JSG v AG, 2021 ABQB 841

Court of Queen’s Bench of Alberta Citation: JSG v AG, 2021 ABQB 841 Date: 20211025 Dockets: 2103 04699, 2103 10773 Registry: Edmonton Between: Docket 2103 04699 JSG and MR Plaintiffs - and - AG and JR Defendants And between: Docket 2103 10773 JSG Respondent Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2 . No person shall publish the name or photograph of a child or of the child's parent or guardian in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published.

_______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] This decision responds to two interrelated issues that involve the same person, JSG. The names of JSG and other individuals identified in this decision are anonymized because much of JSG’s litigation involves two children who are the subject of intervention by Alberta Children’s Services, pursuant to the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 ( CYFEA ).

CYFEA s 126.2 bans publication of names or photographs that may identify a child who is subject, or has been subject, to an intervention by Alberta Children’s Services. [ 2 ] JSG on April 1, 2021 filed a “Statement of Claim” assigned Court of Queen’s Bench of Alberta Action No. 2103 04699.

On July 19, 2021, JSG filed a “Desk Application Without Notice Application” on Action No. 2103 04699 that I will further review and decide later in this Memorandum of Decision. [ 3 ] While JSG has been active in multiple proceedings before the Court of Queen’s Bench of Alberta, until this year the focus of JSG’s activity centred on the status of SG, a child of JSG. SG was apprehended by the Director of the Child, Youth and Family Enhancement Act ( Director ) in 2014.

That ultimately led to a Permanent Guardianship Order: JSG v Alberta ( Child, Youth and Family Enhancement Act , Director ) , 2016 ABQB 510 at paras 48-49 ( JSG ABQB #1 ), appeal abandoned (10 May 2016), Edmonton 1603- 0007AC (Alta CA). JSG was restricted from further contact with her child until JSG completed psychiatric treatment: JSG #1 ABQB at para 53. JSG has consistently refused any psychiatric treatment. [ 4 ] In 2018, SG was adopted by JSG’s mother, AG.

JSG subsequently unsuccessfully applied to set aside the adoption, arguing the adoption was the result of fraud: JSG v Alberta (Director of Child, Youth and Family Enhancement) , 2021 ABQB 306 ( JSG ABQB #2 ). [ 5 ] JSG is subject to Court access restrictions in the Provincial Court of Alberta: JSG v Alberta (Child and Family Services) (18 February 2015), Edmonton JFF903002737 (Alta PC). On July 9, 2021, the Clerk of the Court referred to me multiple instances of problematic conduct by JSG.

I concluded, in a decision reported as JSG (Re) , 2021 ABQB 555 ( JSG ABQB #3 ), that JSG was abusing the Court and Clerks, and exercised this Court’s inherent jurisdiction to impose a communications structure on JSG to better manage her interactions with this Court (paras 11-13), and limited JSG’s use of fee waivers. This step was necessary because JSG used fee waivers to avoid paying filing fees, and to demand that Clerks provide excessive and unwarranted services to JSG at no cost (paras 14-15). [ 6 ] Unfortunately, JSG ABQB #3 did not effectively address JSG’s conduct.

The Clerk of the Court has now referred JSG for Court access restrictions pursuant to Judicature Act , RSA 2000, c J-2 , ss 23-23.1. [ 7 ] This Memorandum of Decision evaluates that referral and whether the Court should investigate whether JSG should be subject to Court access restrictions, pursuant to ss 23-23.1 of the Judicature Act . That means the Court now will consider whether JSG should be subject to what is sometimes called a “vexatious litigant order”: an Order that would require JSG seek permission - leave of the Court - prior to initiating or continuing litigation.

A Judicature Act ss 23-23.1 Order would therefore not prohibit JSG’s access to the Court of Queen’s Bench of Alberta, but would put a structure in place to manage that activity. As I will subsequently review, JSG’s litigation has already frequently required judicial intervention because of JSG’s pattern of repeated and persistent problematic conduct. II.

