Rothweiler v Payette
2018 ABQB 108
http://canlii.ca/t/hqf48
What this is telling us is that Brenden tried to do an end-run around the defendants by getting the court to find against them without them being told there was even a lawsuit. And what's the payment "by way of methods that are not normally included in judgments granted by this Court"?[2] On January 30, 2018 I considered a desk application submitted by the plaintiff requesting a large judgment against the defendants. Among other things, it provided for terms of payment by way of methods that are not normally included in judgments granted by this Court.
[3] Desk applications are only appropriate for applications that can be made without notice, or “ex parte”. The desk application submitted to me on January 30, 2018 contained no proof of effective service of the Statement of Claim upon any of the defendants. The defendants had not been noted in default. There was nothing in the application that made it appropriate to be heard as a without notice or ex parte application.
[4] I rejected that desk application in the same way that rejected desk applications are typically dealt with by Masters, that is by writing comments on the submission cover sheet. In this case, I wrote:
“Cannot be sought as a default judgment- no affidavit of service proving service on all defendants/expiry of relevant time after service and noting in default (Rule 3.36 among others). If the application is sought it cannot be made ex parte. It would need to be made on notice in open chambers.”
[5] Accordingly, directions were provided to the plaintiff as to what he needed to do to have his application heard on its merits if he intended to seek his order.
[6] On February 9, 2018, the plaintiff submitted what appears to be a virtually identical application and it is again being considered by me as one of many desk applications that the Court receives for consideration. The only differences in this application appear to be modest changes in the supporting affidavits.
I have to agree that a payment of damages through 335 separate postal orders is somewhat unusual.Pay me, the living man, whom I am creditor beneficiary and granter of the estate BRENDEN-RANDALL: ROTHWEILER ESTATE all monies cited along with the abolishment of all void jurisdiction tribunal attachments to the estate as follows:
10 million in $1 million postal orders, and
5 million in $100,000 postal orders, and
5 million in $50,000 postal orders, and
2 million in $10,000 postal orders CAD.
Written verification of the abolishment of all void jurisdiction tribunal created attachments/records that may inhibit my right to travel freely uninhibited by public servants ignorant of my rights and freedoms guaranteed by the charter and attached conveyances. A clean and clear record with 'Do Not Detain' attached to the estate name period.
So who are the defendants that Brenden doesn't want told they are being sued? They are;
Julie Payette, governor general of Canada
Jody Wilson-Raybould, minister of justice, attorney general of Canada
Kathleen Ganley, minister of justice solicitor general, Province of Alberta
Naheed Nenshi, mayor of Calgary
Brenden had even considerately provided the court with the necessary court order to sign;
Sadly all to no avail. Master Farrington, a real nit-picker if I ever saw one, told Brenden that if he wanted to sue anybody he had to tell them he was doing it.
Then another problem;[8] In reviewing the application, there still does not appear to be personal service of the Statement of Claim upon the named defendants, and consequently the time for a defence has not expired. In fact, it appears that time may not have even begun to run against the named defendants. There has been no noting in default. The conditions required for an application for judgment without notice simply do not exist in this action.
[9] The application is once again rejected for the same reasons that the first application was rejected, although I reject it more formally this time.
What this is hinting at is that Queen's Bench has established rules prohibiting OPCA/Sovereign/Freeman type documents being files with the court registry. So if you are basing your lawsuit on OPCA beliefs you won't get your day in court because you'll have to present your case under real law, an insurmountable barrier. Clearly Master Farrington knew exactly what was going on and was just toying with Brendon. So he gave him another chance;[10] I reluctantly grant the plaintiff leave to reapply upon notice to the defendants. The arguments raised in his submitted materials are “OPCA” arguments in the manner described in Meads v. Meads, 2012 ABQB 571 (CanLII) and other cases, and I normally would not have granted such leave. If the Plaintiff has not read Meads, he should do so. While the Statement of Claim itself is generally silent on OPCA arguments, and that is likely why it was accepted for filing, the materials submitted on this application develop the concepts in much more detail.
[11] The facts in the Statement of Claim, if proven, seem to allege a possible tort issue. The types of arguments generally raised by the plaintiff on this application, however, have no basis in law. The reason that I have granted leave to reapply is that the Statement of Claim alleges some facts which, if proven under the right circumstances, might amount to a cause of action. I make no findings in that regard as minimal details are pleaded and this is a without notice setting. The plaintiff may choose to frame his arguments differently as the matter progresses. It is up to the parties to debate the merits of the action upon proper notice, and in accordance with the Rules of Court, so I make no further comments on the merits.
