Uhrik v Barata, 2023 ABKB 517

Court of King’s Bench of Alberta Citation: Uhrik v Barata, 2023 ABKB 517 Date: 20230912 Docket: 2201 12047 Registry: Calgary Between: Tibor Uhrik and Lieselotte Litzius Plaintiffs - and - Ryan Barata and Carscallen LLP Defendants _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] Tibor Uhrik (Mr. Uhrik) and Lieselotte Litzius (Ms.

Litzius) are litigants who are subject to court access restrictions pursuant to Judicature Act , RSA 2000, c J-2 ss 23-23.1, resulting from the April 17, 2023 Memorandum of Decision of Bourque J, reported as Uhrik v Terrigno , 2023 ABKB 223 ( Uhrik v Terrigno #2 ). One effect of the Uhrik v Terrigno Memorandum of Decision is that any ongoing litigation before the Court of King’s Bench of Alberta initiated by Mr. Uhrik and/or Ms. Litzius is stayed indefinitely, unless Mr. Uhrik and Ms. Litzius obtain permission of this Court - “leave” - to continue that litigation.

[ 2 ] Mr. Uhrik and Ms. Litzius did, in fact, have a lawsuit underway that names their former legal representatives Ryan Barata (Mr. Barata) and Carscallen LLP (Carscallen) as Defendants: Uhrik v Barata , Court of King’s Bench of Alberta Action No. 2201 12047. Both Mr. Uhrik and Ms. Litzius are self-represented litigants, and have been throughout this action. Mr. Uhrik is the active individual in the pair. Ms.

Litzius does not usually participate in their joint litigation in this and other actions, except that her name is on court filings. [ 3 ] The following timeline explains how the Uhrik v Barata litigation has unfolded to date: October 19, 2022 - The Uhrik v Barata Statement of Claim is filed, seeking $250,000 in damages. November 7, 2022 - The Defendants file a Statement of Defence. April 17, 2023 - Uhrik v Terrigno #2 issues. Mr. Uhrik and Ms. Litzius were made subject to global court access restrictions pursuant to Judicature Act ss 23-23.1.

That stayed all proceedings in the Court of King’s Bench of Alberta that were initiated by Mr. Uhrik and/or Ms.

Litzius: Tibor Uhrik and Lieselotte Litzius are prohibited from commencing, or attempting to commence, or continuing, any appeal, action, application, or proceeding in the Alberta Court of King’s Bench , on his or her own behalf, or on behalf of any other person or estate, without an order of the Chief Justice or Associate Chief Justice of the Alberta Court of King’s Bench, or their designate ... ( Uhrik v Terrigno #2 at para 69 (1), emphasis added.) Uhrik v Terrigno #2 thus stayed the Uhrik v Barata lawsuit.

However, the Defendants in this matter were not aware of that, and so further litigation steps followed, all without legal authority. May 25, 2023 - The Uhrik v Barata Defendants applied for

Summary Judgment of the Uhrik v Barata action. As noted above, this step was made without legal authority. June 27, 2023 - The parties appeared before Applications Judge Park, who issued an Order that set timelines for taking evidence, and adjourning the

Summary Judgment Application to September 12, 2023. Applications Judge Park was not aware of Uhrik v Terrigno #2 , and so this litigation step was also unauthorized. July 18, 2023 - The Court received a package of materials from Mr. Uhrik that sought leave to initiate a litigation process in Uhrik v Barata . Those materials were forwarded to me as the Administrative Justice of the Court of King’s Bench of Alberta who responds to abusive litigation and conducts litigant management.

July 24, 2023 - I issued Uhrik v Barata , 2023 ABKB 439 ( Uhrik v Barata #1 ), in which I concluded that none of the post-April 17, 2023 steps in this lawsuit had a legal basis since the Uhrik v Barata lawsuit was stayed on April 17, 2023: para 4. I concluded that the Plaintiffs were very well aware of that fact: para 5. Given the unnecessary waste and expenditure of resources in continuing a legal proceeding that is presumptively an abuse of the Court, I ordered at para 6: 1) the September 12, 2023

Summary Judgment Application is adjourned sine die ; 2) Mr. Uhrik and Ms. Litzius have until August 25, 2023 to submit to my office an application for leave to resume the stayed Uhrik v Barata lawsuit, pursuant to Uhrik v Terrigno #2 ; and 3) if no leave application is received from Mr. Uhrik and Ms. Litzius by August 25, 2023, then the Uhrik v Barata lawsuit would be struck out, and costs assessed against Mr. Uhrik and Ms. Litzius. July 25, 2023 - Mr.

