_______________________________________________________

Memorandum of Decision

of the

Honourable Mr. Justice S.N. Mandziuk

_______________________________________________________

I. Introduction

[1] On December 10, 2013, Goss J appointed the Public Guardian of Alberta as the guardian for DKD, an adult who receives Assured Income for the Severely Handicapped. On January 9, 2015, Lee J appointed the Public Trustee for the Province of Alberta as DKD’s trustee.

[2] On November 8, 2018 this Court received an application by PPS to discharge the current Public Guardian and Public Trustee, and that she and her husband jointly replace the Public Guardian and Public Trustee as DKD’s private guardians and trustees. The Public Guardian and Public Trustee support PPS’s application.

[3] This matter was before me in Chambers on December 10, 2018. At that hearing DKD’s birth parents BMP and BGD were present, and indicated that they had only recently learned of the November 8, 2018 guardianship and trustee application. Both objected to the application. They want to be DKD guardians. BMP and BGD expressed concerns over DKD’s care.

[4] I directed that BMP and BGD be provided with the PPS application materials by email, and that the matter would be put over to February 25, 2018 so that BMP and BGD would have a full opportunity to respond to the proposed new private guardians/trustees.

II. BGD’s Pseudolegal Intervention

[5] Two days after the Chambers appearance, on December 12, 2018, the Court received three copies of an irregular three page document titled “NOTICE TO Claim My Property”. The text of that document and its approximate formatting is reproduced in Appendix “A” to this Memorandum of Decision. These “NOTICE” documents feature a unusual circular seal on the front and back of the documents with the text “101555 Edmonton AB, T5J 2Y0”, and in the centre an ink fingerprint with a signature.

[6] In brief, the “NOTICE” document appears to indicate that:

1. BGD claims DKD as his property;

2. his claim is in the “common law”, and will be tried in the “[D] Common Law Court”;

3. various persons, “wrong doers”, have trespassed, kidnapped, and damaged his property; and

4. he claims “damage fees” and “compensation fees” of $5,000.00 per day, and “one penny paid in silver or gold for every second each human mentioned in this case is damaged.”

[7] The claim that DKD is BGD’s property under “common law” is a familiar variant of legally incorrect “secret laws” or “cheat codes” concepts marketed commercially by “gurus” to abusive litigants. In Meads v Meads, 2012 ABQB 571, 543 AR 215, Rooke ACJ of this Court described and classified these legal sounding but false concepts as “Organized Pseudolegal Commercial Arguments” or “OPCA”.

[8] The “NOTICE TO Claim My Property” appears to indicate that BGD is a follower of OPCA guru Carl (Karl) Rudolph Lentz (see Gauthier v Starr, 2016 ABQB 213 at para 34, 265 CPC (7th) 348), who, among other things, claims that children are the property of their parents. For example, two parents on this OPCA basis recently unsuccessfully applied Lentz’s ideas to resist treatment of cancer in their two-year old son: SS (Re), 2016 ABPC 170, 91 RFL (7th) 471. They instead treated the child with “Miracle Mineral Solution”, more commonly known as bleach.

[9] More recently, a mother claimed her adult sons were “... her property at common law ...” as they are “... the products of her body ...”: Toronto-Dominion Bank v Leadbetter, 2018 ABQB 472 at para 25, court access restrictions imposed 2017 ABQB 611. That, purportedly, prohibited the Crown from conducting criminal prosecutions of her sons.

[10] While traditional English common law did identify minor children as the property of their father (for example: William Blackstone, Commentaries on the Laws of England, in Four Books, 12th ed (London: A Strahan and W Woodfall, 1793) vol 1 at 452-53), this concept has been emphatically rejected by modern Canadian Supreme Court of Canada jurisprudence: B (R) v Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 SCR 315 at 372, 122 DLR (4th) 1; Chamberlain v Surrey School District No 36, 2002 SCC 86 at para 106, [2002] 4 SCR 710; Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 at para 225, [2004] 1 SCR 76.

[11] I think it is also fair to say, more generally, that characterizing human beings as property is repugnant to modern Canadian society, values and law.

[12] BGD’s “NOTICE” purports to displace and defeat the authority of this Court. He unilaterally claims ownership of DKD, and wishes some kind of trial to be held in a special unorthodox court. He says that he ‘owns’ this litigation: “[t]his case is my property.”

