Weidenfeld v Alberta (Minister for Seniors and Housing), 2023 ABKB 90

Court of King’s Bench of Alberta Citation: Weidenfeld v Alberta (Minister for Seniors and Housing), 2023 ABKB 90 Date: 20230222 Docket: 2110 01286 Registry: Red Deer Between: Robert Weidenfeld Applicant - and - His Majesty the King in Right of Alberta as Represented by the Minister of Seniors and Housing Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice G.D.B. Kendell _______________________________________________________ I.

Introduction [ 1 ] On October 19, 2022, this Court in a Decision reported as Weidenfeld v Alberta (Minister for Seniors and Housing), 2022 ABKB 688 [ Weidenfeld v Alberta #4 ] granted an Application by the Alberta Minister for Seniors and Housing [Alberta] to strike out an Originating Application filed by Robert Weidenfeld [Mr. Weidenfeld] pursuant to Rule 3.68 of the Alberta Rules of Court , Alta Reg 124/2010 . Mr. Weidenfeld was also ordered to pay Alberta $4,000 in costs, forthwith: Weidenfeld v Alberta #4 at para 33 .

[ 2 ] In Weidenfeld v Alberta #4 , the Court concluded: 1. The Application struck out was a collateral attack against prior proceedings, because Mr. Weidenfeld was both repeatedly re- litigating issues, but also attacking this Court’s conclusions on those issues ( Weidenfeld v Alberta #4 at paras 13-19 ); and 2. The Application had no basis in law, because Mr. Weidenfeld’s claim was both: 1) contrary to settled Canadian law, and 2) non- justiciable ( Weidenfeld v Alberta #4 at paras 20-24 ). [ 3 ] The Court then turned to a broader issue: whether Mr.

Weidenfeld is an appropriate candidate for prospective litigant management. Factors that favoured this step included: 1. Mr. Weidenfeld had repeatedly and persistently re-litigated the same issues before the Alberta Court of King’s Bench: Weidenfeld v Alberta #4 at para 25 ; 2. Mr. Weidenfeld had developed an aggressive litigation attack pattern, targeting opposing legal counsel, and a Clerk of the Court, personally: Weidenfeld v Alberta #4 at paras 25-26 ; 3. Mr.

Weidenfeld had an extensive record of unsuccessful and abusive litigation in Alberta, the Tax Court of Canada, the Courts of Ontario and New Brunswick, and four unsuccessful leave applications before the Supreme Court of Canada: Weidenfeld v Alberta #4 at paras 27-28 ; 4. The available record demonstrated patterns of repeated, persistent problematic litigation, and included sharp criticism by judicial decision makers. For example, Mr. Weidenfeld’s litigation in Ontario and Alberta illustrated Mr.

Weidenfeld, without any legal basis, has repeatedly targeted his landlords, refused to pay rent, and then taken litigation and tribunal steps to frustrate the landlords’ rights: Weidenfeld v Alberta #4 at para 27 . [ 4 ] Given these observations, the Court concluded that Mr. Weidenfeld’s litigation history had established a pattern of repeated and persistent abusive litigation. Alberta was invited to initiate a Judicature Act , RSA 2000, c J-2 ss 23-23.1 application to impose prospective court access gatekeeping on Mr. Weidenfeld: Weidenfeld v Alberta #4 at para 31 . Mr.

Weidenfeld was also made subject to interim court access gatekeeping: Weidenfeld v Alberta #4 at para 31 . On November 14, 2022, Counsel for Alberta responded that Alberta would not be making any such application. [ 5 ] Judicature Act ss 23.1(1) states the Court may impose court access gatekeeping “... on application or on its own motion , with notice to the Minister of Justice and Solicitor General ...” [emphasis added].

In Jonsson v Lymer , 2020 ABCA 167 [ Lymer ], the Court ruled that while this Court does have the jurisdiction to institute vexatious litigant proceedings on its own motion, same should be the exception, finding that the Court should only act where the parties have failed to act, and the broader interests of the administration of justice are compromised. [ 6 ] Alberta had refused to initiate prospective court access restrictions, so that satisfied the preconditions for the Court to exercise its residual “own motion” authority to initiate a Judicature Act ss 23-23.1 application: Dmyterko v Nissan Canada Inc , 2021 ABQB 405 at paras 6-18 .

