dismissal, to balance a litigant’s interest where not all evidence may be available at the outset of litigation and the public interest in ensuring that if a subsequent application is brought it is only because there is material, fresh information that could not have previously been discovered by a claimant who investigated his or her claim in a diligent fashion. IV. Mr.

Chisan’s litigation history [ 66 ] As noted, it is necessary to review the entire history of the matter to ascertain whether there is a principled basis on which to make a

Section 23.1 order. The facts determined by the Court are set out below. a. The background - the prosecution alleging an offence under the Planning Act [ 67 ] In 1991, Mr. Chisan and Susannah Chisan were charged that: “On or about the 6 th day of November A.D. 1991, aforesaid, did unlawfully contravene [amended during trial on September 16, 1992 to “did commit an offence under”]

Section 154 (a.1) of the Planning Act R.S.A. 1980 C., P-9 , by contravening Section 16(1)(

b) of the City of Calgary Land Use Bylaw, Number 2P80, as amended, in that the aforesaid did make use of land in a manner contrary to the provisions of this bylaw, to wit: to have more than the allowable number of dwelling units in the building at 2214/2216 42 St. S.E., Calgary.” [Information on Behalf of her Majesty the Queen, sworn November 22, 1991, Provincial Court docket no. 11593753P1] [ 68 ] The basis of the prosecution was that the building configuration was an illegal fourplex under zoning or land use provisions that permitted a maximum of 2 dwelling units in a semi-detached building.

The City law department had conduct of the prosecution. b. Certiorari Application [ 69 ] Mr. Chisan made a certiorari application in respect of the prosecution described in para 67 by motion filed by Mr. Chisan (and Susannah Chisan, against whom the charge was later withdrawn) on August 27, 1992, returnable November 30, 1992. [ 70 ] This application included an autrefois acquit plea, alleging that a previous dismissal of another prosecution was a bar to any subsequent proceedings in the same cause.

The previous dismissal relied on was an order of Egbert J on November 25, 1991 dismissing a charge of contravening a development officer’s order in relation to the same property. [ 71 ] The application further stated that if there was not sufficient evidence in respect of the same cause to demonstrate the autrefois acquit argument, then the Provincial Court declined jurisdiction to permit the applicants to call evidence or there was a breach

section 7 of the Charter because the Provincial Court allegedly declined the applicants the right to call evidence before trial about the dismissal, the date of the unlawful development and exemptions under the Planning Act . [ 72 ] The motion also claimed: “If the Provincial Court is not willing to respect the presumption of innocence, the Applicants seek the opportunity to prove exemption to the law, if the law is applicable.” [ 73 ] The motion was addressed to the Crown and 8 judges of the Provincial Court. [ 74 ] The Crown (as noted, the City law department had carriage of the proceeding) applied to this Court, by motion filed September 8, 1992 in the Certiorari Application, to quash that proceeding so that the trial could proceed in Provincial Court as scheduled for September 16, 1992.

This motion was returnable September 14, 1992. [ 75 ] Mr. Chisan filed a motion in the Certiorari Proceeding on September 14, 1992 returnable September 14, 1992 for a remedy under section 24(1) of the Charter. The precise remedy sought is not specified. This motion quotes directly from the Crown’s motion and re-asserts the autrefois acquit plea.

It advances various objections including that the “Respondent” (clearly a reference to counsel from the City law department) knew the special plea was disposed of without evidence and that this lawyer “failed in his duty to be fair and as an officer of the Court” in failing to advise another judge that the plea of autrefois acquit does not require there to have been a trial on the merits. The motion also accuses that counsel of knowingly making a false statement in a submission in response to Mr.

Chisan’s position that the Provincial Court had lost jurisdiction, and of “deliberately and wilfully choosing to ignore the law”. It says that the Crown’s application was “purely vexatious and malicious”. This motion concludes with the following ground:

The Respondent knows that, notwithstanding his personal motives or views, the decision of the Court of Appeal is binding until and unless varied by the S.C.C.” [ 76 ] Waite J heard the Crown’s motion on September 14 1992, and heard submissions from Mr. Chisan. Waite J ordered that the scheduled trial of the matter in Provincial Court proceed, and vacated the Certiorari Application and struck it from the November 30, 1992 Chambers list. [ 77 ] Mr. Chisan’s appeal from the decision of Waite J was dismissed by the Alberta Court of Appeal on January 14, 1994.

The court found that the previous charge of contravening the development officer’s order was factually and legally distinct from the charge of making use of the land contrary to the land use bylaw. [ 78 ] A motion by Mr. Chisan for leave to appeal from that decision was dismissed by the Supreme Court of Canada on June 9, 1994. c. 1992 Trial and appeal therefrom [ 79 ] Mr. Chisan did not appear on September 16, 1992 for the trial of the charge described in para 60. The Trial Judge, Stevenson PCJ, was informed that Mr. Chisan had appealed Waite J’s decision to the Alberta Court of Appeal.