[13] All OPCA schemes are an abuse of the Court, and constitute a basis on which to impose court access restrictions by what is sometimes called a “vexatious litigant order”: Meads v Meads; R v Fearn, 2014 ABQB 233 at para 49, 586 AR 182; Chutskoff v Bonora, 2014 ABQB 389 at para 92, 590 AR 288, aff’d 2014 ABCA 444, 588 AR 303.

[14] Here, it is of particularly serious concern that BGD is attempting to unilaterally impose a scheme of penalties on those who disobey what he says is the law. These clauses are sometimes called “Fee Schedules”. Foisted “Fee Schedule” penalty terms have no legal effect, and are instead a form of intimidation: Meads v Meads, at para 527; Fearn v Canada Customs, at para 199; Bank of Montreal v Rogozinsky, 2014 ABQB 771 at para 78, 603 AR 261; Gidda v Hirsch, 2014 BCSC 1286 at para 84; R v Sands, 2013 SKQB 115 at para 18, 416 Sask R 279; R v Boxrud, 2014 SKQB 221 at para 46, 450 Sask R 147; Re Boisjoli, 2015 ABQB 629 at paras 58-69 29 Alta LR (6th) 334; Allen Boisjoli Holdings v Papadoptu, 2016 FC 1260; Pomerleau v Canada Revenue Agency, 2017 ABQB 123 at para 135, [2017] DTC 5024; Canadian Imperial Bank of Commerce v McDougald, 2017 ABQB 124 at para 28, 276 ACWS (3d) 847; Gauthier v Starr, at para 39; Gauthier (Re), 2017 ABQB 555 at paras 65-66, 87 CPC (7th) 555, aff’d 2018 ABCA 14; Potvin (Re), 2018 ABQB 652 at paras 79-80; Knutson (Re), 2018 ABQB 858 at paras 60-62.

[15] Attempts to use OPCA strategies to impose pseudolegal obligations or penalties on others via “offensive” litigation is “... a basis for immediate court intervention to prevent that from recurring. ...”: 1985 Sawridge Trust v Alberta (Public Trustee), 2017 ABQB 548 at paras 74, 13 CPC (8th) 92, see also Re Gauthier, at paras 77-78, 83, Rothweiler v Payette, 2018 ABQB 288 at paras 39-41, 46, result confirmed 2018 ABQB 399; d’Abadie v Her Majesty the Queen, 2018 ABQB 438 at paras 5-7, 34; Alberta Treasury Branches v Hawrysh, 2018 ABQB 618 at para 29; Potvin (Re), 2018 ABQB 834 at para 14.

[16] I conclude that BGD’s “NOTICE” documents are an OPCA-based attempt to abuse this Court, and to foist penalties without any legal basis. The “NOTICE” has no legal effect.

[17] Filing of documents which feature ink fingerprints is prohibited under the June 18, 2013 “Master Order for Organized Pseudolegal Commercial Argument [“OPCA”] Documents” (see Gauthier (Re), at paras 3-8). However I instruct that BGD’s “NOTICE” documents will be retained on file, as evidence of his litigation conduct, and for their potential relevance in relation to costs, court access restrictions, contempt of court and other sanctions.

III. Court Access Restrictions

[18] The authority to impose court access restrictions is an aspect of the Court’s inherent jurisdiction to control its own processes: Ebert v Birch & Anor, [1999] EWCA Civ 3043 (UK CA); Bhamjee v Forsdick & Ors (No 2), [2003] EWCA Civ 1113 (UK CA); Hok v Alberta, 2016 ABQB 651 at paras 14-25, 273 ACWS (3d) 533, leave denied 2017 ABCA 63, leave to appeal to SCC refused, 37624 (2 November 2017); Household Trust Co v Golden Horse Farms Inc (1992), 1992 CanLII 420 (BC CA), 13 BCAC 302, 65 BCLR (2d) 355 (BCCA), leave to appeal to SCC refused, 23022 (19 November 1992); Tremblay v Charest, 2006 QCCA 204 at para 6, 147 ACWS (3d) 413, leave to appeal to SCC refused, 31410 (22 June 2006); British Columbia (Attorney General) v Lindsay, 2007 BCCA 165 at paras 24, 28-30, 238 BCAC 254, leave to appeal to SCC refused, 32026 (15 November 2007); Extra Gift Exchange Inc v Ernest & Twins Ventures (PP) Ltd, 2014 BCCA 228 at para 32, 357 BCAC 55; Tupper v Nova Scotia (Attorney General), 2015 NSCA 92 at para 27, 390 DLR (4th) 651, leave to appeal to SCC refused, 36761 (10 March 2016); Ayangma v Canada Health Infoway, 2017 PECA 13 at paras 62-63, leave to appeal to SCC refused, 38030 (4 October 2018); Gichuru v Pallai, 2018 BCCA 78 at paras 74-81, leave to appeal to SCC filed, 38123 (4 May 2018); Peoples Trust Company v Atas, 2018 ONSC 58 at para 41.

