Bank of Montreal v. Rogozinsky,

JudgeSchlosser
Neutral Citation2014 ABQB 771
Citation(2014), 603 A.R. 261 (QBM),2014 ABQB 771,603 AR 261,(2014), 603 AR 261 (QBM),603 A.R. 261
Date19 November 2014
CourtCourt of Queen's Bench of Alberta (Canada)

Bk. of Mtrl. v. Rogozinsky (2014), 603 A.R. 261 (QBM)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.034

Bank of Montreal (plaintiff and defendant by counterclaim) v. Aileen J. Rogozinsky also known as Aileen Janet Rogozinsky (defendant and plaintiff by counterclaim)

(1403 09800; 2014 ABQB 771)

Indexed As: Bank of Montreal v. Rogozinsky

Alberta Court of Queen's Bench

Judicial District of Edmonton

Schlosser, Master

December 16, 2014.

Summary:

The Bank of Montreal sued the defendant for the outstanding balance on the defendant's Mastercard ($27.064.46 plus accruing interest). The defendant, relying on Organized Pseudolegal Commercial Argument (OCPA) strategies, counterclaimed for $6,000,000 for trademark and copyright infringement and $73,000 allegedly owing by the bank pursuant to a fee schedule in a "Notice of Irrevocable Estoppel by Acquiescence" sent to the bank by the defendant. The bank applied for summary judgment and in response the defendant applied to have the bank's action dismissed.

A Master of the Alberta Court of Queen's Bench granted summary judgment in favour of the bank with solicitor-client costs, and dismissed the defendant's counterclaim as vexatious. The Master commented on the use of OCPA strategies generally.

Contracts - Topic 1503

Formation of contract - Consensus or agreement - What constitutes a consensus necessary for a binding contract - [See first Creditors and Debtors - Topic 1437 ].

Copyright - Topic 1009

Works subject to copyright - Characters or names - A bank sued the defendant for a credit card debt - The defendant, relying on Organized Pseudolegal Commercial Argument strategies, counterclaimed for $6,000,000 - The defendant relied on a "Common Law Copyright Notice" sent to the bank, notifying it that if someone used the defendant's name without permission (such as in court documents), she could bill them $1,000,000 - The notice also extended to the defendant's biological and physical properties and "absolute control and mastery over the peaceful possession of [his or her] body, mind and mental facilities ...", which the bank interfered with by asking that the debt be repaid - A Master of the Alberta Court of Queen's Bench struck the defendant's counterclaim as frivolous and without merit - The master stated that this was a "foisted unilateral agreement" - Further, there was no such thing as a "common law" copyright or trademark as both property interests were a result of legislation - Copyright could not subsist in a personal name - The alleged misuse of the defendant's name in court and litigation documents also offended the privilege principle - See paragraphs 80 to 88.

Courts - Topic 554.1

Judges - Powers - To control "organized pseudolegal commercial argument" litigants - [See Copyright - Topic 1009 and all Creditors and Debtors - Topic 1437 ].

Creditors and Debtors - Topic 1436

Credit cards - Liability - Evidence and proof - A bank sued the defendant for $27,064.46, the balance on the defendant's Mastercard, plus interest at a rate of 12.9% per annum - The bank applied for summary judgment - The defendant resisted, arguing that the documentary evidence provided by the bank was inadequate to prove both the existence of the contract and the debt - A Master of the Alberta Court of Queen's Bench rejected the defendant's argument and granted summary judgment - The master stated that in this context copies of documents were usually adequate, especially when they were supported with other evidence given under oath - There was no obligation on a creditor to prove a debt in the manner demanded by a debtor - Here, the bank provided an adequate and uncontested evidentiary basis for its claim - See paragraphs 41 to 43.

Creditors and Debtors - Topic 1436

Credit cards - Liability - Evidence and proof - A bank sued the defendant for a credit card balance and applied for summary judgment - The defendant resisted, arguing that she needed the original version of the credit card contract which she referred to as a "promissory note" to confirm that it had "not been monetized and securitized" - A Master of the Alberta Court of Queen's Bench stated that those matters were irrelevant - The master noted that an exact argument had emerged in the Republic of Ireland, where mortgage holders had claimed that they should not have to repay a loan if it had been securitized - The master stated that Ireland had recently faced some economic challenges and was "fertile ground for this type of invention by debtors. Suffice to say, this argument is equally invalid both in Canada and the Republic of Ireland" - Summary judgment was granted - See paragraphs 44 to 47.

Creditors and Debtors - Topic 1436

Credit cards - Liability - Evidence and proof - A bank sued the defendant for a credit card balance and applied for summary judgment - The defendant resisted, arguing that the Mastercard contract was nonexistent, or a fraud, because it was unsupported by consideration - The defendant claimed that the bank was never the source of the credit card funds - Instead money was created by the act of the defendant engaging in a purchase - A Master of the Alberta Court of Queen's Bench rejected the defendant's argument - The master noted that this "peculiar concept has emerged in other jurisdictions" - The master stated that the defendant's "'money for nothing' argument is legally and factually incorrect. It has been tried elsewhere without success. It is an invention by someone who is in dire straits and is plainly without merit" - The master granted the bank summary judgment - See paragraphs 48 to 54.