Stevenson PCJ decided to proceed ex parte in the absence of the accused, following the Crown’s submission that the accused was well aware of his trial date. The charge was withdrawn against Susannah Chisan on the same appearance. [ 80 ] Mr. Chisan was convicted of the offence on September 16, 1992. He was fined $2500. The Court ordered him to make the property comply with the land use bylaw by December 31, 1992 by converting it into a single family dwelling or a duplex. [ 81 ] Mr. Chisan appealed the

summary conviction on October 16, 1992 to this Court. This appeal included his theory that the property was built before Bylaw 2P80 came into force and the existing use was grandfathered. Various Charter and other breaches were claimed arising from what Mr. Chisan characterized as an “ex parte trial”, and Mr. Chisan asserted that the court lost jurisdiction, proceedings were barred by statutory time limitations, Mr. Chisan was denied the right to be informed of the specific offence, and, the offence was unknown to law. The notice of appeal concludes with the following ground: 11.

The ex parte sentence of the maximum penalty ($2500) permitted under the planning act is contrary to s2 of the said statute and sanitizes the wanton conduct of the City of Calgary: The injunctive like order disposses [sic] the Appellant of his property”. [ 82 ] Mr. Chisan applied to this Court to stay the fine and the compliance order pending determination of his appeal. That application was dismissed by Montgomery J on December 18, 1992. The requested stay of the fine was dismissed because “Mr.

Chisan has delayed these proceedings without cause over a lengthy period of time in the earlier part of this year and continues to delay ….” The request for a stay of the compliance order was dismissed because the Court had no jurisdiction to stay it. [ 83 ] Mr. Chisan’s appeal from the conviction and sentence was dismissed on June 21, 1993 by Dixon J. His Lordship ordered compliance with Judge Stevenson’s compliance order by August 31, 1993. [ 84 ] Dixon J observed: “Mr.

Chisan elected to adopt what I describe as a “cute” or “fancy” posture as regards this proceeding in general, including his refusal to plead to the charge or to accommodate the setting of trial dates …” [ 85 ] Mr. Chisan attempted to appeal Dixon J’s decision to the Alberta Court of Appeal on July 22, 1993. This notice again propounded the theory that the property was effectively grandfatherd from Bylaw 2P80.

Various Charter grounds were raised, and the grounds of the notice of appeal concluded with a request: … I ask the Court of Appeal to answer one simple question: What have I done that is prohibited by law?” [bold face in original] [ 86 ] A single judge of the Alberta Court of Appeal refused leave to appeal from the decision of Dixon J, concluding the judgment did not involve a question of law of sufficient importance to justify a further appeal. Mr. Chisan appealed the refusal of leave to appeal.

A three judge panel held on June 28, 1994 that the Court did not have jurisdiction to entertain an appeal from the refusal of leave to appeal. d. First 1997 Action [ 87 ] On July 3, 1997, Mr. Chisan and 4 other individuals sued, in this Court, the City of Calgary and an individual alleged to be a coordinator in the City finance department. This action claimed damages, and various injunctions and disclosure orders. The complaint concerned the alleged insufficiency of a local improvement petition and negligence in relation thereto.

The suit also advanced claims based on alleged City refusals to provide information, and includes the following particular of negligence: “11. by asserting by conduct that he determines matters and that both the Municipal Government Act and the Canadian Charter of Rights and Freedoms are intrusive nuisances administratively, and that the taxpayer is irrelevant, except to the paying of taxes.” [ 88 ] The Plaintiffs were represented by counsel in that action.

[ 89 ] That action was discontinued (without costs, on the City’s consent) on August 1, 1997. The Defendants’ materials include a release purporting to be executed by the Plaintiffs and reciting that the City paid $2000 to the Plaintiffs in return for a release of this claim. e. Second 1997 Action [ 90 ] On November 19, 1997 Mr. Chisan and various tenants in properties alleged to be owned or managed by Chisan (some of whom were not named other than as Tenant A and Tenant

B) launched another suit in this Court against the Province, the City, a natural gas utility, the VP Operations of the gas utility, several safety codes officers and employees of the City, the Calgary Police Commission, the Chief of Police, and a police officer. The claim alleges inter alia (

a) Unlawful entry by safety codes officers into a property in Calgary that I will refer to as “ 2006/2008 ”; (

b) Certain safety code officers who entered 2006/2008 wilfully and deceptively misrepresented their powers, or in the alternative if they honestly believed their representations, they were “constitutionally illiterate, resulting in unconstitutional actions”; (

c) The gas utility terminated gas service to 2006/2008. The Statement of Claim does not allege facts for concluding the service termination was unlawful. The claim includes an incomprehensible plea about the VP Operations of the gas utility to the effect that the company executed the wishes of the safety codes officer and “The defendant Stevens confirms this action on the basis of a close relationship with Safety Codes Officers.” (

