_______________________________________________________

Memorandum of Decision

of the

Honourable Mr. Justice S.N. Mandziuk

_______________________________________________________

Table of Contents

I. Introduction. 3

A. Appeal of ALIA v Bourques #1. 5

B. May 14, 2018 Leave Application. 5

C. Bourque v Tensfeldt Litigation is Terminated. 6

II. Timeline. 6

III. Preliminary Findings Concerning the Bourques. 11

A. The Bourques Collaborate in the Abuse of Court Processes. 11

B. The Bourques Are Not Credible. 13

IV. Claims by the Bourques this Action is Improper 17

A. ALIA Has No Authority to Initiate an Application for Court Access Restrictions. 17

B. Res Judicata Prohibits a Finding of Misconduct vs Stephen Bourque. 19

C. The Court May Not Rely on ALIA’s Affidavit Evidence. 19

D. Judicature Act, s 23.1(1) Notice. 20

E. The Court Cannot Proceed Under Its Inherent Jurisdiction. 20

F. Evaluating Court Access Restrictions on a Document-Only Basis. 20

G. “Permission Not Obtained To Name New Respondent”. 21

H. Allegations of Defective Service. 21

I. The Bourques Right To Natural Justice Was Offended by the Interim Court Access Restrictions. 22

V. Auxiliary Claims. 23

A. The ALIA v Bourques File Should Be Sealed. 24

B. Certain Court Transcripts Cannot Be Disclosed. 25

VI. The Law - Court Access Restrictions. 25

VII. Submissions Concerning Court Access Restrictions. 30

A. The Bourques. 30

1. Initial Submissions. 30

2. August 2-7, 2018 Additional Supplementary Submissions. 31

B. ALIA.. 32

VIII. Evidence of the Bourques’ Abuse of Court Processes. 33

A. Prior Court Access Restrictions. 33

B. Bad Faith Litigation. 34

C. Collateral Attack. 35

D. Seeking Impossible Remedies. 35

E. Failure to Pay Costs and Comply with Court Orders. 36

F. Repeated Unmeritorious and Futile Appeals. 36

G. Unsubstantiated Allegations of Conspiracy, Fraud, and Misconduct 37

H. Judge Shopping. 39

I. Intention. 39

IX. Court Access Restrictions. 40

X. Costs. 47

XI. Conclusion. 47

I. Introduction

[1] On February 1, 2018 the Alberta Lawyers Insurance Association [ALIA] filed an Originating Application seeking to have the Court declare that Stephanie Bourque and Stephen Bourque are vexatious litigants and to prohibit Stephanie Bourque and Stephen Bourque from initiating or continuing litigation in any Alberta Court, pursuant to sections 23-23.1 of the Judicature Act, RSA 2000, c J-2.

[2] Stephanie Bourque is a senior citizen who lives in Alberta. Stephen Bourque is her son, and says he is a veterinarian who resides in California. ALIA’s application was set to be heard on November 14, 2018.

[3] At the time of ALIA’s application, Stephanie Bourque was already subject to court access restrictions imposed by the Court of Appeal of Alberta in a decision reported as Bourque v Tensfeldt, 2017 ABCA 356 at para 6 in response to Stephanie Bourque’s abuse of court processes and contempt of court. Stephanie Bourque was therefore prohibited from:

... any further appeals, applications or other proceedings (against the respondent, or relating directly or indirectly to her marriage, divorce or these proceedings) ...

in the Alberta Courts of Appeal and Queen’s Bench.

[4] On April 5, 2018 the Bourques filed two applications:

1. an “Application for Order Restricting Access” [Application #1], which requests that the Docket 1803 02354 file be sealed for a number of reasons, including:

a) “[b]eing labelled a Vexatious Litigant does carry a stigma that is not able to be rid of”;

b) allegedly the ALIA originating application “... does not have a factual basis, is slanderous, and is intended to inflict injury upon the named Respondents”;

c) alleged defects in service;

d) ALIA is not a “party” or a “person” and therefore is not permitted to make this application under the Judicature Act, ss 23-23.1;

e) ALIA has breached a contract by filing the Originating Application; and

f) an exhortation to the Court to “[t]ake particular notice to the fact that permission was given for to assist by each of Master Schlosser, Justice Nielsen, and Justice Ackeryl. Any suggestion that there is an issue with such assistance is therefore defeated” [sic].

2. an “Application for ORDERS to (1)SET ASIDE Service & (2)STRIKE by the Originating Application” [Application #2], which seeks:

a) an Order per Alberta Rules of Court, Alta Reg 124/2010 [the Rules, or individually a Rule], Rule 11.31(1)(a) setting aside service of the Amended Originating Application;

b) an Order to strike out the Amended Originating Application per Rule 3.68(4);

c) an Order removing Stephen Bourque as a party;

d) “[a]n Order to set aside the current Vexatious Litigant notation attached to the court file as it premature, slanderous, and not done in conformation with any Court Rules or Judicature Act sections as required.”;

e) in the alternative a trial by jury; and

f) costs.

This Application then lists a number of “FINDINGS OF FACT”, which are the identified basis for Application #2, some of which overlap with items specified in Application #1.

[5] These two applications were scheduled to be heard in Chambers on April 16, 2018. On that date counsel for ALIA and Stephanie Bourque appeared before me. Stephanie Bourque explained that her son was unable to attend the hearing or to arrange attendance by teleconference by the time of the hearing. When asked why Stephen Bourque did not attend the April 16, 2018 hearing, Stephanie Bourque explained that her son is currently looking for employment and has financial restrictions. She therefore suggested that the matter be adjourned to a later date. I adjourned the Applications #1 and #2 to May 23, 2018.

[6] Prior to adjourning I indicated to the parties present that I intended to review this file further and that I would consider providing further direction to help structure this proceeding. I subsequently concluded that additional steps to better manage and conduct this proceeding were necessary and appropriate, and in a decision reported as Alberta Lawyers Insurance Association v Bourque, 2018 ABQB 311 [ALIA v Bourques #1], I:

1. cancelled the May 23 and November 14, 2018 hearings;

2. ordered that the ALIA application would proceed under the Court’s inherent jurisdiction to control its processes, rather than the now obsolete Judicature Act, ss 23-23.1 procedure;

3. ordered that both ALIA and Stephen Bourque’s applications would be considered on a document-only basis;

4. set deadlines for the parties to file submissions (May 15, 2018) and replies (June 12, 2018); and

5. imposed interim court access restrictions for both Stephanie and Stephen Bourque.

[7] Those deadlines were not met by the Bourques. As I will subsequently detail the Court repeatedly extended deadlines and accepted late materials. After that Stephen Bourque also claimed to have located new and relevant evidence, and sought to make yet more submissions, which were also not received in a timely manner. Nonetheless, the Court has on multiple occasions extended deadlines and accepted late submissions in an attempt to accommodate the Bourques’ many demands for extensions and other special considerations.

[8] The timeline that follows in Part II below provides a more detailed chronology of events in this and other related litigation.

[9] In addition to the many developments itemized in that timeline, there were several other significant events which are important to highlight because those events have a broader impact.

A. Appeal of ALIA v Bourques #1

[10] On July 5, 2018 Stephanie Bourque initiated a late application for permission to appeal ALIA v Bourques #1. In a decision reported as Bourque v Alberta Lawyers Insurance Association, 2018 ABCA 257 [ALIA v Bourques #2]. Slatter JA made a number of findings which are important for this decision:

1. Stephanie Bourque’s complaints and allegations about confusing instructions given by me in response to irregular post-ALIA v Bourques #1 demands by the Bourques for revisions and variations to ALIA v Bourques #1 are “not compelling” (ALIA v Bourques #2, at para 4);

2. Complaints about alleged defects in service in the ALIA v Bourques proceeding are moot, since the Bourques have clearly had notice of the ALIA v Bourques proceeding and have participated in that proceeding (ALIA v Bourques #2, at para 5); and

3. Lymer v Jonsson, 2016 ABCA 32, 612 AR 122 has no application to interim court access restrictions imposed pending determination of whether court access restrictions of indefinite duration are warranted (ALIA v Bourques #2, at para 5).

B. May 14, 2018 Leave Application

[11] On May 14, 2018 Stephanie Bourque wrote Chief Justice Moreau of the Court of Queen’s Bench of Alberta seeking four “orders” which relate to her dispute with her ex-husband’s lawyer. Justice Michalyshyn responded to this letter because he was designated to do so by Chief Justice Moreau and also because the four “orders” fell into the court access restriction regime imposed in Bourque v Tensfeldt, 2017 ABCA 356: Bourque v Tensfeldt, 2018 ABQB 419 at para 8.

[12] Justice Michalyshyn rejected Stephanie Bourque’s leave application. He concluded that the application did not conform to court-ordered instructions (para 9), it asked the Court to attack a binding order of a superior court (para 12), and that in substance Stephanie Bourque’s application was an attempt at “judge shopping”, which is an abuse of court processes (paras 10-12, 17).

[13] Stephanie Bourque was warned that she may be made subject to more stringent court access restrictions if she persists in unmeritorious applications for leave to initiate or continue litigation in Alberta Courts.

[14] Of particular relevance to my decision here is Justice Michalyshyn’s identification of two categories of litigation abuse in Stephanie Bourque’s May 14, 2018 matters: collateral attack against a binding court decision and judge shopping. These findings of fact and law by Justice Michalyshyn favour the imposition of court access restrictions. Beyond that, the Bourque v Tensfeldt, 2018 ABQB 419 leave application generally indicates that Stephanie Bourque does not exhibit a willingness to cooperate with court access restriction procedures.

C. Bourque v Tensfeldt Litigation is Terminated

[15] When ALIA made its application to have the Bourques subject to court access restrictions, Stephanie Bourque had a live appeal (Bourque v Tensfeldt, 1703 0232AC) of a decision (Bourque v Tensfeldt, 2017 ABQB 519) to strike out Stephanie Bourque’s lawsuit against her ex-husband’s lawyer because Stephanie Bourque was in contempt of court.

