Simon v Canada (Attorney General), 2019 ABQB 947

Court of Queen’s Bench of Alberta Citation: Simon v Canada (Attorney General), 2019 ABQB 947 Date: 20191220 Docket: 1910 00986 Registry: Red Deer Between: Zoltan Andrew Simon, Representing Himself, His Wife Zuanhao Zhong, and His Stepson Jian Feng Ye Plaintiffs - and - The Attorney General of Canada Representing Her Majesty the Queen In Right of Canada Defendant _______________________________________________________ Memorandum of Decision of the Associate Chief Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] On August 27, 2019, Zoltan Simon (Mr.

Simon) filed a Statement of Claim in the Court of Queen’s Bench. The Statement of Claim was reviewed as a potential Apparently Vexatious Application or Proceeding (AVAP) under Civil Practice Note No. 7 (CPN7): Simon v Canada (Attorney General) , 2019 ABQB 750 ( Simon #1 ). As part of the CPN7 process, I reviewed submissions from both Mr.

Simon and the Defendant. [ 2 ] At the conclusion of the CPN7 review, on October 25, 2019, I struck out Mr. Simon’s Statement of Claim under Rule 3.68 of the Alberta Rules of Court , Alta Reg 124/2010 : Simon v Canada (Attorney General) , 2019 ABQB 824 ( Simon #2 ) (leave to appeal denied 2019 ABCA 498 ). On that same day I also made an Order setting out Interim Court Access Restrictions for Mr. Simon. [ 3 ] In Simon #2 , both Mr. Simon and the Defendant were invited to provide written submissions, including affidavit evidence, setting out their positions as to: 1. Whether Mr.

Simon should be subject to court access restrictions in Alberta Courts; and 2. If Mr. Simon’s court access should be restricted, what scope and form should those restrictions take? [ 4 ] Counsel for the Defendant provided Written Submissions and an Affidavit, both of which were filed November 21, 2019. A copy of Mr. Simon’s “Written Submissions of Zoltan Andrew Simon, Appellant (Plaintiff) Pursuant to the Endorsement of the Honourable A.C.J. Kenneth G.

Nielsen dated on 25 October 2019” was provided to this Court by the Case Management Officer at the Court of Appeal of Alberta, as it appeared to be intended for the Court of Queen’s Bench of Alberta. II. Analysis A. Should Mr.

Simon be subject to court access restrictions in Alberta Courts? [ 5 ] This Court uses a two-step process when determining whether a person ought to be subject to ongoing and indefinite court access restrictions: Simon #2 at para 31 ; Hok v Alberta , 2016 ABQB 651 , leave denied 2017 ABCA 63 , leave to appeal to SCC refused, 37624 (2 November 2017) ( Hok #2 ). [ 6 ] In the first step of the process, the Court issues a decision setting out the reasons why the Court has concluded court access restrictions may be necessary.

These reasons are called “indicia of abusive litigation.” In Simon #2 , I described the indicia, or signs, that Mr. Simon may require prospective court access restrictions, namely: 1) Mr. Simon’s vexatious litigant status in the courts of British Columbia and in the Federal Court of Appeal ( Simon #2 at paras 40- 41 ); 2) Mr. Simon’s collateral attacks ( Simon #2 at paras 42-44 ); 3) Mr. Simon’s hopeless proceedings ( Simon #2 at paras 45-47 ); 4) Mr. Simon’s attempts to evade court litigation management ( Simon #2 at paras 48-49 ); 5) Mr.

Simon’s persistent unsuccessful appeals ( Simon #2 at paras 50-52 ); and 6) Mr. Simon’s inappropriate demeanour and unjustified belief ( Simon #2 at paras 53-59 ) [ 7 ] As noted above, both Mr. Simon and the Defendant provided submissions about the possibility of court access restrictions for Mr. Simon. [ 8 ] Mr. Simon’s vexatious litigant status and resulting court access restrictions in the courts of British Columbia and in the Federal Court of Appeal create a presumption that court access restrictions are appropriate in Alberta, unless Mr.

Simon rebuts that presumption: Unrau v National Dental Examining Board , 2019 ABQB 283 at para 585 ( Unrau #2 ). In his Written Submissions, Mr. Simon did not address his court access restrictions in other jurisdictions and has failed to rebut this presumption. [ 9 ] With respect to the other indicia of abusive litigation, highlighted in Simon #2 , Mr.

Simon notes the following: • “Hopeless proceedings” has no exact definition; • “Attempts to evade court litigation management” is a “mysterious claim” because he has never evaded anything in Court; • “Persistent unsuccessful appeals” is a mysterious allegation because the word “unsuccessful” is not defined; and, • “Inappropriate demeanour and unjustified belief” means, to Mr. Simon, that he belongs to different or opposite faiths or beliefs. [ 10 ] In the Defendant’s Written Submissions and supporting affidavit, the Defendant details Mr.

