Ubah v Ubah, 2023 ABKB 388

Court of King’s Bench of Alberta Citation: Ubah v Ubah, 2023 ABKB 388 Date: 20230626 Dockets: FL01 37992; 4801 194949 Registry: Calgary Between: Chinedu Gideon Ubah Proposed Plaintiff/Applicant - and - Geraldine Chiderah Ubah Proposed Defendant/Respondent _______________________________________________________ Memorandum of Decision of Associate Chief Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] Chinedu Gideon Ubah (Mr. Ubah) is an abusive litigant active in the Alberta and Federal Courts, which has led to Mr.

Ubah being declared a vexatious litigant in both jurisdictions: Ubah v Canadian Natural Resources Limited , 2019 ABQB 692 at para 183 , leave to appeal denied in

part 2020 ABCA 209 , court access restrictions varied in

part 2021 ABCA 5 , leave to appeal to SCC refused, 39757 (13 January 2021) ( Ubah #4 ); Canada (Attorney General) v Ubah , 2021 FC 1466 , aff’d 2023 FCA 26 . Recently, Mr. Ubah’s court access restrictions before the Court of King’s Bench of Alberta were updated and revised in Memoranda of Decision reported as

Ubah v Ubah , 2022 ABKB 753 ( Ubah #16 ) and Ubah v Ubah , 2022 ABKB 789 ( Ubah #17 ). [ 2 ] My office has received by registered mail a package of materials from Mr. Ubah. The cover letter, dated June 2, 2023, indicates Mr. Ubah seeks to obtain permission of the Court - “leave” - to file a proposed Application titled “Application by CHINEDU GIDEON UBAH (Applicant)” (proposed Application). The remedies sought in the proposed Application are: 1. A Declaration pursuant to s 52 of The Constitution Act, 1982,

Schedule B to the Canada Act 1982 (UK), 1982, c 11 , that the November 28, 2022 decision/order of this Court infringes s 7, 12, 15(1) of the Canadian Charter of Rights and Freedoms,

Part 1 of The Constitution Act, 1982 , and that the

section is incapable of being saved pursuant to s 1 of the Charter . 2. A Declaration pursuant to s 52 of The Constitution Act, 1982,

Schedule B to the Canada Act 1982 (UK), 1982, c 11 , that the November 14, 2022 decision/order of this Court infringes s 7, 12, 15(1) of the Canadian Charter of Rights and Freedoms,

Part 1 of The Constitution Act, 1982 , and that the

section is incapable of being saved pursuant to s 1 of the Charter . 3. A Declaration pursuant to s 52 of The Constitution Act, 1982,

Schedule B to the Canada Act 1982 (UK), 1982, c 11 , that the August 09, 2022 decision/order of this Court infringes s 7, 12, 15(1) of the Canadian Charter of Rights and Freedoms,

Part 1 of The Constitution Act, 1982 , and that the

section is incapable of being saved pursuant to s 1 of the Charter . 4. A declaration that a court inherent motion or resulting decision/order thereof that is conflict with the Judicature Act unauthorized or invalid. 5. A declaration that a vexatious order issued without notice to the Alberta Minister of Justice and Solicitor General is invalid and unconstitutional and Rule 14.5(1)(

j) and 14.5(4) does not apply. (Sic.) [ 3 ] The June 2, 2023 proposed Application is a variation on an earlier proposed Application that this Court denied in

part in a Memorandum of Decision reported as Ubah v Ubah , 2023 ABKB 111 ( Ubah #18 ). However, this Court did not take jurisdiction over what might be intended as a constitutional challenge to rr 14.5(1)(

j) and 14.5(4) of the Alberta Rules of Court , Alta Reg 124/2010 : Ubah #18 at paras 19-22. [ 4 ] After that Mr. Ubah appealed Ubah #18 to the Court of Appeal of Alberta, which resulted in two decisions of Slatter JA. In the first Reasons for Decision, Ubah v Ubah , 2023 ABCA 143 ( Ubah ABCA #7 ), Justice Slatter concluded that: 1) the Court of King’s Bench of Alberta did have jurisdiction to consider Mr. Ubah’s entire leave to file application (para 7); and 2) “... there is no air of reality to the argument that R. 14.5(1)(