Mr. Weidenfeld’s repeated and persistent abusive litigation in Alberta and other Canadian jurisdictions is a basis to consider whether court access gatekeeping is appropriate for Mr. Weidenfeld. In a written decision reported as Weidenfeld v Alberta (Minister for Seniors and Housing) , 2022 ABKB 765 [ Weidenfeld v Alberta #5 ], the Court followed its usual procedure of conducting Judicature Act ss 23-23.1 procedures on a document-only basis: Unrau v National Dental Examining Board , 2019 ABQB 283 at paras 565-577 [ Unrau #2 ]. Mr.

Weidenfeld was instructed to make written submissions as to whether his persistent abusive litigation: 1. Should result in prospective court access restrictions, pursuant to Judicature Act , ss 23-23.1, and 2. What should be the scope of those court access restrictions, if any? [ Weidenfeld v Alberta #5 at para 9 .] [ 7 ] A copy of Weidenfeld v Alberta #5 was directed to the Minister of Justice and Solicitor General [Minister] pursuant to Judicature Act , s 23.1(1). January 6, 2023 was the deadline set for submissions and supporting affidavit evidence to be received from Mr.

Weidenfeld and the Minister, if the Minister chose to participate in the process. [ 8 ] Mr. Weidenfeld, on November 17, 2022, appealed Weidenfeld v Alberta #4 ( Weidenfeld v Alberta (Minister for Seniors and Housing ), Docket No. 2201-0272AC). Mr. Weidenfeld also sought the Alberta Court of Appeal stay Weidenfeld v Alberta #4 , pending appeal of Weidenfeld v Alberta #4 . That stay application was heard on January 4, 2023. Subsequently, Mr. Weidenfeld requested that this Court’s January 6, 2023 deadline be extended to one week after the Alberta Court of Appeal issued its stay decision.

I granted that time extension. [ 9 ] Mr. Weidenfeld’s pre-appeal stay application was rejected in Weidenfeld v Alberta (Minister for Seniors and Housing) , 2023 ABCA 14 ( Weidenfeld v Alberta #6 ). Ho JA made a number of relevant observations: 1. No injunction should occur in the Judicature Act ss 23-23.1 process ( Weidenfeld v Alberta #6 at para 11 ); 2. Mr. Weidenfeld’s allegations that the Weidenfeld v Alberta #4 decision demonstrates bias on my part, or were a basis for a reasonable apprehension of bias, were rejected ( Weidenfeld v Alberta #6 at para 11 ); 3. Mr.

Weidenfeld’s demands that the Alberta Court of Appeal order the Weidenfeld v Alberta #4 and #5 decisions removed from all court decision databases was rejected ( Weidenfeld v Alberta #6 at paras 12-13 ); and

4. Mr. Weidenfeld is required to provide a transcript for his appeal ( Weidenfeld v Alberta #6 at paras 15-17 ). [ 10 ] Weidenfeld v Alberta #6 was released on January 16, 2023, so the revised deadline for Mr. Weidenfeld’s response to Weidenfeld v Alberta #5 was January 23, 2023. On January 22, 2023, I received a three-page “Memorandum of Argument” from Mr. Weidenfeld that was non-responsive to the questions set in Weidenfeld v Alberta #5 at para 9 . Briefly, Mr.

Weidenfeld’s “Memorandum” denied that the Alberta Court of King’s Bench should conduct a Judicature Act ss 23-23.1 analysis because “... [t]his matter is now subject to the determination of the Court of Appeal for Alberta, whose authority supersedes Kendell J.’s. ...”. Mr. Weidenfeld concluded his Memorandum demanding to: ... Allow the appeal to proceed without any further unwarranted judicial acts interfering with the impartial, and objective adjudication by ABCA’s Panel. [ 11 ] I wrote Mr.

