Hayden v Canadian Imperial Bank of Commerce, 2023 ABKB 100

Court of King’s Bench of Alberta Citation: Hayden v Canadian Imperial Bank of Commerce, 2023 ABKB 100 Date: 20230222 Docket: 2301 02341 Registry: Calgary Between: Ingrid Hayden Proposed Appellant - and - Canadian Imperial Bank of Commerce, Annie Shah, Stony Trang, Anson Ye, Shilpli Srivastava, and Jaspreetk Brar Proposed Respondents _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] Ingrid Hayden (Ms.

Hayden) is a person who has engaged in extensive litigation that involves many different opposing parties in the Court of King’s Bench of Alberta, the Court of Appeal of Alberta, and who has on six occasions sought leave to appeal from the Supreme Court of Canada. On November 17, 2020, Ms. Hayden was made subject to prospective court access gatekeeping in a decision of Neufeld J reported as Hayden v Hayden , 2020 ABQB 700 , leave to appeal denied 2021 ABCA 202 ( Hayden v Hayden #1 ). The effect of Hayden v Hayden #1 is that Ms.

Hayden must obtain permission - “leave” - prior to initiating litigation in the Court of King’s Bench of Alberta. Ms. Hayden has a record of ignoring this requirement: Canadian Imperial Bank of Commerce v Hayden , 2022 ABQB 593 ( CIBC v Hayden #5 ); Hayden v Hayden , 2022 ABKB 648 ( Hayden v Hayden #2 ). [ 2 ] On January 16, 2023, Ms. Hayden submitted to the Court by email a leave Application to file an Appeal of a December 9, 2022 oral Decision of Judge Shannon of the Provincial Court of Alberta in Canadian Imperial Bank of Commerce v Hayden , Action No.

P2190102705 ( ABPC Action ). Shannon PCJ on that date: 1) granted an Application to set aside a Noting In Default by Ms. Hayden; 2) dismissed a Counterclaim filed by Ms. Hayden against Canadian Imperial Bank of Commerce (CIBC), Annie Shah, Stony Trang, Anson Ye, Shilpli Srivastava, and Jaspreetk Brar (the Counterclaim Defendants); and 3) granted

Summary Judgment in favour of CIBC for $11,470.35 and $225 in costs. [ 3 ] In her initial email Ms. Hayden reported that she had ordered a transcript of the December 9, 2022 proceeding. That transcript was received on January 24, 2023. On January 25, 2023 Ms. Hayden inquired if her leave to appeal Application should also include documents filed in the Provincial Court proceeding. Additional materials were then received from Ms. Hayden on February 7, 2023. [ 4 ] Ms. Hayden’s leave to appeal Application was originally directed to now retired Associate Chief Justice Rooke, who was designated to respond to Ms.

Hayden’s litigation. I have taken that jurisdiction as an Administrative Justice of the Court of King’s Bench of Alberta. II. Test for Leave to File [ 5 ] “... [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). [ 6 ] 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 .) [ 7 ] 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. [ 8 ] 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 initiating filing: e.g., Re Moore , 2018 ABQB 261 ; Latham (Re) , 2018 ABQB 906 . [ 9 ] 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). [ 10 ] 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 ; Rana v Rana , 2022 ABQB 79 ; Canadian Imperial Bank of Commerce v Hayden , 2022 ABQB 97 ; 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 ); 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 ; Rana v Rana , 2022 ABQB 111 ; Hayden v Alberta Health Services , 2022 ABQB 335 ); and 6) where the Court has no jurisdiction over the matter ( Hayden v Alberta Health Services , 2022 ABQB 335 ).

[ 11 ] There is no appeal to the Court of Appeal of Alberta of a decision to deny leave: 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 by the Court of King’s Bench of Alberta may, however, seek leave from the Supreme Court of Canada. III. Analysis [ 12 ] Ms. Hayden has included an unfiled document titled “Application by Ingrid Hayden - Plaintiff” that I interpret to be her proposed Court of King’s Bench of Alberta appeal. That document lists the follow seven remedies: 1.

Setting aside Judge GP Shannon Order, dated December 9, 2022, (not filed) 2. Setting aside Judge G.P Shannon cost award, (not filed) 3. An Order for the release of my Freedom of Information documents, dated April 14, 2022, from CIBC, Freedom of information. Withheld from me by Jordan Gruman. 4. An Order for Jordan Gruman to confirm when his representation started concerning codefendants, other than CIBC. 5. An Order for Jordan Gruman to follow obligations, when a party is added. No representation of Anson Ye, Stoney Tran and other co-defendants is on record in the Court file, other than CIBC. 6.