Authority to Impose Court Access Gatekeeping [ 8 ] The Alberta Court of Appeal in Jonsson v Lymer , 2020 ABCA 167 ( Lymer ) ruled that the Alberta Legislature enacting Judicature Act ss 23-23.1 defined and limited the scope of when an Alberta Court may impose prospective litigation management steps in response to “vexatious proceedings” or a litigant “conducting a proceeding in a vexatious manner”.

The Court of Queen’s Bench of Alberta retains inherent residual jurisdiction to manage persons who abuse its processes. [ 9 ] Lymer indicates prospective litigation management may only occur where: 1) the litigant has engaged in persistent abusive conduct (identified in Judicature Act , s 23(2); Unrau v National Dental Examining Board , 2019 ABQB 283 at paras 609-732 ( Unrau #2 )); and 2) other litigant management steps have been unsuccessful.

[ 10 ] Judicature Act s 23.1(2) defines the scope of who may by right initiate a Judicature Act ss 23-23.1 application: 23.1(2) An application under subsection (1) may be made by a party against whom vexatious proceedings are being instituted or conducted, a clerk of the Court or the Minister of Justice and Solicitor General or, with the permission of the Court, any other person. (Emphasis added.) [ 11 ] For the Court of Queen’s Bench of Alberta, “clerk of the Court” is defined by Judicature Act s 23(1)(a)(ii): 23(1)(a)(ii) In this Part ... “clerk of the Court” means ... in the case of the Court of Queen’s Bench, a clerk, deputy clerk or acting clerk of the court of the judicial centre in which the proceeding is being instituted ... [ 12 ]

Section 23.1(2) makes clear that an application by the Clerk of the Court is a separate process that exists in addition to the “on its own motion” authority provided to Alberta courts to initiate Judicature Act ss 23-23.1 processes. Slatter JA in Lymer at para 85 has provided guidance on the Judicature Act , ss 23.1(1) own motion authority. III. JSG’s Litigation and Court Activity Record [ 13 ] JSG has a lengthy and problematic history of abusive and inappropriate litigation and court activities. A.

Abuse of Court Staff and Misuse and Waste of Court Resources [ 14 ] Some of JSG’s misconduct is direct abuse of Court staff. That includes: 1) JSG has engaged in repeated abuse of Clerks by persistent, inappropriate, and problematic communications: JSG ABQB #3 at para 4 . As a result, JSG was made subject to a Court communication order that required JSG only communicate with the Court via document or email, and to a specific designated recipient.

JSG subsequently breached that Order, leaving telephone message complaints to a Clerk other than the designated communications recipient. 2) JSG repeatedly and persistently appears at the Edmonton Court of Queen’s Bench counter (the Counter), where she is confrontational, argumentative, disruptive, and abusive: JSG ABQB #3 at para 4 .

JSG refuses to comply with organizational and safety procedures, such as ignoring the social distanced client lines at the Counter: JSG ABQB #3 at para 4 . 3) JSG says she has clandestinely recorded her interactions with the Clerks, contrary to Court policy: JSG ABQB #3 at para 4 . 4) Due to JSG’s repeated and persistent courthouse misconduct, Sheriffs have on multiple instances been required to control JSG, and remove her from the Counter: JSG ABQB #3 at para 5 . [ 15 ] JSG also abuses Court processes in a number of ways.

One is that JSG demands Court activities that inflict a considerable and disproportionate workload upon the Clerks. JSG imposes these tasks at no cost to herself via a fee waiver. These demands are made on an unreasonable basis, as described in JSG #3 at para 7: For example, recently JSG ordered a search that generated 4,000 pages of materials, and required two days of work by a Clerk. When notified that the search product was ready, JSG rejected the search results, and instead demanded a further search. JSG then appeared at the Counter, and refused to follow instructions.

