Badawy v. 1038482 Alberta Ltd. (IntelliView Technologies Inc.)

Badawy v. 1038482 Alberta Ltd. (IntelliView Technologies Inc.)
Court (s) Database
Federal Court Decisions
Date
2019-04-23
Neutral citation
2019 FC 504
File numbers
T-1964-17
Decision Content
Date: 20190423
Docket: T-1964-17
Citation: 2019 FC 504
Ottawa, Ontario, April 23, 2019
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
WAEL MAGED BADAWY
Plaintiff
and
1038482 ALBERTA LTD. ALSO KNOWN AS INTELLIVIEW TECHNOLOGIES INC. AND FIDELITER INC. AND BILL HEWS AND MISSING LINK BUSINESS OPERATIONS ADVISORS LTD. AND GORDON EDWARDS AND CHRISTOPHER BEADLE AND SHANE ROGERS AND FLIR SYSTEMS INC. AND FLIR SYSTEMS, LTD. AND SPARTAN CONTROLS LTD. AND CANADA150IN150 AND SCHNEIDER ELECTRIC SE AND SCHNEIDER ELECTRIC CANADA INC. AND WEST AT PELCO BY SCHNEIDER ELECTRIC AND ENBRIDGE PIPELINE INC.
Defendants
ORDER AND REASONS
I. INTRODUCTION
[1] I have before me two motions that were argued together at the hearing in Calgary on March 27, 2019. One motion is brought by IntelliView Technologies Inc., Fideliter Inc., Bill Hews, Missing Link Business Operations Advisors Ltd, Gordon Edwards, Christopher Beadle, and Shane Rogers [IntelliView Defendants or IDs] for a declaration pursuant to s 40 of the Federal Courts Act, RSC, 1985, c F-7 that the Plaintiff, Mr. Wael Maged Badawy, is a vexatious litigant and for various forms of auxiliary relief (Vexatious Motion). The second motion is brought by Mr. Badawy pursuant to s 51 of the Federal Courts Rules, SOR/98-106 appealing the order of Case Management Judge, Martha Milczynski, dated March 14, 2019 (Appeal Motion). The motions are related.
II. BACKGROUND
[2] In the underlying action, Mr. Badawy filed a statement of claim on December 15, 2017 commencing an action against 15 defendants. The statement of claim alleged that the defendants were infringing upon Mr. Badawy’s ownership of numerous trademarks and patents. The claim alleged that the defendants failed to obtain Mr. Badawy’s authorization prior to the usage of the intellectual property. The defendants brought motions to strike the statement of claim on the basis that it failed to disclose a cause of action. In response, Mr. Badawy filed notices of motion seeking to disqualify opposing counsel, an interlocutory injunction against the defendants to prohibit the usage of the intellectual property, and to have the motions to strike declared moot. Madam Justice McVeigh issued a judgment on July 31, 2018 which struck the statement of claim without leave to amend. Madam Justice McVeigh held that the claim failed to disclose a reasonable cause of action and was vexatious and an abuse of process. Mr. Badawy has appealed Justice McVeigh’s decision to the Federal Court of Appeal.
[3] Mr. Badawy has been an active litigant in several courts. He has engaged in proceedings in the Court of Queen’s Bench of Alberta, the Alberta Court of Appeal, the Federal Court, the Federal Court of Appeal, and the Supreme Court of Canada. The genesis of Mr. Badawy’s pattern of litigation appears to be a protracted and complex marital dispute with Ghada Hamdy Nafie which began in 2012.
[4] Ms. Nafie initiated divorce and matrimonial proceedings against Mr. Badawy in 2012 in the Court of Queen’s Bench of Alberta. Ms. Nafie retained Waldemar Igras as her lawyer when he worked at a firm called Richmond Chickloski Igras & Moldowan LLP. Ms. Nafie remained a client of Mr. Igras when he left his previous firm and founded Igras Family Law in 2014. Mr. Badawy registered a trademark for the name “Igras Family Law.” Mr. Badawy then commenced an action in the Federal Court which alleged that Mr. Igras was using the name “Igras Family Law” without authorization. Mr. Badawy also sought leave to commence a third party claim against the Alberta Law Society as well as the Alberta Law Insurance Association. This leave application was denied by an order of Prothonotary Lafrenière (as he then was). Mr. Badawy alleged that Prothonotary Lafrenière was affected by a reasonable apprehension of bias and filed a notice of motion to have the order set aside. Madam Justice Gleason dismissed the motion on January 20, 2015. Mr. Badawy’s appeal of Madam Justice Gleason’s decision was dismissed by the Federal Court of Appeal on June 1, 2016. The Supreme Court of Canada dismissed Mr. Badawy’s application for leave to appeal on November 10, 2016. On June 23, 2017, Justice Manson granted the defendants’ motion for summary judgment in this matter.
