Aiyisa v Kasim et al, 2019 ABQB 893

Court of Queen’s Bench of Alberta Citation: Aiyisa v Kasim et al, 2019 ABQB 893 Date: 20191122 Docket: 1901 13436 Registry: Calgary Between: Aihemaitijiang Aiyisa Plaintiff - and - Kelbinoor Kasim, Hajmamat Doe, Gulam Nabi, Sergey Rhzhukhin, Jacob Majok, Mahmod Chathery, Kham Doe, Rosol Doe, Aymamat Haji, Furkam Doe and Sahmshidin Haji Defendants _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I.

Introduction [ 1 ] On September 25, 2019, Aihemaitijiang Aiyisa filed a Statement of Claim - Civil Restraining Order and an ex parte Application for substitutional service. The matter was referred to me by a clerk as an Apparently Vexatious Application or Proceeding (“AVAP”) under Civil Practice Note No. 7 (“CPN7”).

I am designated to receive and review potential CPN7 processes in the Judicial Centre of Calgary. [ 2 ] I reviewed the matter and in a decision reported as Aiyisa v Kasim et al , 2019 ABQB 821 (“ Aiyisa #1 ”) concluded that the documents are AVAPs that should be reviewed under the CPN7 document-based “show cause” procedure. [ 3 ] Mr. Aiyisa was invited to provide a written submission to establish that his action was valid, with the deadline for receipt being November 7, 2019. That date has passed and Mr. Aiyisa has provided no submission. Therefore, pursuant to CPN7 paragraph 3(c), I conclude that Mr.

Aiyisa has not rebutted the indicia of abusive litigation identified in Aiyisa #1 and I strike the action immediately. [ 4 ] In Aiyisa #1 , I imposed interim court access restrictions. In my view, it is appropriate for those restrictions to remain in place. As I noted in Aiyisa #1 , Mr. Aiyisa’s claims were gibberish and it would be impossible for the named Defendants to respond in any meaningful way to his request for relief. It was established in Unrau v National Dental Examining Board , 2019 ABQB 283 that

such pleadings are an indicium of abusive litigation. [ 5 ] While I have struck this action, given the nature of Mr. Aiyisa’s claims, I remain concerned that he will file further similar proceedings that will result in needless time, effort and cost to the above Defendants and/or to other parties. Therefore, I direct that Mr. Aiyisa will remain subject to the following court access restrictions pending a further Order of this Court: 1. Aihemaitijiang Aiyisa is prohibited from commencing, or attempting to commence, or continuing, any appeal, action, application, or proceeding: (

i) in the Alberta Court of Appeal, Alberta Court of Queen’s Bench, or the Provincial Court of Alberta, and (ii) on his own behalf or on behalf of any other person or estate, without an order for leave of the Court in which the proceeding is conducted. 2. Aihemaitijiang Aiyisa must describe himself in any application for leave or document to which this Order applies as “Aihemaitijiang Aiyisa”, and not by using initials, an alternative name structure, or a pseudonym. 3.

Subject to paragraph 13 hereof, and otherwise in accord with the Court of Appeal’s normal process, to commence or continue an appeal, application, or other proceeding in the Alberta Court of Appeal, Aihemaitijiang Aiyisa must apply to a single appeal judge for leave to commence or continue the proceeding, and (

i) The application for leave must be made in writing by sending a Letter addressed to the Alberta Court of Appeal Case Management Officer explaining why the new proceedings or the continuance of an existing proceedings is justified. (ii) The Letter shall not exceed five double-spaced pages. (iii) The Letter is to contain no attachments other than, for a new proceeding, the proposed notice of appeal, application or other proceeding. (iv) If the single appeal judge requires further information, he or she can request it. (

v) The single appeal judge can respond to and dispose of the leave application in writing, or hold the application in open Court where it shall be recorded. (vi) If the single appeal judge grants Aihemaitijiang Aiyisa leave to commence an appeal, Aihemaitijiang Aiyisa may be required to apply for permission to appeal under Rule 14.5(1)(j). An application for permission to appeal must comply with the requirements of the Alberta Rules of Court and must be accompanied by an affidavit:

a) attaching a copy of this Order restricting Aihemaitijiang Aiyisa’s access to the Alberta Court of Appeal;

b) attaching a copy of the appeal, application, or proceeding that Aihemaitijiang Aiyisa proposes to file;

c) deposing fully and completely to the facts and circumstances surrounding the proposed appeal, application, or proceeding, so as to demonstrate that it is not an abuse of process, and that there are reasonable grounds for it; and

