LYMER (RE), 2018 ABQB 859


9.4: Signing judgments and orders
10.53: Punishment for civil contempt of Court
10.55: Inherent jurisdiction
14.5: Appeals only with permission

Case Summary

Lymer was an undischarged, second-time bankrupt who had previously been found to be in contempt of Court for failing to follow Court orders. He had also been sharply criticized throughout his bankruptcy proceedings for failing to disclose records. Lymer’s creditors sought a term of incarceration for his contempt of Court, a declaration that Lymer was a vexatious litigant, as well as a number of other Orders.

Lee J. first noted that Lymer’s counsel had challenged whether he was the appropriate decision-maker to determine whether Court restrictions should be imposed, since he had previously imposed Court access restrictions on Lymer which had been overturned on Appeal. Justice Lee held that there was no reasonable apprehension of bias in respect of his decision making, and found that the Application to impose Court access restrictions was not res judicata. Next, His Lordship noted that Court access restrictions may be warranted where any “indicia” of abusive litigation conduct are present, including: the use of Court processes to engage in illegal activities; “judge shopping”; an expressed intention to engage in further abuse of the Court’s processes; minimization or dismissal of litigation defects or abuse, on the basis that the litigant is self-represented; or the use of “proxy actors to circumvent Court Orders”, access restrictions, or to “impede litigation or improperly communicate with the Court”. Lee J. emphasized that the presence of multiple indicia should favour Court intervention, but the presence of even one factor could warrant investigation into whether restrictions should be imposed. Courts may refer to external evidence in determining whether access restrictions should be imposed, including the litigant’s “entire public dispute history”, and activities inside and outside of the Courtroom. The Court’s approach should be “prospective, rather than punitive”.

Lee J. then reviewed Lymer’s activity and highlighted a number of instances of litigation misconduct, including “judge shopping”, “collateral attacks”, the initiation of unnecessary applications within his bankruptcy proceedings and initiation of other legal actions outside of it, “persistent and unsuccessful appeals”, and Lymer’s failure to pay Cost awards. Lymer’s statements also indicated that he would continue these activities in the future.

Lee J. concluded that Lymer was a vexatious litigant who should be subject to Court access restrictions. Among other things, His Lordship ordered that Lymer could only commence or continue proceedings with leave from the Court upon Application, and could only commence an Appeal by obtaining permission pursuant to Rule 14.5(1)(j). His Lordship also held that Lymer would not be required to approve the form and content of the Order declaring him a vexatious litigant and imposing access restrictions pursuant to Rule 9.4(2)(c).

With respect to sanctions for Lymer’s contempt of Court, Lee J. explained that contempt sanctions have two objectives: to enforce the Court’s processes, and to maintain the “dignity and respect of the Courts”. Although a number of sanctions for contempt of Court are set out in Rule 10.53, the Court maintains its inherent jurisdiction to control its processes pursuant to Rule 10.55. As such, it may use its discretion to impose sanctions, but should consider a number of factors in determining which sanctions are appropriate, including “the proportionality of the sentence to the wrongdoing”, the presence or absence of mitigating or aggravating factors, the goals of deterrence and denunciation, the “reasonableness of a fine or incarceration”, and “the similarity of sentences in like circumstances”. Justice Lee noted that no mitigating factors were present, except for the fact that Lymer had purged some of his contempt. Instead, a number of aggravating factors existed, including the fact that Lymer’s contempt took place over many years and was “knowing, willful and deliberate”.

With respect to the other Orders sought by Lymer’s creditors, Justice Lee determined that they should be addressed by the Registrar in Bankruptcy. Given that Lymer’s creditors had been partially successful in their Application, His Lordship requested written submissions to determine whether Lymer should be ordered to pay Costs, and the amount of Costs that may be appropriate. 

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