Weidenfeld to advise him that he had one final opportunity to make submissions in response to the questions set in Weidenfeld v Alberta #5 at para 9 , with those submissions due on February 7, 2023. Mr. Weidenfeld, on February 6, 2023, submitted another three-page document, titled “Robert Weidenfeld’s Response to Kendell J.’s Own Motion, Dated November 17, 2022”. I will discuss the content of that item below. [ 12 ] The Minister has not participated in the Judicature Act ss 23-23.1 process.

All deadlines for that participation have now passed. [ 13 ] The document-based process set in place in Weidenfeld v Alberta #5 is now completed. I, therefore, now proceed to determine whether Mr. Weidenfeld should be subject to prospective court access gatekeeping, and what should be the scope of those steps. II.

The Law [ 14 ] The Alberta Court of Appeal in Lymer ruled that the question of whether or not a person should be subject to prospective litigation gatekeeping pursuant to Judicature Act ss 23-23.1 is a backwards looking exercise that focuses on the litigation record of an abusive litigant to evaluate whether that person has engaged in certain forms of litigation misconduct, some that are itemized in Judicature Act s 23(2), and others that have been identified in case law.

In Alberta, the broadly adopted Unrau #2 decision provides a comprehensive review of the “indicia” of abusive litigation that potentially warrant court intervention. Court access restrictions are a “last ditch” step that may only be imposed after other litigation management approaches have failed, and when less intrusive alternatives, such as case management, are ineffective: Lymer. III. Mr. Weidenfeld’s Submissions [ 15 ] Mr. Weidenfeld’s February 6, 2023 “Response” document is not responsive to the evidence and issues identified in Weidenfeld v Alberta #4 and Weidenfeld v Alberta # 5. Instead, Mr.

Weidenfeld alleges that my offer that he provide submissions and evidence means: ... Kendell J. wishes to elicit undue information on what the applicant intends to argue in ABCA. ... The Applicant refuses to inform Kendell J. about the nature of his arguments prior to the ABCA’s hearing of his appeal. ... [ 16 ] Mr. Weidenfeld then quotes various historic non-Canadian authorities about judicial abuse of power, and says, as I understand it, that I have no jurisdiction to proceed to evaluate whether Mr. Weidenfeld should be subject to court access gatekeeping. Mr.

Weidenfeld is wrong on that point and, in fact, what he is appealing is not the subject of this decision. Weidenfeld v Alberta #4 identified potential bad litigation conduct by Mr. Weidenfeld. The process initiated in Weidenfeld v Alberta #5 , and now completed in this decision, has an entirely separate test and purpose. [ 17 ] Mr. Weidenfeld’s January 22 and February 6, 2023 documents submitted in response to Weidenfeld v Alberta #5 completely ignore the issues currently under evaluation. I make one observation and conclusion in relation to Mr. Weidenfeld’s January 22 and February 6, 2023 materials.

These documents attempt to obtain what Mr. Weidenfeld was refused by the Alberta Court of Appeal in Weidenfeld v Alberta #6 . When the Alberta Court of Appeal refused to stay this Court’s orders, Mr. Weidenfeld has, operationally, collaterally attacked that result by demanding this Court discontinue - in effect stay - the current Judicature Act ss 23-23.1 procedure, because of an appeal at the Alberta Court of Appeal, where the Alberta Court of Appeal refused to stay this Court’s actions. I find as fact and law that this is another instance of Mr.

Weidenfeld engaged in inappropriate litigation activity that may warrant court litigant management steps. IV. Analysis [ 18 ] This Court has adopted the approach indicated by Stratas JA in Canada v Olumide , 2017 FCA 42 at paras 35-40 , that when evaluating abusive litigants, “focused” evidence is necessary, rather than “... an encyclopedia of every last detail about the litigant’s litigation history.” In this instance a comprehensive review of Mr. Weidenfeld’s reported litigation from multiple Canadian jurisdictions has already been conducted in Weidenfeld v Alberta #4 at paras 13-29 .