Simon’s lengthy litigation history in the Federal Courts and the courts of British Columbia. This history is described in Simon #1 , as well as in Simon v Canada (Attorney General) , 2015 BCSC 924 , and Simon v Canada (Attorney General) , 2017 BCSC 1438 . [ 11 ] A review of this litigation history demonstrates that Mr. Simon is a problematic and abusive litigant. He continues to bring abusive actions, taking up court time and resources that should be used for meritorious claims. [ 12 ] Meeting one indicia of abusive litigation is sufficient for a court to consider ongoing court access restrictions.

Multiple indicia usually favor court intervention: MacKinnon v Bowden Institution , 2018 ABQB 144 at para 26 ; see also Chutskoff v Bonora , 2014 ABQB 389 at paras 131-132 and Re Boisjoli , 2015 ABQB 629 at para 104 . [ 13 ] In short, Mr. Simon has failed to rebut the presumption that court access restrictions are appropriate for him in Alberta courts,

and he has failed to adequately respond to any of this Court’s concerns, set out in Simon #2 , that indicate Mr. Simon requires ongoing court access restrictions. [ 14 ] I find that throughout his litigation history Mr.

Simon has: • Engaged in abusive litigation in multiple legal disputes; • Engaged in collateral attacks on settled decisions; • Exhibited an expanding pattern of litigation misconduct, involving new issues and re-litigating decided issues; • Engaged in forum shopping; and • Already been the subject of a vexatious litigant order in other courts: Unrau #2 at para 750 . [ 15 ] I find that court access restrictions in Alberta courts are necessary for Mr. Simon. B. What scope and form should Mr. Simon’s court access restrictions take? [ 16 ] In his Written Submissions Mr.

Simon says the following about his potential court access restrictions and the scope these may take: Again, Z.A. Simon could live happily without the Court of Queen’s Bench and would not go near it with or without any court order. Therefore, he has no objection against an order restricting his entry to any Court of Queen’s Bench or Provincial Court in Alberta. However, A.C.J. Nielsen has no jurisdiction or power to prohibit his entry in the Alberta Court of Appeal: such restriction would be a nullity. Should the upcoming order of A.C.J. Nielsen state that Z.

Simon cannot walk within 100 metres of the Red Deer Court House it would be a

section 12 Charter infringement because a post office and the Public Library are located within that distance. Z.A. Simon has no objection against an order restricting him from walking within 50 metres from that Court House. The distance between those buildings is 52 metres. He may end up in jail for visiting the library. (Spelling and formatting are from the original) [ 17 ] Mr.

Simon later notes: The plaintiff maintains that radical sansctions (sic) against him would not reduce his willingness to fight for the reunification of his family, or for finacial (sic) compensation if Canada is choosing that as the only solution. Such restrictions would only result in more steps and more documents in the courts, by extra work of the judges an (sic) the registry officers.

An order demanding, say, $50,000 from him, with a long imprisonment if the money is not paid, could result that he would have more free time to work on his submissions while enjoying high quality food in a jail, at the cost of the society. Maybe an “interim capital punishment order” would be the most efficient. [It may not be a Charter infringement since “interim” would not mean actual death penalty.] (Spelling and formatting are from the original) [ 18 ] His Written Submissions make it clear that Mr. Simon has no intention of ceasing his abusive activities in Canadian court systems.

He promises that more restrictions will “result in more steps and more documents in the courts, by extra work of the judges an (sic) the registry officers.” [ 19 ] With respect to scope and form of possible restrictions for Mr.

Simon, the Defendant submits that the interim court access restrictions set out by this court in Simon #2 are comprehensive, appropriate, and should be made permanent. [ 20 ] In Hok #2 , Verville J, at para 36, set out the questions for a Court to consider when determining the scope of an order for court access restrictions: 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? [ 21 ] In this situation it is clear that Mr. Simon’s target of future litigation is the Attorney General of Canada. Although not named as defendants, Mr. Simon’s pleadings also allege wrongdoing against Government of Canada employees, as well as judges, court staff, and others. [ 22 ] The subjects of Mr. Simon’s litigation are always the same.

As I noted in Simon #1 , the root of Mr. Simon’s legal difficulties appears to be a debt claim asserted by the Government of British Columbia. This debt claim arose after Mr. Simon’s first marriage and, in one way or another, has led to Mr. Simon’s failure to sponsor his second wife and her son to immigrate to Canada. Mr. Simon is likely to be involved in abusive litigation related to these subjects, or some variation of them. [ 23 ] Mr. Simon’s abusive litigation has taken place in various courts throughout Canada.