An Order to submit new evidence, which was denied by Judge Shannon 7. An Order for cost of this application (Sic, emphasis in original.) [ 13 ] The grounds for the appeal are: 1.

Summary judgement was granted despite contentious and disputed facts 2. Judge G. P. Shannon eared in dismissing my default judgement against Stoney Tran and Anson Ye, citing that the Agent failed to submit a dispute note on their behalf for almost a year. Despite the fact that the defendants were personally served , and acknowledged they were personally served and knew from the dispute note that they had 20 days to respond. They had over a year to inquire about their lawsuit, but chose not to. The Agent was not sued, they were sued. 3. Judge G.P. Shannon eared in granting

summary dismissal to defendants without giving me the opportunity to be heard. I was denied an opportunity to be heard and to submit evidence, that would have made a difference in the outcome of the hearing 4. All documents submitted by the Counsel, Jordan Gruman, only has Canadian Imperial Bank of Commerce as a party. Jordan Gruman application, his change of representation, his letter to me regarding application, November 7 and June 29, 2022, all have only CIBC as a party, Exhibit I. 5.

No dispute note was submitted from Anson Ye or Stoney Tran. (Sic, emphasis in original.) [ 14 ] As a preliminary point, certain of these proposed remedies are outside the scope of this Court’s potential jurisdiction at this stage. Remedies numbered 3, 4, and 5 do not relate to the December 9, 2022 decision made by Shannon PCJ. There is nothing for this Court to review in relation to these points. [ 15 ] Similarly, remedy 6, an order “... to submit new evidence ...”, is an issue that could be advanced if Ms. Hayden’s proposed appeal were to proceed to a full hearing.

At this point any evaluation of whether new evidence should be permitted is premature. Also, Ms. Hayden’s claim that she sought an Order in relation to new evidence is not supported by the transcript of the December 9, 2022 hearing. Similarly, ground 3 for the proposed Appeal Application - Ms. Hayden’s claim that she was denied an opportunity to be heard and present evidence - is not correct on the record she herself has introduced. A.

Summary Judgment Against Ms. Hayden [ 16 ] Ms. Hayden’s proposed Appeal Application and January 7, 2023 Affidavit allege that the

Summary Judgment granted in favour of CIBC should be appealed. Ms. Hadyen states that

Summary Judgment should not have occurred since there were “contentious and disputed facts” and “... there is definitely a lot of contentious disputed facts.” This claim is a bald allegation. No such disputed facts concerning the September 22, 2021 Statement of Claim filed by CIBC in the ABPC Action are identified in Ms. Hayden’s materials. [ 17 ] Ms. Hayden has the onus to establish a reasonable basis for her appeal of Shannon PCJ granting

Summary Judgment in favour of CIBC. She, instead, has provided no basis at all for that claim. Further, the complete absence of any basis for the proposed ground for appeal means this aspect of Ms. Hayden’s litigation is an abuse of process: GH v Alcock , 2013 ABCA 24 at para 58 ; Mancuso v Canada (National Health and Welfare) , 2015 FCA 227 at paras 16-20 . Ms. Hayden thus has not only failed to satisfy her obligation to establish a basis for her proposed appeal, but, further, her seeking leave for this aspect of the proposed appeal is an abuse of this Court. B. Re-Opening Noting in Default

[ 18 ] Ms. Hayden’s Counterclaim was against CIBC but also a number of CIBC employees. It appears that no timely Dispute Note to Counterclaim was filed for two of these employees: Stony Trang and Anson Ye. Shannon PCJ in his oral decision set aside Ms. Hayden having noted these two Defendants by Counterclaim in default, explaining that Counsel for the Defendants by Counterclaim had established the three Kraushar v Kraushar , 2019 ABCA 186 criteria: 1) there was no undue delay, 2) there is an arguable defence to Ms. Hayden’s Counterclaim, and 3) the late Dispute Note is explained by confusion resulting from Ms.