Some of the highlights of that review are Mr. Weidenfeld: 1. Has an extended record of collateral attacks on settled litigation, and, as I have observed above, that continues to the present day; 2. Engages in hopeless and unmeritorious litigation, seeking impossible and/or disproportionate remedies;

3. Has illegally targeted court personnel with his abusive litigation; 4. Makes inflammatory and unsupportable allegations against opposing counsel and judges; 5. Has engaged in persistent, repeated, hopeless appeals, taking four matters to the Supreme Court of Canada where leave was in every instance denied; 6. Has a pattern of engaging his landlords in unsuccessful and abusive lawsuits and other proceedings, that the Ontario Superior Court of Justice concluded was a stratagem by Mr. Weidenfeld to delay evictions and evade paying rent; and 7.

Ignores court orders and has, in some instances, dragged out litigation for decades. [ 19 ] Notably, Mr. Weidenfeld has no response to explain his problematic litigation conduct as identified by numerous Canadian judges. Instead, he has, without basis, alleged I am biased for identifying and evaluating Mr. Weidenfeld’s public court litigation record. While I could draw a negative inference from Mr. Weidenfeld attempting to subvert and interrupt the Judicature Act ss 23-23.1 process, that is not necessary to establish Mr.

Weidenfeld is an abusive litigant. [ 20 ] I also note that the Alberta Court of Appeal has concluded that Mr. Weidenfeld has made groundless allegations of bias against myself. That is not the only Canadian court of appeal to recently comment negatively on Mr. Weidenfeld’s litigation conduct. Since Weidenfeld v Alberta #4 was released, the Ontario Court of Appeal denied an appeal by Mr. Weidenfeld in a decision reported as Weidenfeld v Weidenfeld , 2022 ONCA 860 .

First, that Court rejected that the trial judge had erred and was correct to reject arguments “... that are patently without merit ...” ( Weidenfeld v Weidenfeld at para 18 ), and concluded Mr. Weidenfeld’s Charter -based claims have “no merit” ( Weidenfeld v Weidenfeld at para 19 ). [ 21 ] As for the central issue in Weidenfeld v Weidenfeld , the Court jointly concluded that the two adult children of Mr. Weidenfeld should not be forced to pay Mr. Weidenfeld what might be called “parental support”, pursuant to Family Law Act , RSO 1990, c F.3 s 32.

The trial judge had concluded, and the Ontario Court of Appeal affirmed, that Mr. Weidenfeld had no right to demand money from his children, when Mr. Weidenfeld had refused to pay court-imposed spousal and child support to those children when the children were minors in the custody of their mother. [ 22 ] Mr. Weidenfeld’s decades-long record of litigation identified here and in Weidenfeld v Alberta #4 more than satisfies the criteria of repeated, persistent, abusive litigation that warrants court access gatekeeping. Despite Mr.

Weidenfeld having framed his litigation as having some public, social or policy function, the patterns that emerge here permit me to conclude, on a balance of probabilities, that Mr. Weidenfeld chiefly litigates for his personal advantage: for money, to evade his obligations, and to assert illegal, extravagant claims. [ 23 ] Mr. Weidenfeld cannot be effectively controlled by litigation management processes such as penalties, or case management. Mr. Weidenfeld simply ignores any court-imposed obligation he does not like. As for case management, Mr.

Weidenfeld’s recent three- fold re-litigation in Alberta illustrates how Mr. Weidenfeld responds to unfavourable litigation steps by yet more lawsuits and court proceedings. When Mr. Weidenfeld is at first blocked, he simply files another legal action. Case management of Mr. Weidenfeld is useless since case management, at a fundamental level, relies on litigants’ cooperation and willingness to follow the Alberta Rules of Court and Court instructions. [ 24 ] Given these factors, I conclude that Mr.

Weidenfeld should be subject to indefinite court access gatekeeping of his activities before the Alberta Court of King’s Bench, pursuant to Judicature Act ss 23-23.1. That leaves the question of the potential scope of those court access restrictions. Global court access restrictions are appropriate for Mr. Weidenfeld, since his litigation involves a broad spectrum of legal claim types and subjects, and a diverse range of parties, including his relatives, children, landlords, government actors, and court personnel. [ 25 ] I, therefore, conclude that Mr.