Uhrik wrote the Court and demanded a corrigendum to Uhrik v Barata #1 , alleging numerous complaints about inaccuracies and errors in the Uhrik v Barata decision, disputed aspects of the June 27, 2023 Order of Applications Judge Park, alleged Uhrik v Terrigno #2 was wrongly decided, and made arguments concerning unrelated litigation that does not involve the Defendants. July 28, 2023 - Counsel for the Defendants reviewed litigation to date, and confirmed the Defendants were not aware of the Uhrik v Terrigno #2 court access restrictions prior to Uhrik v Barata #1 .

The Defendants proposed that the Uhrik v Barata Statement of Claim is struck out, “in accordance with the decision ... in [ Uhrik v Terrigno #2 ]”; or, alternatively, that the Uhrik v Barata Statement of Claim should be struck out pursuant to Civil Practice Note 7. July 31, 2023 - Mr. Uhrik submitted an additional letter that continued and expanded on his earlier complaints and demands. August 22, 2023 - I issued Uhrik v Barata , 2023 ABKB 480 ( Uhrik v Barata #2 ) to clarify that the Court would only be considering a request by Mr. Uhrik and Ms.

Litzius for leave to continue the Uhrik v Barata lawsuit, as set in Uhrik v Barata #1 at para 6 . Any other steps are premature, or should instead be directed to the Court of Appeal of Alberta. [ 4 ] On August 25, 2023, my office received a document titled “Leave Application By Tibor Uhrik” that simply seeks “... the Applicant(

S) have leave to continue with this action ...”, and directs the Court to a 524-page Affidavit of Mr. Uhrik sworn on August 25, 2023. This Memorandum of Decision responds to Mr. Uhrik’s leave to continue litigation materials. In brief, this Memorandum of Decision evalutes whether Mr. Uhrik and Ms. Litzius have established the Uhrik v Barata lawsuit has a reasonable basis. II. The Uhrik v Barata , Action No. 2201 12047 Statement of Claim [ 5 ] The Uhrik v Barata lawsuit alleges that Mr. Barata and Carscallen engaged in a range of improper conduct while and after

Mr. Barata and Carscallen were representing Mr. Uhrik and Ms. Litzius between 2016 and September 12, 2019.

In the interests of judicial economy, I will not further detail this litigation in which the Defendants represented the Plaintiffs, however the multiple lawsuits and appeals in question are reviewed in Uhrik v Terrigno #2 and Bank of Nova Scotia v Ellentee Consulting Inc (Wolford) , 2021 ABCA 404 . [ 6 ] The Statement of Claim is a repetitive document, but what can be extracted from it is the core allegations against the Defendants are: 1) negligent failure to collect funds, which appears to be a costs award, from opposing parties, which is “scapegoating of Uhrik and Litzius”; 2) “victimizing” and “bleeding” Mr.

Uhrik and Ms. Litzius by the Defendants seeking to collect $35,000 in legal expenses, which is a breach of “basic Fiduciary duties” and professional obligations; 3) maliciously failing to uncover the bad actions of opposing parties, and/or covering up that bad conduct, leading to ongoing litigation; 4) “abruptly quitting on the Plaintiff’s without reason” (sic); 5) failing to turn over the litigation file to Mr. Uhrik and Ms.

Litzius; 6) “... that the Defendant lawyers either intentionally or willfully assisted [opposing parties] and their ongoing vexatious claims, damages and harm caused and escalating with no end in sight ...”, which is “... malicious prosecution, litigation misconduct and abuse of process ...”; and 7) alleged misrepresentations in court forms “... to intimidate and threaten the plaintiff’s ...” (sic). [ 7 ] On this basis Mr. Uhrik and Ms. Litzius seek $250,000 or more in general damages, and other special, punitive, aggravated, and bad faith damages. III.