d) The police officer unlawfully arrested a tenant of 2006/2008; (

e) Safety codes officers unlawfully entered 2216; (

f) The City and employees seized property at 16 Varsity Estates Court under an unlawful clean up order; (

g) Safety codes officers unlawfully entered 2214, and city employees improperly made a clean-up order either by wilfully refusing to consider the Municipal Government Act or being unable to comprehend the words of the Municipal Government Act, resulting in unconstitutional actions. (

h) The Police Commission and the Chief of Police were both vicariously liable for the actions of all police officers in the city; (

i) The City, supported by the Province, effected a “personally motivated snitch program” whereby officers engage resources of the state to address a civil dispute for the benefit of a complainant or to satisfy the vindictive desire of one citizen to the detriment of another citizen, all of which conflicts with peace, order and good government. [ 91 ] The Plaintiffs were represented by the same counsel as in the First 1997 Action. [ 92 ] Master Laycock of this Court summarily dismissed the Second 1997 Action against Her Majesty on May 26, 2005 for want of prosecution. [ 93 ] On March 27, 2006, Master Waller of this Court summarily dismissed the Second 1997 Action against the Police Commission, Chief of Police, and the gas utility and its VP Operations, for want of prosecution. [ 94 ] On October 23, 2002, in the Contempt Proceeding, Phillips J prohibited Mr.

Chisan from taking any steps in the Second 1997 Action against the City and its employees without leave of the Court until certain conditions occurred. There is nothing to indicate Mr. Chisan ever complied with the conditions or attempted to obtain leave. A procedure record print from the Court Clerk’s office provided by the Defendants (the Court obtained a copy from the Clerk’s office to verify its authenticity) indicates that motions were brought for

summary dismissal, leading to the Orders of May 26, 2005 and March 27, 2006, but otherwise there has been no activity in the Court on this action since 1999. f. Contempt Proceeding [ 95 ] By motion filed February 17, 1993 the City applied for an order declaring Mr. Chisan in contempt of court for failing to comply with the compliance order of Stevenson PCJ. [ 96 ] On June 3, 1999 Rooke J (now ACJ) ordered that Chisan appear and show cause why he should not be held in contempt. This generated a dispute whether the Contempt Proceeding was in good standing or should be dismissed under the 5 year drop dead rule.

The Defendants’ materials indicate Mr. Chisan intended to appeal Rooke J’s Order, then later applied to set the Order aside. Lutz J struck the proceeding out on June 22, 1999, but the Court of Appeal allowed the City’s appeal and restored the contempt application. The Contempt Proceeding went into case management in 2000. [ 97 ] The Contempt Proceeding came to trial before Phillips J. The trial lasted 5 days, and she gave judgment on March 1, 2002. [ 98 ] Phillips J found Mr. Chisan guilty of contempt for breach of the order of Stevenson PCJ.

Phillips J stated it is revealing and worthy of note that in the application before Wilkins J on March 6, 2000 (in the Inspection Application) Mr. Chisan through counsel advised that he did not admit the fourplex at 2214/2216 was “illegal under whatever the law happens to be”, and continued: “Essentially, Mr. Chisan is still to this day attacking the underpinnings or correctness of Judge Stevenson’s conclusive and binding order, which he has failed to challenge successfully.” [ 99 ] Mr. Chisan also alleged breach of his Charter rights in the Contempt Proceeding, including that his security of the person was

violated by oppressive actions by the City. Phillips J dismissed these complaints, and noted that there was “no evidence” the City acted in a manner oppressive toward him and any problems he faced were caused by his own actions. [ 100 ] Mr. Chisan appealed the contempt finding to the Alberta Court of Appeal on March 27, 2002. [ 101 ] On April 19, 2002 Phillips J ordered Mr. Chisan to remove the basement suites in 2214/2216, stayed the Second 1997 Action as against the City and its employees pending compliance with Stevenson PCJ’s order, and fined Mr.

Chisan $25,000 and in default of payment sentenced him to imprisonment for 90 days. Her Order detailed the work to be completed by Mr. Chisan and ordered completion by September 30, 2002. A further hearing was set in the Order for October 23, 2002 to determine whether the work was completed and the fine paid. [ 102 ] In assessing the fine Phillips J accepted that Mr. Chisan perverted the court process, made a game out of the proceedings, and prolonged his contempt of the order through his abuse of the proceedings. She found that Mr.

Chisan’s contempt was part of an ongoing pattern of conduct over 10 years; and rather than purge his contempt, provided the court with novel, cute and fancy arguments, none of which the Court accepted. He displayed “defiance in the extreme”. Phillips J noted there were unpaid costs awards dating back to 1993. [ 103 ] Following a further hearing on October 23, 2002, Phillips J found that Mr. Chisan had not purged his contempt, showed no remorse for his contempt, did not complete the work he was required to do under the April 19, 2002 order, and never intended to purge his contempt.