[12] It is expected that the Rules of Court will be followed with respect to any steps which the plaintiff takes in this matter as relief is sought from this Court, and I would remind that cases before this Court are decided pursuant to the laws of Alberta and Canada, not pursuant to OPCA theories and arguments, the latter being fully dealt with in Meads. Further, all materials submitted for filing in any action in this Court, including this one, are subject to the Master Order for Organized Pseudolegal Commercial Argument Documents granted by former Chief Justice Wittmann on January 2, 2015.
Then Brenden's case was accepted by Queen's Bench without him having to bother serving notice on the defendants! Talk about favoritism! As I've noted the court could have rejected Brenden's statement of claim without giving him a hearing because his entire case was based on OPCA bullshit. But where's the fun in that? Here's how the court got around that pesky requirement that if you're being sued you have to be told about it;[13] I formally Order as follows:
1. The without notice application for payment and other relief contained in the plaintiff’s draft order submitted February 9, 2018 as attached as Schedule A to these reasons is dismissed.
2. The plaintiff has leave to reapply, but only upon proper notice to all named defendants, and subject to the Master Order for Organized Pseudolegal Commercial Argument Documents granted by former Chief Justice Wittmann on January 2, 2015.
3. A copy of the motion materials submitted shall be retained on the Court file.
4. The plaintiff shall serve a copy of these reasons and the accompanying order upon the defendants.
That's right, they pulled the inherent jurisdiction card out of the pack. Not only did Queen's Bench accept his case but did so with an alacrity generally unknown within the fossilized Canadian court system. Brenden's application was bounced by Master Farrington on February 14, 2018 and the hearing was concluded and judgment delivered on February 26th! I'm assuming that it wasn't just a matter of efficient allocation of judicial resources that led to ACJ Rooke, of Meads v Meads infamy, being the judge assigned to the case.[2] The body of the Statement of Claim reads, cryptically:
1. All defendants are in tacit agreement to the following, where I a man require immediate restoration of my property and just and fair compensation in the amount of 22 million dollars ($22,000,000.00 CAD) for harm loss and trespass to it by all government agents involved in void jurisdiction tribunals cited that harmed me to this day, as at the age of 15 I was arrested, imprisoned and tortured in a private tribunal for a victimless crime under a statutory rule of contract in a jurisdiction that didn't apply to me having all my rights an dignities violated and trespassed on.
2. I have evidence to the facts and I am witness to the events.
3. Each respondent in their personal and private capacities have waived all opportunities [sic] to discuss this matter further.
4. I require the immediate payment of 22 million dollars CAD for damages, trespass and harm as per notice.
5. I require written certification of subrogation of the cited estate as per my notices.
6. I require a clean and clear record with written acknowledgement that you have clear all void jurisdiction created attachments to the legal estate name BRENDEN-RANDALL: ROTHWEILER ESTATE that could violate my ability to travel freely and servants ignorant to my rights as per my notices.
7. An affidavit and evidence to the facts are attached.
8. I have performed due diligence in this matter.
[3] The Statement of Claim concludes with a demand for $22 million, “Written certification of subrogation of the estate.”, and “DO NOT DETAIN attached to the legal estate name of BRENDEN-RANDALL: ROTHWEILER ESTATE.”
[4] To date there is no indication on the file of the within Action that the Statement of Claim, as filed, was served on all of the four Defendants. Nor have the four defendants been found in default. Nevertheless, on January 30, 2018, Rothweiler made an ex parte desk application for a judgment. That was rejected by Master Farrington. Rothweiler then again on February 9, 2018 filed a second nearly identical “Default Judgment as per tacit agreement”. The attached draft order states:
Pay me, the living man, whom I am creditor beneficiary and granter of the estate BRENDEN-RANDALL: ROTHWEILER ESTATE all monies cited along with the abolishment of all void jurisdiction tribunal attachments to the estate as follows:
10 million in $1 million postal orders, and
5 million in $100,000 postal orders, and
5 million in $50,000 postal orders, and
2 million in $10,000 postal orders CAD.
Written verification of the abolishment of all void jurisdiction tribunal created attachments/records that may inhibit my right to travel freely uninhibited by public servants ignorant of my rights and freedoms guaranteed by the charter and attached conveyances. A clean and clear record with 'Do Not Detain' attached to the estate name period.