Test for Leave to Continue Litigation [ 8 ] “... [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). [ 9 ] 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 .) [ 10 ] This threshold, that 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. [ 11 ] The documents necessary to seek leave are an affidavit to provide evidence, and, in the case of a new Action, Application, Appeal, or other litigation step, a copy of the proposed initiating filing: e.g., Re Moore , 2018 ABQB 261 ; Latham (Re) , 2018 ABQB 906 . [ 12 ] 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). [ 13 ] 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 ; Richardson v MacDonald , 2022 ABQB 274 ); 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 ; Canadian Imperial Bank of Commerce v Hayden , 2021 ABQB 985 , leave to appeal to SCC refused, 40284 (4 May 2023); Rana v Rana , 2022 ABQB 79 ; Canadian Imperial Bank of Commerce v Hayden , 2022 ABQB 97 , leave to appeal to SCC refused, 40284 (4 May 2023); Rana v Rana , 2022 ABQB 111 ; Rana v Rana , 2022 ABQB 114 ; Fiset v Feeney , 2022 ABQB 211 ; Hayden v Alberta Health Services , 2022 ABQB 335 ; Richardson v MacDonald , 2022 ABQB 274 ; Royal Bank of Canada v Anderson , 2022 ABQB 354 ; Canadian Imperial Bank of Commerce v Hayden , 2022 ABQB 498 ; Bissky v MacDonald , 2022 ABKB 774 ; Hayden v Canadian Imperial Bank of Commerce , 2023 ABKB

100 ; Ubah v Ubah , 2023 ABKB 111 ; Rana v Rana , 2023 ABKB 295 ; Canadian Imperial Bank of Commerce v Hayden , 2023 ABKB 384 ; Ubah v Ubah , 2023 ABKB 388 ; Ubah v Association of Professional Engineers and Geoscientists of Alberta , 2023 ABKB 390 ; R v Tican , 2023 ABKB 422 ); 3) where the abusive litigant refuses to provide the proposed filing ( Re Thompson , 2018 ABQB 355 ; Onischuk (Re) , 2019 ABQB 229 ; Hayden v Alberta Health Services , 2022 ABQB 335 ); 4) where the abusive litigant provides false information or fails to provide necessary information ( Re Gauthier , 2018 ABQB 99 ; Rana v Rana , 2022 ABQB 114 ; Bissky v MacDonald , 2022 ABKB 774 ); 5) where the abusive litigant fails to provide materials that are required to evaluate the proposed litigation step, such as a transcript of a proceeding proposed for appeal ( Alberta Treasury Branches v Hok , 2018 ABQB 316 ; Canadian Imperial Bank of Commerce v Hayden , 2021 ABQB 985 , leave to appeal to SCC refused, 40284 (4 May 2023); Rana v Rana , 2022 ABQB 111 ; Hayden v Alberta Health Services , 2022 ABQB 335 ; R v Tican , 2023 ABKB 422 ); 6) where the Court has no jurisdiction over the matter ( Hayden v Alberta Health Services , 2022 ABQB 335 ; Ubah v Ubah , 2023 ABKB 111 ); and 7) where the individual subject to court access restrictions does not have standing to make the leave request ( Ubah v Ubah , 2023 ABKB 388 ). [ 14 ] There is no appeal to the Court of Appeal of Alberta of a decision to deny leave to initiate or continue litigation: r 14.5(4) of the Alberta Rules of Court , Alta Reg 124/2010 ; Re Gauthier , 2018 ABCA 14 at para 8 .

A litigant who is denied leave to initiate or continue litigation by the Court of King’s Bench of Alberta may, however, seek leave from the Supreme Court of Canada. III. Leave to Continue the Uhrik v Barata Lawsuit is Denied [ 15 ] I conclude that the request by Mr. Uhrik and Ms. Litzius to continue the stayed Uhrik v Barata lawsuit should be dismissed. The reason why is simple. Despite having submitted to the Court an over 500-page Affidavit, Mr.

Uhrik has not satisfied the obligation that the Plaintiffs prove, on a balance of probabilities, that there is a reasonable basis for the Uhrik v Barata lawsuit. [ 16 ] Broadly, Mr. Uhrik seems to reject that standard of proof. He argues he and Ms. Litzius are “deemed innocent”, which is incorrect, or irrelevant, in this context. Rather, following Uhrik v Terrigno #2 , the Uhrik v Barata lawsuit is presumed to be an abusive proceeding that should not proceed: Re Thompson , 2018 ABQB 87 at para 19 . It is up to the Plaintiffs to prove otherwise. Mr.