Phillips J authorized the City to enter and do the work, at Mr. Chisan’s expense, and imprisoned him for 6 months. [ 104 ] Mr. Chisan appealed the contempt finding and sanction of Phillips J. He obtained judicial interim release from jail on December 19, 2002 from O’Leary JA. [ 105 ] On January 31, 2003 a panel of the Alberta Court of Appeal established various deadlines for the appeal. Some of these were extended, on Mr. Chisan’s application, by Paperny JA on March 13, 2003. Her Order provided that if Mr. Chisan did not file the appeal book within 7 days, the appeal is dismissed. Mr.

Chisan did not comply with the deadlines so the appeal stood dismissed and a warrant of committal was issued. g. Inspection Application [ 106 ] On November 17, 1999 the City commenced an originating notice proceeding for orders permitting the City to inspect 2214/2216, as Mr. Chisan allegedly refused city inspectors the entry to which they are entitled under the Municipal Government Act . [ 107 ] Mr.

Chisan opposed the motion, asserting inter alia the “refusal of the City of Calgary to produce any authority for its requested action or authorizing its alleged designated officer, notwithstanding that such authority has been requested several times”. [ 108 ] On March 6, 2000 Wilkins J ordered Mr. Chisan to permit City representatives to enter and inspect 2214/2216. [ 109 ] Mr. Chisan appealed Wilkins J’s order to the Alberta Court of Appeal on March 10, 2000. [ 110 ] Mr. Chisan applied in his appeal (as well as in the City’s appeal no. 99-18247 from the decision of Lutz

J) by motion and memorandum filed July 25, 2000 for an order that the City’s lawyer provide him with the “resolution wherein the R-2 designation was affixed” to 2214/2216 and “the law of that date, common or statutory, which forbad the use of 4 suites”. [ 111 ] Hunt JA dismissed Mr. Chisan’s application for production of those records on July 27, 2000. [ 112 ] Mr. Chisan applied in his appeal (as well as in the City’s appeal no. 99-18247 from the decision of Lutz

J) by motion and memorandum filed October 26, 2000 for a stay or adjournment of the appeals “until a lawyer purportedly acting for The City of Calgary demonstrates standing to be heard”. The grounds included that the City refused to provide resolutions of City Council authorizing the actions appealed from. This was addressed to counsel representing the City on the appeal, described by Mr. Chisan as “Purported Counsel for the City of Calgary”. An affidavit in support from Mr. Chisan said the resolution sought may have shown grounds why his property was selected among 300,000 other properties and for what purpose.

His affidavit indicates that the appeals were scheduled to be heard on November 10, 2000. [ 113 ] That application was dismissed by Hunt JA on October 31, 2000. Mr. Chisan was ordered to pay costs in any event of the cause. [ 114 ] On November 10, 2000 the Court of Appeal dismissed Mr. Chisan’s appeal, stating the grounds of appeal were without merit.

Following discussion, the Court directed the matter go back to the Chambers Judge for further directions regarding particulars of the inspection. [ 115 ] Following the appeal the City issued a motion to vary the Order of Wilkins J as it relates to time and manner of entry to Mr. Chisan’s property. The motion is dated 17 November 2000. The filing and service date(

s) are unknown. [ 116 ] Mr. Chisan cross-applied by motion filed November 24, 2000 to Wilkins J to vary the Order, stating he may rely on the Charter and the Alberta Bill of Rights, and on the transcript of the original proceedings before Wilkins J “wherein reliance on the Charter respecting government conduct was denied” by Wilkins J. [ 117 ] The records provided by the Defendants do not contain any further proceedings in the Inspection Application. It is reasonable to infer, as the appeal was dismissed, that further directions were made to implement the inspection. h. 2002 Action [ 118 ] On October 16, 2002 Mr.

Chisan again sued the City over 2214/2216. This action again asserts the theory that Bylaw 2P80 did

not apply to 2214/2216. Mr. Chisan sought a declaration that the buildings were essentially legal non-conforming properties. [ 119 ] Mr. Chisan stated in an affidavit filed October 22, 2002 opposing the City’s motion to strike the claim, “Foremost in my Statement of Claim is the non-conforming status of the subject building, and the right of non-compliance.” And further: “Fourteen years of litigation, including the contempt action, is the direct result of the City’s refusal to apply the test to determine the right of non-compliance and its refusal to disclose”. [ 120 ] This action was another attempt by Mr.