[19] Hok v Alberta, 2016 ABQB 651 sets out the modern approach to court access restrictions issued under this Court’s inherent jurisdiction. The most common court access restriction prohibits a person from initiating or continuing litigation except where that individual has obtained permission, or “leave”, from the court to do so. This is a prospective gatekeeper step imposed when the court concludes that it is plausible that an individual will engage in further abuse of court processes: Hok v Alberta, 2016 ABQB 651 at paras 36-37; 1985 Sawridge Trust v Alberta (Public Trustee), 2017 ABQB 548 at paras 42-75. More stringent restrictions are also appropriate where they are proportionate to the anticipated future litigation abuse: Hok v Alberta, 2016 ABQB 651 at para 34; Bhamjee v Forsdick & Ors (No 2).

[20] Court access restrictions may be ordered where a litigant has exhibited “indicia” of abusive litigation. Chutskoff v Bonora, at para 92, reviews 11 “indicia” categories:

1. collateral attacks;

2. hopeless proceedings;

3. escalating proceedings;

4. bringing proceedings for improper purposes;

5. initiating “busybody” lawsuits to enforce alleged rights of third parties;

6. failure to honour court-ordered obligations;

7. persistently taking unsuccessful appeals from judicial decisions;

8. persistently engaging in inappropriate courtroom behaviour;

9. unsubstantiated allegations of conspiracy, fraud, and misconduct;

10. scandalous or inflammatory language in pleadings or before the court; and

11. advancing Organized Pseudolegal Commercial Argument (OPCA) strategies.

[21] Additional indicia categories have been identified in subsequent decisions of Canadian courts:

1. using court processes to further illegal activities (Re Boisjoli, at paras 98-103; Rothweiler v Payette, at para 35; McKechnie (Re), 2018 ABQB 677 at paras 3, 30);

2. “judge shopping” (Onischuk (Re), 2017 ABQB 659 at para 18; McCargar v Canada, 2017 ABQB 729 at paras 8-9, 68 Alta LR (6th) 305; Re Botar, 2018 ABQB 193 at paras 23-28; Bourque v Tensfeldt, 2018 ABQB 419 at paras 17-18; Lymer (Re), 2018 ABQB 859 at paras 72-75);

3. “forum shopping” (1985 Sawridge Trust v Alberta (Public Trustee), 2017 ABQB 548 at paras 91-97; MacLeod v Bank of Montreal, 2018 ONSC 5795 at para 7);

4. bad faith litigation strategies to pre-empt, divert, or sabotage proceedings that address court access restrictions (Alberta Lawyers Insurance Association v Bourque, 2018 ABQB 821 at paras 159-160, 175);

5. where a litigant indicates an intention to engage in future abuse of court processes (Lofstrom v Radke, 2017 ABCA 362 at para 8; Van Sluytman v Muskoka (District Municipality), 2018 ONCA 32 at paras 23-24, leave to appeal to SCC refused, 38057 (1 November 2018); Templanza v Ford, 2018 ABQB 168 at para 120, 69 Alta LR (6th) 110; Rothweiler v Payette, at paras 42-44; ET v Calgary Catholic School District No 1, 2017 ABCA 349 at para 11, leave to appeal to SCC refused, 38081 (8 November 2018); Lee v Canada (Attorney General), 2018 ABQB 464 at para 148);

6. where litigation has a political focus and is directed towards acknowledgement and correction of perceived government shortcomings, rather than asserting a right recognized in law (Van Sluytman v Muskoka (District Municipality), at paras 23-24; Rothweiler v Payette, at para 36);

7. where the litigant minimizes or dismisses litigation defects and abuse on the basis that the person is a self-represented litigant (Van Sluytman v Muskoka (District Municipality), at paras 23-24; Re Bruce, 2018 ABQB 283 at paras 8-9; Alberta Treasury Branches v Hawrysh, at paras 36-46); and

8. employing proxy actors to circumvent court orders, court access restrictions, impede litigation, and improperly communicate with the court (Onischuk v Edmonton (City), 2017 ABQB 647 at paras 24-25, 32; Onischuk (Re), at paras 11, 21; MacKinnon v Bowden Institution, 2018 ABQB 144 at paras 44-85, 71 Alta LR (6th) 267).