[16] The Bourque v Tensfeldt, 1703 0232AC litigation led the Court of Appeal of Alberta to impose court access restrictions (Bourque v Tensfeldt, 2017 ABCA 356 at para 6) which prohibited Stephanie Bourque from continuing or engaging in further litigation related to her divorce.

[17] The Bourque v Tensfeldt, 1703 0232AC action was struck out when Stephanie Bourque failed to meet filing deadlines. Stephanie Bourque then applied to restore the appeal. After further filing issues (Bourque v Tensfeldt, 2018 ABCA 162), a hearing on whether to restore the appeal was conducted on June 5, 2018. The panel dismissed Stephanie Bourque’s appeal with oral reasons.

[18] That ended the Bourque v Tensfeldt, 1703 0232AC appeal. As a consequence the court access restrictions imposed by Bourque v Tensfeldt, 2017 ABCA 356 on October 31, 2017 are no longer in effect. Stephanie Bourque and Stephen Bourque however continue to be subject to the interim court access restrictions imposed by ALIA v Bourques #1.

II. Timeline

[19] The timeline that follows traces the many developments in this and other related proceedings relevant to this Memorandum of Decision:

February 1, 2018

- ALIA filed an Originating Application seeking that the Court declare the Bourques to be vexatious litigants.

February 6, 2018

- ALIA filed an Amended Originating Application and an Affidavit sworn by Greg Kaip.

February 13, 2018

- Master Schulz issued an Order for Service Ex Juris relating to Stephen Bourque.

April 16, 2018

- Stephanie Bourque and counsel for ALIA appeared before me in relation to Applications #1 and #2.

April 23, 2018

- ALIA v Bourques #1 and a corresponding interim court access restriction order are issued and mailed to the parties.

May 14, 2018

- Stephanie Bourque writes Moreau CJ demanding four orders. This leave to file application led to Bourque v Tensfeldt, 2018 ABQB 419.

- ALIA files a supplementary Affidavit of Greg Kaip.

May 15, 2018

- Deadline for Application #1 and #2 written submissions by the applicants. No submissions are received from the Bourques.

- ALIA files its written brief concerning whether the Bourques should be made subject to court access restrictions.

- Stephen Bourque by email contacts me with four “inquiries”. He complains that he cannot file materials or travel to Canada. Stephen Bourque says there “are numerous mistakes and errors” in the ALIA v Bourques #1 decision and court order which “require correction”, and he cannot meet his filing deadlines. He asks how to make an “Application for Reconsideration”.

May 17, 2018

- I respond to the May 15, 2018 letter instructing that Stephen Bourque may submit materials to me via email. I instruct that no reconsideration or correction of “errors” will be made to the ALIA v Bourques #1 decision and corresponding order, except if there are inconsistencies between those two documents. If Stephen Bourque disagrees with the ALIA v Bourques #1 decision his remedy is to appeal to the Court of Appeal of Alberta.

May 25, 2018

- Bourque v Tensfeldt, 2018 ABQB 419 is issued, dismissing the May 14, 2018 application for leave by Stephanie Bourque and making unfavourable findings against Stephanie Bourque.

May 28, 2018

- Stephen Bourque emails me two documents with a letter dated May 23, 2018: an “Introduction to the Issues Letter” and “Corrections Document”. The “Letter” now demands permission to vary or set aside the ALIA v Bourques #1 decision and interim court access restriction order. It also queries about deadlines. The “Corrections Document” does not comply with the instructions in the May 17, 2018 letter of the Court, but instead is actually a 29-page written argument concerning a number of issues, including whether ALIA may initiate its action, challenging the Court’s authority to proceed under its inherent jurisdiction, and alleged defects in service and affidavit evidence.

May 29, 2018

- I respond to the May 28, 2018 correspondence with a letter which indicated that no response would be made to the “Corrections Document”, which would be considered as argument, to the degree it is relevant. I reaffirmed that if Stephen Bourque disagreed with ALIA v Bourques #1 decision his remedy is to appeal to the Court of Appeal of Alberta.

June 4, 2018

- ALIA filed its reply to Applications #1 and #2.

June 5, 2018

- The Bourque v Tensfeldt, 1703 0232AC appeal is dismissed by the Court of Appeal of Alberta with oral reasons.

June 7, 2018

- The Court receives further correspondence from Stephen Bourque, dated June 5, 2018. He complains that he does not understand how to apply for leave to vary the ALIA v Bourques #1 interim court access restriction order. He also says he cannot prepare materials in this action because the cost of a notary is excessive, and he cannot afford to courier and file documents in Alberta. He says he did not receive enough time to respond to ALIA v Bourques #1. Stephen Bourque also alleges the document-based approach adopted in ALIA v Bourques #1 is unfair, he has a right to appear and be heard. Attached is a letter authored by Stephen Bourque and purportedly written on April 12, 2018.

June 8, 2018

- I responded to the June 7, 2018 Stephen Bourque letter. I said that he had already been informed as to how to submit his materials electronically, that June 12, 2018 is the deadline for his submissions, and that I would not give him legal advice (for which he can consult a lawyer).

June 12, 2018

- Deadline for ALIA to respond to the Applications #1 and #2. Deadline for the Bourques to make submissions in relation to whether they should be subject to court access restrictions.

June 13, 2018

- Stephen Bourque sends me an email stating that he has spent so much time preparing the various complaints about and demands for corrections to ALIA v Bourques #1 that he is unable to meet the timelines set in that decision. “This is the best I can do under the circumstances, and given the time restraints that have been created while attempting to obtain clarification surrounding the court order and responses received from Justice Mandziuk.” Stephen Bourque then says he will send the Court submissions on Applications #1 and #2 on June 15, 2018, which is one month late.

June 15, 2018

- Stephanie Bourque files a “Bench Brief” and supporting affidavit dated June 14, 2018. Although they were provided late, these late submissions are nevertheless accepted.

June 18, 2018

- Stephen Bourque via email indicates that he wants to apply to make late submissions. He complains again about time “lost” because he had sought “corrections” and “clarifications”. He indicates there have been “family medical emergencies”:

Partner was diagnosed with Severe Congestive Heart Failure at the beginning of May, which has required a large majority of my time being spent at the hospital. My father in law has also suffered a stroke at the beginning of June, and then suffered 2 additional strokes while in the hospital further occupying a large amount of my time.

- He also indicates that the Bourques are appealing ALIA v Bourques #1, but he cannot afford the associated costs. Stephen Bourque now claims the reason for his late submissions is “... I did not want to submit the 4 prepared items which might inadvertently prevent the appeal ...”.

June 19, 2018

- I respond by letter to the June 18, 2018 email of Stephen Bourque and direct that he indicate a deadline by which he would submit the overdue written materials. If no response was received by June 22, the Court would proceed to prepare a final decision in relation to the issue of court access restrictions.

June 22, 2018

- Stephen Bourque responds that he will make his submissions by July 2, 2018.

June 25, 2018

- I accept the proposed July 2, 2018 extended deadline and warn that late materials will be refused.

July 3, 2018

- Written submissions (two “Bench Briefs”, “Affidavit”) are received from Stephen Bourque and are accepted.

July 5, 2018

- Stephanie Bourque files a late application for permission to appeal ALIA v Bourques #1.

July 13, 2018

- Stephen Bourque writes to request permission to make further submissions because of “previously unknown case specific information learned which is believed to be material to the issues the court is considering at this time.” Stephen Bourque also demands disclosure of internal court documentation concerning judicial case assignments.

July 19, 2018

- Stephanie Bourque and Stephen Bourque appear before Slatter JA in relation to Stephanie Bourque’s appeal of ALIA v Bourques #1. Stephen Bourque appears despite not being a party to the appeal.

July 21, 2018

- I reply to the July 13, 2018 letter and refuse to disclose internal court communications which are subject to judicial privilege. I permitted further submissions due on July 31, 2018, with a reply by ALIA (if any) due on August 14, 2018. I cautioned Stephen Bourque that costs and/or negative inferences may result if no additional submissions were received, or proved unmeritorious.

July 23, 2018

- The late appeal by Stephanie Bourque is refused leave in ALIA v Bourques #2.

August 1, 2018

- Stephanie Bourque wrote via email to communicate that she had sustained a serious femur injury and would not be able to represent herself. She requested this action “... be temporarily stayed/put on hold ...” because she cannot attend court or file materials. Stephanie Bourque also requested a court appointed lawyer, and informed me that the additional submissions from Stephen Bourque due the previous day would be “a few hours late”.

August 2, 2018

- I responded to Stephanie Bourque and denied her request for a court-appointed lawyer or a stay since submissions regarding this matter were now closed. The next step would be the Court issuing its decision after it received rebuttal arguments from ALIA in response to Stephen Bourque’s additional submissions.

August 2-7, 2018

- The Court received additional submissions and evidence, including court transcripts, from Stephen Bourque. Stephen Bourque unilaterally imposed conditions on use of two transcripts, that these items are “... not to be re-disclosed or used in any other proceeding ... ie this is not intended to be provided to ALIA, to then be disseminated throughout the Law Society, and then to have this surface in some other matter in the future ...” [sic].

August 8, 2018

- I wrote to Stephen Bourque accepting his late additional submissions, and instructing that the August 14, 2018 deadline I had set for ALIA to reply was extended to August 21, 2018.

August 20, 2018

- ALIA filed its rebuttal additional submissions.

III. Preliminary Findings Concerning the Bourques

[20] Prior to examining the issues raised in the ALIA Amended Application and Applications #1 and #2, I will make two preliminary conclusions that then apply to the remainder of my analysis.

A. The Bourques Collaborate in the Abuse of Court Processes

[21] My first step in this decision is a preliminary point concerning the two respondents Stephanie and Stephen Bourque. Where two or more problematic litigants work in concert then the Court may treat these abusive individuals as a single unit: Onischuk v Edmonton (City), 2017 ABQB 647 at paras 24-25; Onischuk (Re), 2017 ABQB 659 at paras 11, 21.