Hayden independently serving CIBC employees and CIBC, and that the Defendants by Counterclaim had a change of counsel. [ 19 ] I understand Ms. Hayden makes two arguments for why she has a reasonable basis to challenge the decision of Shannon PCJ on this point. First, Ms. Hayden argues a kind of strict rule for default judgment, that since Stony Trang and Anson Ye were served personally, they never can be excused for not having made a timely defence. That is contrary to Alberta Rules of Court and Kraushar v Kraushar . I reject that argument. [ 20 ] Second, Ms.

Hayden argues something nefarious happened when CIBC changed lawyers. I do not understand exactly what Ms. Hayden alleges, beyond that she makes claims that the current lawyer representing CIBC and the other Defendants by Counterclaim was, in some manner, improper. Ms. Hayden demands to know the circumstances of his representation. However, none of this is relevant to the question of setting aside the Noting In Default, besides that a switch in counsel is a potential reasonable basis to explain an incomplete response to Ms. Hayden’s Counterclaim. On this second point, Ms.

Hayden is ultimately, at most, challenging a finding of fact by Shannon PCJ that is due deference on review. [ 21 ] I conclude that Ms. Hayden has not established a reasonable basis for this Court to review whether Shannon PCJ erred in setting aside the Noting In Default. C. Striking Out Ms. Hayden’s Counterclaim [ 22 ] Ms. Hayden’s basis for why she disputes the striking out of the Counterclaim by Shannon PCJ is opaque from her submitted materials. However, what is clear from the Counterclaim filed by Ms. Hayden is that her complaint is that in 2020 Ms.

Hayden took steps with CIBC to obtain a consolidated loan for Ms. Hayden’s various debts. That consolidated loan was never completed. Ms. Hayden complains that CIBC and its employees and agents acted improperly, and so Ms. Hayden was illegally denied a loan by CIBC. That, ultimately, is the crux of the Counterclaim. [ 23 ] Counsel for the Defendants by Counterclaim argues that what Ms. Hayden was doing in the Counterclaim in the ABPC Action is re-litigating issues and questions that had already been decided by the Court of King’s Bench of Alberta. That is unquestionably correct. Ms.

Hayden has, in fact, litigated this exact point on no less than four previous occasions before the Court of King’s Bench of Alberta: • Canadian Imperial Bank of Commerce v Hayden , 2021 ABQB 647 at paras 10-13 ( CIBC v Hayden #1 ) - Rooke ACJ rejected the consolidation loan misconduct claims as: 1) having no basis in contract law, 2) being nothing but bald allegations, and 3) this claim was an abuse of process; • Canadian Imperial Bank of Commerce v Hayden , 2021 ABQB 985 at paras 17-19 - Rooke ACJ concluded that Ms.

Hayden’s proposed Applications Judge appeal was a collateral attack on CIBC v Hayden #1 , and attempted to once again re-litigate the same consolidation loan misconduct claims; • Canadian Imperial Bank of Commerce v Hayden , 2022 ABQB 97 at paras 15-17 - in a further leave to file Application, Ms.

Hayden once again advanced consolidation loan claims that were rejected by Associate Chief Justice Rooke as “... persistent, repeated re-litigation ... an abuse of the Court and CIBC”; and • Canadian Imperial Bank of Commerce v Hayden , 2022 ABQB 498 - Associate Chief Justice Rooke rejected a further leave Application by Ms. Hayden seeking to re-open her foreclosure, advancing previously rejected arguments, and alleging that the ABPC Action then underway somehow negated the foreclosure process. [ 24 ] At this point Ms.

Hayden simply ceased using the leave to file Application process and, as reported in CIBC v Hayden #5 , ignored the procedure imposed to manage Ms. Hayden’s abusive litigation, and “... breached the terms of her Court access restrictions knowingly and intentionally. ...” ( CIBC v Hayden #5 at para 3 ). That led to an improper chambers appearance ( CIBC v Hayden #5 at para 4 ). [ 25 ] Ms.

Hayden’s current leave to appeal Application thus seeks to appeal claims that have been evaluated and rejected on four separate occasions by the Provincial Court of Alberta and the Court of King’s Bench of Alberta as re-litigation of issues that were settled in CIBC v Hayden #1 . I conclude that Ms. Hayden has not established a reasonable basis to challenge Shannon PCJ’s decision to dismiss the Counterclaim in the ABPC Action . In the Counterclaim, Ms. Hayden was engaged in obvious, repeated, abusive re-litigation of settled issues, and conducting a collateral attack on CIBC v Hayden #1 . Ms.

