Belseck v Bond, 2022 ABKB 845

Court of King’s Bench of Alberta Citation: Belseck v Bond, 2022 ABKB 845 Date: 20221215 Docket: 2101 05433 Registry: Calgary Between: Faron Belseck Plaintiff - and - Donna Bond Defendant _______________________________________________________ Memorandum of Decision of the Honourable Justice L.K. Harris _______________________________________________________ [ 1 ] Ms. Bond brings an application to have Mr. Belseck declared a vexatious litigant pursuant to s. 23.1 of the Judicature Act, RSA 2000 c. J-2 (“ JA ”), and to have comprehensive court restrictions imposed upon Mr. Belseck. I.

Background [ 2 ] The parties are engaged in a high-conflict family law dispute. They co-habited for approximately 10 years. There are no children of the relationship.

[ 3 ] Following their separation, the parties attended a mediation/arbitration to resolve their issues. The Arbitrator issued an award on December 30, 2020, which included an award to Ms. Bond of a 2014 Shelby GT500, six pieces of art and $75,000 cash.

The Arbitration Award has given rise to a multiplicity of court applications as well as further appearances before the Arbitrator which I will broadly summarize. [ 4 ] Subsequent to the Arbitration Award, the Arbitrator issued an Amplification Award on April 6, 2021, an Enforcement Award on September 14, 2021, and a Supplemental Enforcement Award on October 27, 2021. [ 5 ] Mr.

Belseck sought to appeal the Arbitration Award, but was unsuccessful as he was out of time, and sought to have the Arbitrator removed, which application was also unsuccessful. [ 6 ] On November 2, 2021, the parties appeared before Fagnan, J. pursuant to three separate applications brought by Mr. Belseck and one cross application brought by Ms. Bond. Mr. Belseck was self-represented. Justice Fagnan issued an Order giving effect to the Arbitration and Amplification Awards, dismissed one of Mr. Belseck’s applications and adjourning the remaining applications to a new date. Justice Fagnan also ordered that Mr.

Belseck was limited to one further Affidavit of no more than five pages in length. [ 7 ] The parties next appeared before Nation, J. on November 26, 2021. By that time, Mr. Belseck, still self-represented, had filed two further applications. Nation, J. noted that Mr. Belseck had not complied with the Fagnan Order to relinquish the Shelby, the art, or pay Ms. Bond $75,000, and in fact, Mr. Belseck had disposed of the property he was to relinquish to Ms. Bond. Nation, J. dismissed all except one of Mr.

Belseck’s applications, adjourned the remaining application sine die , and then granted a comprehensive order intended to give effect to the Arbitration Award and the Enforcement Awards, including ordering the sale of a residential property owned by Mr. Belseck (the “168 Property”) with the proceeds to be used to satisfy Ms. Bond’s claim and her costs of the Arbitration. [ 8 ] The Nation Order also included a police enforcement clause permitting the arrest of Mr. Belseck should he not comply with any of its terms. Ms. Bond was awarded solicitor-client costs.

The costs award gave rise to a further court appearance before Neufeld, J., who granted an order setting deadlines for affidavits and awarded costs of $5,000 against Mr. Belseck. Mr. Belseck has apparently paid these costs, this being the only court order in these proceedings that he willingly complied with. [ 9 ] Mr. Belseck filed a Notice of Appeal of the Nation Order. [ 10 ] Mr. Belseck did not cooperate with the listing of the 168 Property. The parties appeared before Hartigan, J. on April 21, 2022. By this time, Mr. Belseck had retained counsel and was represented at this appearance.

Hartigan J. issued a comprehensive order, noting that the estimate of the amount owing to Ms. Bond at that point was approximately $455,000. Hartigan J. gave effect to the Supplemental Enforcement Award, again directing that the 168 Property be listed for sale but gave Mr. Belseck the opportunity to refinance the property and a deadline of July 19, 2022, to pay the amount owed to Ms. Bond. If Mr. Belseck was able to refinance the property and if he paid the amounts he owed, then he would be able to retain the 168 Property. If the 168 Property was not sold and if Mr. Belseck did not pay Ms.