That led to a confrontation, inappropriate and abusive language by JSG, and, once again, Sheriff intervention was required. [ 16 ] As I will subsequently explain, JSG has continued her attempts to force the Court to engage in purposeless activities for which she pays nothing. B.

Indicia of Abusive Litigation [ 17 ] The Judicature Act (s 23(2)) and Alberta jurisprudence ( Unrau #2 at paras 609-732 ) have identified activities that are an abuse of the Court, and that potentially warrant Court intervention by litigation and litigant management steps. [ 18 ] JSG has been repeatedly subject to Court access restrictions and case management in the Court of Queen’s Bench of Alberta and Provincial Court of Alberta: JSG ABQB #1 at paras 13, 17, 55 ; JSG ABQB #2 at para 28 ; JSG v Director of Children Services (26 February 2015), Edmonton FFL03 44559 (Alta QB). That is important for two reasons.

First, in Lymer , Slatter JA determined that Judicature Act , ss 23-23.1 Court access gatekeeping is a “last chance” step where other management steps have failed. JSG has been subject to case management for years, and that has not controlled her abusive activities.

If anything, that misconduct appears to have become worse, particularly JSG’s direct interactions with Court personnel. [ 19 ] Second, when a Court has imposed Court access restrictions, that is a very strong basis to presume that parallel steps are appropriate in a second Court in response to analogous or related litigation misconduct: Unrau #2 at paras 582-586 .

This concept was established by Stratas JA of the Federal Court of Appeal, who in Canada v Olumide , 2017 FCA 42 at para 37 concluded: ... other courts’ findings of vexatiousness under similarly-worded provisions can be imported into later applications against the same litigant and can be given much weight ... The wheel needn’t be reinvented . (Emphasis added.) [ 20 ] This rule has been repeatedly applied by the Court of Queen’s Bench of Alberta. For example, Anderson J in Hill v Bundon , 2018 ABQB 506 , at para 79 expressed the principle in this manner:

I conclude as a point of law that where a court in another jurisdiction has imposed court access restrictions on a person then that creates a presumption that analogous court access restrictions are also warranted , either on application or the court’s own motion, in Alberta, unless that presumption is rebutted by the alleged abusive litigant . (Emphasis added.) [ 21 ] Similarly, Moreau CJ in Peters v Keef , 2019 ABQB 85 , at para 17 , concluded: ...

When a court has already concluded that court access restrictions are necessary to manage a litigant, then that is, of itself, a very strong factor in support of additional court access restrictions that respond to additional anticipated litigation misconduct ... (Emphasis added.) [ 22 ] JSG has a record of unsuccessful and unmeritorious appeals and reviews: 1) JSG engaged in a hopeless appeal ( JSG v Alberta ( Child, Youth and Family Enhancement Act , Director ) , 2017 ABCA 162 at paras 10-12 ( JSG ABCA #1 )), then sought a further panel review of her hopeless litigation ( JSG ABQB #2 at para 24 ; JSG v Alberta ( Child, Youth and Family Enhancement Act , Director ) (17 October 2017), Edmonton 1603-0248AC (Alta CA)). 2) JSG took unsuccessful interlocutory litigation steps, then appealed that result, but subsequently abandoned her appeal: JSG ABQB #1 at paras 56-57 ; JSG v Director of Children Services (10 May 2016), Edmonton 1603-0007AC (Alta CA). 3) JSG has unsuccessfully challenged Court-ordered steps to control JSG’s harassment of her mother: AG v JSG (26 March 2021), Edmonton FFL03 45636 (Alta QB). [ 23 ] JSG’s record shows she ignores Court Orders and instead engages in litigation to avoid the effects of legal instructions: JSG ABQB #1 at para 83 .

JSG conducts collateral attacks, without any valid ground. For example, JSG attacked the Permanent Guardianship Order for SG in Provincial Court, after exhausting proceedings at the Court of Court of Appeal of Alberta: JSG ABQB #2 at para 25 . Over three years later, the December 21, 2020 JSG v Alberta (Child & Family Services Edmonton) Action No. FL03 48442 Originating Application that led to JSG ABQB #2 was a collateral attack on the 2015-2017 litigation that resulted in the Court of Queen’s Bench of Alberta confirming that SG should not be returned to her mother: JSG ABQB #1 .