Uhrik also incorrectly argues that the onus is on the Defendants to prove the Uhrik v Barata litigation has no basis, and criticizes the Defendants for not proving that. Again, that is not the correct test, and, for clarity, when preparing this Memorandum of Decision, I did not refer to the filings by the Defendants in relation to the stayed

summary judgment Application. Those materials are outside the leave to continue process currently underway. [ 17 ] In the interests of judicial economy I will not review and evaluate in this Memorandum of Decision the large majority of arguments and documents in the Uhrik Affidavit because most of that material is entirely irrelevant to the question of whether Mr. Uhrik and Ms. Litzius have established their lawsuit against their former lawyers has a reasonable basis. For example, Mr. Uhrik argues he and Ms.

Litzius should not be subject to Court access restrictions, and at paragraph 25 of the Affidavit states: Respectfully we have sought leave to Appeal the Bourque Decision and maintain our innocence and that the Honourable Justice misapprehended relevant and key evidence or confused the evidence before him due to Mr. Terrignos's abuse of process on orders that he never Appealed but "judge" shopped repeatedly by the filing of numerous duplicitous or near identical applications lost and unappealed by him to obtain a varied result.

He then continues to argue that ongoing Court of Appeal of Alberta and Supreme Court of Canada proceedings apparently mean Mr. Uhrik and Ms. Litzius are not bound (or should not be bound) by the court access restrictions imposed in Uhrik v Terrigno #2 . That is entirely irrelevant to the Uhrik v Barata lawsuit and its potential merit. Furthermore, simply raising that argument is a collateral attack on Uhrik v Terrigno #2 , and an abuse of this Court and its processes. [ 18 ] Similarly, Mr. Uhrik makes many allegations about the status and merit of other unrelated litigation.

That, too, is of no relevance to the potential merit of the Uhrik v Barata lawsuit. [ 19 ] Another repeating pattern is that Mr. Uhrik has provided no support for many of allegations in the Statement of Claim. Instead, both that pleading and the Affidavit provide nothing beyond “bald allegations”: GH v Alcock , 2013 ABCA 24 at para 58 ; Mancuso v Canada (National Health and Welfare) , 2015 FCA 227 at paras 16-20 . To establish a valid basis for the Uhrik v Barata lawsuit, Mr. Uhrik and Ms.

Litzius must provide the “... who, when, where, how and what gave rise to its liability.”: Mancuso v Canada (National Health and Welfare) at para 19 . [ 20 ] Instead, for example, the Statement of Claim and Affidavit provide no support at all: 1) for allegations there was collaboration between the Defendants and opposing parties; 2) that “records [were] held hostage”; and 3) that the Defendants terminating their representation of Mr. Uhrik and Ms.

Litzius had some malevolent, and/or conspiratorial aspect. [ 21 ] I also conclude that the Affidavit provides no support that the billing by the Defendants was improper, or that collection of a

debt that was tested and validated by the Court is improper. Again, Mr. Uhrik and Ms. Litzius provide no basis for claims such as: ... the Defendants took advantage of our vulnerability and then started their own proceedings to collect further funds from us in some form of collusion with the adversaries that they initially acted against for us. I note that Mr. Uhrik and Ms.

Litzius now disputing the amount billed by the Defendants is arguably a collateral attack on the Assessment Officer’s review and Certificate of Review and Court Order that established a $31,174.88 debt owed by the Plaintiffs to the Defendants. [ 22 ] Mr. Uhrik also makes the legal argument that Alberta jurisprudence requires that when a lawyer is sued in negligence, then that lawyer must introduce legal expert evidence on a lawyer’s standard of care, citing in particular Kostic v Thom , 2021 ABCA 406 . Mr.

Uhrik appears to argue that since the Defendants have not presented any such expert evidence, that means the Uhrik v Barata lawsuit should proceed. The problem here, again, is that Mr. Uhrik is getting the onus of proof backwards. In a leave to continue litigation application, it is up to him and Ms. Litzius to provide a foundation for their lawsuit, not the Defendants . I will not decide whether or not Mr. Uhrik and Ms.

Litzius must present expert evidence to establish standard of care and negligence of the Defendants in the context of a leave request, but simply note that failure to provide such is a negative factor in my considerations. [ 23 ] The closest that the Uhrik Affidavit comes to establishing some basis for wrongdoing by the Defendants is a claim that the Defendants acted improperly in relation to a $7,248.25 costs award made in favour of Mr. Uhrik and Ms. Litzius by the Court of Appeal of Alberta. The Uhrik Affidavit does include email communications circa October 2020 in which Mr. Uhrik instructs Mr.