[5] Mr. Badawy filed a second statement of claim in the Federal Court which named as defendants the Attorney General of Canada, Solicitor General of the Province of Alberta, Attorney General of the Province of British Columbia, Canadian Bar Association, Federation of Law Societies of Canada, Law Society of Alberta and Alberta Lawyers Insurance Association, as well as a number of lawyers and legal assistants who work at Igras Family Law. This statement of claim alleged that the defendants had infringed Mr. Badawy’s intellectual property. On August 16, 2018, Prothonotary Milczynski ordered that the statement of claim be struck without leave to amend and dismissed the action. Justice Diner dismissed Mr. Badawy’s appeal of Prothonotary Milczynski’s order on November 17, 2018 (Badawy v Canada (Justice), 2018 FC 1189).
[6] IntelliView Technologies Inc. [IntelliView] commenced an application in the Court of Queen’s Bench of Alberta on September 13, 2018 to have Mr. Badawy declared a vexatious litigant in Alberta’s judicial system. Madam Justice Campbell declared Mr. Badawy to be a vexatious litigant (IntelliView Technologies Inc v Badawy, 2018 ABQB 961). Mr. Badawy sought permission from the Alberta Court of Appeal to appeal the decision. The Alberta Court of Appeal denied this permission on February 19, 2019 (IntelliView Technologies Inc v Badawy, 2019 ABCA 66).
[7] On September 26, 2018, the Attorney General consented to the filing of this motion by the IntelliView Defendants to have Mr. Badawy declared a vexatious litigant in the Federal Court.
III. ISSUES
[8] The issue to be determined in the Vexatious Motion is the following:
Should Mr. Badawy be declared a vexatious litigant pursuant to s 40 of the Federal Courts Act and, if he is so declared, what forms of relief are appropriate?
[9] The issue to be determined in the Appeal Motion is the following:
Should the Court allow Mr. Badawy’s appeal of Prothonotary Milczynski’s order of March 14, 2019?
IV. STATUTORY PROVISIONS
[10] The following provisions of the Federal Courts Act are relevant to this proceeding.
Vexatious proceedings
Poursuites vexatoires
40 (1) If the Federal Court of Appeal or the Federal Court is satisfied, on application, that a person has persistently instituted vexatious proceedings or has conducted a proceeding in a vexatious manner, it may order that no further proceedings be instituted by the person in that court or that a proceeding previously instituted by the person in that court not be continued, except by leave of that court.
40 (1) La Cour d’appel fédérale ou la Cour fédérale, selon le cas, peut, si elle est convaincue par suite d’une requête qu’une personne a de façon persistante introduit des instances vexatoires devant elle ou y a agi de façon vexatoire au cours d’une instance, lui interdire d’engager d’autres instances devant elle ou de continuer devant elle une instance déjà engagée, sauf avec son autorisation.
Attorney General of Canada
Procureur général du Canada
(2) An application under subsection (1) may be made only with the consent of the Attorney General of Canada, who is entitled to be heard on the application and on any application made under subsection (3).
(2) La présentation de la requête visée au paragraphe (1) nécessite le consentement du procureur général du Canada, lequel a le droit d’être entendu à cette occasion de même que lors de toute contestation portant sur l’objet de la requête.
Application for rescission or leave to proceed
Requête en levée de l’interdiction ou en autorisation
(3) A person against whom a court has made an order under subsection (1) may apply to the court for rescission of the order or for leave to institute or continue a proceeding.
(3) Toute personne visée par une ordonnance rendue aux termes du paragraphe (1) peut, par requête au tribunal saisi de l’affaire, demander soit la levée de l’interdiction qui la frappe, soit l’autorisation d’engager ou de continuer une instance devant le tribunal.
Court may grant leave
Pouvoirs du tribunal
(4) If an application is made to a court under subsection (3) for leave to institute or continue a proceeding, the court may grant leave if it is satisfied that the proceeding is not an abuse of process and that there are reasonable grounds for the proceeding.
(4) Sur présentation de la requête prévue au paragraphe (3), le tribunal saisi de l’affaire peut, s’il est convaincu que l’instance que l’on cherche à engager ou à continuer ne constitue pas un abus de procédure et est fondée sur des motifs valables, autoriser son introduction ou sa continuation.
