Hayden v Hayden, 2019 ABQB 919

Court of Queen’s Bench of Alberta Citation: Hayden v Hayden, 2019 ABQB 919 Date: 20191203 Docket: 1801 13923 Registry: Calgary Between: Ingrid Hayden Plaintiff - and - Bradley J. Hayden, Bradley J. Hayden Professional Corporation, William Armstrong and Affilitiate and Norton Rose Fulbright Canada LLP Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A. Neufeld _______________________________________________________ I. Introduction [ 1 ] I am case management justice for this matter, which has a long and complicated history. The Plaintiff, Ms.

Hayden, was a long term employee of Alberta Health Services (“AHS”). At some point, disputes arose and Ms. Hayden’s employment was terminated. With the assistance of her union, the Alberta Union of Public Employees (“AUPE”), Ms. Hayden grieved her termination. AHS was represented at the grievance hearing by Ms. Erin Ludwig, a lawyer who was then employed by Norton Rose Fulbright Canada LLP (“Norton Rose”).

[ 2 ] Ms. Hayden was unsuccessful in the grievance. She argues that this was because Ms. Ludwig and counsel for AUPE colluded to suppress critical medical evidence. Nevertheless, Ms. Hayden neither appealed nor sought judicial review of the grievance arbitration. She says this was the fault of AUPE. [ 3 ] Ms. Hayden then sued a large number of parties, including AHS, AUPE, various individuals employed with those organizations, Ms. Ludwig and Norton Rose (the “1601 Action”). On January 12, 2017, Master Farrington, in oral reasons, granted an application to strike the 1601 Action as against some of the defendants.

He did not strike the 1601 Action as against Ms. Ludwig and Norton Rose. [ 4 ] On February 15, 2017, Master Farrington ordered Ms. Hayden to post security for costs in the amount of $18,000. Ms. Hayden did not post that security and on August 15, 2018, I granted an Order dismissing the 1601 Action against Ms. Ludwig and Norton Rose. [ 5 ] On October 1, 2018, Ms. Hayden filed a Statement of Claim in this Action naming the above Defendants (the “1801 Action”). [ 6 ] In my capacity as case management justice, I have reviewed Ms.

Hayden’s Statement of Claim in the 1801 Action to determine whether it is an Apparently Vexatious Application or Proceeding (“AVAP”) under Civil Practice Note No. 7 (“CPN7”) that should be reviewed under the CPN7 document-based “show cause” procedure. I also granted leave to the 1801 Defendants to file an application for a vexatious litigant declaration pursuant to the Judicature Act , RSA 2000, c J-2 , but required that no proceedings take place in respect of that application until the CPN7 process was complete. II.

CPN7 [ 7 ] CPN7 lays out a process that allows the Court to manage a claim that, on its face, appears to be unmeritorious, has no prospect of success or is otherwise abusive and vexatious.

CPN7 is intended to provide a timely, proportionate and cost-effective response to litigants: Unrau v National Dental Examining Board , 2018 ABQB 874 (“ Unrau #1 ”). [ 8 ] If, on an initial review by the Court, a pleading appears to be unmeritorious, to have no prospect of success or to be otherwise abusive and vexatious, the Court issues a first written decision that enumerates the apparent issues identified as a potential basis to apply Rule 3.68 and to strike out the pleading.

The party who filed the pleading is then given an opportunity to provide the Court and the other parties to the litigation, within 14 days, with a written submission not to exceed ten pages in length that responds to those issues and demonstrates why the pleading is a legitimate claim and should be permitted to continue. [ 9 ] CPN7 is not for “close calls”. The Court intervenes by this mechanism where the pleading is a “clearer case of abuse” and the defects in question are “apparent on the face of the pleading”: Unrau #1 at paras 22, 24 .

This process has a very narrow focus and operates to examine a single document: Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 at paras 24-48 ( Ubah #2 ). [ 10 ] In her Statement of Claim in the 1801 Action, Ms. Hayden asserts that she “was involved in a law suit” with the Defendants and that she “is making this application to right a wrong done by Bradley J.