[5] Rothweiler’s ex parte application was rejected by Master Farrington in an Endorsement reported as Rothweiler v Payette, 2018 ABQB 108 (CanLII) [Rothweiler #1].
[6] In Rothweiler #1 Master Farrington concluded that this action involved a set of abusive and legally incorrect ideas which I labelled “Organized Pseudolegal Commercial Arguments”, or “OPCA”, in Meads v Meads, 2012 ABQB 571 (CanLII), 543 AR 215.
[7] The Court, now on its own motion and under its inherent jurisdiction takes steps, to minimize abuse of its processes via this lawsuit and, more generally, from Rothweiler himself.
The ensuing massacre is related here;
Rothweiler v Payette, 2018
ABQB 134
http://canlii.ca/t/hqm2t
It turned out that Brenden relied on two arguments which are no better than suicide in Rooke's court. First the Strawman;
Then unilateral contracts;[9] The “Affidavit of Service” attaches other documents which finally bring to light exactly what this entire matter is (purportedly) about. There are two processes underway.
A. The ‘Strawman’ Myth
[10] First, Rothweiler subscribes to a remarkably persistent and pernicious OPCA misconception that there are two of him. One is an “estate”, and it is identified by all upper-case letters: “BRENDEN-RANDALL: ROTHWEILER ESTATE”. The other part of him is “the Creditor of the estate”. The “Creditor” is “... a man, a living man and not a dead corporate entity and a debtor to a trust that I am in fact sole beneficiary, creditor, grantor and administrator of.”
[11] Rothweiler postulates these two entities are linked by a contract, and that government authority and actions that affected him were only made possible via this contract. He alleges that the government acted against Rothweiler via this contract and his “estate”, but that was a fraud. As a “sovereign” he claims he was never subject to “the private crown corporation of Canada” and so he demands compensation for alleged harm he claims to have experienced and that he be made immune from government action by “... a clean and clear record with written acknowledgement that you have cleared all void jurisdiction ...”.
[12] This is how Rothweiler expresses his complaint about the “estate” in his own words in an undated document “ATTN: Jody Wilson-Raybould”:
The private crown corporation of Canada of which you hold office for is accountable for all the harm caused to this day. Failure to act makes all parties in breach of trust of their oaths of office and puts them in malfeasance.
I require, through administration of justice and administration of common law, that I, a man, Brenden Rothweiler and my property and my human rights be protected and upheld and restored in common law jurisdiction, while processing my papal property in the form of a desk order to all my orders as follows to be created and carried and upheld.
... I am standing in truth and you are standing in dishonor by non-rebuttal
An undisputed/ refuted notice stands as truth in a court of law, through the notarial process all parties including yourself are already in tacit agreement by non-rebuttal to my previous notices and you have waived All rights and opportunities to discuss this matter further.
...
I ask, where is the foundation contract and where is my certification of subrogation through all my trials and tribulations? I've revealed the fraud in this and no defendant has disagreed. You have an oath to uphold the common law and you are a public servant under oath to uphold the administration of justice and common law and uphold my common law rights. When I speak as a man of the land I speak for the people in a singular and plural capacity.
I am standing in truth and all defendants are standing in dishonor as all parties are in tacit agreement to wipe out and expunge the record as per my notices. As I have given more than the lawful amount of time to rebut these matters, I require payment within 5 days as opposed to the 20-day time period, as we both know there have been verified delivered notices that have not received a response and I have waited long enough for resolution on this matter I also require written certification of subrogation of the legal estate named BRENDEN-RANDALL:ROTHWEILER ESTATE
I am the Creditor of the estate. I am not the estate. I am a man, a living man and not a dead corporate entity and debtor to a trust that I am in fact sole beneficiary, creditor, grantor and administrator of.
[13] The problem for Rothweiler is that this duality where he, the “living man”, has distinguished himself from the “BRENDEN-RANDALL:ROTHWEILER ESTATE” is the notorious “double/split person” or ‘Strawman’ concept, which has no basis in law. It’s a myth. He is just one individual. There is no separate “estate” linked to him. It does not matter what letter case one uses for his name or whether he adds strange punctuation inside the name. There is just one Brenden Randall Rothweiler.
[14] The ‘Strawman’ concept has been rejected in innumerable court decisions in Canada and every other country where it has appeared: Meads v Meads, at paras 417-446. Nevertheless, it seems to hold a strange fascination for OPCA litigants. If one could really split apart a physical and ‘legal’ aspects of an individual the results under the English tradition common law would probably be a slave, a human without legal status: Pomerleau v Canada (Revenue Agency), 2017 ABQB 123 (CanLII) at paras 89-95, [2017] DTC 5024. Fortunately, that drastic outcome is nothing but a thought experiment, since it is impossible to achieve that ‘split’ under Canadian law.