Barata to conduct collection processes for this amount. However, that communication is over a year after the solicitor-client relationship between the Plaintiffs and Defendants was terminated. As such, that provides little to no basis for a claim of lawyer misconduct, let alone conspiracy and collusion, without much further supporting information. [ 24 ] Finally, I note that Mr. Uhrik and Ms. Litzius have provided no basis at all to explain an over $250,000 claim against the Defendants, either in particulars of their personal circumstances and status, or in monetary injury.

Excessive or impossible remedies make litigation a hopeless proceeding that is an abuse of the Court: Unrau v National Dental Examining Board , 2019 ABQB 283 at para 620- 625 . I find that principle applies here, particularly since Mr. Uhrik and Ms. Litzius, at the very best, provided some foundation for the $7,248.25 claim, and even in that case, there is no loss to Mr. Uhrik and Ms. Litzius of $7,248.25 because they have a Court judgment for that amount.

In short, their complaint is that a then third party to litigation, their former counsel and current Defendants, did not provide a service for them on demand. [ 25 ] For these reasons I conclude Mr. Uhrik and Ms. Litzius have not established a reasonable basis for the Uhrik v Barata lawsuit, and, instead, have done the opposite, and established this proceeding is an abuse of the Court and the Defendants, and therefore should be terminated, immediately. I order the Statement of Claim is permanently stayed as an abuse of Court and the Action is therefore terminated. IV.

Costs [ 26 ] The Uhrik v Barata Statement of Claim is permanently stayed as an abuse of the Court, and the Action is therefore terminated. The Defendants are entirely successful, so they are presumptively entitled to costs: r 10.29(1) of the Alberta Rules of Court . This Court awards lump sum costs awards when faced by litigants who engage in plainly abusive litigation. A lump sum award brings problematic litigation to a timely and conclusive endpoint: e.g., Rana v Rana , 2022 ABQB 139 , following Fiander v Mills , 2015 NLCA 31 . Here, Mr. Uhrik and Ms.

Litzius exhibit a long established pattern of disputing any and all court steps and decisions: Uhrik v Terrigno #2 ; Bank of Nova Scotia v Ellentee Consulting Inc (Wolford) . This pattern of problematic litigation conduct has also been demonstrated in this proceeding: Uhrik v Barata #1 and Uhrik v Barata #2 . [ 27 ] Put another way, the usual approach to awarding costs in favour of the Defendants simply gives Mr. Uhrik and Ms. Litzius yet another opportunity to inflict harm on the Defendants.

Thus, lump sum costs to end this matter are appropriate. [ 28 ] I also conclude, in evaluating costs, that criteria in r 10.33 of the Alberta Rules of Court are relevant here, given the abusive character and baseless nature of the Statement of Claim. In particular, I am very concerned that Mr. Uhrik and Ms. Litzius concealed from the Defendants that the Uhrik v Terrigno #2 Memorandum of Decision had stayed the Uhrik v Barata lawsuit: Uhrik v Barata #1 at para 5 . In light of these considerations, I order that Mr. Uhrik and Ms.

Litzius each pay the Defendants $2,500 in costs, forthwith, for a total costs award of $5,000. V. Conclusion [ 29 ] The Uhrik v Barata Action No. 2201 12047 Statement of Claim is permanently stayed as an abuse of Court, and the Action is therefore terminated. [ 30 ] Mr. Uhrik is ordered to pay the Defendants $2,500, jointly, forthwith. Ms. Litzius is ordered to pay the Defendants $2,500, jointly, forthwith. [ 31 ] Counsel for the Defendants shall prepare the Order giving effect to this Memorandum of Decision. Mr. Uhrik and Ms.

Litzius’ approval of the form and content of that Order is dispensed with pursuant to the Alberta Rules of Court . Mr. Uhrik and Ms. Litzius shall be served the Memorandum of Decision and Order by email to: petertiborjackson@me.com . [ 32 ] Pursuant to my obligations to provide information to self-represented persons ( Pintea v Johns , 2017 SCC 23 ), concerning their litigation options, if Mr. Uhrik and/or Ms. Litzius disagree with this Memorandum of Decision, then their remedy is to seek leave to appeal from the Supreme Court of Canada.

Dated at the City of Edmonton, Alberta this 12 th day of September, 2023. K.G. Nielsen A.C.J.C.K.B.A. Appearances by Submissions: Tibor Uhrik for the Self-represented Litigants Tibor Uhrik and Lieselotte Litzius Zul Verjee KC for the Defendants Ryan Barata and Carscallen LLP.