Hayden Corporation, William Armstrong, Norton Rose Fulbright Canada LLP and its affiliates, who was involved in negligent and oppressive conduct.” She then states that her “primary application is to seek to bring an oppression remedy under the Alberta Business Corporation Act, section 242(1).” Further details are set out as follows: 5. The plaintiff is also seeking to bring an application under

section 240, 232, 231(1), (2) (a) (

b) of the Alberta Business Corporation Act, because the defendants used their business to deceive the Court system and to conduct their oppressive acts. 6. The plaintiff is seeking to bring an application under section 243(4) of the Alberta Business Corporation Act,

Part 19 for interim cost and legal fees, since its the defendant’s oppressive actions why I am left broken and financial drained . ... 8. While in the process and before the process of the plaintiff civil claim against the defendants, the defendants negligently mis- represented their business and engaged in oppressive conduct, which denied me due diligence and has left me broken. 9. The defendants engaged in acts that was not only oppressive in nature but was also unfairly prejudicial with an unfair disregard to my interest. 10. The defendants, Bradley J.

Hayden and its affiliate, William Armstrong and other affiliates of Norton Rose Fulbright Canada LLP, subjected the plaintiff to suffered further emotional toll on her health, which has deteriorated immensely. The defendants, while oppressing the plaintiff to cover up their wrong , has subjected the plaintiff to cruel and unusual punishment for over 2 years and subjected the plaintiff to substantial financial loss. ... 18. The defendants, Bradley J.

Hayden and its affiliate, William Armstrong and other affiliates of Norton Rose Fulbright Canada LLP, then used the Court system to oppress me by asking for over $50,000.00 in security of cost . ... 20. The defendants, Bradley J. Hayden and its affiliate, William Armstrong and other affiliates of Norton Rose Fulbright Canada LLP, then used the Court system to oppress me by refusing to submit any documents and refused to answer questions, that would implicate them . ...

21. The collective oppressive and omission of important facts has resulted in the plaintiff present condition, where her health has deteriorated immensely. 22. Because of the chain effect of the defendant’s collective oppressive behaviour, Bradley J. Hayden and its affiliate, William Armstrong and other affiliates of Norton Rose Fulbright Canada LLP, their Writ of enforcement which was filed in the Court of Queen’s Bench on August 15, 2018, should be null and void because it was obtained under oppressive conditions. [Emphasis in original.] [ 11 ] It is apparent from the foregoing that Ms.

Hayden takes an expansive approach to the term “oppression”. That approach, however, is not what is contemplated under the Alberta Business Corporations Act , RSA 2000, c. B-9 (the “ ABCA ”). [ 12 ] Section 242(1) of the ABCA provides that “A complainant may apply to the Court for an order under this section.”

Section 239 sets out the definition of a “complainant”:

Definitions 239 In this Part, ... (b) “complainant” means (

i) a registered holder or beneficial owner, or a former registered holder or beneficial owner, of a security of a corporation or any of its affiliates, (ii) a director or an officer or a former director or officer of a corporation or of any of its affiliates, (iii) a creditor (

A) in respect of an application under

section 240, or (

B) in respect of an application under

section 242, if the Court exercises its discretion under subclause (iv), or (iv) any other person who, in the discretion of the Court, is a proper person to make an application under this Part. [ 13 ] These provisions of the ABCA immediately raise two issues with Ms. Hayden’s Statement of Claim in the 1801 Action. First, Norton Rose is a limited liability partnership, not a corporation. Accordingly, the ABCA has no application to it. Second, even if that were not the case, Ms. Hayden does not fall within any part of the definition of “complainant” for purposes of the ABCA . [ 14 ] Regardless of Ms.

Hayden’s view of the conduct of any of the Defendants, it is unclear how a claim for oppression can be made out in these circumstances. [ 15 ] Further, the relief Ms. Hayden claims in the 1801 Action is problematic. She requests “an investigation surrounding the Corporation action”. As noted, Norton Rose is not a corporation and, in any event, this Court has no jurisdiction to grant a remedy of this kind. Ms. Hayden also asks for “Compensation in the sum of $300,000.00” but provides no facts to substantiate that figure.

She also seeks “Damages for defamation and mental suffering” but, again, she provides no facts to ground this remedy. [ 16 ] Based on the foregoing, I conclude that Ms. Hayden’s Statement of Claim in the 1801 Action is a potential abuse of the Court’s processes. Accordingly, the 1801 Action is stayed until further notice and the CPN7 procedure advances to its second step. The Court seeks a response from Ms. Hayden as to how she has a basis for a claim in oppression against the Defendants and how the remedies claimed are not disproportionate.