JSG then engaged in hopeless and repeated appeal processes. [ 24 ] Yungwirth J in JSG ABQB #2 evaluated and rejected JSG’s December 21, 2020 allegations that JSG losing custody of SG ( JSG ABQB #1 ) was the result of fraud, and instead concluded there was no basis for JSG’s claims: 1) there were no false representations ( JSG ABQB #2 at para 53 ); and 2) there was no judicial error or misconduct ( JSG ABQB #2 at para 64 ). I conclude, on a balance of probabilities, that the Originating Application filed on December 21, 2020 as Action No.

FL03 48442 that was dismissed as groundless in JSG ABQB #2 is a collateral attack on earlier Court of Queen’s Bench of Alberta and Provincial Court of Alberta decisions that removed SG from JSG. [ 25 ] This Court has also concluded that JSG advanced allegations that are characteristic of abusive litigants ( Unrau #2 at paras 714-729 ), including baseless allegations of discrimination ( JSG ABQB #1 at paras 89-93 ), and ungrounded claims of judicial bias ( JSG ABQB #1 at paras 100-109 ). [ 26 ] In

summary, JSG and her litigation exhibit a wide range of indicia that are a basis for this Court to take litigation and litigant management steps, potentially including Court access gatekeeping. This also extends to JSG’s most recent Court of Queen’s Bench of Alberta proceeding. C. The JSG & MR v AG and JL Action No. 2103 04699 [ 27 ] JSG commenced her most recent Court of Queen’s Bench of Alberta litigation on April 1, 2021 with a Statement of Claim as Action No. 2103 04699. This document seeks a restraining order against JSG’s mother and an ex-boyfriend.

Response Affidavits have been filed by AG, and the Director .

As I will subsequently discuss, I am directly involved in this Action as a consequence of recent Court filings by JSG. [ 28 ] The April 1, 2021 Statement of Claim and a supporting Affidavit of the same date alleges JSG was harmed and abused by her mother in the past, and gives as examples that AG allegedly: (1) put Lysol on JSG’s retainer when she was pregnant; (2) recently abused JSG by repeatedly telling her to kill herself via text message; and (3) threw boiling hot water on JSG when she was younger; [ 29 ] JSG also alleges her ex-boyfriend, JL, on March 22, 2021 “... approached me with a baton in a menacing manner in order to cause me physical harm and damage to my car. ...”.

JSG makes the claim that JL is now her mother’s boyfriend. [ 30 ] The documents in Action No. 2103 04699 name a second applicant, MR, who JSG identifies as a 19-month-old daughter of JSG. This is a different daughter than SG, the child who was the subject of earlier JSG ABQB #1 , JSG ABQB #2 , and JSG ABCA #1 litigation. While JSG claims to be the “legal guardian” of MR, it is apparent from JSG’s own materials and other documents in this file that MR was apprehended at birth by Alberta Children’s Services. The Director is currently seeking a Permanent Guardianship Order for MR in the Provincial Court of Alberta.

JSG claims to have evidence MR is abused by her mother, and, for example, deposes that she has photographs that show MR has been bruised.

[ 31 ] While JSG says she has photographic evidence to support her abuse allegations, and a video of the ex-boyfriend’s menacing behaviour, the four Affidavits filed in this matter and sworn by JSG on April 1, 2021, June 11, 2021, June 24, 2021, and July 19, 2021 provide no evidence at all to substantiate JSG’s claims. Instead, at most JSG’s materials “self-reference” to another earlier June 30, 2016 Affidavit which claims were rejected in the SG custody and adoption litigation. The June 24, 2021 Affidavit appears to reject the findings and outcome of JSG ABQB #2 .