Weidenfeld is a vexatious litigant, and should be subject to the court access gatekeeping, pursuant to Judicature Act ss 23-23.1: 1. The Interim Court Access Restrictions Order dated October 19, 2022 in Alberta Court of King’s Bench Docket No. 2110 01286 is vacated, immediately; 2.

Robert Weidenfeld is 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 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 her or his designate; 3. To commence or continue an appeal, application, or other proceeding in the Alberta Court of King’s Bench, Robert Weidenfeld must first submit an application to the Chief Justice or Associate Chief Justice, or her or his designate.

If such an application is made: (

i) The Chief Justice or Associate Chief Justice, or his or her designate, may, at any time, direct that notice of an application to commence or continue an appeal, action, application, or proceeding be given to any other person; (ii) Any application shall be made in writing; (iii) Any application to commence or continue any appeal, action, application, or proceeding must be accompanied by an affidavit:

a) Attaching a copy of the Order arising from this decision that restricts Robert Weidenfeld’s access to the Court of King’s Bench of Alberta;

b) Attaching a copy of the appeal, pleading, application, or process that Robert Weidenfeld proposes to issue or file or continue;

c) Deposing fully and completely to the facts and circumstances surrounding the proposed claim or proceeding, so as to demonstrate that the proceeding is not an abuse of process, and that there are reasonable grounds for it;

d) Indicating whether Robert Weidenfeld has ever previously sued some or all of the defendants or respondents in any jurisdiction or Court, and, if so, providing full particulars;

e) Undertaking that, if leave is granted, the authorized appeal, pleading, application or process, the Order granting leave to proceed, and the affidavit in support of the Order will promptly be served on the defendants or respondents; and

f) Undertaking to diligently prosecute the proceeding; (iv) The Chief Justice or Associate Chief Justice, or his or her designate, may:

a) Require the application for leave to, or the Court on its own motion, give notice of the proposed claim or proceeding and the opportunity to make submissions on the proposed claim or proceeding, if they so choose, to:

(1) The involved potential parties;

(2) Other relevant persons identified by the Court; and

(3) The Attorneys General of Alberta and Canada;

b) Respond to and dispose of the leave application in writing; or

c) Hear and dispose of the leave application in open Court where the decision shall be recorded; 4. Leave to commence or continue proceedings may be given on conditions, including the posting of security for costs, and proof of payment of all prior cost awards; 5. An application that is dismissed may not be made again, directly or indirectly; 6. An application to vary or set aside this Order must be made on notice to any person as directed by the Court; 7. The Clerks of the Court of King’s Bench of Alberta shall refuse to accept or file any documents or other materials from Robert Weidenfeld unless: (

i) Robert Weidenfeld is a named defendant or respondent in the action in question, or (ii) if the documents and other materials are intended to commence or continue an appeal, action, application, or proceeding, Robert Weidenfeld has been granted leave to take that step by the Court. V. Conclusion [ 26 ] Mr. Weidenfeld’s pattern of repeated, persistent abusive litigation misconduct warrants court access gatekeeping at the Alberta Court of King’s Bench. Since this Judicature Act ss 23-23.1 process was initiated by the Court, no costs order will follow.

The Court shall prepare the order giving effect to this decision. Mr. Weidenfeld’s approval of that order is dispensed with, pursuant to Rule 9.4(2)(c). Mr. Weidenfeld shall be served this decision and the corresponding order by email. [ 27 ] I am aware that Mr. Weidenfeld will very probably disagree with the outcome of this decision. Mindful of the Pintea v Johns , 2017 SCC 23 instruction that Canadian judges shall provide information on litigation alternatives to self-represented litigants, such as Mr. Weidenfeld, if Mr.

Weidenfeld disagrees with the result of this decision, he may appeal this result with the Alberta Court of Appeal. Dated at the City of Red Deer, Alberta this 22 nd day of February, 2023. G.D.B. Kendell J.C.K.B.A. Appearances:

Robert Weidenfeld for the Self-Represented Litigant Nate Gartke Alberta Justice, Constitutional and Aboriginal Law for the Applicant