Under the terms of CPN7, this is a document-only process that will occur as follows: 1. Ms. Hayden has 14 days from the date this Decision is filed and served on her to prepare, file and serve a written submission not to exceed 10 pages, pursuant to para. 3(

b) of CPN7; 2. If no written submission is received by the Court by that deadline, the Court will proceed to render its final decision on whether the Statement of Claim in the 1801 Action should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(c)); 3. If Ms. Hayden provides and serves a written submission, the Defendants have 7 days from the date of service on them of Ms. Hayden’s written submission to provide a written reply not to exceed 10 pages in length (CPN7, para 3(d)); and 4. After receipt of Ms.

Hayden’s written submission and the Defendants’ written reply, if any, the Court will render its final decision on whether the Statement of Claim in the 1801 Action should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(e)). III. Court Access Restriction [ 17 ] In addition to the above CPN7 process, I am of the view that it is appropriate at this time for the Court to undertake a broader examination of Ms.

Hayden’s litigation conduct and to determine whether court access restrictions are warranted. [ 18 ] The modern approach to court access restrictions under the Court’s inherent jurisdiction was articulated in Hok v Alberta , 2016 ABQB 651 , leave refused, 2017 ABCA 63 , leave to appeal to SCC refused, 37624 (2 November 2017) (“ Hok ”). This is a two-part process described as follows by Rooke ACJ in Unrau v National Dental Examining Board , 2019 ABQB 283 at para 559 (“ Unrau #2 ”):

... The Court: 1. issues a first decision on its own motion and under its inherent jurisdiction that:

a) identifies indicia of abusive litigation relevant to the candidate abusive litigant,

b) reviews the law and principles that guide when and how the Court imposes court access restrictions,

c) invites written submissions and affidavit evidence from the candidate abusive litigant and other parties, and sets deadlines for those materials, and

d) imposes interim court access restrictions. 2. receives those materials, if any, and 3. issues a second decision that:

a) reviews the total information available to the court relevant to the candidate abusive litigant, including information from the candidate abusive litigant,

b) determines whether that information predicts abusive litigation activity from the candidate abusive litigant which warrants court access restrictions,

c) assesses the plausible future litigation misconduct of the candidate abusive litigant as to subject matter, parties, forums, and special aggravating factors,

d) imposes ongoing court access restrictions that respond to the plausible future litigation conduct, if appropriate, and

e) terminates the interim court access restrictions. [ 19 ] Accordingly, the first step is to determine whether a litigant has exhibited certain “indicia” of abusive litigation summarized by ACJ Rooke in Unrau #2 as including: a. collateral attacks; b. hopeless proceedings; c. escalating or expanding proceedings; d. persistent unsuccessful appeals; e. failure to abide by Court orders; f. inappropriate demeanour or unjustified belief. [ 20 ] There is a significant preliminary point to be made here. There has been much dispute in this matter as to the current status of the 1601 Action. Ms.

Hayden insists that the 1601 Action is over and has no relevance to anything in the 1801 Action. She vehemently resists any attempt to refer to the 1601 Action in any manner. Counsel for the Defendants argues that the 1601 Action is of some ongoing relevance. [ 21 ] In Unrau #2 at paras 579-595 , ACJ Rooke reviewed in detail the kinds of evidence that are relevant when the court is considering imposing court access restrictions.

He found at para 580 that “The entire dispute history of the litigation and the candidate abusive litigant is potentially relevant, including ... activities both inside and outside of the courtroom [and] the litigant’s entire public dispute history...”. [ 22 ] In this case, Ms. Hayden’s “entire dispute history” includes not only the 1601 Action and the 1801 Action, but the grievance arbitration as well. Therefore, notwithstanding Ms. Hayden’s position on the matter, I find that my assessment of her conduct for this purpose is not limited solely to the 1801 Action. A.

Collateral Attack [ 23 ] A collateral attack is a litigation step or proceeding that challenges, directly or indirectly, a prior court decision or result. In Unrau #2 at para 613 , ACJ Rooke noted that collateral attack includes “conducting a proceeding to circumvent the effect of a court order” and “conducting multiple proceedings with the same litigation objective”. [ 24 ] In my view, the 1801 Action represents a collateral attack. Notwithstanding that it is framed in oppression, it is clear that it has the 1601 Action as its genesis. B.

Hopeless Proceedings [ 25 ] In Unrau #2 at para 619 , ACJ Rooke stated that hopeless proceedings include: 1. The litigation is flawed from the start and has no potential to provide any relief. The law, alleged facts and/or the jurisdiction of a court means the action or application cannot succeed, or has no reasonable expectation to provide relief.