[22] A decision to impose court access restrictions requires a broad-based inquiry into the litigation activities of the litigant. A court may refer to external evidence, including:

1. activities both inside and outside of the courtroom (Bishop v Bishop, 2011 ONCA 211 at para 9, 200 ACWS (3d) 1021, leave to appeal to SCC refused, 34271 (20 November 2011); Henry v El, 2010 ABCA 312 at paras 2-3, 5, 193 ACWS (3d) 1099, leave to appeal to SCC refused, 34172 (14 July 2011);

2. the litigant’s entire public dispute history (Thompson v International Union of Operating Engineers Local No 995, 2017 ABCA 193 at para 25, leave to appeal to SCC refused, 37974 (7 June 2018)), including:

a) litigation in other jurisdictions (McMeekin v Alberta (Attorney General), 2012 ABQB 456 at paras 83-127, 543 AR 132; Curle v Curle, 2014 ONSC 1077 at para 24; Fearn v Canada Customs, 2014 ABQB 114 at paras 102-105, 586 AR 23; Hill v Bundon, 2018 ABQB 506 at paras 68-80, 91-96; Alberta Lawyers Insurance Association v Bourque, 2018 ABQB 821 at paras 41-51);

b) non-judicial proceedings (Bishop v Bishop, at para 9; Thompson v International Union of Operating Engineers Local No 995, at paras 24-25); and

c) public records that are a basis for judicial notice (Wong v Giannacopoulos, 2011 ABCA 277 at para 6, 515 AR 58); and

3. whether the person has previously engaged in abusive litigation conduct, and/or was declared a “vexatious litigant” or made subject to court access restrictions: Canada v Olumide, 2017 FCA 42 at para 37, [2017] GSTC 17; Hill v Bundon, at paras 68-80; Alberta Lawyers Insurance Association v Bourque, 2018 ABQB 821 at paras 153-158; Fabrikant v Canada, 2018 FCA 171 at paras 14-15.

[23] Any indicium is a basis for the Court to evaluate whether or not intervention is warranted to control future abusive litigation. The presence of multiple indicia generally favours court intervention: e.g. Chutskoff v Bonora, at paras 131-132; Re Boisjoli, at para 104; Ewanchuk v Canada (Attorney General), 2017 ABQB 237 at para 158, 54 Alta LR (6th) 135, appeal abandoned, Edmonton 1603-0287AC (Alta CA).

[24] The preferred approach is prospective rather than punitive: 1985 Sawridge Trust v Alberta (Public Trustee), 2017 ABQB 548 at paras 42-76; Templanza v Ford, at paras 102-104. When evaluating whether court access limitations are appropriate, a court asks what can be anticipated from a litigant:

... when a court considers limits to future court access by a person with a history of litigation misconduct the key questions for a court are:

1. Can the court determine the identity or type of persons who are likely to be the target of future abusive litigation?

2. What litigation subject or subjects are likely involved in that abuse of court processes?

3. In what forums will that abuse occur?

(Hok v Alberta, 2016 ABQB 651 at para 36)

... Court access restrictions are designed in a functional manner and not restricted to formulaic approaches, but instead respond in a creative, but proportionate, manner to anticipated potential abuse...

(Rothweiler v Payette, at para 45, referencing Bhamjee v Forsdick (No 2)).

[25] Plausible future litigation abuse may be suggested by a person’s litigation history (issues, targets and forums where abuse may be anticipated). However, the critical factor is what the court can anticipate. Therefore, statements of intent, motivation, political ideology, and behavioural pathology are also in some instances highly relevant: 1985 Sawridge Trust v Alberta (Public Trustee), 2017 ABQB 548 at paras 42-79.

[26] As previously indicated, the usual court access limitation placed on an abusive litigant is a requirement that the litigant must seek permission - “leave”- prior to initiating a new action or application, or continuing an existing lawsuit. This is a very modest imposition on a problematic litigant: Hok v Alberta, 2016 ABQB 651 at paras 32-33; Wong v Giannacopoulos, at para 8; Canada v Olumide, at paras 26-29; Bossé v Immeubles Robo Ltée, 2018 CanLII 71340 at para 38 (NBCA).