[22] I conclude this is the case for Stephen and Stephanie Bourque. Functionally, these two persons operate together in the conduct of Stephanie Bourque’s litigation and in their response to ALIA’s court access restriction application. I am not the first to make this observation, however the degree to which this mother and son conduct an integrated operation became very plain and obvious as this action has proceeded.

[23] In Bourque v Tensfeldt, 2017 ABQB 519, aff’d (5 June 2018), Edmonton 1703 0232AC (ABCA), Justice Michalyshyn concluded at paras 32-35 that Stephen Bourque in correspondence was advancing arguments of fact and law, and was acting as a legal representative for Stephanie Bourque, in breach of Legal Profession Act, RSA 2000 c L-8, s 106. Stephen Bourque also acted as a ‘mouthpiece’ for his mother, when she was allegedly incapacitated by a medical condition: paras 60-62, 68. Justice Michalyshyn’s evaluation of the Bourques’ evidence of Stephanie Bourque’s medical circumstances is unfavourable: paras 59-69.

[24] The reverse has also occurred. In the now dismissed ALIA v Bourques #2 appeal Stephanie Bourque advanced many arguments that do not relate to her, but instead to her son:

1. Complaints that I was non-responsive to demands for instructions and “corrections” to ALIA v Bourques #1, which caused “confusion” and delay.

2. Stephen Bourque was unfairly restricted by deadlines set in ALIA v Bourques #1, given his location in the US and other factors. I note that the Court responded to Stephen Bourque’s many complaints by extending his deadlines and facilitating delivery of written materials as electronic documents transmitted by email. That, however, is not mentioned in Stephanie Bourque’s documents submitted in the ALIA v Bourques #2 appeal.

3. Stephen Bourque had no opportunity to appear and “defend himself in anyway” prior to the ALIA v Bourques #1 decision and interim court access restriction orders.

[25] Thus, as Slatter JA observed in ALIA v Bourques #2, at para 5, many of the issues raised in Stephanie Bourque’s appeal actually related only to Stephen Bourque, not Stephanie Bourque. Stephen Bourque personally appeared at the July 19, 2018 hearing which resulted in ALIA v Bourques #2, despite him being a third-party to that appeal. This further illustrates how the two Bourques operate in concert.

[26] Similarly, the arguments and materials submitted by Stephanie and Stephen Bourque show broad similarities, or otherwise merge together. A good example of this is Application #1 and #2. In their post-ALIA v Bourques #1 arguments the Bourques strenuously complain that ALIA v Bourques #1 mischaracterizes who was the author of these two applications. While Application #1 names Stephen Bourque, it argues there is no basis in Stephanie Bourque’s litigation history to warrant court access restrictions. Similarly Application #2, which names both “STEPHANIE BOURQUE; APPLICANT; Defendant”, and “DR. STEPHEN BOURQUE; (Defendant (non-party)” argues that Stephen Bourque should be “removed” as “named co-defendant”, and complains that Stephen Bourque did not give permission to being named as he is “... not a party and resides in a foreign country ...”.

[27] The supporting Affidavit of April 5, 2018 further illustrates how this litigation is ‘blended’ by the two Bourques. The Affidavit is purportedly sworn by Stephanie Bourque, but much of the body of the Affidavit has nothing to do with Stephanie Bourque. Instead, it is written in first person, by Stephen Bourque. For example, a part of paragraph 2 reads:

i. I am not a party to any case in Alberta,

ii. I have never appeared in court,

iii. I live in a Foreign Country,

iv. I have never been permitted to defend myself against such slanderous allegations,

v. I have not had any contact, interaction, nor even heard the names of those involved at ALIA and thus are based exclusively upon information and belief.

[28] Similarly, paragraph 4 rejects an Affidavit of Service in this manner:

This Exhibit is included to prove to this court that the Affidavit of California Process Server Tim Ault is FALSE and can not be relied upon by this court to prove personal service upon me. ...

The date listed for service is 2/19/18 at 3:36PM to my residence address. However, on 2/19/18 I was at a consultation with a Lawyer in Oakland, CA a full 30km away from 3:30 thru 5:00PM making personal service upon me in Castro Valley, CA IMPOSSIBLE.

[29] I conclude this demonstrates that Stephen Bourque is preparing at least some of the material purportedly from Stephanie Bourque and illustrate how any ‘division’ between their litigation is, at best, artificial.

[30] This collaborative litigation by the Bourques been going on since the beginning of this action. For example, a letter by Stephen Bourque to the Court dated February 28, 2018 attached to Stephen Bourque’s June 30, 2018 affidavit, includes arguments that only relate to Stephanie Bourque, and demands steps such as cost awards for his mother. Stephen Bourque in this document is clearly acting as an unlicensed, unauthorized legal representative, in breach of Legal Profession Act, RSA 2000 c L-8, s 106. This letter was refused at the ALIA v Bourques April 16, 2018 Court of Queen’s Bench of Alberta hearing because it was not properly filed and before the parties. Stephen Bourque has subsequently introduced it into this action and it is clearly relevant in the sense that this letter illustrates the degree to which Stephen Bourque was immediately ‘running the show.’

[31] ALIA has filed examples of Stephen Bourque corresponding on behalf of his mother and in relation to her litigation. This further illustrates how these individuals collaborate.

[32] I have no difficulty concluding that Stephanie and Stephen Bourque have conducted their litigation activities in Alberta as a single unit. The court access restrictions analysis which follows will therefore investigate what steps, if any, are warranted to control the litigation activities of this mother and son team based on their combined litigation misconduct. However, the exact form of those restrictions ordered against these individuals may differ to meet and respond to plausible future litigation abuse by these individuals.

[33] In the analysis that follows I will usually refer to any submissions or arguments by either of the Bourques collectively. As I have explained, this is an accurate way to capture their materials, which are otherwise often duplicative and highly repetitious.

B. The Bourques Are Not Credible

[34] My second preliminary finding is that I do not consider the evidence of either Stephanie or Stephen Bourque to be credible. That conclusion was already reached by this Court in relation to Stephanie Bourque. In Bourque v Tensfeldt, 2017 ABQB 519, Michalyshyn J found that Stephanie Bourque had given false excuses about why she had not attended Questioning as ordered by the Court. For example Justice Michalyshyn concluded (para 39):

... it is implausible and frankly impossible to believe that Bourque was unable to locate the law office, and on not one but two separate occasions. What’s more, there is little reason to believe that Bourque looked for but was unable to find the law firm, when she had repeatedly stated that she had no intention to attend questionings in the first place. ...

[35] Similarly, he observed how Stephanie Bourque’s medical issue excuses were unsupported by medical records, and that her evidence shifted: paras 41-69. One time she reported that she was incapacitated by a pinched nerve in her left leg. Later it was in the upper right leg. Then it was “Pinched Nerve and/or Fracture Femur Right leg”. Again, there was no evidence to support these assertions or their effects. Stephanie Bourque also complained that she was unable to represent herself because of drugs.

[36] However, Justice Michalyshyn concluded that these claims were inconsistent with Stephanie Bourque’s in-court conduct (para 63):

In stark contrast to this history of alleged medical disabilities was Bourque’s own presentation before the court the morning of August 10, 2017. Bourque was able to attend court. She was able to participate without evident distress – physically or cognitively –from about 9 am till past noon. With the exception of a short break about mid-way through, Bourque sat and/or stood for the entire half-day’s proceedings. She did complain that she could hardly sit, and was on heavy medication. Yet she made oral submissions, rebutted those of defendant’s counsel, and was appropriately responsive to questions from the court. In sum, her presentation on August 10, 2017 was entirely inconsistent with being disabled from the litigation process by any physical or cognitive shortcomings.

[37] Michalyshyn J found Stephanie Bourque in contempt of court on this basis. Her lawsuit was struck out, and double costs were ordered: paras 89-90.

[38] Alleged medical emergencies also emerged in this action. In the July 5, 2018 Application for Leave to Appeal to the Court of Appeal of Alberta, the Bourques’ failure to appeal ALIA v Bourques #1 in a timely manner (May 23, 2018 deadline) was explained in this way:

Further complicating the matter are several recent medical incidents that have occurred in Stephen Bourque's immediate family.

i. His partner was diagnosed with Severe Congestive Heart Failure which required 3 separate Hospital stays and numerous specialist medical consultations since April 20/2018 .

ii. His father in law suffer a series of 3 Stokes that began May 10, 2018 that have required a continual hospital stay, and transfer to a long term care facility

... To further add to this, Stephen Bourques long time best friend suddenly passed away on May 2, 2018 due to a heart attack at age 38.

[Sic, emphasis added.]

[39] Then, after he missed the June 12, 2018 deadline set in ALIA v Bourques #1, Stephen Bourque on June 18, 2018 wrote me this narrative of “family medical emergencies”:

Partner was diagnosed with Severe Congestive Heart Failure at the beginning of May , which has required a large majority of my time being spent at the hospital. My father in law has also suffered a stroke at the beginning of June , and then suffered 2 additional strokes while in the hospital further occupying a large amount of my time.

[Emphasis added.]

[40] The alleged medical events are the same, however the dates have been altered to shift the timing of the “family medical emergencies” so that they corresponded to a court-mandated deadline. I find as fact that these are further instances of the Bourques fabricating medical-related issues for what they perceive as a tactical advantage, in alignment with the conclusion of Michalyshyn J in Bourque v Tensfeldt, 2017 ABQB 519.