2. The outcome sought is flawed. The relief sought, including costs, is impossible, moot, disproportionate, or excessive. [ 26 ] As noted above, Ms. Hayden’s Statement of Claim in the 1801 Action provides no basis for a claim in oppression as there is nothing to indicate how she can be a “complainant” within the meaning of the ABCA . Therefore, this litigation appears to be flawed from the start. [ 27 ] Moreover, part of the relief Ms. Hayden seeks is not within the jurisdiction of this Court to grant. She asks for the following: 4.

I am requesting an investigation surrounding the Corporation action and their ability to deceive the Court System, using oppressive behavior. I am asking for an investigation into the Corporation conduct in staying in a civil matter in order to oppress the defendant, when they had a chance to have their claim dismissed . 5. I am requesting an investigation surrounding the Corporation action and their ability to stay in a litigation, with the purpose of pursuing a vexatious litigation application, for the purpose of suppressing their actions . [Emphasis in original.] [ 28 ] Finally, the quantum of damages Ms.

Hayden seeks is insufficiently supported by the facts set out in the Statement of Claim. C. Escalating/Expanding Proceedings [ 29 ] It is clear to me that this indicium is present here. In the 1601 Action, Ms. Hayden originally sued a large number of defendants, many of them individuals having some alleged connection with her employment dispute. She subsequently added AHS and AUPE which, in itself, is likely unobjectionable. However, she also added two lawyers and their firms. Ms. Hayden’s complaint against one of them, Ms. Ludwig and Norton Rose, pertains to Ms.

Ludwig’s handling of the arbitration in her capacity as counsel for AHS. Ms. Hayden’s complaint against the other lawyer, Mr. Patrick Nugent and Nugent Law Office, is not specified in the Statement of Claim in the 1601 Action. [ 30 ] Further, the 1601 Action having been stayed as a result of her failure to post security for costs, Ms. Hayden now has brought the 1801 Action. She continues to seek relief against Norton Rose, but now sues two of its partners, Mr. Hayden and Mr.

Armstrong, in connection with the firm’s conduct of the prior lawsuit. [ 31 ] In Unrau #2 at para 633 , ACJ Rooke held that escalating/expanding proceedings has three related aspects: 1. “grounds and issues tend to roll forward into subsequent actions, repeated and supplemented”, 2. actions have an “accumulative” nature, adding new parties, issues, and remedies, and 3. new disputes and litigation “hive off” the original conflict. [ 32 ] I find that all three of these aspects are present in this case. Ms.

Hayden’s original employment dispute remains the foundation of this matter, but additional parties and issues are being layered on, particularly when Ms. Hayden is in some way unsuccessful in her pursuit. D. Persistent Unsuccessful Appeals [ 33 ] This indicium is amply demonstrated by the pleadings. Ms. Hayden appealed a June 28, 2016 Order of Master Hanebury staying the 1601 Action against certain defendants. That appeal was dismissed by Justice Dario on July 29, 2016. [ 34 ] Ms. Hayden appealed an August 24, 2016 Order of Justice Kenny striking out a Notice of Appointment for Questioning.

That appeal was struck because Ms. Hayden failed to file her appeal record digest in time. She applied to have the appeal restored and her application was dismissed: Hayden v Alberta Union of Provincial Employees , 2017 ABCA 16 . [ 35 ] Ms. Hayden appealed a January 12, 2017 Order of Master Farrington striking the 1601 Action as against all defendants except Ms. Ludwig and Norton Rose and awarding costs to AHS and AUPE. I dismissed that appeal on June 18, 2018. [ 36 ] Ms. Hayden appealed a February 15, 2017 Order of Master Farrington requiring Ms. Hayden to post security for costs.

On August 15, 2018, I gave a decision lifting a stay of that Order and dismissing the appeal. [ 37 ] Ms. Hayden appealed my March 29, 2018 refusal to recuse myself. The Court of Appeal dismissed her appeal: Hayden v Alberta Health Services , 2018 ABCA 439 . Ms. Hayden filed an application to reopen the appeal. That application was denied: Hayden v Alberta Health Services , 2019 ABCA 128 . Ms. Hayden then sought leave to appeal to the Supreme Court of Canada. That leave application was dismissed. [ 38 ] Ms. Hayden appealed Master Mason’s June 7, 2019 Order dismissing Ms.