No appeal
Décision définitive et sans appel
(5) A decision of the court under subsection (4) is final and is not subject to appeal.
(5) La décision du tribunal rendue aux termes du paragraphe (4) est définitive et sans appel.
[11] The following provisions of the Federal Courts Rules are also relevant to this proceeding.
Appeals of Prothonotaries’ Orders
Appel des ordonnances du protonotaire
Appeal
Appel
51 (1) An order of a prothonotary may be appealed by a motion to a judge of the Federal Court.
51 (1) L’ordonnance du protonotaire peut être portée en appel par voie de requête présentée à un juge de la Cour fédérale.
Service of appeal
Signification de l’appel
(2) Notice of the motion shall be served and filed within 10 days after the day on which the order under appeal was made and at least four days before the day fixed for the hearing of the motion.
(2) L’avis de la requête est signifié et déposé dans les 10 jours suivant la date de l’ordonnance frappée d’appel et au moins quatre jours avant la date prévue pour l’audition de la requête.
V. ARGUMENT
A. Vexatious Motion
(1) The IntelliView Defendants
[12] The IDs argue that Mr. Badawy has commenced vexatious proceedings in the Court of Queen’s Bench of Alberta, the Alberta Court of Appeal, the Federal Court, the Federal Court of Appeal, and the Supreme Court of Canada. Additionally, Mr. Badawy has conducted these proceedings in a vexatious manner.
[13] The IDs say that Mr. Badawy has used judicial time and resources inappropriately. In doing so, Mr. Badawy has caused various parties to incur unnecessary legal costs. Additionally, the various motions, claims, and applications commenced by Mr. Badawy have wasted inordinate amounts of time. Mr. Badawy will likely continue to engage in vexatious litigation if the Court does not declare him a vexatious litigant and provide appropriate relief.
[14] The IDs cite Tonner v Lowry, 2016 FC 230 [Tonner] in support of their argument that indicators of vexatious behaviour in the Federal Court include:
1) a propensity to re-litigate matters that have already been determined;
2) the initiation of frivolous actions or motions;
3) the making of unsubstantiated allegations of impropriety against the opposite party, legal counsel and/or the Court;
4) the refusal to abide by rules and orders of the Court;
5) the use of scandalous language in pleadings or before the Court; and
6) the failure or refusal to pay costs in earlier proceedings and the failure to pursue litigation on a timely basis.
[15] The IDs note that the Federal Court can consider and take into account a vexatious litigation designation in other jurisdictions. In the present case, the vexatious litigant declaration of the Court of Queen’s Bench of Alberta should be given serious weight by the Federal Court in making an equivalent declaration within its own jurisdiction.
[16] The IDs argue that Mr. Badawy has demonstrated a significant number of indicators of vexatious behaviour. Costs are regularly awarded against Mr. Badawy and continue to be unpaid. Mr. Badawy regularly attempts to re-litigate issues which have already been decided. For example, Mr. Badawy attempted to re-litigate issues in the underlying action which have already been dismissed in the Court of Queen’s Bench of Alberta. Similarly, Mr. Badawy consistently requests the same types of relief that are refused.
[17] The IDs note that Justice McVeigh struck out Mr. Badawy’s statement of claim in this action without leave to amend in Badawy v 1038482 Alberta Ltd, 2018 FC 807. In that decision, Justice McVeigh determined that the claim was an abuse of process and a vexatious claim. In arriving at this conclusion, Justice McVeigh noted the lack of an evidentiary foundation for the claim as well as the constant filing of motions and letters for direction.
[18] The IDs argue that Mr. Badawy has also regularly made inappropriate allegations against opposing counsel. For example, Mr. Badawy has alleged that a defendant and the defendant’s counsel were engaged in a conspiracy based on their common Italian heritage. Mr. Badawy has also claimed that an opposing lawyer had engaged in fraud and has attempted to unduly influence judges. Additionally, Mr. Badawy has made unsubstantiated claims of bias against judges and prothonotaries. Allegations of bias have been made by Mr. Badawy at the Federal Court, the Alberta Court of Appeal, and the Court of Queen’s Bench of Alberta.
[19] The IDs say that Mr. Badawy has also consistently refused to abide by court rules and orders. Mr. Badawy has repeatedly attempted to have court orders set aside without following the appropriate procedures. This tactic forces opposing parties to spend time and money preparing for improper motions.
[20] The IDs say that Mr. Badawy has failed to pay any of the costs or penalties awarded against him. To date, $23,316.35 in costs and penalties have been awarded against Mr. Badawy which remain unpaid.
