Canadian Imperial Bank of Commerce v Hayden, 2021 ABQB 985

Court of Queen’s Bench of Alberta Citation: Canadian Imperial Bank of Commerce v Hayden, 2021 ABQB 985 Date: 20211210 Docket: 2101 08260 Registry: Calgary Between: Canadian Imperial Bank of Commerce Proposed Respondent / Plaintiff - and - Ingrid S. Hayden Proposed Appellant / Defendant _______________________________________________________ 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 on June 30, 2021 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 December 8, 2021, Ms. Hayden submitted to me a number of documents and correspondence, dated between December 3-6, 2021. Ms. Hayden, in a covering letter, indicates that her intent is to seek leave to appeal a decision of Master Mason, made on November 18, 2021. Ms.

Hayden does not provide a written decision, or a transcript of Master Mason’s decision that she seeks to appeal. Ms. Hayden’s materials do, however, include a “Redemption Order - Listing” by Master Mason imposed on November 18, 2021, filed on November 23, 2021. That Order, among other things: 1. orders

summary judgment against Ms. Hayden, 2. declares a valid mortgage exists over certain lands, and the outstanding debt associated with that mortgage is $188,204.04, 3. indicates Ms. Hayden has one month to apply to vary the amount owed, 4. sets a redemption period of until May 18, 2022 for Ms. Hayden to pay the outstanding debt, and 5. at the expiry of the redemption period, the lands shall be listed for judicial sale. [ 3 ] Ms. Hayden attaches a proposed appeal document titled “Notice of Appeal of Master’s Judgment or Order”. However, that document does not identify any grounds for appeal.

What it instead lists are documents to be relied on, and some items titled “Remedy Claim and Sort”, that include: B. A relief pursuant to Section 24 (1). That Master Mason allowed Dan Gilborn and Laurel Barteluk, Counsels from the prior action to appear by telephone and give testimony to Master Mason at the beginning of the plaintiff

summary dismissal application. C. A declaration that the Court has denied me my right to due process and has infringed on my charter. D. My right to procedural fairness was denied, which resulted in a mis-carriage of justice. E. An Order overturning Master Mason redemption Order. F. An Order dismissing the plaintiff

summary application G. An Order that plaintiff produce payout statement from June 2011, which discharged my mortgage from Toronto Dominion Bank, Exhibit S. According to the Law of Property Act, 75 (1) (3), this was supposed to be given to me in June 2011. This document is needed to verify the sum totol of the line of credit, because FNF paid CIBC $71,029.00 to payout my dept, which included, the line of credit which is in foreclosure, Exhibit H H. An Order that the line of credit amount in foreclosure be validified because if payments was made on the line of credit in foreclosure in 2011.

The amount owed now would be a different sum. [ 4 ] Ms. Hayden also attaches a yet unsworn Affidavit that indicates: 1. Ms. Hayden disputes certain facts found by Master Mason, and that some findings made by Master Mason have no basis; 2. Ms. Hayden was denied Questioning; 3. Master Mason disregarded that CIBC and FNF Canada, and Ms. Hayden, were in discussions about new loan arrangements, which Ms. Hayden says was significant, since when Ms. Hayden was refused a consolidated loan, that was illegal: “...

CIBC owed me a duty of care. ...”; 4. that there were irregularities and/or issues in 2009 and 2011 concerning Ms. Hayden’s mortgage; 5. a “violation of due process”, and “a mis-carriage of justice” occurred at the November 18, 2021 hearing because of who participated in that process, and because Master Mason looked to her right during that proceeding and “... I am not sure why or who she was looking at ...” [emphasis in original]. [ 5 ] There is an additional relevant factor for this leave to file application that is not mentioned in Ms. Hayden’s materials. That is that Ms.

Hayden, in this matter, had on August 13, 2021 sought leave to file a proposed Counterclaim that named CIBC, the Nugent Law Office, Alberta, three Alberta court judges (I was one), and Alberta Court of Appeal Case Management Officer Laurie Baptiste as Defendants. That proposed counterclaim was rejected for filing in a written decision reported as Canadian Imperial Bank of Commerce v Hayden , 2021 ABQB 647 [ CIBC v Hayden #1 ]. One of the findings in CIBC v Hayden #1 is that the Court evaluated a claim by Ms.

Hayden that CIBC had engaged in intentional wrongdoing during loan- and mortgage-related discussions with Ms. Hayden in late 2021. CIBC v Hayden #1 at paras 10-13 concludes that: 1) that there is no basis in law for Ms. Hayden to make a claim over a failure to form a contract, and 2) that Ms. Hayden’s allegations of intentional wrongdoing by CIBC were “bald allegations” without any substance, and, therefore, an abuse of the Court. II.