[27] Courts have, in certain instances, gone further and ordered additional restrictions on problematic litigants, including:

1. representation by a lawyer as a pre-requisite of submitting a leave application;

2. representation by a lawyer for filing any document;

3. payment of outstanding court costs as a precondition to future litigation steps;

4. requiring payment into court of security for costs;

5. personal appearance of the abusive litigant in court proceedings; and

6. prohibitions on being inside or near court facilities.

[28] When a court contemplates the possibility of court access restrictions in addition to a requirement to obtain leave, that step must also be balanced against the predicted likelihood and the form of bad litigation conduct: Bhamjee v Forsdick & Ors (No 2), at para 35; Ewanchuk v Canada (Attorney General), at para 95; Ayangma v Canada Health Infoway, at para 62. The safety and operation of the Courts may also be relevant: McKechnie (Re), at paras 41-51.

IV. Conclusion

[29] BGD’s “NOTICE” document is a clear and obvious OPCA-based attempt to usurp the function of this Court and unilaterally impose sanctions on others. His claim to own his son as his property is offensive, outrageous and a fundamental affront to Canadian law and values.

[30] On this basis I conclude that this Court, on its own motion and under its inherent jurisdiction, should investigate whether BGD should be made subject to court access restrictions.

[31] BGD has until January 11, 2019 to submit to me written argument and affidavit evidence:

1. as to whether he should be subject to court access restrictions in Alberta Courts, and

2. if so, what form those court access restrictions should take.

[32] This process will be conducted in writing only: Hok v Alberta, 2016 ABQB 335 at para 105; Stoney v 1985 Sawridge Trust, 2017 ABQB 436 at paras 60-62, appeal deemed abandoned (3 March 2018), Edmonton 1703-0195AC (Alta CA).

[33] In the interim, BGD is prohibited from filing any material on any Alberta Court file except for the submissions identified above, and BGD may not continue or institute further court proceedings in Alberta without the leave of the Alberta Court in question: Hok v Alberta, 2016 ABQB 335 at para 105, enforced in Hok v Alberta (Justice & Solicitor General), 2016 ABCA 356 at para 7; Bourque v Alberta Lawyers Insurance Association, 2018 ABCA 257 at paras 5-7.

[34] The Court will prepare and file that Interim Court Access Restriction Order. BGD’s approval of that Order is not required.

Dated at the City of Edmonton, Alberta this 17th day of December, 2018.

S.N. Mandziuk J.C.Q.B.A.

Appearances:

None





Appendix “A” - Irregular Document From BGD, Received December 12, 2018

[seal with text “101555 Edmonton File No. # DA03-16734

AB, T5J 2Y0”, an ink fingerprint,

and signature]

NOTICE TO Claim My Property

QUEEN’S BENCH

SURROGATE COURT

1A SIR WINSTON SQUARE

EDMONTON, ALBERTA,CANADA

T5J 0R2

I am a man [BD] the parent/father of [DKD]. My mailing address is [redacted]

I have personal knowledge in this case.

I was not given proper written notice in your Surrogate court Dec 10th 2018 2:00 pm.

The men or women who are the wrong doer : [PPS], Blue Heron Vocational Training Centre Athabasca, Michelle Jansonson, Yvone Marin

has trespassed on my property.

Kidnapped my property.

Damaged My property.

I require my property be returned today.

I wish this court to be moved in common law court.

I require a jury to hear my claim in my court

I require compensation for damages.

I require a trail date.

[D] is damaged.

[D’s] mother is damaged.

[D’s] brother is damaged.

Please give me back my property today and I will fore give your trespasses as, I would expect you would for give me.

Damage fees: one penny paid in silver or gold for every second each human mentioned in this case is damaged.

Remedy:

Return my property with no conditions to the women [BP].

Pay compensation fees: to the damaged humans mentioned in this case.

For everyday that my property is with held from his mother [BP] a compensation fee will be paid: Five thousand Dollars per day. This also applies to any man who interferes with my claim.

This Trial is in the [D] Common Law Court.

I wish this trial to be decided by jury.

This case is my property.

The location of trial in the court house:

QUEEN’S BENCH

SURROGATE COURT

1A SIR WINSTON SQUARE

EDMONTON, ALBERTA,CANADA

T5J 0R2

By: [BD]