[21] The IDs further argue that Mr. Badawy uses scandalous language in his pleadings, wilfully evades service, fails to make full and frank disclosure, and makes false representations to the court.
[22] All of these tendencies are indicators that Mr. Badawy is a vexatious litigant. Significantly, Mr. Badawy holds himself out to the public as an experienced, self-represented litigant and offers litigation coaching services to the public. Based on all of these considerations, Mr. Badawy is likely to continue to engage in vexatious litigation in the future.
[23] The IDs say that the granting of a declaration that Mr. Badawy is a vexatious litigant is appropriate in the circumstances. Designating Mr. Badawy as a vexatious litigant would protect Mr. Badawy’s targets from vexatious litigation and help to relieve the overburdened judicial system. Mr. Badawy will still be able to access the Federal Court. He will simply be required to first satisfy the Court that reasonable grounds exist for the commencement of a proceeding and that the proceeding is not an abuse of process. Additionally, Mr. Badawy will be able to apply to the Court pursuant to s 40(3) of the Federal Courts Act to have the designation rescinded.
[24] The IDs say that Mr. Badawy was served with the motion record electronically on October 12, 2018. However, the motion record filed by Mr. Badawy on November 12, 2018 does not substantively address the IDs’ grounds for vexatious conduct or their written representations. Indeed, Mr. Badawy’s submissions provide further support for a declaration that he is a vexatious litigant. Mr. Badawy’s submissions in these motions demonstrate yet another attempt to re-litigate settled matters, collateral challenges of prior orders, and inappropriate allegations against opposing counsel.
[25] The IDs point out that Mr. Badawy’s motion record submissions contain inaccurate and misleading information. Mr. Badawy did, in fact, receive service of the motion record via email. All of the parties who received the motion record were able to access it through the links provided. Mr. Badawy’s claim that Justice McVeigh disqualified Borden Ladner Gervais LLP [BLG] from making representations is false. In fact, Justice McVeigh characterized the motion to remove counsel as moot. Mr. Badawy’s claim that he has a lawyer-client relationship with BLG and that the law firm holds his assets as well as confidential information is false. In reality, BLG has never acted as counsel for Mr. Badawy and has never held confidential information on his behalf.
[26] The IDs rely on Justice Campbell’s decision in IntelliView Technologies Inc v Badawy, 2018 ABQB 961 in support of this motion. In that decision, Justice Campbell declared Mr. Badawy to be a vexatious litigant in the Alberta court system. In arriving at this conclusion, Justice Campbell referenced Mr. Badawy’s prior court access restrictions, baseless lawsuits, collateral attacks, attempts at re-litigation, patterns of escalating litigation, requests for unreasonable or impossible remedies, persistent and unsuccessful appeals, unsubstantiated allegations against counsel and judges, judge shopping, failure to follow court orders, and bad litigation intent.
[27] The IntelliView Defendants also request an order for costs of this motion.
(2) Mr. Badawy
[28] Mr. Badawy has not made any substantive submissions in response to the Vexatious Motion. Instead, Mr. Badawy advances several procedural arguments, makes allegations against opposing counsel, and reiterates his arguments in the underlying action. In, doing so, he is raising issues that have already been litigated and decided in previous proceedings.
[29] Mr. Badawy requested in his written submissions that the Vexatious Motion be struck due to lack of service and filing. With no explanation, he withdrew this ground at the oral hearing in Calgary on March 27, 2019. Alternatively, Mr. Badawy seeks to have the motion struck because the underlying action has been struck by the judgment of Justice McVeigh on July 31, 2018.
[30] Mr. Badawy argues that Justice McVeigh’s July 31, 2018 decision to strike the statement of claim rendered all related motions moot. He asserts, without authority, that the IDs were required to obtain leave from the Court in order to file a motion in an action which has been struck. He says that the IDs did not obtain leave to bring this motion and the Court should not consider it or grant the motion.
[31] Without citing any authority, Mr. Badawy argues that the IDs were also required to obtain permission from the Case Management Judge to file this motion, but failed to do so. Accordingly, the Court should not consider or grant this motion.
[32] Mr. Badawy argues that BLG, Frank Tosto, Laura Poppel, Robyn Gurofsky, and Evan Nuttall cannot appear in this motion due to section 5.2-2 of the Code of Conduct which prohibits a lawyer from appearing as a witness and advocate in the same proceeding. BLG in particular should be restrained from acting in this matter because it is in a conflict of interest, is abusing Mr. Badawy’s confidential information, and because Mr. Badawy has an outstanding claim against it for $700,000. Additionally, Justice McVeigh disqualified BLG from making submissions before the Court.