Test for Leave to File [ 6 ] “... [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).

[7] Permission to initiate litigation or continue stayed litigation both test the merit of court activities on the same standard. Aperson 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). [8] This threshold, which must be established on a balance of probabilities, is not a high one, and in many ways parallels the testfor

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

The person subject to court access leave restrictions is expectedto 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. [9] The documents necessary to seek leave are an affidavit to provide evidence, and, in the case of a new action, application, orother litigation step, a copy of the proposed filing: e.g., Re Moore, 2018 ABQB 261; Latham (Re), 2018 ABQB 906. [10] Leave may be granted in part: Latham (Re), 2018 ABQB 906; Belway v Lalande-Weber, 2017 ABCA 108 at para 10, leaveto appeal to SCC refused, 37708 (21 December 2017). [11] 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; ReBotar, 2018 ABQB 193; Thompson v Alberta Labour Relations Board, 2018 ABQB 220, leave to appeal to SCC refused, 38267 (31January 2019); Re Thompson, 2018 ABQB 355, leave to appeal to SCC refused, 38266 (31 January 2019); Association of ProfessionalEngineers 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 AlbertaLabour Relations Board, 2018 ABQB 220; Re Botar, 2018 ABQB 193; Trinity Place Foundation of Alberta v Templanza, 2019 ABQB45; Onischuk (Re), 2019 ABQB 229; Fletcher v Davidson & Williams LLP, 2019 ABQB 396; Ubah v Canadian Natural ResourcesLimited, 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 ABQB229); 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 appealtranscript (Alberta Treasury Branches v Hok, 2018 ABQB 316).

III. Analysis [12] I reject Ms. Hayden’s leave to file application on multiple bases. A. Inadequate Proposed Filing [13] The proposed “Notice of Appeal of Master’s Judgment or Order” fails as a candidate pleading. An application, appeal, orstatement of claim sets the issues to which the opposing party must respond, and alerts that party of the case it must meet: Whiten v PilotInsurance Co, 2002 SCC 18 at para 87.

Proper pleadings require more than simply bare assertions, or “bald allegations” of wrongdoing:GH v Alcock, 2013 ABCA 24 at para 58; Mancuso v Canada (National Health and Welfare), 2015 FCA 227 at paras 16-20. Pleadingsmust provide a basis for the Court and other litigants to make a meaningful response, and indicate to the responding parties the “... who,when, where, how and what gave rise to its liability.”: Mancuso v Canada (National Health and Welfare) at para 19.

The SupremeCourt of Canada, in Mackay v Manitoba, (SCC), [1989] 2 SCR 357, 61 DLR (4th) 485, instructed that a factualfoundation, or an alleged factual foundation, is an absolute requirement for pleadings that seek potential relief pursuant to the CanadianCharter of Rights and Freedoms. [14] Ms. Hayden cannot file inadequate pleadings and then either supplement those claims, or expect the Director to “fill in theblanks”: Mancuso v Canada (National Health and Welfare) at para 20.

A lack of specificity is not merely a technical defect, but goes tothe core of the claim: GH v Alcock at para 58, citing AL v Ontario (Minister of Community and Social Services) (2006), (ON CA), 274 DLR (4th) 431, 218 OAC 150 (Ont CA). Inadequate pleadings abuse the court’s process because a respondentcannot defend against unclear and non-specific claims and the court cannot control the proceedings, identify the proposed argument, ormake findings on the relevant facts: Unrau v National Dental Examining Board, 2019 ABQB 283 at para 629 [Unrau #2]. [15] Ms.

Hayden’s proposed “Notice of Appeal of Master’s Judgment or Order” provides no grounds at all for the appeal. That, initself, is fatal to this application. Second, I note that the “Notice” appears to seek Charter remedies, which, in itself is counter-intuitive inthat the Defendant is not a government agency to which the Charter applies. Moreover, the Notice provides no basis at all for that claim,which means the candidate filing is an abuse of process as failing to meet the strict requirements set by the Supreme Court of Canada inMackay v Manitoba. I conclude Ms.