Bond the amounts owed, then Hartigan J. ordered that Mr. Belseck was to vacate the property and granted Ms. Bond exclusive possession and authority to list the property for sale. Hartigan, J. also granted a police enforcement clause. [ 11 ] Consistent with his previous behavior, Mr. Belseck again did not cooperate with the listing of the 168 Property, nor did he pay the amounts he owed to Ms. Bond. The RCMP arrested Mr. Belseck on July 20, 2022, and arranged to have Mr. Belseck brought before Eamon, J. of this Court. [ 12 ] Eamon, J. ordered Mr. Belseck be released but granted a Restraining Order prohibiting Mr.

Belseck from being within 100 metres of the 168 Property. [ 13 ] Ms. Bond then listed the 168 Property and accepted an offer to purchase. [ 14 ] On July 26, 2022, Mr. Belseck advised that he had sold the 168 Property on July 18, 2022. The purchaser had registered a caveat against title. [ 15 ] Mr. Belseck appeared before me in morning Chambers in August 2022 on an ex parte application seeking various relief. He was not represented by counsel. I adjourned Mr. Belseck’s application and directed him to give notice to Ms. Bond.

On August 19, 2022, again in morning Chambers, the parties appeared before me on an application by Ms. Bond to set aside Mr. Belseck’s July 18 th purchase agreement and discharge the caveat. I granted Ms. Bond’s application and ordered that title to the 168 Property be transferred to Ms. Bond to enable her to complete the sale pursuant to the Offer to Purchase she had accepted. I also made further directions regarding the release of Mr. Belseck’s personal possessions to him, extended the Restraining Order granted by Eamon, J, and awarded Ms.

Bond solicitor-client costs. [ 16 ] There were further court appearances relating to amending the terms of my August 19, 2022 order, a contemplated application by Mr. Belseck to set aside my August 19, 2022 Order, and then Ms. Bond’s vexatious litigant application, which was heard by me on December 12, 2022. At a certain point in this time frame, Mr. Belseck retained new counsel. [ 17 ] The 168 Property has now been sold, and the proceeds are in trust pending disbursement. Ms. Bond has brought an application before the Arbitrator for direction regarding the disbursement of the funds.

The only appeal that remains outstanding is Mr. Belseck’s appeal of the Nation Order. II. The Application [ 18 ] Ms. Bond says that even though the litigation seems to be nearing completion given the sale of the 168 Property, she is fearful that Mr. Belseck will continue his pattern of abusive litigation against her. She says that the litigation and the efforts she needed to pursue to enforce the Arbitration Awards were grossly unreasonable and have seriously affected her mental health and her financial well-

being. Although she will eventually receive funds from the sale of the 168 Property in accordance with the various court orders, the process of disbursement has only just begun, and she has expended far than the costs awards will cover to get to this point. She fully expects Mr. Belseck to continue his abusive litigation as she pursues the disbursement of the sale proceeds. [ 19 ] Ms. Bond points to three broad categories of abusive behavior by Mr. Belseck: failing to comply with court orders, fraudulent behavior, and generally, an abuse of the court system. [ 20 ] Ms. Bond says that Mr.

Belseck’s behavior in this regard constitutes vexatious litigation and as such, Mr. Belseck should be deemed a vexatious litigant, and broad restrictions ought to be placed upon him preventing his further participation in any court proceedings without leave of this Court. [ 21 ] In response, Mr. Belseck, through counsel, argued that his behavior did not rise to the level of toxicity or seriousness required by the case authorities considering vexatious litigant applications. Those authorities require persistent conduct, and none of Mr. Belseck’s behavior meets this threshold.