[33] Mr. Badawy asks that the Vexatious Motion be dismissed and for costs.
B. Appeal Motion
(1) Mr. Badawy
[34] Before the Vexatious Motion was heard, Mr. Badawy filed an appeal of the March 14, 2019 order of Prothonotary Milczynski, the Case Management Judge in these proceedings, in which she refused Mr. Badawy’s request to have Mr. Bill Hews answer questions refused on cross-examination and to produce refused undertakings, and to have Ms. Christine Moggert answer questions and undertakings in written form. In addition, Mr. Badawy also appealed the Prothonotary’s refusal to allow a previous motion he had brought to have BLG removed as counsel of record before the Vexatious Motion was heard.
[35] He argues before me that the answers and undertakings requested from Mr. Hews and Ms. Moggert are relevant to his position before me on the Vexatious Motion.
[36] He also argues that the Court is obliged to hear his motion to remove BLG as counsel before it hears the Vexatious Motion and that, not to do so, will allow an abuse of process by BLG.
[37] Mr. Badawy also asks for costs.
(2) The IntelliView Defendants
[38] The IDs argue that a discretionary order of a prothonotary is not subject to a de novo hearing and should only be interfered with when it is incorrect in law or based upon a palpable and overriding error of fact. This appeal fails on both standards.
[39] As noted in the Prothonotary’s decision, a cross-examination on affidavit is not the same as an examination for discovery. The rules of relevance in a cross-examination are more limited than on an examination for discovery. A cross-examination on affidavit requires an affiant to answer questions on matters that have been set out in the affidavit or that are relevant to the determination of the issue in respect of which the affidavit was filed.
[40] Both Mr. Hews’ affidavit and Ms. Moggert’s affidavit are largely procedural in nature and limited in scope. The records appended to these affidavits consist of court filed documents. These documents speak for themselves.
[41] The refused questions and undertaking requests go well beyond the scope of the issues relevant to the underlying motion and the scope of the affidavits. They were rightfully refused.
[42] The IDs say that the Prothonotary’s decision is correct. The Case Management Judge made no palpable and overriding error. The decision should be upheld and the Appeal Motion dismissed with costs.
[43] The IDs also say that there is no error of law or otherwise in the Prothonotary’s refusal to allow Mr. Badawy’s earlier motion to be heard first. Whether this amounts to an abuse of process is raised by Mr. Badawy and argued by the IDs in the Vexatious Motion, and has been decided against Mr. Badawy on a number of prior decisions. Mr. Badawy’s allegations have been made either without any evidence or citing documentation which, even a cursory examination, does not support the allegations. The allegations are, in fact, nothing more than further misrepresentations and vexatious conduct made by Mr. Badawy to subvert the Vexatious Motion, and the Prothonotary was right to refuse Mr. Badawy’s request.
[44] The IDs also claim the costs of the Appeal Motion.
VI. ANALYSIS
A. The Motions Before Me
[45] The motion by the IDs asking the Court to declare Mr. Badawy a vexatious litigant [Vexatious Motion] and seeking appropriate relief in accordance with s 40 of the Federal Courts Act, was filed on October 16, 2018.
[46] The Vexatious Motion is supported, inter alia, by affidavits sworn by Mr. Hews and Ms. Moggert.
[47] As part of the Vexatious Motion, Mr. Badawy cross-examined Mr. Hews and Ms. Moggert on their affidavits. Mr. Hews’ affidavit contains information regarding the facts related to the Vexatious Motion. Ms. Moggert’s affidavit, however, does not contain substantive facts, but attaches pleadings and other documents filed in a related Court of Queen’s Bench of Alberta proceeding.
[48] During the course of the cross-examinations on the two affidavits, Mr. Badawy was met with some refusals and objections. Consequently, he brought a motion in writing before Case Management Judge Milczynski dated March 4, 2019 asking that Mr. Hews answer the refused questions and undertaking, and that Ms. Moggert answer her refusals in writing.
[49] The Prothonotary denied the motion in an order dated March 14, 2019. In that order, the Prothonotary, in addition to dealing with the cross-examination issues, also dealt with a matter raised by Mr. Badawy at a case management conference where he indicated that he had filed an earlier motion to have IDs’ counsel, BLG, removed and that he thought his motion should be dealt with by the Court before it heard the Vexatious Motion.
[50] The Prothonotary had previously directed that the Vexatious Motion should be heard first before any outstanding motions be dealt with, and in her order indicated that she saw no reason why she should amend her previous direction.