Chisan to re-litigate the decisions of Stevenson PCJ that 2214/2216 was regulated by the land use bylaw and that by November 6, 1991 the fourplex configuration was illegal. Nothing was pled in the 2002 Action as a new occurrence over the ensuing 10 years that changed that result. [ 121 ] There are other indications of abusive litigation conduct in Mr. Chisan’s affidavit filed October 22, 2002: (

a) He deposed that at the outset of the contempt trial in the Contempt Proceeding he was prohibited from calling subpoenaed witnesses relative to the jurisdiction of Stevenson PCJ. As stated earlier in these reasons, Dixon J dismissed Mr. Chisan’s appeal from that decision and the Alberta Court of Appeal refused leave to appeal. The issue of the validity of Stevenson PCJ’s Order was authoritatively determined in 1994, but Mr. Chisan refused to accept it. (

b) He provided a second example of making groundless allegations about judges, saying: “I have very serious concerns in that this matter should not be decided by Justice Phillips. People like to believe they are right even at the cost of defeating the pursuit of innocence”. As mentioned above, his Certiorari Application expressed concerns that the Provincial Court would not respect the presumption of innocence. [ 122 ] Phillips J ordered on October 23, 2002 that the proceedings in the 2002 Action were stayed until the later of Mr.

Chisan having completed his sentence of incarceration and the City having completed the work authorized by the October 23, 2002 order. The Order provided that before taking further steps in the action, Mr. Chisan must attend before a judge to confirm the stay has been lifted. [ 123 ] There is nothing in the records provided by the Defendants to indicate the stay was lifted. According to a procedure record obtained by the Court from the Court Clerk’s Office, there have not been any steps in the 2002 Action for over 10 years. i. 2007 Injunction Application [ 124 ] At some time prior to late 2007, Mr.

Chisan conveyed his interest in 2214/2216 to Susannah Chisan. On December 28, 2007 the City applied in this Court against for an injunction to force her to comply with the land use bylaw concerning 2214/2216. [ 125 ] Mr. Chisan provided an affidavit sworn April 15, 2008 in the injunction proceeding. [ 126 ] In his affidavit Mr. Chisan said he had previously been a part owner of 2214/2216.

He re-argued his position that the building use is not precluded by land use bylaws, even quoting some of the prosecutor’s submissions verbatim from the transcript of the 1992 Trial before Stevenson PCJ and seeking to refute them; complained about alleged lack of disclosure by the prosecution in respect of the 1992 charge; asserted the courts have not ever addressed the non-conforming status of the property; alleged the City chose to ignore prior decisions of the Court of Appeal about land use; accused a City trainer of fraud; accused the City of making false claims on its website about the jurisdiction of the Subdivision Appeal Board; expressed beliefs as to whether certain conduct of the City was intentional and motivated in certain ways; and accused counsel for the City of making a “carefully fabricated fiction” by asserting the facilities had been rebuilt. [ 127 ] He said he swore the affidavit “in support of any fair process that seeks to discover the truth as to whether or not the subject property is a statutory non-confirming building, so that the evidence may be transferred to the [Subdivision Appeal Board], the only tribunal that has jurisdiction, as determined by Justice Chrumka and as confirmed by the Supreme Court of Canada in the R v.

Al Klippert case”. [ 128 ] As stated in

Part II, the Court has not considered the reasons of Erb J on the injunction application because Mr. Chisan has not been shown to be a party or privy to the application. [ 129 ] The Court therefore has nothing before it to indicate whether the facilities had been rebuilt as challenged by Mr. Chisan in his affidavit. The statement in his affidavit about fabrication of that matter by counsel acting for the City is nevertheless concerning from the perspective of assessing his conduct in litigation. The affidavit did not provide any detail or admissions as to the physical facilities in the building, nor any facts that would show the City’s assertion is incorrect: (

a) It is an obvious example of an evasive argument that seeks to avoid providing any admissions that might be used against the respondent in the injunction application. (

b) It is a bare assertion unsupported by any recitation of the actual facts, calculated not only to challenge the underlying facts but also to attempt to impugn the personal conduct of lawyers acting for the City. j. 2013 Action [ 130 ] On December 24, 2013 Mr. Chisan sued various Councillors and employees of the City in this Court.

[ 131 ] The Plaintiff was named as follows: JAMES B. CHISAN: AKA “SMALLIFY” LOCAL GOVERNMENT, AND JOHN DOE II [ 132 ] The Statement of Claim: (

a) alleged Mr. Chisan is a property owner and taxpayer in the City. The Plaintiff “John Doe II” represents “other taxpayers who were overtaxed”; (

b) alleged Calgary property owners were over taxed by $52 million or more. The Plaintiff sought an order that “requires pay back” of the alleged $52 million of over-taxation in 2013 with the cost to be borne by the Councillors who voted in favor of Bylaw 11M2013. (

c) complained about various enforcement proceedings by the City, including a complaint about invoices for the cost to remove items from various properties including 2214/2216. (

