Canadian Imperial Bank of Commerce v Hayden, 2021 ABQB 647

Court of Queen’s Bench of Alberta Citation: Canadian Imperial Bank of Commerce v Hayden, 2021 ABQB 647 Date: 20210816 Docket: 2101 08260 Registry: Calgary Between: Canadian Imperial Bank of Commerce (CIBC), Nugent Law Office, Her Majesty the Queen in Right of Alberta, The Honourable Mary T. Moreau, The Honourable Associate Chief Justice J.D. Rooke, Madam Justice P. Rowbotham, and Laurie Baptiste Proposed Defendants by Counterclaim / Plaintiff - and - Ingrid S.

Hayden Applicant / Defendant Corrected judgment: A corrigendum was issued on September 1, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________

I. Introduction [ 1 ] Ingrid S. Hayden [Ms. Hayden] is the Defendant in a debt collection action initiated by the Canadian Imperial Bank of Commerce [CIBC], assigned Alberta Court of Queen’s Bench Docket 2101 08260. Ms. Hayden has a lengthy and problematic history of litigation in Alberta courts. That led to Ms. Hayden being made subject to court access restriction gatekeeping: Hayden v Hayden , 2020 ABQB 700 , leave to appeal denied 2021 ABCA 202 . Ms.

Hayden is required to obtain permission - “leave” - prior to filing documents in the Alberta Court of Queen’s Bench that initiate lawsuits or litigation processes. [ 2 ] On August 13, 2021, Ms. Hayden submitted to me a 144-page Affidavit, sworn by herself on August 13, 2021, that sought permission to file a Counterclaim in the Docket 2101 08260 matter. That Affidavit includes an eleven-page proposed Counterclaim. That Counterclaim names not only CIBC, but also the Nugent Law Office, Alberta, three Alberta court judges (I am one), and Alberta Court of Appeal Case Management Officer Laurie Baptiste.

I will subsequently discuss the content of the proposed Counterclaim in more detail. II. Test for Leave to File [ 3 ] “... [A] person subject to court access control is presumed to engage in illegitimate litigation unless the Court is satisfied otherwise. ...”: Re Thompson , 2018 ABQB 87 at para 19 , aff’d 2018 ABCA 111 , leave to appeal to SCC refused, 38204 (14 February 2019). [ 4 ] Permission to initiate litigation or continue stayed litigation both test the merit of court activities on the same standard.

A person subject to court access restrictions must: 1. establish reasonable grounds for the litigation, and 2. depose fully and completely as to the facts and circumstances surrounding the proposed claim or proceeding. ( Re Thompson , 2018 ABQB 87 at paras 19 , 27; VWW v Wasylyshen , 2013 ABQB 327 at para 42 , aff’d 2014 ABCA 121 ). [ 5 ] This threshold, which must be established on a balance of probabilities, is not a high one, and in many ways parallels the test for

summary judgment: Re Thompson , 2018 ABQB 87 at paras 19 , 26.