Hayden’s proposed appeal fails to meet the minimum pleadings criteria for a valid action, and,therefore, is an abuse of process by not providing a reasonable basis for this Court and CIBC to make a meaningful response. B. Failure to Provide Necessary Materials

[16] Ms. Hayden seeks that I permit her an appeal of a decision of Master Mason. I have an Order that tells me what Master Masoninstructed, but I have no information at all on how Master Mason reached that conclusion. Ms. Hayden has not provided the decisionunder potential review. I adopt and follow the conclusion in Alberta Treasury Branches v Hok, 2018 ABQB 316 of Moreau CJ that thisis a fatal defect in a leave to file application that seeks to initiate an appeal. This is a second, independent, basis on which I conclude thatMs.

Hayden’s leave to file her proposed “Notice of Appeal of Master’s Judgment or Order” should be rejected. C. Abusive Relitigation of a Concluded Issue [17] Ms. Hayden’s allegation in her proposed “Notice of Appeal of Master’s Judgment or Order” and Affidavit are that CIBC actedillegally when it did not complete a new loan and/or mortgage arrangement with Ms. Hayden in 2021 was considered and rejected inCIBC v Hayden #1 at paras 10-13. Ms. Hayden makes the same allegations here. [18] I conclude Ms. Hayden is attempting to re-litigate an issue that was rejected in CIBC v Hayden #1.

This is a kind of collateralattack, as reviewed in Unrau #2 at para 619: 1) bringing proceedings to determine an issue that has already been determined by a Court of competent jurisdiction; 2) using previously raised grounds and issues improperly in a subsequent proceeding; 3) conducting a proceeding to circumvent the effect of a Court Order; and 4) conducting multiple proceedings with the same litigation objective. [19] Furthermore, Ms.

Hayden is prohibited from seeking to relitigate any issue, “directly or indirectly”, when this Court dismisseda leave to file application made pursuant to Hayden v Hayden, see para 47(4). I conclude Ms. Hayden has both engaged in a collateralattack of CIBC v Hayden #1 and breached the terms of her court access restrictions by repeatedly pursuing and re-litigating settledissues. That is a third separate basis on which I reject Ms. Hayden’s leave to file application, as it is an abuse of the Court and itsprocesses. IV. Conclusion [20] Ms.

Hayden’s proposed “Notice of Appeal of Master’s Judgment or Order” is denied filing in toto. Ms. Hayden is prohibitedfrom seeking permission to file these same claims again, either directly or indirectly: Hayden v Hayden, 2020 ABQB 700, para 47(4).However, if Ms.

Hayden wishes to correct the matters raised above and provide the proper material to issues that arise solely fromMaster Mason’s decision, I will consider any such new application for leave. [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] In CIBC v Hayden #1 at para 22, I cautioned Ms. Hayden that repeated abusive leave to file applications may result inpenalties: I further caution Ms. Hayden that her continued abuse of the Court will not be tolerated.

Future abusive leave to file applications mayresult in a “Penalty for contravening rules”, pursuant to Rule 10.49(1) ... [23] I adopt the reasoning and conclusion of Shelley J in McMunn v Hok, 2021 ABQB 601, leave to appeal refused 2021 ABCA321, on when to impose Rule 10.49(1) penalties on persistently abusive litigants whose actions harm this Court, see also Fletcher vDavidson & Williams LLP, 2021 ABQB 842. Ms. Hayden was warned and has continued once again her lengthy pattern of wastinglimited Court resources. Ms. Hayden is ordered to pay the Clerk of the Court a Rule 10.49(1) penalty of $2,500, forthwith.

I also orderthat, if not otherwise paid, this sum shall be recovered and paid to the Court as part Ms. Hayden’s unpaid debts resulting from theforeclosure, in a manner analogous to cost awards to the Plaintiff CIBC. [24] Counsel for CIBC will prepare the Order giving effect to this Decision. Ms. Hayden’s approval of that Order is dispensed withpursuant to Rule 9.4(2)(c). Ms. Hayden shall be served this Decision and the corresponding Order by email to the email address in Ms.Hayden’s correspondence: ingrid.hayden@telus.net. [25] I very strongly recommend that Ms.

Hayden obtain professional legal advice in relation to her future court activities. If Ms.Hayden persists in her continuing to abuse the Court’s leave to file process, then she can expect additional and larger penalties. Ms.Hayden may also contact a public legal assistance resource such as Legal Aid Alberta, Calgary Legal Guidance, or the University ofCalgary Student Legal Assistance program. I believe Ms. Hayden would greatly benefit from this kind of assistance in pursuing (or notpursuing) her complaints and concerns. Dated at the City of Calgary, Alberta this 10th day of December, 2021.

J.D. Rooke A.C.J.C.Q.B.A. Appearances: Ingrid S. Hayden Self-represented Litigant