He brought valid applications to this Court, and as he was mostly self-represented, he should be given some leeway. This Court ought to be cautious about issuing a vexatious litigant order against Mr. Belseck as the Court of Appeal warns against punishing self-represented litigants. III.

Analysis [ 22 ] The Alberta Court of Appeal has provided guidance as to this Court’s authority to issue vexatious litigant orders in a trilogy of cases: Jonsson v Lymer , 2020 ABCA 167 , Makis v Alberta Health Services , 2020 ABCA 168 and Vuong Van Tai Holdings v Alberta (Minister of Justice and Solicitor General) , 2020 ABCA 169 . [ 23 ] Ms. Bond cites Chutskoff v. Bonora , 2014 ABQB 389 in support of her application.

I don’t necessarily see Chutskoff as having been overruled by the more recent Court of Appeal decisions but the application before Michalyshyn J. in Chutskoff was somewhat different in that it was an application to strike a claim pursuant to Rules 3.68 and 4.11, as well as an application to declare the Plaintiff a vexatious litigant pursuant to s.23.1 JA . Michalyshyn J. does address the issue of what constitutes vexatious litigation, but this is more in the context of whether the action should be struck under Rule 3.68.

Michalyshyn J. then goes on to find that the indicia of vexatious litigation that he found in that case satisfied the test for whether the Respondent is a vexatious litigant under s. 23.1 JA . Chutskoff does not necessarily provide the broad guidance that Lymer does in terms of making a declaration that a litigant is vexatious. Having said that, Chutskoff is not inconsistent with the findings in Lymer . [ 24 ] The purpose of a vexatious litigant order is to prevent the litigant from commencing or continuing proceedings: Lymer at para 56 , JA s. 23.1 .

The primary jurisdiction for awarding a vexatious litigant order is under the JA . Applications should prima facie be initiated pursuant to this statute, whether by a litigant or by the Court on its own motion. [ 25 ] Ms. Bond was correct in bringing her application pursuant to s. 23.1 of the JA . She also confirmed during the hearing that she fulfilled the requirement to notice of her application to the Attorney General: JA s. 23.1(1) . [ 26 ] The Court should be reluctant to grant a broad vexatious litigant order.

Since vexatious litigant orders restrict access to the courts, any restrictions imposed must be focused on the particular litigant, be proportional to the problematic conduct revealed by the record, and they should be incremental and adapted to the specific problem. Such orders should be no wider than is necessary, and must not routinely limit access to court facilities, or restrain resort to fee waivers, unless warranted by the facts of the particular case.

Vexatious litigant orders are not a substitute for case management, and they are not a universal remedy for all procedural problems that may be encountered: Lymer at para 85 . [ 27 ] Further, the court should be sensitive to the challenges faced by self-represented litigants. Parties are entitled to self- represent, and vexatious litigant orders should only be made when other procedural techniques have proven to be inadequate, and the offensive conduct is persistent.

Restrictions on a litigant’s conduct should not as a matter of course include a requirement of legal representation, or the precondition that all accumulated court costs be paid: Lymer at para 85 . [ 28 ] If this Court grants a vexatious litigant order, in doing so it may bind the Court of Appeal, subject to the parties’ right of appeal: s. 23.1(6) JA . [ 29 ] In order to obtain a vexatious litigant order against Mr. Belseck, Ms. Bond must satisfy one or more of the criteria set out in JA s. 23(2) : (

a) persistently bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction; (

b) persistently bringing proceedings that cannot succeed or that have no reasonable expectation of providing relief; (

c) persistently bringing proceedings for improper purposes; (

d) persistently using previously raised grounds and issues in subsequent proceedings inappropriately; (

e) persistently failing to pay the costs of unsuccessful proceedings on the part of the person who commenced those proceedings; (

f) persistently taking unsuccessful appeals from judicial decisions; (

g) persistently engaging in inappropriate courtroom behaviour.