[41] Another way that Stephen Bourque’s conduct bears a similarity to Stephanie’s Bourque’s conduct is in relation to his name. He consistently refers to himself as a veterinarian and pharmacist. He signs his correspondence:

Dr. Stephen Bourque

Bsc Pharmacy with Distinction, DVM

[42] In fact, one of the numerous demands for “corrections” made by Stephen Bourque relates specifically to his name. Clause 7 of the April 20, 2018 Interim Court Access Restriction Order requires that Stephen Bourque only identify himself in court documents as “... “Stephen Bourque”, and not by using initials, an alternative name structure, or pseudonym.”

[43] In his May 28, 2018 “Corrections” document, Stephen Bourque complains he, as a veterinarian, is professionally and legally required to use a different name:

The American Veterinary Medical Association does require that I use the title that I was given when I graduated, which is to be used for all legal and other purposes at all times. As such, I do go by “Dr. Stephen Bourque”. The alternative is “Stephen Bourque, DVM”. As such, I have used this as my legal name since 2007 for all purposes and thus would be in violation of the rules set by this association should I not include the title with my name.

[Emphasis in original.]

[44] There is a problem with this claim. Stephen Bourque is not a veterinarian. He was stripped of that status and his pharmacist licence several years ago. The California State Board of Pharmacy revoked his “Registered Pharmacist” status, License Number 63701, on December 19, 2014. The California Veterinary Medical Board revoked Stephen Bourque’s veterinarian licence, number 17076, on February 20, 2015.

[45] The reasons for these steps are found in published decisions of these organizations: Stephen Davis Bourque, OAH No. 2014070700 (Board of Pharmacy), and Stephen Bourque, OAH No. 2014070702 (Veterinary Medical Board). The reason why Stephen Bourque was stripped of his accreditation and prohibited from further activity in these professions is that he abused drugs and was convicted of drug-related offenses.

[46] Documents in these actions reveal that Stephen Bourque was found by police in possession of ketamine that he obtained as a veterinarian. He admitted that he injected that narcotic for non-medical purposes.

[47] Several months later Stephen Bourque was again arrested when police responded to reports of a person who may require assistance, this individual “... believed he was being followed.” That was Stephen Bourque. Stephen Bourque exhibited signs of stimulant intoxication. After being uncooperative and denying drug use, Stephen Bourque demanded why the officer was not wearing a badge, though one was clearly visible. He then “sprinted down the road”. After Stephen Bourque was captured he was found in possession of methamphetamine and testosterone cyprionate. Stephen Bourque was placed on probation under drug court supervision but later tested positive for drugs and was found guilty of possession of a controlled substance.

[48] This misconduct was the basis on which Stephen Bourque’s professional status was revoked. For Stephen Bourque to now present himself as a veterinarian and pharmacist is, at best, disingenuous. For him to say that he, as a professional, must identify himself as “Dr. Stephen Bourque” is flat out dishonest. This is no different from a military officer who was court-martialed and cashiered then to claim to still hold his former rank, and demand that he be addressed by that title.

[49] However, that is not the end of Stephen Bourque’s claims concerning his professional status. In his June 30, 2018 Affidavit, he complains that the (allegedly) false allegations by ALIA may have a detrimental effect on his career. He expresses concern that:

... the disciplinary guidelines for one of the licening boards that I am affiliated with provides grounds for disciplining licensee’s and also those applying for licensure that are related to General Unprofessional Conduct, those having ‘convictions’ or being having disciplinary action taken against them by other licensing agencies. [Sic.]

[50] Stephen Bourque then continues to say these professional agencies “aggressively prosecute licensee’s” [sic] and warns that he may suffer “serious long lasting injury” because “[t]here was a section found on Veterinary Licensure and violations involving dishonesty, fraud, misrepresentation”. Him being alleged to be a vexatious litigant could therefore have negative consequences to “the practice of Veterinary medicine”.

[51] Of course, by this point Stephen Bourque was no longer a veterinarian. His claim that his veterinarian career is put at risk by ALIA’s (allegedly) improper application to have him declared is a vexatious litigant is not merely spurious, but brings to mind the Yiddish word “chutzpah”, a property that Southin JA in Doman v British Columbia (Superintendent of Brokers), 1996 CanLII 8411 (BC CA), 85 BCAC 210 at para 21, 138 WAC 210 (BCCA) described as “a man who has been convicted of murdering his parents seeking mercy on the ground that he is an orphan”.

[52] In brief, I conclude that the sworn evidence of Stephanie and Stephen Bourque cannot be relied upon without independent support and verification. They say what they think will give them an advantage. If there are conflicting accounts, I prefer the non-Bourque evidence.

[53] I have attempted to conduct these proceedings in a fair manner, consistent with the principles of the Canadian Judicial Counsel Statement of Principles on Self-represented Litigants and Accused Persons, September 2006, as endorsed by the Supreme Court of Canada in Pintea v Johns, 2017 SCC 23, [2017] 1 SCR 470. For example, I am very skeptical of the Bourques’ claims of medical emergencies. However, in the interest of ensuring the Bourques have a fair opportunity to make their arguments I have repeatedly extended deadlines, and taken other steps to assist their litigation and allow them to put their positions before the Court.

[54] However, when it comes to certain allegations - for example the Bourques’ complaints about inadequate service - I have no hesitation in preferring the evidence of process servers over that of the Bourques. As I previously indicated, I conclude they will say whatever they think gives them an advantage in this and other litigation.

IV. Claims by the Bourques this Action is Improper

[55] The Bourques raised many arguments in the Applications and their other submissions which globally seek to pre-empt or otherwise invalidate this Court’s determination of whether or not the Bourques should be subject to court access restrictions. In fact, these attempts to pre-emptively terminate investigation of whether the Bourques require court management make up the large majority of the Bourques’ materials. They only secondarily comment on whether their litigation conduct has been improper or not, and if there is a requirement for court access restrictions.

[56] I will usually not specify which of the many submissions received by the Bourques are the sources of these issues. In most instances, the same issue and often similar text is repeated in the Bourques’ many briefs, demands for “corrections”, affidavits, letters, and other documents.

[57] As will become apparent, I have rejected the Bourques’ submissions on the points that follow. However, I also in certain instances go further, and conclude that these arguments are not merely wrong, but that the Bourques advanced these claims knowing they had no merit. These arguments are clearly ‘bad faith’ litigation, and those findings of fact will be relevant in my conclusion on whether or not court access restrictions are appropriate for these individuals.

A. ALIA Has No Authority to Initiate an Application for Court Access Restrictions

[58] The first argument by the Bourques as to why ALIA’s application is a nullity is that ALIA was not a party in any prior litigation that involved the Bourques. It is therefore a third party that lacks standing. The Bourques also allege ALIA and its employees acted in bad faith and/or with conspiratorial intent in its interactions with Stephanie Bourque and in bringing the February 1, 2018 Judicature Act, ss 23-23.1 application. That, too, allegedly prohibits ALIA from initiating a court review of the Bourques’ activities.

[59] The Bourques cite Judicature Act, s 23.1(2):

23.1(2) An application under subsection (1) may be made by a party against whom vexatious proceedings are being instituted or conducted, a clerk of the Court or the Minister of Justice and Solicitor General or, with the permission of the Court, any other person.

for the proposition that ALIA is a third party which is prohibited from making an application under that act, as ALIA does not fall into any of the identified categories.

[60] Third, the Bourques claim:

ALIA is listed as a “Subsidiary Corporation”. A corporation cannot be a person. The Judicature Act does not allow such an entity to bring such an application in this court, especially with the consideration that it is not a party to any case itself.

[Emphasis in original.]

[61] Last, the Bourques argue ALIA and the Law Society may only “investigate” lawyers, per the Legal Profession Act, RSA 2000, c L-8, s 55. Since Stephen and Stephanie Bourque are not lawyers, ALIA cannot take them to court.

[62] I conclude there is no merit to these arguments for several reasons.

[63] First, the Bourques’ claim that ALIA has no status in court, since “[a] corporation cannot be a person”, is obviously false in law. This bizarre claim, which is the converse of the Organized Pseudolegal Commercial Argument [OPCA] (Meads v Meads, 2012 ABQB 571, 543 AR 215) “Strawman” Theory (reviewed in Pomerleau v Canada (Revenue Agency), 2017 ABQB 123 at paras 67-95, 2017 DTC 5024) that human beings are not “persons”, is equally false. Corporations are legal persons: Hogarth v Rocky Mountain Slate Inc, 2013 ABCA 57 at para 67, 542 AR 289, leave to appeal to SCC refused, 35321 (4 July 2013). While corporations have existed since ancient Rome, the rule that a corporation is a unique person at law has been woven into the fabric of our law since Salomon v A Salomon & Co Ltd, [1896] UKHL 1, [1897] AC 22 (UK HL).

[64] Second, the Legal Profession Act does not even involve ALIA, which is a separate insurance corporation. ALIA, as the designated insurer for Alberta lawyers, defends lawyers who are sued in relation to their professional activities. In this capacity ALIA is “subrogated”, and though not named in an action, ALIA conducts litigation on behalf of its lawyer clients. This mechanism by which insurers represent their customers is sometimes expressed as the insurer “standing in the shoes” of the insured, for example: Douglas v Stan Fergusson Fuels Ltd, 2018 ONCA 192 at para 55; Robichaud v Pharmacie Acadienne de Beresford Ltd, 2008 NBCA 12 at para 12, 290 DLR (4th) 294. ALIA therefore has the same rights as Ms. Tensfeldt to initiate a Judicature Act, ss 23-23.1 application in relation to the Bourques.

[65] As for whether ALIA’s application was made for bad purposes, that allegation, which I do not accept, is in any case irrelevant. Court access restrictions are made on a prospective, rather than punitive, basis. Only the Bourques’ litigation conduct and intentions are relevant to my decision concerning the issuance of court access restrictions against them.

[66] Further, this application has proceeded under this Court’s inherent jurisdiction, and the backdrop of interactions and interrelationships between the Bourques, ALIA, and Ms. Tensfeldt cannot affect this Court’s inherent jurisdiction to intervene and impose court access restrictions as part of its authority to control its processes.