j) and 14.5(4) are unconstitutional or invalid as the applicant proposes to argue. ...” (para 8). [ 5 ] Mr. Ubah then demanded that Slatter JA revise the Ubah ABCA #7 decision. Slatter JA issued further Reasons for Decision, Ubah v Ubah , 2023 ABCA 158 ( Ubah ABCA #8 ), that state: ... The applicant argues that under s. 24(2) of the Charter any person whose rights have been breached can apply to a court of competent jurisdiction for a remedy. That does not mean, however, that persons who have a history of misusing court proceedings are entitled to bring constitutional challenges without limits .

The gatekeeping function of a vexatious litigant order applies to constitutional litigation. ... The court is always reluctant to decide important constitutional issues unless there is a full adversarial context, and the constitutional arguments are presented by trained professionals . In this case there is no air of reality to the suggestion that the Rules of Court are unconstitutional, and in any event any such challenge by a vexatious litigant should generally only proceed if the arguments are made by counsel . (Emphasis added.) [ 6 ] Mr.

Ubah’s proposed Application is part of an Affidavit affirmed on June 1, 2023. This Affidavit provides no information at all on the purported basis for the Charter -related claims reproduced above. Instead, the two relevant paragraphs of the Affidavit, for the purposes of this Memorandum of Decision, are: 6. I undertake that if leave to continue is granted I will provide notice by serving the application material to the Alberta Minister of Justice and Solicitor General and the Attorney General of Canada as required by section 24(1) of the Judicature Act, RSA 2000, c J-2 . 7.

I also undertake that I will diligently prosecute the proceeding including finalizing arrangements to be represented by a lawyer to argue the issue/matter (constitutionality question and applicability) in Court. [ 7 ] As I explained in Ubah #18 at para 4, I will take jurisdiction of this leave to file request, despite the proposed Application being nominally affiliated with the family law subject dispute between Mr. Ubah and his spouse, Geraldine Chiderah Ubah, that is under case management by Justice Kuchar: Ubah #16 at paras 27-36. II.

Test for Leave to File [ 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 ; Christofi v Taing , 2023 ABKB 344 ); 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 ); and 6) where the Court has no jurisdiction over the matter ( Hayden v Alberta Health Services , 2022 ABQB 335 ; Ubah v Ubah , 2023 ABKB 111 ). [ 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. Analysis [ 15 ] Mr. Ubah’s proposed Application is rejected on multiple independent bases. [ 16 ] Mr. Ubah does not have standing to bring this leave to file request. Mr. Ubah submitted his leave request personally, as a self- represented litigant. Despite parts of Mr. Ubah’s remedies making no sense, such as Mr. Ubah implicating

section 1 of the Canadian Charter of Rights and Freedoms ( The Constitution Act , 1982,

Schedule B to the Canada Act 1982 (UK) , 1982, c 11 ( Charter ) in relation to Court judgments, Mr. Ubah is clearly attempting to conduct some kind of Charter -based challenge. I conclude that Ubah ABCA #8 sets a binding rule on this Court that any leave request by a person subject to court access restrictions must be conducted by a lawyer, where the proposed litigation involves Charter challenges to legislation and/or Canadian legal processes, see also Rana v Rana , 2023 ABKB 324 at paras 20-21 . This is the first basis on which I refuse to grant leave to Mr. Ubah’s proposed Application. Mr.

Ubah does not have standing to bring this leave request. [ 17 ] If I am incorrect and Mr. Ubah does have standing to conduct his leave to file request, I refuse leave on multiple additional

bases. First, the Court of Appeal of Alberta already decided that Mr. Ubah’s Charter application, whatever it is, has no merit: UbahABCA #7 at para 8. That finding is binding on this Court. I conclude Mr. Ubah knows that, and draw a negative inference from himsubmitting a leave to file request that has no possibility of success on the basis of binding case authority. [18] Second, Mr.