d) advanced a damages claim for the City’s alleged trespass onto 2214/2216 and boarding it up. That plea again raised the land use issue: “This is the same property wherein members of the law department had falsely claimed R-2 designation”. (This allegation demonstrates Mr. Chisan’s propensity to assert irrelevant impropriety against counsel representing the City. ) (

e) asserted various claims for wrongdoing of many types against several un-named individuals associated with the City. (

f) included claims against un-named lawyers in the City law department who provided advice to the corporate security department or gave instructions to a third party security company. (

g) demanded: i. payback of 2013 property tax of $52 million; ii. with respect to a notice issued by the City to Mr. Chisan, various disclosures by the City, including various information and resolutions, and damages from the City. [ 133 ] On January 23 2014 Hunt-MacDonald J struck the claim of John Doe II, various allegations in the 2013 Action seeking disclosure on various issues, and many of the allegations against the City law department. She also struck the action against several defendants. [ 134 ] The rest of the 2013 Action was summarily dismissed by Jeffrey J on January 27, 2015 on the application of the remaining defendants for

summary judgment. [ 135 ] In the proceedings before Jeffrey J, Mr. Chisan challenged the authority of a member of the City law department to represent the remaining defendants. Jeffrey J rejected that challenge, stating the “ostensible authority alone from a member of the bar is sufficient for my purposes.” [ 136 ] The transcript of proceedings before Jeffrey J records that Mr. Chisan is aware of the protections of

section 535 of the Municipal Government Act that councillors and municipal officers and employees are not liable for loss or damage caused by acts or omissions done or omitted to be done in good faith in the performance or intended performance of their duties. In the January 2015 application, Mr. Chisan saw the onus on the City to prove good faith of its representatives in a claim against them.

Jeffrey J stated, in dismissing the remainder of the 2013 Action: “… There is no onus shift to them, and, in any event, the law, the Municipal Government Act , works on the basis that employees of a municipality are entitled to liability protection and the Court of Appeal has said there needs to be some pleading and more than just a … bare allegation of bad faith...” k. 2016 Action [ 137 ] Notwithstanding the ruling by Jeffrey J, Mr.

Chisan’s 2016 Action (described at paras 4 - 12 above) again asserted allegations against City personnel without the necessary pleas of bad faith supported by particulars. [ 138 ] The 2016 Action also includes a claim against the City lawyer who successfully represented the defendants in the 2013 Action for allegedly falsely representing that he was instructed by all the defendants in that action. [ 139 ] Master Farrington of this Court struck the 2016 Action on June 10, 2016. [ 140 ] Mr. Chisan appealed that decision.

His appeal came on before Campbell J in ordinary chambers on August 19, 2016. [ 141 ] Campbell J accepted the Defendants’ position that Mr. Chisan’s appeal must be adjourned to the special chambers list. The Defendants’ counsel indicated the earliest dates were in September 2017. Mr. Chisan refused to provide dates in 2017, noting he just received the materials. Mr. Chisan asked that his application be set over for 2 weeks. Campbell J disagreed. Mr.

Chisan again refused to provide dates in 2017 so his appeal was struck. [ 142 ] During this hearing, a representative of a civil enforcement agency instructed by the City was present. He stated he had with him a bank draft in the approximate amount of $446,000 together with an accounting of the proceeds from the sale of Mr. Chisan’s

property that had been sold in execution proceedings instructed by the City. He said he wanted to give the money and the accounting to Mr. Chisan. The Court asked Mr. Chisan whether he wanted to take the money or have it paid into court. The following exchange occurred: THE COURT: …So, Mr. Chisan, they want to give you $445,000.

So, you can either take it from them now – it’s a cheque payable to you – if you don’t want to take it from them for whatever reason then I’m going to order that the money be paid into court and then you can apply to the clerk of the court to get the money if you don’t want to accept the cheque from him directly. It’s your choice. So, would you like to take the money from him directly or would you like me to order the money paid into court to your credit and then you can take steps to get that money from the clerk of the court should you wish? It’s your money. MR.

CHISAN: My Lady, you didn’t want to hear from me a few minutes ago, so why should I speak now? THE COURT: Well, you don’t have to. MR. CHISAN: Whatever you decide. You decide whatever you feel like. It doesn’t matter what I say.” [ 143 ] Campbell J directed payment of the civil enforcement funds into court and declared them to be Mr. Chisan’s property. [ 144 ] Mr. Chisan appealed Campbell J’s Order to the Alberta Court of Appeal by notice of appeal filed September 30, 2016. The grounds of appeal are: 1. Arrest and detention not in accordance with the principles of fundamental justice. 2.

No jurisdiction to ignore s. 8 , Constitution Act, 1982 . 3. No jurisdiction to decide on a record of no evidence. 4. No jurisdiction to ignore application for adjournment. 5.