[67] Put more succinctly, if a judge of this Court detects one or more problem litigants, that judge is always authorized to take whatever steps are appropriate to respond to and address the identified issue(s). The surrounding context in which disruption to court function has emerged is irrelevant to solving that problem.

[68] I therefore place no weight on the Bourques’ complaints concerning ALIA and its lawyers and agents. What matters here is how the Bourques have conducted themselves - nothing else.

[69] Further, I conclude that the obviously false argument that ALIA is not “a person” is an argument made in bad faith. Even the most cursory investigation of the relevant law in all English-traditional common law countries would identify this claim as false. The Bourques have demonstrated enough familiarity with legal principles and processes that this ‘a corporation is not a person’ argument deserves exactly the same response as the “Strawman” Theory has received. Advancing this argument invites the conclusion that litigation is being conducted for ulterior purposes and with abusive intent: Fiander v Mills, 2015 NLCA 31, 368 Nfld & PEIR 80.

B. Res Judicata Prohibits a Finding of Misconduct vs Stephen Bourque

[70] The Bourques reproduce a court transcript excerpt which includes an exchange that occurred in an August 10, 2017 hearing before Justice Michalyshyn in the Bourque v Tensfeldt, Docket #1503 12891 action and say that this passage meant:

Justice Michalyshyn has finally determined that Stephen Bourque has not prepared any legal documents for Stephanie Bourque and there is not mention that he has been holding himself out as the legal representative of Stephanie Bourque. Therefore, Res Judicata prevents these arguments from being raised a second time.

[71] Two weeks later Justice Michalyshyn released Bourque v Tensfeldt, 2017 ABQB 519 where at para 32 Justice Michalyshyn found as fact that Stephen Bourque had sent correspondence to opposing counsel, and that Stephen Bourque says he is “assisting” his mother in that action. Justice Michalyshyn at para 33 concluded:

All three of the letters attributed to Stephen Bourque are aggressive and critical of defendant’s counsel. The letters take positions and make argument on the facts and law which the apparent author, Stephen Bourque, says exist and applies to the action. On their face, the author of the letters is clearly legally representing Stephanie Bourque in the action. And so to the extent these letters were written and sent by a non-lawyer on behalf of Stephanie Bourque, their author is arguably in breach of s. 106 of the Legal Profession Act RSA 2000 c L-8.

[72] Michalyshyn J also concluded that Stephanie Bourque has endorsed correspondence of Stephen Bourque as her own materials: paras 34-35.

[73] Thus, the Bourque v Tensfeldt, 2017 ABQB 519 decision of Michalyshyn J explicitly reaches the opposite conclusion from what the Bourques have argued. The Bourques are obviously familiar with the Bourque v Tensfeldt, 2017 ABQB 519 decision, because in Stephanie Bourque’s letter received May 14, 2018 she reproduces and highlights these very passages from Bourque v Tensfeldt, 2017 ABQB 519, which she criticizes as “False Allegations” that “... is without merit and is clearly only included [as] an effort to retaliate.”

[74] These observations lead me to conclude this is another instance where the Bourques have advanced an argument in bad faith. They knew that this argument had no basis, but made it anyway.

C. The Court May Not Rely on ALIA’s Affidavit Evidence

[75] Next, the Bourques argue that the affidavit evidence entered by ALIA in support of its application cannot be relied upon because the affidavit deponent, Greg Kaip, had no personal knowledge of this affidavit’s contents.

[76] I reject this argument. First, Mr. Kaip is a claims examiner for ALIA, and is properly positioned to be familiar with the Stephanie Bourque litigation. Second, most of the ALIA affidavit content is court documents and documentary communications. These are all properly admissible in this manner. In fact, the Court does not need affidavits to reference court materials when investigating whether court access restrictions are appropriate: 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). However, affidavits such as Mr. Kaip’s are an appropriate way to bring these materials to the Court’s attention. This argument by the Bourques has no merit.

[77] The Bourques also argue that my review of the ALIA affidavit evidence creates “apparent bias” because I am contaminated by my exposure to the ALIA materials. This point is irrelevant since I have concluded that there is no merit to the Bourques’ complaint about the Kaip affidavits. In any case, if I were exposed to information that is not admissible as evidence, as a judge I am expected to exercise my discretion to disregard that information and proceed only on information that is properly before the Court. Judges do that every day.

[78] The Bourques argue that ALIA has not satisfied the Judicature Act, s 23.1(1) requirement that ALIA give “notice to the Minister of Justice and Solicitor General”. The Bourques foundation for this claim is “... there is no entry listed in the Clerk case procedure history that would suggest this has been successfully done.”

[79] ALIA’s June 4, 2018 submissions attach an April 17, 2018 letter where Alberta Justice and Solicitor General indicated that it has been notified per Judicature Act, s 23.1(1) of the ALIA v Bourques litigation. It did not intend to participate.

[80] Ultimately, this issue is irrelevant since this Court is proceeding under its inherent jurisdiction, not the Judicature Act: ALIA v Bourques #1, at para 15. As I have previously indicated in ALIA v Bourques #1, at paras 12-14, the Judicature Act procedure is obsolete and no longer used by this Court. The notice requirement in that legislation is therefore irrelevant.

E. The Court Cannot Proceed Under Its Inherent Jurisdiction

[81] The Bourques also argue that since the ALIA application is in various ways defective that the Court cannot proceed under its inherent jurisdiction. As I understand it, this is a kind of ‘fruit of a poisoned tree’ argument. The Bourques were never properly before the Court, so therefore I cannot act, no matter what kind of litigation abuse becomes apparent or is revealed.

[82] I reject this claim on the same basis I have previously described: nothing can exhaust or pre-empt this Court’s inherent jurisdiction to control its processes. Even if the ALIA application was in some way invalid, the fact the Bourques are in front of me and have conducted themselves as they have permits me to take steps to control their abusive litigation and misuse of court processes.

[83] I conclude that this argument is, in itself, an indication of bad faith on the part of the Bourques. They claim that their abuse of the court and other court participants should be shielded by alleged technical defects and formal irregularities. That approach to litigation is precisely what was rejected when the Supreme Court of Canada instructed trial courts to engage in a “culture-shift”: Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87. Litigants cannot disclaim their obligations on the basis of alleged technical defects, and certainly cannot terminate or even dilute the Court’s inherent jurisdiction in this manner. To claim otherwise directly attacks the authority of the Court itself, and I conclude that the Bourques are very well aware of that end-point to their arguments.

F. Evaluating Court Access Restrictions on a Document-Only Basis

[84] The Bourques also complain they have not been provided with an adequate opportunity to have their submissions heard when this Court adopted a document-based approach in this action in ALIA v Bourques #1, at paras 28-29, 34. Strangely, they denounce as unfair the large volume of materials received from ALIA, in “... stark contrast to the lack of virtually any opportunity to appear, to be heard, to file an affidavit”. The Bourques say that this renders these proceedings unfair.

[85] The Bourques also claim that a decision by this Court to proceed on a document-only basis “... does deny Stephen Bourque most rights he has in this matter. ...” and continues to state:

There is case law which does make clear that such decision are made without notice, that such Decisions and Orders are to be set aside as a matter of right.

No “case law” is identified to support this proposition.

[86] The Bourques advanced this argument despite being given repeated extensions to their filing deadlines, and then entering 117 pages of materials on June 15, 2018, 188 pages on materials on July 5, 2018, and a further 135 pages of argument and affidavits and 60 pages of transcripts on August 2-7, 2018. To say that the Bourques have not had the opportunity to make their case is simply absurd. No reasonable informed person would conclude otherwise.

[87] The Supreme Court of Canada in R v Cody, 2017 SCC 31 at para 39, [2017] 1 SCR 659 instructed trial judges to conduct litigation on a documentary record alone as a method to improve efficiency. I cited that principle in ALIA v Bourques #1, at para 29. That statement in R v Cody was made in the context of criminal litigation, with its strong emphasis on rights and procedural fairness. This principle naturally applies in civil proceedings as well.

[88] The Bourques have not provided any reasoned basis for why the document-based approach is inappropriate in this case. The procedure I have adopted is the standard practice when the Court of Queen’s Bench of Alberta evaluates a possible requirement for court access restrictions. The Bourques claim there is “clear case law” for the proposition that this is an unjust proceeding, but provide nothing to substantiate that assertion, either in law or fact.

[89] I therefore conclude this is another of the Bourques’ arguments that was made in bad faith and indicates an intention to abuse the Court’s processes.

G. “Permission Not Obtained To Name New Respondent”

[90] The Bourques make a difficult to understand argument that Rule 3.75(1) of the Alberta Rules of Court, Alta Reg 124/2010 prohibits them from being “added” to this action. The parties in this action were set by the Originating Application filed on February 1, 2018. There is no merit to this complaint.

H. Allegations of Defective Service

[91] The Bourques make many complaints about the service of documents in this action. I reject all those complaints, and will not go into their details any further. As Slatter JA concluded in ALIA v Bourques #2, at para 5, the Bourques are obviously very aware of the ALIA application and this Court now proceeding on its own authority to evaluate whether the Bourques should be subject to court access restrictions. That finding is binding on me, and I would point out that I fully agree with Justice Slatter’s reasoning and conclusion.

[92] Any complaint about service at this point is empty formalism, and inconsistent with the “culture shift” mandated by Hryniak v Mauldin.

I. The Bourques Right To Natural Justice Was Offended by the Interim Court Access Restrictions

[93] The Bourques complain it was unfair and offended natural justice when this Court in ALIA v Bourques #1 imposed interim court access restrictions on them. That step restricted their ability to initiate or continue litigation without leave of the Alberta Courts. To be clear, these interim court access restrictions only operate until the Court has responded to the Bourques’ and ALIA’s full argument with this decision that determines whether court access restrictions of indefinite duration are appropriate for one or more of the Bourques.