The person subject to court access leave restrictions is expected to put his or her “best foot forward” to establish the basis to initiate or continue an action: Re Thompson , 2018 ABQB 87 at paras 26-27. [ 6 ] The documents necessary to seek leave are an affidavit to provide evidence, and, in the case of a new action, application, or other litigation step, a copy of the proposed filing: e.g., Re Moore , 2018 ABQB 261 ; Latham (Re) , 2018 ABQB 906 . [ 7 ] Leave may be granted in part: Latham (Re) , 2018 ABQB 906 ; Belway v Lalande-Weber , 2017 ABCA 108 at para 10 , leave to appeal to SCC refused, 37708 (21 December 2017). [ 8 ] Leave submissions to initiate or continue litigation may also be rejected: 1. where the materials do not satisfy the criteria set out in the court access restriction order ( Re Gauthier , 2018 ABQB 99 ; Re Botar , 2018 ABQB 193 ; Thompson v Alberta Labour Relations Board , 2018 ABQB 220 , leave to appeal to SCC refused, 38267 (31 January 2019); Re Thompson , 2018 ABQB 355 , leave to appeal to SCC refused, 38266 (31 January 2019); Association of Professional Engineers and Geoscientists of Alberta v Drover , 2021 ABQB 511 ); 2. if the submissions exhibit indicia of abusive litigation ( ET v Calgary Catholic School District No 1 , 2017 ABCA 349 at para 12 , leave to appeal to SCC refused, 38081 (8 November 2018); Alberta Treasury Branches v Hok , 2018 ABQB 316 ; Thompson v Alberta Labour Relations Board , 2018 ABQB 220 ; Re Botar , 2018 ABQB 193 ; Trinity Place Foundation of Alberta v Templanza , 2019 ABQB 45 ; Onischuk (Re) , 2019 ABQB 229 ; Fletcher v Davidson & Williams LLP , 2019 ABQB 396 ; Ubah v Canadian Natural Resources Limited , 2021 ABQB 208 ; Knutson (Re) , 2021 ABQB 367 ; McMunn v Hok , 2021 ABQB 550 ); 3. where the abusive litigant refuses to provide the proposed filing ( Re Thompson , 2018 ABQB 355 ; Onischuk (Re) , 2019 ABQB 229 ); 4. where the abusive litigant provides false information ( Re Gauthier , 2018 ABQB 99 ); and 5. where the abusive litigant fails to provide materials that are required to evaluate the proposed litigation step, such as an appeal transcript ( Alberta Treasury Branches v Hok , 2018 ABQB 316 ).

III. Analysis [ 9 ] Ms. Hayden’s August 13, 2021 Affidavit generally conforms to the requirements for a valid leave to file application as defined by Hayden v Hayden , 2019 ABQB 919 at para 47 . However, I conclude, on multiple bases, that Ms. Hayden’s proposed Counterclaim must be denied leave to file. A. CIBC [ 10 ] Ms. Hayden’s Counterclaim against CIBC is that CIBC denied a loan that would have consolidated Ms. Hayden’s debts.

While Ms. Hayden’s Affidavit does attach documents that substantiate she and CIBC were engaged in some kind of loan- and mortgage-related discussions in late 2020 and early 2021, Ms. Hayden provides no evidence that an actual contract was formed between Ms.Hayden and CIBC. At best, Ms. Hayden appears to argue a kind of lost opportunity: that if Ms. Hayden knew she would be ultimatelydenied the CIBC consolidated loan, then Ms.

Hayden would have instead sought out other financing opportunities. [11] First, I conclude that here a claim cannot be grounded on an alleged failure to form a contract, or an allegation that a duty ofcare exists between potential contract parties. I might reach a different conclusion if the existing contractual relationship(

s) between Ms.Hayden and CIBC had some contractual terms that imposed a different more-stringent relationship on CIBC, but none such has been pledor identified. [12] Instead, Ms. Hayden makes strong allegations of intentional wrongdoing against CIBC: “[t]hey acted with ill will, and badfaith ... “; CIBC’s actions were “self-serving”. Ms. Hayden provides no evidence to validate these serious unsubstantiated claims.

Baldallegations like these are not a basis for a valid action, and instead indicate the proposed Counterclaim is an abuse of Court, and theproposed Defendant, CIBC: GH v Alcock, 2013 ABCA 24 at para 58; Mancuso v Canada (National Health and Welfare), 2015 FCA227 at paras 16-20; Unrau v National Dental Examining Board, 2019 ABQB 283 at para 629. [13] I conclude that Ms. Hayden has not displaced the presumption that her proposed Counterclaim against CIBC is an abuse ofcourt processes. Instead, the nature and substance of her proposed complaints established the opposite.

The CIBC component of theproposed Counterclaim is rejected. B. Proposed Third Party Non-CIBC Defendants [14] Similarly, I reject the proposed Counterclaim against the other candidate non-CIBC Defendants by Counterclaim. None of theallegations against these proposed Defendants has anything to do with the action between CIBC and Ms. Hayden. Instead, Ms. Haydenhas attempted to graft completely separate allegations and claims, from earlier and now concluded litigation, into an entirely differentand unrelated lawsuit. That is a first basis to reject that part of the Counterclaim entirely.

The non-CIBC Defendants have no relationshipat all to the CIBC vs Hayden litigation. [15] Second, Ms. Hayden’s counterclaim is hopeless on multiple bases.