Ubah’s proposed Application and its supporting evidence completely fail the Mackay v Manitoba, (SCC), [1989] 2 SCR 357, 61 DLR (4th) 485 requirement that a factual foundation, or an alleged factual foundation, is an absoluterequirement for pleadings that seek potential relief pursuant to the Charter. For example, Mr. Ubah alleges Charter s 12 is implicated inmany ways. That provision states: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”However, Mr.

Ubah provides no information at all as to what is the allegedly prohibited treatment or punishment, or how that is “crueland unusual”. The same is true for Mr. Ubah’s claims about Charter s 15, which prohibits discrimination. Mr. Ubah does not identifywhat alleged discrimination has occurred. In fact, Mr. Ubah’s materials never use the words “discriminate” or “discrimination” at all. [19] Mr. Ubah knows his materials are defective in this sense, because in Ubah #18 at paras 23-26 I identified and explained thisexact issue. Nevertheless, Mr. Ubah has ignored that requirement. I draw a negative inference from Mr.

Ubah making the same proposedApplication, with the same pleadings deficiencies that Mr. Ubah was already informed about. That is another separate basis on which Ireject Mr. Ubah’s leave request. [20] Third, Mr. Ubah is seeking to re-litigate questions in which Mr. Ubah has already exhausted any right to further litigate. As isexplicitly reviewed in Ubah #18 at paras 15-18, Mr. Ubah’s proposed Application is a collateral attack on decisions of this Court and theCourt of Appeal of Alberta. Again, Mr.

Ubah knows this, but has completely ignored this Court’s rulings and directions, which is apattern that has now gone on for over four years. Mr. Ubah’s conduct again raises a negative inference that Mr. Ubah will not complywith this Court’s instructions, and acknowledge its rulings. IV. Conclusion [21] Mr. Ubah’s leave to file request for the proposed Application is rejected. Pursuant to my obligations to provide information toself-represented persons (Pintea v Johns, 2017 SCC 23), concerning their litigation options, if Mr.

Ubah disagrees with thisMemorandum of Decision, then his remedy is to seek leave to appeal from the Supreme Court of Canada. [22] As I have reviewed above, Mr. Ubah’s proposed Application is hopeless on multiple bases, and was made in open defiance ofthe instructions of the Court of Appeal of Alberta, and ignored multiple rulings of this Court, provided in detail, in Ubah #18. [23] Mr.

Ubah is an example of a growing collection of self-represented litigants who are subject to court access restrictions, andeven further stringent communications and litigation structuring steps, but, nevertheless, are entirely unmanageable. Mr. Ubahknowingly uses litigation processes to harm others: Ubah #16 at paras 13-18. His most recent proposed Application is just anotherexample of how Mr.

Ubah flouts the Court’s authority, wastes its resources, and pays no attention to any attempt to modulate andmanage his court activities. [24] This Court has in the past imposed a r 10.49(1) of the Alberta Rules of Court, Alta Reg 124/2010, penalty in an attempt toinduce compliant behaviour in Mr. Ubah: Ubah v Ubah, 2022 ABQB 512; Ubah v Ubah, 2022 ABQB 534 (Ubah #15). A $4,000 r10.49(1) of the Alberta Rules of Court penalty was imposed on Mr. Ubah in Ubah #15 at para 12. [25] Given Mr.

Ubah’s conduct that I have reviewed above, I conclude a further r 10.49(1) of the Alberta Rules of Court penaltyshould be assessed in response to Mr. Ubah’s open, flagrant, and intentional abuse of this Court’s leave process, of $6,000.00. Thatamount shall be paid to the Clerk of the Court forthwith. [26] This Court will prepare the Order giving effect to this Memorandum of Decision. Mr. Ubah’s approval of the form andcontent of that Order is dispensed with. This Memorandum of Decision and Order shall be served on Mr. Ubah to the email address onMr. Ubah’s proposed Application: ubah.chinedu@yahoo.com.

Dated at the City of Edmonton, Alberta this 26th day of June, 2023. K.G. Nielsen A.C.J.C.K.B.A. Appearances by submissions:

Chinedu Gideon Ubah Self-represented Litigant