[94] Thus, the Bourques rely on the Court of Appeal of Alberta decision in Lymer v Jonsson, arguing that case stands for the proposition that court access restrictions may never be imposed without submissions and argument from the target of the court access restrictions.

[95] To support their position, they also cite a “blog” case comment on Lymer v Jonsson dated February 19, 2016, by University of Calgary Professor Jonnette Watson Hamilton, titled “On Its Own Motion: Section 23.1(1) Judicature Act”. I put no weight on this document. As the analysis that follows illustrates, the case comment inadequately examined the relevant law and litigation. Furthermore, I echo Justice Graesser’s concern in Condominium Corporation No 052 0580 v Alberta (Human Rights Commission), 2016 ABQB 183 at para 80 that publications of this kind are not appropriate authorities for court purposes. Anonymous peer review is the defining feature of academic publications; it ensures the reliability of that class of resource. ‘Blogs’ do not have that property, and therefore are no more persuasive than the opinion pieces one encounters in general interest and legal trade publications and in online news article public commentary and other communications that lack editorial oversight.

[96] I reject the Bourques’ Lymer v Jonsson argument on several bases. First, interim court access restrictions are a standard process that has been employed by this court on many occasions when it considers imposing court access restrictions. There is no real dispute that this procedure is endorsed by the Court of Appeal of Alberta. The first time an interim court access restriction order was imposed (R v Hok, 2016 ABQB 335 at para 105), that order was subsequently enforced by the Court of Appeal of Alberta: Hok v Alberta (Justice & Solicitor General), 2016 ABCA 356 at para 7. More recently, in R v Latham, 2018 ABCA 267 an interim court access restriction order was also enforced by that Court.

[97] Second, Slatter JA in ALIA v Bourques #2, at paras 5-6, concluded that Stephanie Bourque’s appeal argument:

... that she was not given a reasonable opportunity to respond before restrictions were placed on her, citing Lymer (Re), 2016 ABCA 32, 612 AR 122 ...

had no merit: That is the exact same issue argued before me. The result in ALIA v Bourques #2 indicates Lymer v Jonsson has no application to interim court access restrictions, and ALIA v Bourques #2 is a binding superior court authority.

[98] Third, the actual legal relevance of Lymer v Jonsson is questionable. Verville J in the benchmark vexatious litigation decision Hok v Alberta, 2016 ABQB 651 at paras 12-13, observed:

... what satisfies the ‘no surprise’ rule is difficult to evaluate since Lymer (Re), 2014 ABQB 674, 9 Alta LR (6th) 57 reports Lymer had previously made submissions that his actions were not frivolous and vexatious and therefore that his filing activities should not be restricted (para 13). Master Smart in Lymer (Re) also applied Chutskoff v Bonora, 2014 ABQB 389, 590 AR 288, affirmed 2014 ABCA 444, 588 AR 303, the leading authority on the indicia of litigation abuse, and concluded Lymer had engaged in five of the categories of litigation misconduct that each individually warrant gatekeeping restrictions on Lymer’s court access: paras 85-113.

[99] Further, the Court of Appeal itself does not comply with the “no surprise” rule in Lymer v Jonsson. This is illustrated in several different ways:

1. The very first decision of that Court to impose court access restrictions, Dykun v Odishaw, 2001 ABCA 204, 286 AR 392, imposed broad court access restrictions without submissions from the appellant and under the Court’s own inherent jurisdiction. The court access restrictions imposed in Dykun v Odishaw were not imposed per the Judicature Act vexatious litigant procedure then in force: Hok v Alberta, 2016 ABQB 651 at paras 19-20.

2. Some Court of Appeal court access restriction orders are incompatible with the Lymer v Jonsson rule. For example, in Kretschmer v Terrigno (3 May 2012), Calgary 1101-0112 AC (Alta CA) does not (and could not) meet the Lymer v Jonsson notice requirement. That order affected certain unnamed persons, “any related family members”, and restricted their capacity to institute new actions. As Thomas J observed in Ewanchuk v Canada (Attorney General), 2017 ABQB 237 at para 98, 54 Alta LR (6th) 135, appeal abandoned, Edmonton 1603-0287AC (Alta CA): “[t]he “related family members” obviously could not have received notice since they are not even identified.”

3. Last, the most recent decisions of the Court of Appeal of Alberta which impose court access restrictions do not do so in compliance with the notice requirement in Lymer v Jonsson. In Bourque v Tensfeldt, 2017 ABCA 356 at para 6 and R v Olumide, 2017 ABCA 366 at para 3 the Court imposed court access restrictions on its own motion and without any apparent submissions by the abusive litigants as to whether that step should occur. The Bourques are, obviously, aware of the former decision - Stephanie Bourque was the subject of that order.

[100] I therefore reject the Bourques’ argument that my imposition of court access restrictions in ALIA v Bourques #1 was in any way improper. This step is a functional precaution of limited duration to control abusive litigants. In this case that step was clearly warranted, and the Bourques have shown exactly why. The Bourques themselves have attempted to engage in meritless collateral litigation during this proceeding: Bourque v Tensfeldt, 2018 ABQB 419; ALIA v Bourques #2.

V. Auxiliary Claims

[101] The Bourques Applications #1 and #2 include a number of claims which do not directly relate to whether or not the ALIA application is in some sense improper or unauthorized. I will briefly respond to these items.

A. The ALIA v Bourques File Should Be Sealed

[102] The Bourques in Application #1 sought to have the file for this matter sealed. In the “Bench Brief” the issue is described in this way:

... The allegations do carry a stigma, which does not disappear in any material way even if found to be untrue at a later time. To not seal the file until there is a final determination made, is essentially finding the person guilty given that even being associated with the word Vexatious is near impossible to rid and does cause serious prejudice.

[103] Stephen Bourque claims that public access to this action’s materials will have consequences for him:

Although to most individuals, these allegations might be acceptable given freedom of speach, however, in this instance the collateral consequences that are quite possible are far too damaging to so recklessly toss around unverified and false allegations. The Licensing Boards that he is associated with do have disciplinary guidelines that make clear that if there is any Disciplinary action taken by another Licensing Agency, this can be used to file disciplinary charges that can result in license revocation. In California, the Licensing Boards do aggressively prosecute licensee's and so this is a legit threat to Stephen Bourque.

...

There is a real threat that this could threaten his ability to earn a living and permanently damage his reputation.

...

... it would be a real shame for there to be court file documents that should never exist in the first place come into a position where it could ruin a professional career ...

[104] I reject this argument. There is no legal basis to seal this file. In Canada there is a strong presumption that all court proceedings are open to the public. As La Forest J explained in Canadian Broadcasting Corp v New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 SCR 480 at para 23, 139 DLR (4th) 385, this rule is an aspect of the constitutional right to free expression:

... The principle of open courts is inextricably tied to the rights guaranteed by s. 2(b) [of the Canadian Charter of Rights and Freedoms, Part 1, Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11]. Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings. While the freedom to express ideas and opinions about the operation of the courts is clearly within the ambit of the freedom guaranteed by s. 2(b), so too is the right of members of the public to obtain information about the courts in the first place.

[105] Bielby JA in Edmonton (Police Service) v Law Enforcement Review Board, 2013 ABCA 236 at para 11, 553 AR 389, citing R v Mentuck, 2001 SCC 76 at para 32, [2001] 3 SCR 442, held that this presumption requires the applicant to establish:

.. first, that the sealing order is necessary in order to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not avoid the risk, (the necessity branch); and second that the beneficial effects of the sealing order outweigh the deleterious effects on the rights and interests of the public, including on the right to freedom of expression, the right of an accused to a fair trial, and the efficacy of the administration of justice (the proportionality branch).

[106] The Bourques’ submissions and affidavit evidence (to the degree it is reliable) in support of this request for a sealing order does not meet this threshold. In the case of Stephen Bourque, his complaint that his “professional career” faces a “legit threat” and could be “ruined” because someone alleged he was a vexatious litigant is simply being made far too late.

[107] I conclude in that sense this sealing order request was made in bad faith - Stephen Bourque argued that this step was necessary to protect his professional status, which had already been terminated. Given my earlier findings about Stephen Bourque’s professional status and all of my other findings, there is no legal basis for a sealing order here.

B. Certain Court Transcripts Cannot Be Disclosed

[108] Stephen Bourque in his August 2-7, 2018 materials included several Court of Queen’s Bench of Alberta transcripts which he says should only be considered if they are:

... not to be re-disclosed or used in any other proceeding ... ie this is not intended to be provided to ALIA, to then be disseminated throughout the Law Society, and then to have this surface in some other matter in the future ... [sic].

Otherwise, I am instructed to delete these items.

[109] Stephen Bourque provides no explanation as to why these items should not be open to the public or somehow have limits placed on their distribution. He simply makes this demand.

[110] As I have previously indicated, all court proceedings in Canada are presumptively open to the public. That includes court filings - the ‘open file’ policy is how the public may monitor the conduct of litigation in this jurisdiction. Litigants should not presume a right to shield their documentary material and other evidence from public scrutiny. Unless there is a good reason to displace that presumption of openness, I have no reasons to order that restriction.

[111] I will not therefore put any restrictions on the normal availability of transcripts of public proceedings that were submitted by Stephen Bourque in this action. He sent them to the Court to be a part of the August 2-7, 2018 materials. They will be put on file, where they may be viewed, reproduced, and used by anyone.

[112] I now turn to whether court access restrictions should be imposed on Stephanie and Stephen Bourque.

VI. The Law - Court Access Restrictions

[113] The authority to impose court access restrictions is an element 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 filed, 38030 (28 March 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.

[114] Hok v Alberta, 2016 ABQB 651 sets 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 where 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, 283 ACWS (3d) 55. More stringent restrictions are also possible 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).

[115] Court access restrictions may be ordered where a litigant has exhibited “indicia” of abusive litigation. Chutskoff v Bonora, 2014 ABQB 389 at para 92, 590 AR 288, affirmed 2014 ABCA 444, 588 AR 303, 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 OPCA strategies.