[51] On March 19, 2019, Mr. Badawy filed an appeal [Appeal Motion] asking that the order of the Case Management Judge of March 14, 2019 be overturned and that the Court order Mr. Hews and Ms. Moggert to answer the refused questions and produce the refused undertakings. In addition, Mr. Badawy asked that the Court order that his prior motion requesting the removal of BLG as IDs’ counsel be dealt with first before the Court heard and dealt with the Vexatious Motion.
[52] I decided that the Vexatious Motion and the Appeal Motion should be heard together on March 27, 2019 in Calgary, and suggested a procedure for doing this at the March 27, 2019 hearing which both Mr. Badawy and the IDs found acceptable, and the motions were heard conjunctively.
[53] The Vexatious Motion and the Appeal Motion are intertwined. Mr. Badawy’s response to the Vexatious Motion is that he is the party who is aggrieved. He made it very clear to me at the hearing of these motions that the primary question for the Court to answer is “What is the intent of this litigation?” By this, Mr. Badawy means that the real purpose of the Vexatious Motion is to deprive him of certain legal rights, and that BLG is really conducting the vexatious proceedings on its own behalf as a way of obscuring various abuses of process aimed at denying him due process and his legal rights. The questions and undertakings that were refused by Mr. Hews and Ms. Moggert were, he says, intended to elicit evidence that would establish the real, underlying purpose of the Vexatious Motion, and his prior motion seeking the removal of BLG would establish that BLG is acting for itself and not the IDs and is attempting to evade the consequences of its own abuse of process.
[54] So Mr. Badawy’s basic position is that the Vexatious Motion is nothing more than a further abuse of process aimed at depriving him of his legal rights and shielding BLG from its own wrongdoing.
B. General Remarks
[55] In the Court of Queen’s Bench of Alberta decision in IntelliView Technologies Inc v Badawy, 2018 ABQB 961 where Justice Campbell dealt with vexatious litigant proceedings against Mr. Badawy involving a great deal of the evidence that is now before me and similar counterclaims by Mr. Badawy, Justice Campbell made the following preliminary findings concerning Mr. Badawy’s honesty:
31 As a first preliminary point, I conclude that Mr. Badawy is not credible. As a consequence, I put little to no weight on his affidavit evidence, unless it is corroborated in some manner. Where a statement by Mr. Badawy conflicts with that of another witness or document, I reject Mr. Badawy’s evidence, unless, again, Mr. Badawy’s evidence is in some manner independently supported or confirmed.
32 I come to this conclusion because Mr. Badawy is simply untruthful in his representations to the Court. He makes demonstrably false claims. I conclude he believes doing so is to his advantage.
33 In my review of this Action’s materials, I identified many issues with Mr. Badawy’s evidence and statements. I will illustrate that with several examples.
[56] Justice Campbell then provides a list of specific examples that demonstrate that “Mr. Badawy says he litigates in good faith. However, his conduct indicates otherwise” (at para 24). Many of these examples re-appear in the motions before me and I will refer to them later. Justice Campbell also points out that she is “not the first judge of this Court to find that Mr. Badawy is not a credible or reliable witness” (at para 58).
[57] Justice Campbell then concludes on this issue as follows:
61 Because of these and other false and misleading statements in Mr. Badawy’s materials I conclude that he is not a credible or reliable witness.
62 As previously indicated, in the main analysis that follows, I put no weight on Mr. Badawy’s affidavit evidence unless it has some independent corroboration. Where evidence conflicts, I prefer the evidence of the alternative deponent to that of Mr. Badawy.
[58] When it comes to the malicious intent of IntelliView Technologies Inc, who was the Applicant/Plaintiff in the Court of Queen’s Bench of Alberta proceedings, and the conflict of interest of BLG, Justice Campbell has the following to say:
77 Mr. Badawy also says IntelliView’s Application has no basis. He contends it is based on inadmissible material, “... used for the sole purpose to harass me, mischief me and abuse the judicial process. ...”. He also indicates that IntelliView has engaged in “judge shopping”, and “shopping with different justices for a better relief”.
78 I reject complaints about the intent and conduct of IntelliView. Those are irrelevant to the question before me: does Mr. Badawy’s litigation activity predict future abuse of the Courts’ processes? I adopt the reasoning of Mandziuk J in Alberta Lawyers Insurance Association v. Bourque, 2018 ABQB 821 (Alta. Q.B.) at para 67 that:
... 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. [Emphasis in original.]
See also Unrau v. National Dental Examining Board, 2018 ABQB 874 (Alta. Q.B.) at para 31.