He has already been declared a vexatious litigant in the Federal Court of Appeal and in the British Columbia courts: Simon v Canada (Attorney General) , 2019 FCA 28 ; Simon v Canada (Attorney General) , 2017 BCSC 1438 , extension for time for leave to appeal denied 2018 BCCA 54 and 2018 BCCA 461 .

[ 24 ] The most common court access restriction or limitation is to order that a litigant must first seek and receive permission or “leave” before starting a new action or application, or continuing a lawsuit.

Courts have noted that this is a modest restriction: Lee v Canada (Attorney General) , 2018 ABQB 464 at para 16 ; see also Hok #2 at paras 32-33 and Wong v Giannacopoulos , 2011 ABCA 277 at para 8 . [ 25 ] There are other restrictions courts may order, including: • Representation by a lawyer is necessary for filing; • Outstanding court costs must be paid before any further litigation steps may be taken; or • Security for costs must be paid into court: Hok #2 at para 34. [ 26 ] The underlying rule for Courts to follow in crafting court access restrictions is: “any step must be proportionate and fair, in light of the anticipated litigation misconduct by the abusive litigant”: Unrau #2 at para 815 ; Re Bilawchuk , 2019 ABQB 421 at para 56 . [ 27 ] In this case, the appropriate court access restriction for Mr.

Simon is the most common restriction, namely, an order that Mr. Simon must first seek and receive leave to start a new action or application or continue a lawsuit. However, if Mr. Simon continues to engage in abusive litigation activities, this Court may consider further, more onerous, restrictions. [ 28 ] I order the following: 1. Zoltan Simon is a vexatious litigant, and is prohibited from commencing, or attempting to commence, or continuing, any appeal, action, application, or proceeding:

i) in the Court of Appeal of Alberta, Court of Queen’s Bench of Alberta, or the Provincial Court of Alberta, and ii) on his own behalf or on behalf of any other person or estate. 2. Zoltan Simon must describe himself in any application for leave or document to which this Order applies as “Zoltan Simon”, and not by using initials, an alternative name structure, or a pseudonym. 3. Subject to paragraph 13 of the Order, and otherwise in accord with the normal process, to commence or continue an appeal, application, or other proceeding in the Court of Appeal of Alberta, Zoltan Simon 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 Court of Appeal of Alberta Case Management Officer explaining why the new proceeding or the continuance of an existing proceeding, 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; and vi) If the single appeal judge grants Zoltan Simon leave to commence an appeal, Zoltan Simon may be required to apply for permission to appeal under Rule 14.5(1) (

j) of the Alberta Rules of Court . 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 Zoltan Simon’s access to the Court of Appeal of Alberta;

b) attaching a copy of the appeal, application, or proceeding that Zoltan Simon 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 Zoltan Simon 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 of the Order, to commence or continue an appeal, application, or other proceeding in the Court of Queen’s Bench of Alberta or the Provincial Court of Alberta, Zoltan Simon shall apply 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 Zoltan Simon, from access to the Court of Queen’s Bench of Alberta, and the Provincial Court of Alberta;

b) attaching a copy of the appeal, pleading, application, or process that Zoltan Simon 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 Zoltan Simon 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 they so choose, to: 1. the involved potential parties; 2. other relevant persons identified by the Court; and 3. the Attorneys General of Alberta and Canada;

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

c) hold 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. Zoltan Simon 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 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 , or any other form of representative in court proceedings before the Provincial Court of Alberta, the Court of Queen’s Bench of Alberta, and the Court of Appeal of Alberta. 9.

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

i) Zoltan Simon 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, Zoltan Simon has been granted leave to take that step by the Court. 10. All fee waivers granted to Zoltan Simon by the Clerks of the Provincial Court of Alberta, the Court of Queen’s Bench of Alberta, and the Court of Appeal of Alberta are revoked. 11.

The Clerks of the Provincial Court of Alberta, the Court of Queen’s Bench of Alberta, and the Court of Appeal of Alberta shall refuse any fee waiver application by Zoltan Simon unless Zoltan Simon has an Order that authorizes that step. 12. The “Interim Court Access Restrictions for Zoltan Simon” Order issued by myself in Court of Queen’s Bench of Alberta Docket 1910 00986 on October 25, 2019 is vacated, immediately. 13.

The Chief Justice of the Court of Appeal of Alberta 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 requirements, procedures, or any preconditions to obtain leave to initiate or continue litigation in their respective Courts. [ 29 ] This decision takes effect immediately. The Court will prepare and file the appropriate Order to reflect this decision. Mr. Simon’s approval of this Order is dispensed with pursuant to Rule 9.4(2) (

c) of the Alberta Rules of Court .

Dated at the City of Edmonton, Alberta this 20 th day of December, 2019. K.G. Nielsen A.C.J.C.Q.B.A. Appearances: None.