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

1. using court processes to further illegal activities (Re Boisjoli, 2015 ABQB 629 at paras 98-103, 29 Alta LR (6th) 334; Rothweiler v Payette, 2018 ABQB 288 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);

3. 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 filed, 38057 (14 March 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 filed, 38081 (1 May 2018); Lee v Canada (Attorney General), 2018 ABQB 464 at para 148);

4. 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);

5. 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, 2018 ABQB 618 at paras 36-46); and

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

[117] A decision to impose court access restrictions requires a broad-based inquiry into the litigation activities of the candidate for those restrictions. 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);

b) non-judicial proceedings (Bishop v Bishop, at para 9; Thompson v International Union of Operating Engineers Local No 995, 2017 ABCA 193 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); 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.

[118] 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).

[119] The preferred approach is prospective rather than punitive: 1985 Sawridge Trust v Alberta (Public Trustee), 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)).

[120] Anticipated litigation abuse may be suggested by a person’s litigation history (issues, targets and forums where abuse may be anticipated), however the critical issue 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), at paras 42-79.

[121] As previously indicated, the usual access limitation placed on an abusive litigant is a requirement that he or she 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).

[122] 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.

[123] The requirement of legal representation has been ordered in instances where a litigant has engaged in a range of misconduct, including:

1. an established pattern of meritless and persistent filings, or improper communications with the courts (Boe v Boe, 2014 BCCA 208, 356 BCAC 217, leave to appeal to SCC denied, 36048 (26 February 2015); Re Boisjoli; Onischuk v Edmonton (City); Re Onischuk; Re Gauthier; Templanza v Ford; Thompson v Alberta Labour Relations Board, 2018 ABQB 220; Hoessmann v Aldergrove Credit Union, 2018 BCCA 218; McKechnie (Re));

2. attempts to enforce fictional OPCA (Meads v Meads) claims on a target (Re Boisjoli; Re Gauthier);

3. attempts to use court processes to further criminal activities (Re Boisjoli; McKechnie (Re));

4. employing proxies in problematic litigation (Onischuk v Edmonton (City); Re Onischuk);

5. abuse of habeas corpus on more than one occasion (Ewanchuk v Canada (Attorney General), Re Gauthier; Lee v Canada (Attorney General)), or

6. where an abusive litigant is a “litigation terrorist” who engages in meritless litigation intended to intimidate and/or cause harm (Lee v Canada (Attorney General); McKechnie (Re)).

[124] 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.

VII. Submissions Concerning Court Access Restrictions

A. The Bourques

1. Initial Submissions

[125] As previously noted, the Bourques’ submissions and materials provide little commentary on their own litigation activities. Nevertheless, the Bourques argue against being subject to court access restrictions. I have summarized these arguments below, and for convenience I have responded in brief to each point, explaining why I reject these arguments.

[126] The Bourques argue that court decisions which describe court access restrictions and vexatious litigant status as minor impediments to access to justice are incorrect:

The vexatious litigant order DOES substantially prejudice the applicant. Simply being associated with the term vexatious subjects the individual to harsh levels of discrimination and degrading treatment by employees of the court. This includes refusing to file complaint court papers, failing to inform that court papers need to be filed in a different department, unnecessary yelling, and the automatic conclusion that everything that associated with the individual is a waste of time and energy.

[127] Canadian courts reject this position, and instead have determined that a leave to file requirement is not a real limitation on access to justice: Wong v Giannacopoulos, at para 8; Canada v Olumide, at paras 26-29; Bossé v Immeubles Robo Ltée, at para 38. I also note the Bourques provide no basis to substantiate their complaints of “unnecessary yelling” and “degrading treatment”.

[128] Stephanie Bourque in her June 15, 2018 bench brief argues there is no relevant admissible evidence to support the conclusion that she has engaged in problematic litigation. Further, she says that the expiry of the Bourque v Tensfeldt, 2017 ABCA 356 order means:

... given Stephanie Bourque compliance with the courts order for the duration the restrictions were in place, there is no longer any foundation that supports the Decision and/or Interim Order. ...

[129] I have discussed and rejected the “no relevant admissible evidence” argument earlier in this decision. As for the expiry of court access restrictions imposed by the Court of Appeal of Alberta, that does not mean Stephanie Bourque’s prior litigation misconduct somehow now ‘evaporates’. I may and do consider all her litigation. Further, Stephanie Bourque attempted to evade those court access restrictions while they were in effect: Bourque v Tensfeldt, 2018 ABQB 419. Her conduct while subject to court access restrictions was not that of a good faith, fair dealing litigant.

[130] Stephanie Bourque deposes she has never intended to engage in abusive litigation. She states that she is not a vexatious litigant. All activities by her son were proper and authorized by her. The Bourques argue that Stephanie Bourque’s litigation history establishes she is not an abusive litigant. She has met with 100% success in re-assessing lawyers’ fees. She has successfully defended litigation steps. Other matters were voluntarily dismissed. The court access restrictions imposed on her have now expired, and she abided by those instructions (again, that particular claim is false).

[131] As for Stephen Bourque, the Bourques argue that none of the evidence available to the Court establishes he has engaged in any litigation misconduct. The allegations by ALIA are “... barred due to Res Judicata”. He is a non-party. There is no justification for any step against him:

He has been determined not to have drafted papers for his mother, and any assistance that was given outside of court was deemed acceptable by the court.

I have already responded to and rejected these claims.

[132] Stephen Bourque says he has no connection to Stephanie Bourque’s litigation. He has never filed materials in the Court of Appeal of Alberta, and is not a party to any Canadian litigation. As I have previously indicated this Court has already come to the conclusion that Stephen Bourque has been directly involved in his mother’s litigation: Bourque v Tensfeldt, 2017 ABQB 519.

[133] Beyond that, Stephen Bourque says that since I have not witnessed his court activities first hand I have not “observed” problematic litigation, and therefore I have no basis to impose court access restrictions. I can only respond that Stephen Bourque’s conduct in the ALIA v Bourques has provided an extensive and illuminating opportunity to “observe” him first hand. The evidence in relation to this point is not sparse.

[134] The Bourques conclude that it is ALIA that is the vexatious party. It does not follow legislative procedure and court rules. ALIA has “exceeded the scope of practice as outlined in the Legal Professions Act”, and breached written agreements with each of the Bourques.

[135] In conclusion, the Bourques argue that the Originating Application should be struck, they should not be subject to any court access restrictions, and that the ALIA v Bourques #1 decision should be removed from online judgment databases.

2. August 2-7, 2018 Additional Supplementary Submissions

[136] On July 21, 2018 Stephen Bourque was granted permission to submit additional supplementary argument and materials with a deadline of July 31, 2018. Those materials ultimately arrived late on August 2-7, 2018, but were still accepted. I cautioned Stephen Bourque that if no supplementary submissions were made, or if those materials proved unmeritorious, that I may award costs and/or take a negative inference from his request for this step.

[137] The supplementary materials add little to the Bourques’ earlier arguments. Stephen Bourque repeats allegations of misfeasance by ALIA and its lawyer which I have previously concluded are irrelevant to the question of whether or not the Bourques should be made subject to court access restrictions.

[138] The Bourques allege that what might be described an atmosphere and narrative of bias has been created against them. They also obtained the internal court docket record for this matter and identified a number of entries which the Court Clerks acknowledge were incorrect. The Bourques claim from that and other docket items that they are the victims of institutional bias. Rather than consider whether those mistakes were the result of a badly overworked court apparatus, the Bourques instead conclude this to be evidence of a greater scheme: “[t]his Procedure History Print further contains additional entries that are grossly misleading and do given the appearance of being deliberately entered ...”.

[139] This claim would not lead any reasonable informed person to conclude that I am unable to decide fairly whether the Bourques should be subject to court access restrictions. Further, the Clerks do not decide whether or not the Bourques will be subject to court access restrictions. I do, and the internal docket record is not something a judge would rely upon in deciding an issue. Rather, the submissions of the parties are what is critical.

[140] Much of the content of the supplementary materials consists of more complaints about deficient service, despite the fact that the Court of Appeal of Alberta had by now issued a decision (ALIA v Bourques #2) in which Justice Slatter concluded that these complaints had no merit. I am bound by that result, and I conclude that the Bourques continuing to raise this argument after ALIA v Bourques #2 was issued means that this argument in the August 2-7, 2018 material was made in bad faith and for an abusive purpose.

[141] Similarly, these materials recycle the Lymer v Jonsson notice and opportunity to comment issue in relation to the interim court access restrictions, which again was rejected in ALIA v Bourques #2. That is further indication of abusive litigation intent.

[142] One relevant item in the August 2-7, 2018 supplementary materials is a docket printout that indicates in 1993 Stephanie Bourque and her daughters were Plaintiffs in the Provincial Court of Alberta and received an award of $588.00. The Bourques say this is evidence of good litigation history. That argument has merit, although the evidentiary value of this record is limited by the age of the action, and the minimal record of the litigation presented by the Bourques. For example, I do not know the subject of this lawsuit, only the date and result.

B. ALIA

[143] On February 6, 2018, the Applicant in this action filed the extensive Affidavit evidence of Mr. Kaip, followed by a supplementary May 14, 2018 Affidavit sworn by the same Deponent.

[144] In its Written Brief, ALIA argues that court access restrictions should be imposed on both the Bourques. It notes how the activities of these two individuals are linked. Though Stephen Bourque is not a party in prior Alberta litigation, he nevertheless was deeply involved in his mother’s dispute activities, preparing documents, writing correspondence, and acting as Stephanie Bourque’s (unauthorized) legal representative.

[145] ALIA identifies numerous indicia of abusive litigation, as defined in Chutskoff v Bonora and subsequent litigation. The Applicant stresses as particularly relevant:

1. a history of failure to pay costs and obey court orders;

2. scandalous and inflammatory language, and unsubstantiated allegations of conspiracy, fraud, and misconduct;

3. a pattern of persistent unsuccessful appeals;

4. hopeless proceedings; and

5. Stephanie Bourque being previously made subject to court access restrictions.

I will review these items in more detail in the analysis that follows.