d) indicating whether Aihemaitijiang Aiyisa has ever sued some or all of the respondents previously in any jurisdiction or Court, and if so providing full particulars. 4. Subject to paragraph 13 hereof, to commence or continue an appeal, application, or other proceeding in the Alberta Court of Queen’s Bench or the Provincial Court of Alberta, Aihemaitijiang Aiyisa shall submit an application to the Chief Justice or Associate Chief Justice, or Chief Judge, respectively, or his or her designate: (

i) The Chief Justice or Associate Chief Justice, or Chief Judge, or his or her designate, may, at any time, direct that notice of an application to commence or continue an appeal, action, application, or proceeding be given to any other person. (ii) Any application shall be made in writing. (iii) Any application to commence or continue any appeal, action, application, or proceeding must be accompanied by an affidavit:

a) attaching a copy of the Order restricting Aihemaitijiang Aiyisa’s access to the Court of Queen’s Bench of Alberta, and Provincial Court of Alberta;

b) attaching a copy of the appeal, pleading, application, or process that Aihemaitijiang Aiyisa proposes to issue or file or continue;

c) 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;

d) indicating whether Aihemaitijiang Aiyisa has ever sued some or all of the defendants or respondents previously in any jurisdiction or Court, and if so providing full particulars;

e) 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

f) undertaking to diligently prosecute the proceeding.

(iv) The Chief Justice or Associate Chief Justice, or Chief Judge, or his or her designate, may:

a) give notice of the proposed claim or proceeding and the opportunity to make submissions on the proposed claim or proceeding, if he or she so chooses, to any of: (1) the potentially involved parties; (2) other relevant persons identified by the Court; or (3) the Attorneys General of Alberta and Canada;

b) respond to and dispose of the leave application in writing; and

c) decide the application in open Court where it shall be recorded. 5. Leave to commence or continue proceedings may be given on conditions, including the posting of security for costs, and proof of payment of all prior cost awards. 6. An application that is dismissed may not be made again, directly or indirectly. 7. An application to vary or set aside this Order must be made on notice to any person as directed by the Court. 8. I am seized of all current and future Alberta Court of Queen’s Bench actions in which Aihemaitijiang Aiyisa is a party. 9. Aihemaitijiang Aiyisa is prohibited from: (

i) providing legal advice, preparing documents intended to be filed in court for any person other than himself, and filing or otherwise communicating with any Alberta court, except on his own behalf; and (ii) acting as an agent, next friend, McKenzie Friend (from McKenzie v McKenzie , [1970] 3 All ER 1034 (UK CA) and Alberta Rules of Court, Alta Reg 124/2010 , ss 2.22-2.23), or any other form of representation in court proceedings, before the Provincial Court of Alberta, Court of Queen’s Bench of Alberta, and Alberta Court of Appeal. 10.

The Clerks of the Provincial Court of Alberta, Court of Queen’s Bench of Alberta, and Alberta Court of Appeal shall refuse to accept or file any documents or other materials from Aihemaitijiang Aiyisa, unless: (

i) Aihemaitijiang Aiyisa is a named party in the action in question, and (ii) if the documents and other materials are intended to commence or continue an appeal, action, application, or proceeding, Aihemaitijiang Aiyisa has been granted leave pursuant to this Order to take that step by the Court. 11. All fee waivers granted to Aihemaitijiang Aiyisa by the Clerks of the Provincial Court of Alberta, Court of Queen’s Bench of Alberta, and Alberta Court of Appeal are revoked. 12.

The Clerks of the Provincial Court of Alberta, Court of Queen’s Bench of Alberta, and Alberta Court of Appeal shall refuse any fee waiver application by Aihemaitijiang Aiyisa unless Aihemaitijiang Aiyisa has a court order which authorizes same. 13.

The Chief Justice of the Alberta Court of Appeal and the Chief Judge of the Provincial Court of Alberta, or his or her designate, may, on his or her own authority, vary the terms of this Order in relation to the requirement, procedure or any preconditions to obtain leave to initiate or continue litigation in their respective Courts. [ 6 ] As this process was initiated on the Court’s own motion and Mr.

Aiyisa has not participated in the process, no costs will follow: Biley v International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Local 201 , 2019 ABQB 506 at paras 56-58 . [ 7 ] The Court will prepare and serve this Order. Mr. Aiyisa’s approval of the form of Order is not required pursuant to Rule 9.4(2)(c). Dated at the City of Calgary, Alberta this 22 nd day of November, 2019. J.D. Rooke A.C.J.C.Q.B.A.