Who does Colleen Sinclair represent? [ 145 ] Colleen Sinclair was the lawyer from the City of Calgary law department who appeared for the Defendants on August 19, 2016. [ 146 ] The relief sought in the appeal is: “An Order that requires non-partisan disclosure by City Manager, Jeff Fielding respecting the seizure of my land.” [ 147 ] The appeal to the Alberta Court of Appeal was struck because no appeal record was filed on time. [ 148 ] In the present application, Mr. Chisan again challenged the authority of a City of Calgary law department lawyer (again, Colleen Sinclair) to act.

He also said he did not want to speak about the merits of the application lest his statements be used against him. He also said if he was seriously going to oppose, he should make a written submission on the matter of 2214/2216 and raise the old zoning and disclosure issues. The Court was not prepared to adjourn, as Mr. Chisan was required to file his written submission well in advance of the application. V. Assessment of Mr. Chisan’s litigation history [ 149 ] Mr. Chisan has persistently instituted vexatious proceedings and has persistently engaged in vexatious behaviours in litigation.

He probably will continue to commence groundless and hopeless proceedings against the City or its representatives, or third parties that are somehow drawn into Mr. Chisan’s disputes with the City or its representatives. He probably will behave in vexatious ways in those proceedings, including making groundless appeals, failing to prosecute matters, and making groundless allegations about the authority or conduct of lawyers acting for parties he sues. The considerations leading me to these conclusions are set forth below. [ 150 ] In assessing Mr.

Chisan’s litigation history, it is useful to be mindful of the basic substantive and procedural rules concerning the liability of statutory authorities, their representatives, and corporate officers. [ 151 ] Litigation against a statutory authority or its representatives engages underlying legal principles that are vastly different than litigation with a private person. These types of defendants have defences where they purported to act under statutory authority.

The Municipal Government Act confers wide powers on a municipality or its officers to conduct inspections and remedy contraventions: Municipal Government Act , sections 542, 544 , 545 , 546 , 549 , 550 , 551 , and 555 . Appeals are provided from some types of municipal orders: Municipal Government Act , sections 547, 548 . The municipality is liable only in limited circumstances: sections 527.2 , 529 .

Section 535 protects City Councillors, officers and employees who act in good faith in the course of their duties: Municipal Government Act ,

section 535. [ 152 ] Similar considerations apply in the case of the execution of duties by officers of commercial corporations. For example, an officer of a corporation is not guilty of inducing breach of a contract by that corporation or conspiring with that corporation without specific allegations sufficient to establish actions that are themselves tortious or exhibit a separate identity or interest from that of the corporation so as to make the act or conduct complained of their own.

See, for example, Bower v Evans , 2016 ABQB 717 ; Kent v Postmedia Network Inc ., 2015 ABQB 461 at para 60 - 65 ; Hogarth v Rocky Mountain Slate Inc , 2013 ABCA 57 ; Blacklaws v Morrow , 2000 ABCA 175 at para 41 ; Criak v. Aetna Life Insurance Company of Canada , [1995] OJ No 3286 (Gen Div) , aff'd [1996] OJ No 2377 (CA) . Sufficient facts must be pled for such a claim to survive an application to strike: Micro-watt Control Devices Ltd. v. Krohne Inc ., 2012 ABQB 53 at para 54 - 56 .

[ 153 ] The Plaintiff has the burden to properly plead a case that, if the allegations were proved, would result in liability: Rule 13.6(2). The Plaintiff must allege facts capable of sustaining a determination that a duty was owed, that

an act or omission occurred breaching that duty, and (where damages are a necessary element of the claim) that damages resulted. It is not sufficient to allege a legal conclusion alone. Tottrup v. Alberta (Minister of Environmental Protection) , 2000 ABCA 121 , 81 Alta.L.R. (3d) 27, 255 A.R. 204, at para. 11 . [ 154 ] Where it is necessary to establish bad faith, a bare allegation of bad faith without particulars is insufficient. Factual particulars must be provided where bad faith is alleged: Rule 13.6(3): Walton International Group Inc. v.

Rocky View Municipal District , 2007 ABCA 21 , at para 12 ; Grenon v Canada Revenue Agency , 2016 ABQB 260 at para 23 - 28 , 32; Irwin v Buote , 2016 ABQB 530 at para 41 - 47 . [ 155 ] Mr. Chisan’s litigation history demonstrates a disregard for those basic concepts in litigation, as well as these concepts: finality of judicial decisions and the rules against collateral attacks and re-litigating settled issues; and, the rules against bringing groundless litigation. [ 156 ] Many manifestations of Mr.