Other documents attached to JSG’s four Affidavits are either irrelevant, or illustrate that JSG 1) is confrontational and abusive in her interactions with government actors, and 2) has threatened criminal proceedings against Alberta Children’s Services staff. Another affidavit exhibit in JSG’s own materials documents Alberta Legal Aid rejected an application by JSG for a restraining order against her mother, because that application had “no merit”. [ 32 ] From the available record, the basis for Action No. 2103 04699 is tenuous to non-existent.

Furthermore, Action No. 2103 04699 appears to be abusive on multiple bases. For example, JSG has no basis to claim to represent MR. That makes JSG’s attempt to assert a no-contact order on behalf of MR “busybody litigation”, a kind of abusive litigation for an improper purpose: Unrau #2 at para 664 . [ 33 ] Further, JSG on May 26, 2021 filed an Application to be heard on June 11, 2021 that literally sought nothing in its text.

The Application simply demands Court time for no apparent purpose. [ 34 ] The most recent step by JSG was a “Desk Application” filed on July 19, 2021, that I have received and to which I now respond. This Desk Application has two elements: 1) an undefined step against a judge, and 2) a demand for transcripts paid for by the Court. JSG states in her supporting Affidavit of the same date: “... I have a complaint RE Justice Fraser.” It appears that complaint has something to do with the conduct of Justice Fraser at a July 5, 2021 hearing, where JSG demanded a hearing to be set.

Justice Fraser adjourned the proceeding. JSG provides no basis for why that was wrong. [ 35 ] I conclude the July 19, 2021 Desk Application is both an attempt to collaterally attack Justice Fraser’s Order to adjourn JSG’s April 1, 2021 proceeding, and, also, is an attempt to “judge shop” this matter to a different judge (me), so as to bypass Justice Fraser.

Both these steps are an abuse of the Court and its processes ( Unrau #2 at paras 612-618, 677-678 , respectively), and a reason to dismiss the July 19, 2021 Desk Application as an abuse of the Court and its processes. [ 36 ] JSG now also is continuing her pattern of abusing the Court and Clerks by: 1) demanding the Court provide her a transcript of the July 5, 2021 proceeding at no costs; and 2) submitting a Search Request form for this matter that demands the Clerks produce: All court orders All Clerk notes Endorsements Entire file Affidavit of [JSG’s mother].

I note that JSG is demanding the Court provide her copies of documents that she herself has submitted .

JSG did not pay the required fees for this Search, claiming she should not have to incur Court-related expenses. [ 37 ] I find as fact that JSG’s demands for transcripts and documents from Action No. 2103 04699 continues JSG’s pattern of attempting to impose unreasonable and ungrounded demands that shift obligations onto the Court and its Clerks in an abusive and unwarranted manner. [ 38 ] In light of my conclusions concerning Action No. 2103 04699, I Order: 1) JSG’s July 19, 2021 Desk Application is dismissed as an abuse of the Court; 2) Action No. 2103 04699 is stayed on an interim basis; 3) the Clerks shall not complete JSG’s Search Request in relation to Action No. 2103 04699, and shall, pursuant to JSG ABQB #3 , refuse and reject any Court filing, activity, or step by JSG in Action No. 2103 04699 that requires any payment of funds, unless:

a) JSG pays all fees associated with that activity; or

b) JSG has an Order of this Court that permits JSG to apply for a fee waiver, and that fee waiver was subsequently granted by the Clerk of the Court; and 4) JSG has until November 30, 2021 to provide up to ten pages of Written Submissions to my office via email as to why Action No. 2103 04699 should not be dismissed as an abuse of the Court and Defendants. [ 39 ] My conclusions in relation to Action No. 2103 04699 are further evidence that JSG may be a potential candidate for Judicature Act , ss 23-23.1 Court access gatekeeping. IV.

