Biley v Sherwood Ford Sales Limited, 2019 ABQB 95

On February 11, 2019 the Alberta Court of Queens’ Bench determined that Jonathan Biley is a vexatious litigant and prohibited him from commencing a proceeding in the Alberta Courts without first obtaining an order of the Court.

Biley filed an action against Sherwood Ford Sales Limited claiming damages relating to a 6-week period of employment. Biley alleged that he was not paid commissions that he should have received. Biley then filed two other related actions. The first was class action where he was the representative plaintiff for a class of sales persons against the same defendant. The second was an action where Biley and the corporation he owns allege that the corporation has been unable to pursue patents related to drone systems for harvesting seaweed due to the conduct of the employer and other employees.

Sherwood, the defendant, asked that the Court determine that Biley is a vexatious litigant. Justice Kendall examined the claims and determined that Biley had no basis to file the Island v Sherwood statement of claim, which was a collateral attack on the other actions and that he engaged in “meritless, hopeless litigation”. Biley was also described by the court as a “busybody litigant”. The Court also determined that the class action was a “futile, abusive litigation, and a collateral attack” on the other actions he commenced. Both of these actions were struck as duplicative litigation.

The Court also considered Biley’s ancillary applications in which Biley sought to have Sherwood, the defendant company, declared a vexatious litigant. In ancillary applications, Biley sought to have the defendant’s counsel pay costs and to have that counsel removed from the action. Biley made sweeping allegations against the defendant’s counsel, specifically, that they engaged in sharp practice, breached court orders, and doctored documents. Biley also argued that the national law firm DLA Piper was disreputable itself. The Court dismissed these allegations and noted that these ancillary applications were indicia of abusive litigation as he adopted bad faith strategies to sabotage proceedings.

The Court discussed the body of jurisprudence that has emerged in Alberta regarding vexatious litigation. Eleven types of abusive litigation conduct were identified including:

    • collateral attacks,
    • hopeless proceedings,
    • escalating proceedings,
    • bringing proceedings for improper purposes,
    • initiating busybody lawsuits to enforce alleged rights of third parties,
    • failure to honour court ordered obligations,
    • persistently taking unsuccessful appeals from judicial decisions,
    • persistently engaging in inappropriate courtroom behaviour,
    • unsubstantiated allegations of conspiracy, fraud and misconduct,
    • scandalous or inflammatory language in pleadings or before the court and advancing organized pseudo-legal commercial argument strategies.

Justice Kendall identified a number of these indicia in the conduct of Biley, including busybody litigation, futile litigation, collateral attacks, and meritless attacks on counsel alleging lawyer and judicial conspiracy, fraud and misconduct. Biley also attempted to judge shop in his attempt to have Judge Maher removed in a proceeding, another indicia of abusive litigation. Justice Kendall ultimately determined that the Biley v Sherwood ABQB action is an abuse of court process, ending all of his lawsuits.

The court then determined which restrictions were appropriate to manage Biley’s future litigation. The Court ordered that Biley and his company are prohibited from commencing, attempting to commence, or continuing any appeal in the Alberta Court of Appeal, Court of Queens’ Bench, or Provincial Court. Further Biley and his company must identify themselves by name in any application for leave and not by any pseudonym. Strict restrictions were placed on actually commencing an application or other proceeding including writing to request leave by writing to a judge. Leave may be granted on conditions. Biley was specifically further restricted from providing any legal advice, preparing any court filed documents, or acting as an agent in court. The Court placed strict conditions on his ability to communicate with the court and its clerks.

The Court ordered that Biley pay costs to the defendant in the amount of $17,500.

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English (Canada)