A. Is Mr. Belseck’s Behaviour Vexatious? [ 30 ] Vexatious behavior has been described as a state in which “the litigant’s mental state goes beyond simple animus against the other side and rises to a situation where the litigant actually is attempting to abuse or misuse the legal process”: Chutskoff at para 86 citing Jamieson v Denman , 2004 ABQB 593 . The Court proceedings and overall behavior of the litigant may demonstrate that they are likely to pursue vexatious court proceedings on an indefinite basis unless stopped: Chutskoff at para 87 citing Bishop v.

Bishop , 2011 ONCA 211 . [ 31 ] It is important to appreciate the context which gave rise to this application. The litigation between the parties has been highly contentious, notwithstanding their initial effort to resolve their differences using arbitration. Throughout most of the litigation, Mr. Belseck has been unrepresented. Although he has had counsel at certain points, Ms. Bond points out that he has not been successful in retaining counsel consistently. She counts six different lawyers for Mr. Belseck, with 8 applications and 12 affidavits being filed by Mr. Belseck during these proceedings. Many of Mr.

Belseck’s applications are repetitive in the sense that they raise issues that were previously addressed and decided, or constitute collateral attacks on the Arbitration Awards. [ 32 ] Even having regard to the fact that many of the steps taken by Mr. Belseck during this litigation occurred while he was self- represented and therefore may not have demonstrated sophisticated legal knowledge or an appreciation of proper court processes on his part, I find that there is an element of bad faith associated with some of his conduct that raises it to the level of vexatious behavior. For example, Mr.

Belseck has to this day failed to comply with the orders of this court to pay what is owed to Ms. Bond (with one exception, that being the Neufeld, J. Order). He sold property which was to be given to Ms. Bond pursuant to the Arbitration Award. He not only failed to cooperate with the listing and sale of the 168 Property, but he actively took steps to thwart its sale by Ms.

Bond, including failing to vacate the property, making threatening phone calls and sending threatening emails to the listing realtor, advancing complaints to the realtor’s professional association, and purporting to enter into his own purchase and sale agreement under highly suspicious circumstances. Although Mr. Belseck complains that Ms. Bond has brought several of her own applications, those applications clearly were necessitated by Mr. Belseck’s failure to comply with either the Arbitration Awards or the orders of this court. [ 33 ] There is no doubt that Mr.

Belseck’s vexatious actions have caused this matter to become unduly contentious, complex, and expensive. His actions were persistent and were undertaken by Mr. Belseck for the improper purpose of thwarting Ms. Bond’s ability to collect what was owed to her under the Arbitration Awards. And, with one exception, when his steps were unsuccessful, Mr. Bond refused to comply with court orders and refused to pay the costs of his unsuccessful proceedings. Even having regard to Mr.

Belseck’s self-represented status, I find that his behavior constitutes something more than simply ignorance or misunderstanding of the law or court processes. In short, it is vexatious behavior. B. Is a Vexatious Litigant Order Justified? [ 34 ] Although this matter is not subject to a case management order, it is apparent through the various orders granted that this court has availed itself of many remedies to address Mr. Belseck’s actions, including increasing the scale of costs awarded to Ms.

Bond over time, granting police enforcement clauses, granting a restraining order, setting aside a real estate contract and ordering that title to the 168 Property be transferred into Ms. Bond’s name in order to allow her to proceed with its sale. While the goal of satisfying the Arbitration Awards appears to be near, it has taken numerous court applications by Ms. Bond to reach this point. And, this matter has not concluded – Ms. Bond points out that she has now moved forward with seeking the Arbitrator’s directions in relation to the disbursement of the proceeds of sale, and that she expects, based on Mr.

Belseck’s past behavior, that this process will also be thwarted through multiple court applications. [ 35 ] Ms. Bond’s conclusions are reasonable based upon Mr. Belseck’s history. Further, it is apparent that the remedies this court has employed to date to deal with Mr. Belseck’s behavior have not been terribly efficient or effective and have been prohibitively expensive and time consuming. [ 36 ] As such, it would be appropriate to grant a vexatious litigant order against Mr. Belseck. [ 37 ] Having said that, I am of the view that the terms proposed by Ms. Bond are overly broad. There is no evidence that Mr.