Conclusion [ 40 ] I conclude that this Court should pursue the Clerk of the Court’s referral of JSG for possible steps pursuant to ss 23-23.1 of the Judicature Act . I have reviewed JSG’s record of abuse of the Court and its staff, JSG’s documented indicia of abusive litigation, and

how Action No. 2103 04699 appears to be a vexatious proceeding, and JSG is conducting that proceeding in a vexatious manner. [ 41 ] I also note that litigation management is ineffective because JSG: 1) engages in additional proceedings to bypass litigation management; 2) re-litigates settled issues, by multiple processes with the same intended outcome; and 3) targets aspects of the Court’s structure and staff that are defenceless and cannot be protected by steps like case management, because those Court staff, particularly Clerks of the Court, are professionally obliged to assist litigants, even those who are abusive and harmful. [ 42 ] Legal and academic commentary on abusive litigants has historically neglected this third factor.

Justice Shelley of this Court in Alberta Treasury Branches v Hok , 2019 ABQB 196 at para 10 stressed the obligations of Clerks of the Court to the public: The Court Clerks serve a critical function as part of the administration of justice in this province. They are the front line of the Alberta Court of Queen’s Bench. They are required to assist litigants and others who have business with the Court.

However, the obligation to provide these services to the public does not extend to them being bullied, abused, or otherwise mistreated in an unfair and unprofessional manner. [ 43 ] I agree with and adopt the conclusions of Justice Pepall made in Lochner v Ontario Civilian Police Commission , 2020 ONCA 720 at para 18 : Vexatious litigants are a drain on our system of justice. In addition to being a burden on the opposing parties, they are a burden on the judiciary and court personnel.

At least the judiciary has mechanisms to attempt to address the conduct of vexatious litigants, but court personnel are ill-equipped to do anything when faced with a barrage of telephone calls, emails, and other communications frequently characterized by incendiary and rude remarks. The cost and time incurred by opposing parties is significant, and adverse costs awards frequently cannot be relied upon to discourage future comparable behaviour. (Emphasis added.) [ 44 ] In JSG ABQB #3 , I concluded JSG is an example of an abusive litigant who targets this vulnerable component of the Court apparatus.

Occupational Health and Safety Act , RSA 2000, c O-2 .1, s 3(1)(

b) requires employers, including the Government of Alberta and this Court, to take reasonable and practical steps to prevent workplace harassment and bullying. [ 45 ] Since I have concluded there is a potential basis on which JSG should be subject to Judicature Act , ss 23-23.1 Court access gatekeeping pursuant to the Clerk of the Court’s referral, I will now set a timeline and structure for submissions and evidence on this question. [ 46 ] I direct that JSG, by November 30, 2021, make submissions and provide affidavit evidence that responds to two questions: 1) should JSG be subject to Court access restrictions in the Court of Queen’s Bench of Alberta pursuant to sections 23 - 23.1 of the Judicature Act ? and 2) if so, what should be the scope of those Court access restrictions? [ 47 ] Copies of this Memorandum of Decision will be directed to the Alberta Minister of Justice and Solicitor General, Attorney General, and the Director .

That satisfies the notice requirement set by Judicature Act s 23.1(1).

If these individuals seek to make submissions and/or enter evidence in relation to whether JSG should be subject to steps pursuant to Judicature Act , ss 23-23.1, argument and any affidavits should also be received by the Court by November 30, 2021. [ 48 ] Response arguments by JSG and any other involved parties are due December 17, 2021. [ 49 ] JSG is subject to Court of Queen’s Bench of Alberta interim Court access restrictions until this Court issues a decision in response to the Clerk of the Court’s referral. [ 50 ] The Court will prepare and serve the Order giving effect to this Memorandum of Decision.

JSG’s approval of that Order is dispensed with, pursuant to r 9.4(2)(

c) of the Alberta Rules of Court , AR 124/2010 . Dated at the City of Edmonton, Alberta thi s 25 th day of October, 2021. K.G. Nielsen A.C.J.C.Q.B.A.

Appearances: None