In the interest of judicial economy, and given Ms.Hayden’s extensive claims and Affidavit materials, I will highlight only certain of these issues as representative examples. [16] First, the allegations against court Justices are hopeless given the principle of judicial immunity: Morier and Boily v Rivard, (SCC), [1985] 2 SCR 716 at para 88, citing Fray v Blackburn (1863), 3 B & S 576, 122 ER 217; SG v Larochelle, 2004ABQB 123, aff’d 2005 ABCA 111; Feeney v Alberta, 2021 ABCA 71. Furthermore, the allegations against myself and Chief JusticeMoreau are based on Ms.

Hayden complaining that we did not respond properly to irregular, inappropriate, and abusive correspondencethat Ms. Hayden had sent the Court, unilaterally demanding court remedies outside orthodox processes. Factually, that is no basis for alawsuit. [17] Further, Ms. Hayden’s claims are an obvious attempt to re-litigate issues that were rejected in Ms. Hayden’s earlier lawsuitsthat ultimately led to Ms. Hayden being made subject to court access restrictions as a vexatious litigant. I note that Ms. Hayden haspursued that litigation on three occasions to the Supreme Court of Canada.

In each instance her candidate appeals were rejected, and Ms.Hayden was ordered to pay costs. Ms. Hayden’s proposed Counterclaim is a collateral attack on earlier concluded litigation where Ms.Hayden lost. Ms. Hayden is seeking, once again, to resurrect long dismissed claims. That is an abuse of the Court and the candidate non-CIBC Defendants. [18] Another defect with Ms. Hayden’s litigation is she claims she has been defamed, and demands unspecified “cost for thedefamation”. Alberta Rules of Court, Alta Reg 124/2010 s 13.7(

f) requires that the particulars of alleged defamation are plead. Ms.Hayden’s proposed Counterclaim does not satisfy that criterion, and, in fact, one of the two instances Ms. Hayden mentions defamation,at all, is that paragraph 69 of the proposed counterclaim classifies the court access restrictions imposed on Ms. Hayden by Hayden vHayden, 2020 ABQB 700 as “defamation”. That is not only a bald inadequate pleading, but a collateral attack on the Hayden v Hayden,2020 ABQB 700 decision. [19] Ms. Hayden’s proposed Counterclaim against the non-CIBC Defendants is rejected. Not only has Ms.

Hayden failed toestablish a reasonable basis for her proposed Counterclaim, but I conclude Ms. Hayden’s proposed Counterclaim against the non-CIBCDefendants is an abuse of the Court, and must also be denied on that basis. IV. Conclusion [20] Ms. Hayden’s proposed Counterclaim is denied filing in toto. Ms.

Hayden is prohibited from seeking permission to file thesesame claims again, either directly or indirectly: Hayden v Hayden, 2020 ABQB 700, para 47(4). [21] Mindful of my obligations to provide information to self-represented litigants concerning their litigation options, as set inPintea v Johns, 2017 SCC 23, I point out to Ms. Hayden that there is no appeal to the Alberta Court of Appeal of this decision: Rule14.5(4). Ms. Hayden may, however, seek leave from the Supreme Court of Canada, if she disagrees with this outcome: e.g. Thompson, (SCC); Thompson v Nielsen, (SCC). [22] I further caution Ms.

Hayden that her continued abuse of the Court will not be tolerated. Future abusive leave to fileapplications may result in a “Penalty for contravening rules”, pursuant to Rule 10.49(1): e.g. McMunn v Hok, 2021 ABQB 601.

Dated at the City of Calgary, Alberta this 16 th day of August, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Ingrid S. Hayden Self-represented Litigant _______________________________________________________ Corrigendum of the Memorandum of Decision of The Associate Chief Justice J.D. Rooke _______________________________________________________ - paragraph 10, line 4, read "2000" should read "2020". - Added the following to the Style of Cause: (CIBC), Nugent Law Office, Her Majesty the Queen in Right of Alberta, The Honourable Mary T. Moreau, The Honourable Associate Chief Justice J.D. Rooke, Madam Justice P. Rowbotham, and Laurie Baptiste