Belseck has acted in a vexatious manner towards anyone except Ms. Bond and those directly associated with these proceedings, such as, for example, her listing realtor. [ 38 ] As in Lymer , an order requiring Mr. Belseck to receive permission before commencing any application or appeal within these proceedings may be called for, but a general prohibition on him starting any action on any topic against any defendants is not justified and is not proportionate to the problem. By narrowing the scope of a vexatious litigant order in this way, it focusses on preventing Mr. Belseck’s vexatious litigation against Ms.

Bond into the future. [ 39 ] In addition, I am of the view that some extra layer of prevention is warranted here because simply requiring Mr. Belseck to obtain leave of this court does not foreclose repeated and abusive applications for leave, nor does it address the issue of costs of such applications in the event they are not successful, again, at the expense of Ms. Bond.

To address this likelihood, I have considered the statement in Lymer at para 70 : If a vexatious litigant seeks permission to continue or commence legitimate fresh proceedings, it might well be appropriate to make the posting of security for costs a condition of those fresh proceedings. As observed in Goldstick Estates (Re) , 2019 ABCA 508 : A case management judge has a wide discretion to specify when and how applications will be brought, including the imposition of conditions precedent to any procedural step: R. 4.14(1). . . .

Specifying that costs must be paid before further steps can be taken is not per se objectionable, but all of the relevant considerations must be carefully balanced. Controlling disproportionate and excessive litigation is important, but so too is maintaining access to justice. A beneficiary is entitled to have the conduct of an executrix examined by the court.

It must be obvious that requiring the payment of costs of as much as $340,000 is an insurmountable barrier to most litigants, even wealthy ones. The order under appeal effectively prohibits any further applications by the appellant. . . . Security for costs is primarily forward looking, and relates to proposed new procedures. Security for costs is not intended to be a method of enforcing past costs awards: Goldstick Estates at para. 47. I therefore have concluded that it would be appropriate to order that Mr.

Belseck post security for costs if he seeks permission to bring any further proceedings in this action or against Ms. Bond generally. C. The Terms of the Vexatious Litigant Order [ 40 ] Given my conclusion that a vexatious litigant order is justified in the circumstances, at least on a limited basis and not broadly as sought by Ms. Bond, I order the following: (

a) Mr. Belseck is declared a vexatious litigant; (

b) Mr. Belseck is prohibited from bringing any further applications in the within action, including Notices to Appeal or Applications for Permission to Appeal, or any new or other proceedings or actions against Ms. Bond generally, without first obtaining the permission of this Court (or of the Court of Appeal as the case may be). The application for permission shall be supported by an Affidavit sworn by Mr. Belseck explaining the basis for his application; (

c) If Mr. Belseck applies for permission to bring further applications in the within action, including Notices to Appeal or Applications for Permission to Appeal, or other proceedings or actions against Ms. Bond generally, he must attach a copy of this decision to his application as an appendix; (

d) If Mr. Belseck applies for permission to bring further applications in the within action, including Notices to Appeal or Applications for Permission to Appeal, or other proceedings or actions against Ms. Bond generally, he must concurrently post security for costs, to be paid into court at the time of filing, in the amount of $5,000. The parties’ entitlement to those funds may be determined by any justice hearing the application, appeal or action, and those funds will not be disbursed to either party until further order of this Court. IV. Conclusion [ 41 ] Ms.

Bond will have the costs of this application in the total amount of $2,500, to be paid to her from the proceeds of the sale of the 168 Property. Heard on the 12 th day of December, 2022. Dated at the City of Calgary, Alberta this 15 th day of December, 2022. L.K. Harris J.C.Q.B.A. Appearances: Jesse Bonner for the Plaintiff Joseph Ouellette for the Defendant