[17] The fact that Rothweiler has deployed the ‘Strawman’ concept in his materials is a basis that I can and do conclude that he presumptively has sued the Defendants in bad faith and for an abusive process. I therefore stay his action against the Defendants and will order that Rothweiler provide submissions to rebut the presumption that he is engaged in vexatious, abusive litigation. If he fails to rebut that presumption then I will strike out his lawsuit, per Rule 3.68.
Not only did Rooke say that he "may strike out this action"(spoiler, he didn't) he threatened criminal charges against Brendon just for filing the lawsuit!B. Three/Five Letters
[18] That is not the only problematic aspect of Rothweiler’s litigation. The second major component of his scheme provides the alleged basis for Rothweiler’s claim that he is owed $22 million, and why he has a “Default Judgment as per tacit agreement”.
[19] Each of the four Defendants apparently received a set of demand letters, one set of which (addressed with Minister Jody Wilson-Raybould) is reproduced as Appendices A to D. These make up what is commonly called a Three/Five Letters process: Bank of Montreal v Rogozinsky, 2014 ABQB 771 (CanLII) at paras 55-73, 603 AR 261, see also Re Boisjoli, at paras 49-57; Alberta v Greter, at paras 11-22; Canadian Imperial Bank of Commerce v McDougald, 2017 ABQB 124 (CanLII) at paras 24-26. The Three/Five Letters scheme is also known by other names: an “administrative process”, “notary judgment”, or, the term that Rothweiler has used, a “notarial process”.
[20] In brief, the Three/Five Letters is a series of demanding documents that are sent by the OPCA litigant to a target. Each is a foisted unilateral agreement, a document which purports to unilaterally place obligations on the recipient: Meads v Meads, at paras 447-528. Failure to meet criteria set in the foisted unilateral agreement or silence is claimed to be “tacit assent”, “tacit agreement”, or “tacit procuration”.
. . . . . . . . . . . .
[25] Unsurprisingly, apparently Rothweiler’s targets did not respond to his satisfaction, and so he sent the second undated letter, reproduced in Appendix B. This essentially restates the claim in the first letter and offers a seven-day extension to the deadline set in the first letter. A third letter followed (Appendix C), which offers another seven day extension but warns that silence “... will enact a binding contract ...” and failure to refute Rothweiler’s allegations “... will be in acceptance of a default judgment against you ...”.[
26] The next letter (Appendix D) allegedly seals the deal, declaring that Rothweiler has now won, and as a result has obtained a binding agreement for the claims he seeks.... you are now in default and in agreement to all the areas outlined in those notices.
This notice of demand is for the monetary settlement and of all negative attachments to the legal estate name BRENDEN-RANDALL:ROTHWEILER ESTATE. As per the previous notices your oath of office has been accepted and you are in a malfeasance of office along with full liability in your private /official capacity.... you are now required by the Charter and attached conveyances, to restore my property as compensation for the harm done to me.
...
The compensation amount tacitly agreed to of twenty two million dollars made payable to me ... a man demand immediate restoration of my property and just and fair compensation in the above cited amount as per the rule of law and administration of justice which I will seek through the court should you fail to resolve this notice of demand.
[27] Rothweiler claims that the four letters he has sent are evidence and proof, and that the Defendants “... will be liable for any and all costs incurred during the court process including punitive damages.”
[28] The basic and critical flaw with the Three/Five Letters scheme is the same defect which invalidates all foisted unilateral agreements. The law in Canada is clear: silence does not mean agreement and cannot create a binding authority except where authorized by legislation: reviewed in Meads v Meads, at paras 458-472. A document that purports to unilaterally impose an obligation on another has no legal effect: Papadopoulos v Borg, 2009 ABCA 201 (CanLII) at para. 4; Henry v El, 2010 ABCA 312 (CanLII) at para 3, 193 ACWS (3d) 1099, leave to appeal to SCC refused, 34172 (14 July 2011).
[29] This would appear to mean that Rothweiler’s litigation is based on an imaginary “Default Judgment based on tacit agreement” that has no merit in law, and that is a basis on which I may strike out this action.