E. Conflicts of Interests
79 Mr. Badawy makes numerous allegations that there are many conflicts of interest in this matter. He complains about the law firm retained by IntelliView. These issues, he says, preclude IntelliView’s Application from being heard and decided.
80 I reject this allegation. The reasons for so doing are the same as the reasons for rejecting Mr. Badawy’s complaints concerning IntelliView’s allegedly improper intentions. Even if I were to conclude that counsel for IntelliView were somehow in a conflict of interest, I still retain the authority and obligation to respond to abusive litigation. My decision in relation to whether Mr. Badawy requires court access restrictions is an investigation of Mr. Badawy’s litigation conduct and no one else.
[59] Similar malicious intent, conflict of interest and abuse of process issues are raised in the motions now before me, but what Mr. Badawy totally overlooks in Justice Campbell’s findings and reasons that these issues are not a road block to the issue of his abusive litigation. Before me, Mr. Badawy has not even attempted, either in writing or in oral argument, to refute the evidence of vexatious conduct that is the basis for the Vexatious Motion. Apparently, he thinks that, in the pursuit of his malicious intent, conflict of interest and abuse of process preoccupations he is perfectly entitled to engage in whatever conduct he thinks will be effective for his purposes, and he is asking the Court to excuse him for this conduct – and no doubt permit it to continue – because he is an aggrieved man and his grievances must take precedence.
[60] There is one other general finding of Justice Campbell that goes further than any other to convince her that a simple leave application requirement will not be sufficient to restrain Mr. Badawy from vexatious conduct in the future:
152 Mr. Badawy is a litigant who uses legal processes with the intention to harass, harm, and intimidate. On its own, this single conclusion warrants Mr. Badawy being subject to court access restrictions. Mr. Badawy’s established pattern of meritless and persistent filings and communications with the courts warrants strict and comprehensive court access restrictions beyond a simple leave application requirement.
[61] The Court of Queen’s Bench of Alberta is not the only Court that has found it necessary to deal with Mr. Badawy’s vexatious approach to litigation. For some years now, he has been engaging in similar conduct in the Federal Court.
[62] The record before me shows that Mr. Badawy has, over the years, made a number of unsubstantiated claims against judges and prothonotaries in proceedings in which he has been involved. This includes Justice Hall of the Court of Queen’s Bench of Alberta and Justice Martin of the Alberta Court of Appeal. See IntelliView Technologies Inc v Badawy, 2018 ABQB 961 at para 141. In the Federal Court action T-1289-14 that Mr. Badawy commenced on May 26, 2014 against Mr. Igras alleging that he was infringing upon a “Igras Family Law” trademark, the Court granted the defendants summary judgment on June 23, 2017 (2019 FC 619), and Mr. Badawy’s claim was stuck in its entirely without leave to amend and with costs payable by Mr. Badawy. In that action, Mr. Badawy had twice applied to set aside all orders and directions of Prothonotary Lafrenière (as he then was) alleging that the prothonotary was biased. Prothonotary Lafrenière had the following to say about Mr. Badawy’s bias claims when they came before him:
The procedural history of the underlying action and counterclaim is somewhat difficult to summarize, given the volume of letters and documents submitted by the Plaintiff, many of which are quite lengthy, argumentative and repetitive...
…
It goes without saying that repeated requests for the same relief from the court, including requests to set aside previous orders and directions which have already been denied up to the highest level in Canada, constitutes an abuse of the Court’s process.
…In my view, the repeated and unfounded allegations of bias made by the Plaintiff deserve to be reprimanded by an award of costs. The Plaintiff moved for an order that I recuse myself notwithstanding that he had no evidence to support his request and that the very same allegations of bias has been repeatedly rejected by other judges on appeal. The Plaintiff appears to be engaging in some “judge shopping” or attempting to intimidate the Court into ruling in his favour. Such conduct on the part of the Plaintiff is unacceptable and should not be tolerated. Rather than focussing on the proceeding, the Plaintiff as chosen instead to go to war with the Court. The Defendants have been put to additional expense to respond to-what is clearly a frivolous, vexatious and abusive motion. In the circumstances, I conclude that the Defendants should be awarded costs in a lump sum approaching solicitor-client costs...
[Emphasis added.]
[63] When the matter came before Justice Gleason on appeal, she dismissed it with costs payable forthwith “by reasons of the completely unmeritorious nature of this motion.”
[64] Mr. Badawy then appealed the decision of Justice Gleason to the Federal Court of Appeal where it was dismissed with costs at the high end of the tariff. Mr. Badawy then sought to appeal the decision of the Federal Court of Appeal to the Supreme Court of Canada when his application for leave was dismissed with costs.