Hayden’s application to disqualify the Defendants’ counsel of record. She also appealed my Order of October 21, 2019 granting leave to the Defendants to apply to have Ms. Hayden declared a vexatious litigant under the Judicature Act , but providing that such application may proceed only in accordance with subsequent directions from the Court. Both of those appeals remain outstanding. E. Failure to Abide by Court Orders/Contempt [ 39 ] In Chutskoff v Bonora , 2014 ABQB 389 at para 92 , Michalyshyn J. identified three subcategories for this indicium: 1. failure to pay costs;

2. failure to abide by court orders; 3. misconduct that is intended to or has the effect of circumventing the operation of court orders. [ 40 ] Numerous costs awards have been made both in the 1601 Action and in the 1801 Action. Those costs awards largely remain unpaid. [ 41 ] Further, Ms. Hayden failed to post the security for costs ordered in the 1601 Action and that action was struck as a result.

While I recognize that this striking constitutes its own sanction for failure to abide by the security for costs order, I nevertheless consider it relevant for purposes of this analysis. [ 42 ] Accordingly, I find that this indicium is made out. F. Inappropriate Demeanour & Unjustified Belief [ 43 ] Finally, inappropriate demeanour and unjustified belief includes such behaviours as the use of inflammatory language and persistent, unsubstantiated allegations of conspiracy, fraud, bias and misconduct. Ms.

Hayden’s pleadings abound with such language and allegations. [ 44 ] Beginning with the Statement of Claim in the 1601 Action, Ms. Hayden asserted that she was subjected to “inhumane conditions”, that one of the defendants “falsified my employment records” and that various defendants perjured themselves at the arbitration. [ 45 ] Ms. Hayden’s appeal of Justice Kenny’s Order striking a Notice of Appointment for Questioning references “the collaboration and conspiracy of [AUPE], [Norton Rose] and [AHS] before, during and after my Arbitration”. [ 46 ] Ms.

Hayden’s Statement of Claim in the 1801 Action refers to attempts by the Defendants to “deceive the Court System” and to “suppressing their actions”. The reference to deceiving the Court system is repeated in Ms. Hayden’s October 1, 2018 affidavit. [ 47 ] In an application filed June 12, 2019, Ms. Hayden asserts that “The integrity of the Counsels is in question, especially Mr. Gilborn.” She also makes reference in that application to conspiracy, which reference is repeated in her accompanying affidavit, also filed June 12, 2019. IV.

Conclusion [ 48 ] Taking all of the foregoing into account, I find that several indicia of abusive litigation are present in this case, indicating that court access restrictions may be appropriate; see Rothweiler v Payette , 2018 ABQB 288 at para 31 . [ 49 ] Therefore, the next step in the Hok process is to invite submissions as to whether: 1. Ingrid Hayden should be subject to indefinite court access restrictions and, if so, 2. the appropriate form for those court access restrictions. [ 50 ] This process will be conducted in writing only: Unrau #1 at paras 565-570 .

In light of the upcoming holiday season, I will give the parties ample time to provide their submissions. Ms. Hayden has until December 20, 2019 to file submissions in response to these issues. The Defendants may make reply submissions, due January 24, 2020. As defendants in the 1601 Action, AUPE and AHS may also make reply submissions, due January 24, 2020. Ms. Hayden then may make a reply to the submissions of the Defendants, AHS, and AUPE, due February 7, 2020.

The Court will issue a decision following receipt of all submissions. [ 51 ] For the avoidance of doubt, for purposes of these submissions, this process and the CPN7 process described above supersede the Case Management Communication Protocol I have implemented in this case. [ 52 ] Pending those submissions and the Court’s decision, I am satisfied that interim court access restrictions should be imposed on Ms. Hayden. I order that Ms. Hayden is prohibited from filing any material on any Alberta Court file except for the submissions identified above and that Ms.

Hayden may not continue or institute further court proceedings in Alberta without leave of the Alberta Court in question, per Hok at para 105, enforced in Hok v Alberta (Justice & Solicitor General) , 2016 ABCA 356 at para 7 and Bourque v Alberta Lawyers Insurance Association , 2018 ABCA 257 at paras 5-7 . [ 53 ] The Court will, contemporaneous with this Memorandum, prepare and file, and provide to the parties, the resulting Interim Court Access Restriction Order. Approval of that Order by Ms. Hayden is not required pursuant to Rule 9.4(2)(c). Dated at the City of Calgary, Alberta this 3 rd day of December, 2019.

R.A. Neufeld J.C.Q.B.A. Appearances: The Plaintiff, Self-represented R.J. Daniel Gilborn and Lucinda A. Wong Caron & Partners LLP for the Defendants