[146] ALIA on June 4, 2018 filed written submissions in response to Applications #1 and #2. In brief, ALIA takes the position that these applications are meritless and should be struck out.

[147] ALIA argued that the Bourques’ application for a sealing order did not satisfy the stringent test for that extraordinary step, and noted that personal embarrassment is not a basis to infringe on Canada’s presumption of open court access. Nothing that the Bourques identify is a basis for a sealing order.

[148] In relation to Application #2, the Bourques raise no valid grounds for the Rule 3.68 application. Mr. Kaip is properly qualified to depose his Affidavit. Its contents are appropriate. Much is public record. ALIA is a corporation and a person at law. The Minister of Justice was notified of this action. Permission is not required to name a party to an action. Despite claims to the contrary, Stephen Bourque was never authorized by a court to act as Stephanie Bourque’s litigation representative. Similarly, Stephen Bourque’s complaints that he should be removed as a party are baseless.

[149] ALIA agrees with my conclusion in ALIA v Bourques #1 at para 25 that I have no jurisdiction to order a jury trial.

[150] In its August 20, 2018 submissions, ALIA notes that though Stephen Bourque is the author of the July and August materials submitted to the Court, those materials argue issues in relation to both the Bourques. ALIA submits these new materials provide yet more evidence of litigation abuse, including:

1. inappropriate and unwarranted criticism of opposing counsel, and unsubstantiated allegations of conspiracy and misconduct;

2. re-arguing issues that were already determined;

3. incomprehensible arguments and allegations; and

4. refusal to follow court orders.

[151] ALIA identifies specific instances of each category, and argues that these are further evidence of why court access restrictions are appropriate. The applicant observes that it is “painfully apparent” that the Bourques have been successfully served with the ALIA materials, and further that the Court of Appeal in ALIA v Bourques #2 had rejected these allegations as without merit. ALIA is properly positioned to advance this action. Applications #1 and #2 should be dismissed, court access restrictions should be imposed on the Bourques, and the Bourques should pay costs.

VIII. Evidence of the Bourques’ Abuse of Court Processes

[152] What follows is a review of examples or “indicia” of abusive litigation which I have identified in relation to the Bourques. In many instances I provide only a few examples to illustrate a broader pattern. Suffice it to say, the Bourques’ litigation record in this and prior litigation is replete with factors which provide the legal basis for court access restrictions.

A. Prior Court Access Restrictions

[153] A very important fact is that the Court of Appeal of Alberta has already imposed court access restrictions on Stephanie Bourque: Bourque v Tensfeldt, 2017 ABCA 356. If a court has previously concluded that court access restrictions are necessary to manage an individual’s abuse of court processes, then that in and of itself is strong evidence in support of further court access restrictions: Canada v Olumide, at para 37; Hill v Bundon, at paras 68-80.

[154] To a degree Stephanie Bourque has anticipated this argument. She says she was never actually truly declared “vexatious” or identified as having engaged in litigation abuse, so that means she must be ‘a good litigant’. She claims she deported herself properly while the Bourque v Tensfeldt, 2017 ABCA 356 court access restrictions were in place.

[155] First, the “vexatious litigant” label is not what is important. What matters is that Stephanie Bourque engaged in an abuse of court processes. An Alberta court intervened and responded with court access restrictions at the trial and appeal levels in Bourque v Tensfeldt, 2017 ABCA 356.

[156] Second, Stephanie Bourque was not ‘a good litigant’ in relation to the now terminated court access restrictions imposed by the Court of Appeal of Alberta. Instead, she attempted to evade those restrictions via “judge shopping” and a prohibited collateral attack: Bourque v Tensfeldt, 2018 ABQB 419.

[157] The potential implications of the Bourque v Tensfeldt, 2017 ABCA 356 court access restrictions might be modulated or tempered if the subsequent litigation conduct of Stephanie Bourque indicated that she had ‘turned over a new leaf’ and abandoned the kinds of litigation misconduct which led to the Bourque v Tensfeldt, 2017 ABCA 356 court access restrictions. However, as the analysis that follows illustrates, Ms. Bourque’s litigation conduct has, if anything, gotten worse. Also troubling is the statement in ALIA v Bourques #2 at para 7 that at that hearing Stephanie Bourque disclosed her intention to reopen aspects of her divorce proceedings, which were finalized five years ago. For the Court to take that step would be exceptional. The appeal period for that action expired a long time ago.

[158] I therefore conclude that the court access restrictions previously imposed on Stephanie Bourque are relevant to the present application and strongly support this Court taking steps under its inherent jurisdiction to address Stephanie Bourque’s potential future conduct in Alberta Courts.

B. Bad Faith Litigation

[159] I have previously identified a number of instances where I conclude the Bourques have advanced arguments which have no reasonable basis or are contrary to court findings of fact and law:

1. the Bourques allegation that ALIA lacks standing in court because it is a corporation and not “a person”;

2. Res judicata dictates that as fact Stephen Bourque did not participate in his mother’s litigation;

3. the Bourques are not subject to the inherent jurisdiction of the Court to control its processes;

4 complaints that a document-only proceeding was unfair and denied the Bourques their opportunity to make their case;

5. unfounded demands to seal the ALIA v Bourques file;

6. complaints of defective service, after that issue was rejected in a decision binding on this Court; and

7. complaints that notice was required to impose interim court access restrictions, after that argument was rejected in a decision binding on this Court.

[160] These arguments were advanced in bad faith, with the intention of frustrating this proceeding. That is an abuse of this Court’s processes. I am particularly troubled that Stephanie and Stephen Bourque were less interested in assisting the Court in a substantive evaluation of their litigation conduct, than pre-emptively sabotaging this proceeding. This choice on their part highlights their true priorities.

C. Collateral Attack

[161] As was concluded by Justice Michalyshyn, Bourque v Tensfeldt, 2018 ABQB 419 was an attempt to remove court access restrictions imposed by the Court of Appeal of Alberta. That application was therefore a collateral attack on the Bourque v Tensfeldt, 2017 ABCA 356 decision. Any collateral attack is a serious abuse of court processes. When combined with the Bourques’ broader strategy to frustrate and circumvent court imposed guidelines and instructions, I conclude that this is a ground on which to base the imposition of court access restrictions.

D. Seeking Impossible Remedies

[162] The argument and Affidavits filed by ALIA provide many examples of impossible remedies sought in earlier Bourque litigation, including:

1. baseless demands that opposing counsel are in contempt;

2. assertions that Stephanie Bourque is excused from any future questioning;

3. questioning under oath of opposing counsel; and

4. demands that Stephen Bourque answer questions directed to his mother in relation to her Affidavit evidence.

[163] This indicium of abusive litigation also emerged during this proceeding. Application #2 sought a “trial by jury”. As I held in ALIA v Bourques #1, at para 23, the Alberta Rules of Court prohibit me from ordering a jury trial. Rather than acknowledge this impossible remedy, the Bourques instead made excuses for seeking this remedy. The May 25, 2018 “Corrections Document” says:

There appears to be misunderstanding regarding this request for relief. ... The court rule procedure for requesting this was known, but this form of relief was included in an “in the alternative” request more to alert the court that this would be requested should the primary forms of relief sought not be granted. This way, the unnecessary scheduling of any future hearings could be avoided from the outset. So this was not a request to the Judge who was hearing this matter of 4/16/18 but instead a heads up that should the primary items requested not be granted, that in that situation the court would have an understanding of how he was going to act going forward.

[164] I do not accept this explanation. I find as fact that this excuse is an after-the-fact fabrication, and made in bad faith. Application #2 speaks for itself. If Stephen Bourque had indicated that he, as a US resident, was unaware that jury proceedings in Canadian civil matters are the exception rather than the rule, I might have put reduced significance on the Bourques having sought this remedy.

[165] Instead, by stating that he knew about Rules 8.1-8.2, Stephen Bourque establishes that he knowingly made a quixotic application. He then attempted to offer an excuse that was not believable. That aggravates this class of litigation misconduct by the Bourques.

[166] Similarly, the demand that the ALIA v Bourques file be sealed was equally without any possible merit, and that is why I have concluded that the Bourques brought that application in bad faith.

E. Failure to Pay Costs and Comply with Court Orders

[167] ALIA argues, and I accept, that Stephanie Bourque has not paid seven outstanding cost awards which total $25,864.93. In the Bourque v Tensfeldt litigation Stephanie Bourque repeatedly failed to attend questioning. As previously indicated, her lawsuit was struck out and she was found in contempt of court on that basis: Bourque v Tensfeldt, 2017 ABQB 519. Stephanie Bourque’s appeal of that result was decided against her on June 5, 2018.

[168] I therefore have no difficulty finding as fact that Stephanie Bourque has repeatedly failed to abide by court instructions. In particular her refusal to attend questioning and her unacceptable and untrue explanations for that refusal are in themselves a basis to impose court access restrictions.

F. Repeated Unmeritorious and Futile Appeals

[169] ALIA in its materials identifies numerous unsuccessful appeals and applications for reconsideration in the Bourque v Tensfeldt action. The negative implications of that pattern were amplified when the Court of Appeal of Alberta in Bourque v Tensfeldt, 2017 ABCA 356 concluded that Stephanie Bourque should be subject to court access restrictions to control her pattern of appeals. Similarly, Justice Greckol subsequently concluded in Bourque v Tensfeldt, 2017 ABCA 357 that Stephanie Bourque was attempting to continue and even expand an unsuccessful appeal that was moot.

[170] In this litigation Stephen Bourque refused to accept the result of ALIA v Bourques #1, demanded “corrections” for “errors”, and wanted to make an “Application for Reconsideration”. The May 28, 2018 correspondence fro