[65] When it comes to groundless claims of this nature, Mr. Badawy is tenacious, to say the least.
[66] More recently, Mr. Badawy’s claims in the underlying action to this motion were struck by Justice McVeigh without leave to amend. Justice McVeigh concluded that the entire Amended Statement of Claim was “vexatious and an abuse of the Court processes as evidenced by this hearing where the Plaintiff brought several confusing and baseless motions”:
[27] The entire amended Statement of Claim is vexatious and an abuse of the Court processes as evidenced by this hearing where the Plaintiff brought several confusing and baseless motions. First, the Plaintiff has provided no account of any specific conduct taken by the Defendants or their employees that could be considered a foundation for the bald allegations in the amended Statement of Claim. As there is no evidentiary foundation in the amended Statement of Claim, it is an abuse of process and can be struck.
[28] Second, the evidence before the Court is that the Plaintiff is known to commence a never-ending stream of motions and letters for direction (or as occurred in this case, letters giving the Court directions). These never-ending matters are also an abuse of process.
C. The Present Motions - General
[67] When it comes to the evidence and bald assertions put forward by Mr. Badawy in the present motions, I think I have to be as equally circumspect as was Justice Campbell. I say this because, in addition to his past untruthfulness in the related Alberta actions, Mr. Badawy continues to make demonstrably false claims before me.
[68] For example, Mr. Badawy swears in his affidavit of November 12, 2018 (para 9) that is before me in these motions that on September 13, 2018, Justice Campbell determined that “the applicant BORDEN LADNER GERVAIS LLP did not serve me with the application and the two private folders sent to the Justice AND both applications are adjourned both applications for the hearing [sic].” The record shows that this is a patent falsehood and that on September 13, 2018, Justice Campbell granted two separate orders declaring service of the materials on Mr. Badawy to be good and sufficient, and BLG was not the “applicant” in the relevant motions. The applicant was IntelliView. This is a blatant attempt by Mr. Badawy to mislead the Court and inculpate BLG in wrongdoing in order to bolster his theory that BLG is the real culprit in these proceedings.
[69] Also, in para 9 of his affidavit, Mr. Badawy swears that “Justice Neufeld STAYED one of the applications of Borden Ladner Gervais LLP on November 2, 2018 and determined that the true purpose of these [sic] litigation is to gain an upper hand….” In fact, the record shows that Justice Neufeld did not make this determination. Justice Neufeld, while considering the bankruptcy application against Mr. Badawy due to unpaid cost awards, stated that “there are many steps that can be taken short of bankruptcy if the true purpose of Intelliview is to collect the $8,000 or so dollars owed to it, as opposed to gaining an upper hand in the litigation it is involved in with Mr. Badawy.” In other words, Justice Neufeld did not impugn the intention of BLG.
[70] In para 10 of his affidavit, Mr. Badawy swears that Justice McVeigh “directed to remove Borden Ladner Gervais LLP from making submissions before the Court on March 8, 2018 [sic].” In para 39 of his affidavit, he swears that “On 2018-03-18 Justice of the Federal Court disqualified Evans Nuttall and Frank Tosto and Borden Ladner Gervais LLP from making oral submissions for conflict of interest.” This is false.
[71] This is a blatant attempt to mislead the Court into thinking that BLG and Mr. Tosto have already been found by Justice McVeigh to be in a conflict of interest in these proceedings in support of his claim that he is the aggrieved party and BLG is vexatiously litigating against him.
[72] A reading of Justice McVeigh’s Judgment and Reasons of July 31, 2018 makes it abundantly clear that she did not “remove” BLG:
[34] As I have dismissed the Plaintiff’s amended Statement of Claim, his motion for removal is moot, and therefore, it is unnecessary for me to consider it. In addition, the Plaintiff has not convinced me that any counsel need to be removed.
[Emphasis added.]
[73] When I drew Mr. Badawy’s attention to Justice McVeigh’s judgment at the hearing of these motions on March 27, 2019, he conceded nothing, but sought to discredit Justice McVeigh on the grounds that her judgment did not reflect what she had said at the hearing as recorded in the transcript. I then asked Mr. Badawy to take me to the transcript of the hearing before Justice McVeigh to show me where she had removed BLG as counsel. What the transcript shows is that, in order to avoid future problems arising from Mr. Badawy’s allegations against BLG, Justice McVeigh sought a voluntary solution. She makes this clear in her judgment where she says
[32] Counsel from BLG w