Chisan’s vexatious litigation and vexatious or abusive tactics in litigation since the early 1990’s have been proved by the Defendants in the application. These propensities manifest themselves in pleadings, motions and appeals: (

a) attempting to re-litigate previously decided issues : his refusal to accept the decision of the Courts that the land use of the fourplex at 2214/2216 is unlawful: a. his attempt in the Contempt Proceeding to call witnesses to attack the jurisdiction of the trial judge in the 1992 Trial, years after his appeal from that trail decision was dismissed, b. his position in the 1993 Contempt Proceeding refusing to accept the fourplex was unlawful and the basement suites must be removed, and his refusal to abide by court orders made by Stevenson PCJ, Dixon J and Phillips J to remove them, c. the Second 1997 Action, d. the 2002 Action; e. his attempt to seek disclosure of the basis for the City’s land use bylaws in the appeal from Wilson J’s Order in the Inspection Application, (

b) pleading bare allegations or legal conclusions in Statements of Claim without sufficient underlying facts : a. his claim against the gas utility and its VP Operations in the Second 1997 Action, b. his claims against City representatives in the Second 1997 Action, c. his claims against City representatives in the 2013 Action, and d. his claims against the City and City representatives in the 2016 Action; (

c) making bare allegations of dishonesty against lawyers with the City law department or allegations that City lawyers must prove their authority in specific proceedings : a. his motion filed September 14, 1992 in the Certiorari Application (allegations of dishonest or dishonourable conduct by City lawyer conducting prosecution), b. his appeal from the Order of Wilson J in the Inspection Application (applied to stay appeal until provided proof of authority of counsel to appear for City), c. his affidavit in the 2007 Injunction Application (alleged fabrication by City lawyer), d. the 2013 Action (required proof of authority of counsel to appear for defendants), and e. the 2016 Action (required proof of authority of counsel to appear for Defendants at the application before Campbell J, repeated same in the Notice of Appeal therefrom and in the present application); (

d) casting groundless aspersions on judges : a. his suggestion in the Certiorari Proceeding that judges of the Provincial Court would not respect the presumption of innocence, and b. his expression of concerns over the impartiality of Phillips J in his October 22, 2002 affidavit; (

e) taking frequent and unsuccessful appeals : 1. his unsuccessful appeal from the decision of Power J in 1992 (dismissed after hearing), 2. his unsuccessful appeal from the decision of Stevenson PCJ in the 1992 Trial to Queen’s Bench (dismissed after hearing), 3. his unsuccessful appeal from the decision of Waite J striking his certiorari application (dismissed after hearing), 4. his unsuccessful application for leave to appeal to the Supreme Court of Canada from the decision of the Alberta Court of Appeal dismissing the appeal from Waite J (dismissed),

5. his unsuccessful attempt to appeal from the decision of Dixon J to the Alberta Court of Appeal (leave refused), 6. his unsuccessful attempt to appeal to the Alberta Court of Appeal from the aforementioned decision refusing leave to appeal (refused for lack of jurisdiction), 7. his unsuccessful appeal from the decision of the Court of Queen’s Bench to the Alberta Court of Appeal in his litigation with 478370 Alberta Inc. (dismissed after hearing), 8. his unsuccessful application for leave to appeal to the Supreme Court of Canada in his litigation with 478370 Alberta Inc. (dismissed), 9. his unsuccessful appeal from Wilson J in the Inspection Application (dismissed after argument), 10. his unsuccessful appeal from Phillips J in the Contempt Proceeding (dismissed for failure to meet court ordered deadlines), 11. his unsuccessful appeal from Master Farrington’s decision to strike the 2016 Action (struck because he refused to provide his availability for the appeal), and 12. his unsuccessful appeal from Campbell J’s decision to the Alberta Court of Appeal (struck for late filing of appeal book); (

f) failing to prosecute litigation : a. the Second 1997 Action, which was struck against some defendants and remains stayed against others, b. the 2002 Action, which remains stayed, c. the struck appeals mentioned above; (

g) launching groundless busybody litigation purporting to benefit others : a. his claim by “JOHN DOE II” in the 2013 Action for damages of $25 million against Councillors who voted for a taxing bylaw. (The First 1997 Action may have been such a suit, but as the City appears to have paid a settlement to resolve the issue and no explanation of that was provided in the present application by the Defendants, the Court has disregarded it). [ 157 ] The 2013 Action and the 2016 Action are recent examples of this persistent misconduct that show Mr.

Chisan probably will continue his pattern of bringing vexatious litigation and using vexatious litigation tactics. [ 158 ] The claims in these actions disregard the basic substantive law and procedural rules described above. Both actions were summarily struck out. [ 159 ] In addition, the 2013 Action made baseless allegations of dishonesty in relation to the land use designation of 2214/2216. No one, having been through Mr. Chisan’s litigation experience in the Contempt Proceeding and the Inspection Application could reasonably think that there was anything to argue over the land use of that property. Mr.

Chisan was bound by the findings in the 1992 Trial, Contempt Proceeding and Inspection Application, all of which found that the fourplex was an illegal land use. [ 160 ] Mr. Chisan’s conduct in raising this again in the form of bare allegations of irrelevant falsehood against the City law department in the 2013

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