Hayden’s attempt to conduct an appeal of the conclusion of Shannon PCJ on the basis is an abuse of the Court. D. Conclusion [ 26 ] Ms. Hayden’s proposed appeal of the ABPC Action December 9, 2022 Decision of Shannon PCJ is rejected. IV. Managing Ms. Hayden’s Court Activities [ 27 ] This leave to appeal Application continues Ms. Hayden’s pattern of persistent, repeated, abusive litigation activities. Ms. Hayden was made subject to Court Access Restrictions in 2020: Hayden v Hayden #1 . Additional litigation and litigant management

steps were imposed by Associate Chief Justice Rooke in CIBC v Hayden #5 . Ms. Hayden was warned that repeated abuse of this Court’s leave to initiate litigation proceedings mechanisms would lead to punitive steps. To date, the Court has imposed a total $11,000 in r 10.49(1) of the Alberta Rules of Court penalties on that basis: CIBC v Hayden #5 at para 2 . Ms. Hayden has paid nothing. [ 28 ] Associate Chief Justice Rooke in recent judgments has commented on how Ms. Hayden is essentially out of control: There is no point in further reviewing and recapturing Ms. Hayden’s dismal litigation record.

That is detailed in prior decisions of this Court and the Alberta Court of Appeal. I will simply conclude that Ms. Hayden is utterly uncompliant with this Court’s attempts to manage her litigation. She has repeatedly and relentlessly abused this Court and opposing parties. Ms. Hayden now does not even simulate compliance with this Court’s attempts to manage her litigation, with the aim that the foreclosure of her residence is conducted in a procedurally fair and legally correct manner. Instead, Ms. Hayden has made a mockery of this Court, its processes, and the Alberta Rules of Court . Ms.

Hayden has brought the administration of justice into disrepute. ( CIBC v Hayden #5 at para 5 .) I have exhausted the Court’s mechanisms to manage Ms. Hayden, as they were defined and limited by the Alberta Court of Appeal in Jonsson v Lymer , 2020 ABCA 167 . I simply cannot take any useful steps to achieve the policy objective set by Chief Justice Wagner in British Columbia (Attorney General) v Council of Canadians with Disabilities [2022 SCC 27 at para 1]. Instead, predictably, Ms. Hayden will take additional future steps to achieve her intended objectives: to do whatever she wants, however she wants it.

This ridiculous farcical festival will now continue to cycle over and over, around and around, with no end in sight. ... ( Hayden v Hayden #2 at para 13 .) As this Memorandum of Decision illustrates, Associate Chief Justice Rooke’s prediction was correct. [ 29 ] Ms. Hayden has been repeatedly instructed and cautioned concerning her abusive litigation. Ms. Hayden has been warned and then penalized for her abuse of the Court’s leave process. Ms.

Hayden’s leave to appeal Application should warrant a further r 10.49(1) of the Alberta Rules of Court penalty since she is making baseless claims and re-litigating long settled issues. However, I will not impose a further such penalty because to do so is pointless. Ms. Hayden cannot be deterred in that way. Ms. Hayden will not comply with this Court’s Orders. The result is Ms.

Hayden is effectively unmanageable, and will, in all likelihood, make yet further hopeless and abusive leave applications. [ 30 ] This state of affairs would seem incompatible with how Wagner CJC in British Columbia (Attorney General) v Council of Canadians with Disabilities , 2022 SCC 27 at para 1 indicated this Court is obligated to triage abusive litigation, because that is “access to justice”: Access to justice depends on the efficient and responsible use of court resources.

Frivolous lawsuits, endless procedural delays, and unnecessary appeals increase the time and expense of litigation and waste these resources . To preserve meaningful access, courts must ensure that their resources remain available to the litigants who need them most - namely, those who advance meritorious and justiciable claims that warrant judicial attention. (Emphasis added.) However, as Rooke ACJ observed in Hayden v Hayden #2 at para 14 , “... such is the state of things in Alberta courts, because that is ‘the law’.” [ 31 ] Ms. Hayden shall be served this Memorandum of Decision by email.

I direct a copy of this Memorandum of Decision is provided to Counsel for the proposed Respondents. As previously indicated, if Ms. Hayden disagrees with the outcome of her leave to appeal Application, she should seek leave from the Supreme Court of Canada. Dated at the City of Calgary, Alberta this 22 nd day of February, 2023. K.G. Nielsen A.C.J.C.K.B.A. Appearances: Ingrid Hayden

Self-represented Litigant