But no need for all this doom and gloom and sad faces! Judge Rooke didn't dismiss Brenden's lawsuit but just stayed it. Unfortunately, as noted in paragraph 17, he stayed it to allow the defendants the chance to put the boots to Brenden and for the court to consider a vexatious litigant declaration against him. It looks like Brenden's about to lose his 335 postal orders.[30] I also note another complication. In Re Boisjoli, an OPCA litigant did much the same thing as Rothweiler, and claimed that him receiving a traffic ticket was a basis for a $225,000.00 “default judgment” purportedly obtained by a Three/Five Letters process. Boisjoli then tried to file that “default judgment” in the Alberta Court of Queen’s Bench. I concluded in Re Boisjoli, at paras 58-69 that Boisjoli’s attempts to file that default judgment established on a balance of probabilities that he had committed the Criminal Code, RSC 1985, c C-46, s 423.1 offense of intimidation of a justice system participant:
423.1(1) No person shall, without lawful authority, engage in any conduct with the intent to provoke a state of fear in
...
(b) a justice system participant in order to impede him or her in the performance of his or her duties ...
[31] Boisjoli was subsequently committed to be tried on such charge, in this Court, in April 2018 (R v Boisjoli, Edmonton 10850061Q1 (Alta QB)).
[32] Rothweiler’s action appears to also offend Criminal Code, s 423.1. The Criminal Code, s 2 definition of “justice system participant” includes “a member of the Senate, of the House of Commons, of a legislative assembly or of a municipal council”, which captures at least three of the four Defendants.
III. Conclusion
[33] In light of Rothweiler’s employing the OPCA ‘Strawman’ scheme where he claims to be divided into two separate entities, I conclude, per Fiander v Mills, that Rothweiler’s lawsuit is presumptively vexatious, an abuse of the court, and that he has conducted this litigation for a ulterior, improper purpose. I therefore stay his lawsuit against the Defendants.
[34] Rothweiler has until 30 days from the filing of this Memorandum in the Court’s registry to provide an application for leave to the Court (and served to the Defendants) to establish why his action has a lawful basis and is not an abuse of court processes. The Defendants may also make submissions on this point, which I request should be received (if at all) by the Court by 30 days after service on them of any leave application.
[35] Second, Rothweiler’s litigation activities include what appear to be indicia of litigation misconduct that potentially warrants court access restrictions, including OPCA arguments and using court processes to further illegal activities: Chutskoff v Bonora, 2014 ABQB 389 (CanLII) at para 92, 590 AR 288, aff’d 2014 ABCA 444 (CanLII); Re Boisjoli, at paras 98-103.
[36] This Court has, as part of its inherent jurisdiction, the authority, on its own motion, to evaluate whether “indicia” of litigation misconduct merits the Court placing restrictions on whether an individual may initiate or continue litigation in Alberta Courts: Hok v Alberta, 2016 ABQB 651 (CanLII) at paras 14-25, 273 ACWS (3d) 533, leave denied 2017 ABCA 63 (CanLII), leave to appeal to SCC refused, 37624 (12 November 2017). I note that in 1985 Sawridge Trust v Alberta (Public Trustee), 2017 ABQB 548 (CanLII) at paras 68-74, Thomas J commented on the special character of OPCA litigation when it comes to setting appropriate court access restrictions on an abusive litigant.
[37] I therefore give Rothweiler leave to provide to the Court (and serve on the Defendants) within 30 days of filing this Memorandum in the Court’s registry submissions:
1. as to whether he should be subject to court access restrictions, and
2. if so, what form those court access restrictions should take.
[38] This process will be conducted in writing only: Hok v Alberta, 2016 ABQB 335 (CanLII) at para 105; Stoney v 1985 Sawridge Trust, 2017 ABQB 436 at paras 60-62. The Court invites the Defendants to make submissions within 30 days after service on them of any such submissions by Rothweiler on the appropriate court access restrictions for Rothweiler, if any, and to file materials relating to Rothweiler’s dispute-related activities.
[39] In the interim, I order that Rothweiler is prohibited from filing any material on any Court file except for the submissions identified above, and that Rothweiler may not continue or institute further court proceedings without the leave of the Chief Justice, Associate Chief Justice, Chief Judge, or his or her designate, of the Alberta Court in question, per R v Hok, 2016 ABQB 335 (CanLII) at para 105, enforced in Hok v Alberta (Justice & Solicitor General), 2016 ABCA 356 (CanLII) at para 7. The Court will, contemporaneous with this Memorandum, prepare and file, and provide to Rothweiler, the resulting Interim Court Access Restriction Order. Rothweiler’s approval of that Order is not required.