Creditors and Debtors - Topic 1437

Credit cards - Liability - Use of pseudolegal strategies for evading debt collection - A bank sued the defendant for a credit card balance and applied for summary judgment - The defendant resisted, arguing that the bank was estopped from collecting the alleged debt because it had not responded to various documents sent by the defendant to the bank - Those documents included a "Notice of Irrevocable Estoppel by Acquiescence", providing that the bank did not adequately prove its debt by the defendant's deadlines, such that the bank had agreed by "tacit procuration" that either the debt did not exist or had been paid and that the bank was prohibited from pursing credit card debts in the future - A Master of the Alberta Court of Queen's Bench rejected the defendant's argument and granted the bank summary judgment - The defendant's attempt to evade her debt with those documents was an example of a pseudolegal strategy - The master stated that foisted unilateral agreements had no effect in law - "This group of pseudolegal strategies ignore a simple but critical legal principle: a contract cannot emerge out of silence because silence does not confirm a mutual understanding or 'consensus ad idem' between the parties to that agreement ..." - The bank had no obligation to respond to those documents - The master stated further that there was no such phrase as "tacit procuration" in Canadian law - See paragraphs 55 to 73.

Creditors and Debtors - Topic 1437

Credit cards - Liability - Use of pseudolegal strategies for evading debt collection - A bank sued the defendant for a credit card debt of 27,064.46 - The defendant resisted the claim and counterclaimed for $73,000 - That amount arose from a "Fee Schedule" imposed on the bank by the defendant pursuant to a "Notice of Irrevocable Estoppel by Acquiescence" wherein the defendant claimed that the bank had agreed by "tacit procuration" that either the debt did not exist or had been paid and that the bank was prohibited from pursing credit card debts in the future - At issue was whether the counterclaim should be struck - A Master of the Alberta Court of Queen's Bench stated that fee schedules were a common Organized Pseudolegal Commercial Argument Litigants' foisted unilateral agreement motif and were nothing more than "tools of [attempted] intimidation" - They were intended to deter persons from enforcing their proper rights and obligations - The master held that the defendant's claims based on her "Fee Schedule" were illegal and should be struck out - Those claims were frivolous, and an attempt to advance a counterclaim on this basis was vexatious - See paragraphs 76 to 79.

Creditors and Debtors - Topic 1437

Credit cards - Liability - Use of pseudolegal strategies for evading debt collection - A defendant, who relied on Organized Pseudolegal Commercial Argument (OPCA) strategies was unsuccessful in evading a credit card debt - Solicitor-client costs were awarded against the defendant - The defendant's counterclaim for over $6,000,000 was also struck as vexatious - A Master of the Alberta Court of Queen's Bench stated that "My last observation is to simply stress to Mr. and Ms. Rogozinsky that their use of pseudolegal concepts has not and will not provide them any benefit. OPCA strategies are instead a potential basis for unfavourable cost orders, such as indemnity costs in favour of the bank, vexatious litigation and litigant declarations, and findings of criminal or contemptuous misconduct ... It would not be difficult to imagine legal costs in a case such as this exceeding the face value of the original debt plus interest. All of the foregoing is little more than an application of the principles set forth in Meads v Meads [Alta. Q.B. 2012]. The particular approach taken by Ms. Rogozinsky appears to be relatively new to Canada. My hope, and the purpose of this exercise, (which may not be a model of judicial economy) is that a fuller treatment might head some others off at the pass" - See paragraphs 92 to 94.

Practice - Topic 5370

Dismissal of action - Grounds - General and want of prosecution - Frivolous or vexatious actions - [See Copyright - Topic 1009 and second Creditors and Debtors - Topic 1437 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See all Creditors and Debtors - Topic 1436 ].

Practice - Topic 5710

Judgments and orders - Summary judgments - Evidence - [See all Creditors and Debtors - Topic 1436 ].

Practice - Topic 7457

Costs - Solicitor and client costs - Entitlement to - Where claim or defence irrelevant, scandalous or without merit - [See third Creditors and Debtors - Topic 1437 ].

Cases Noticed:

O'Connor Associates Environmental Inc. et al. v. MEC OP LLC et al. (2014), 572 A.R. 354; 609 W.A.C. 354; 2014 ABCA 140, refd to. [para. 31].

Leeds et al. v. Alberta (Minister of Environment) et al., [1989] 6 W.W.R. 559; 98 A.R. 178 (C.A.), refd to. [para. 32].

Ernst v. EnCana Corp. et al. (2014), 598 A.R. 331; 2014 ABQB 672, refd to. [para. 32].

W.P. et al. v. Alberta et al. (2014), 588 A.R. 110; 626 W.A.C. 110; 2014 ABCA 404, refd to. [para. 33].

Meads v. Meads (2012), 543 A.R. 215; 2012 ABQB 571, refd to. [para. 35].

A.N.B. v. Alberta (Minister of Human Services) et al. (2013), 557 A.R. 364; 2013 ABQB 97, refd to. [para. 36].

Perreal v. Knibb (2014), 581 A.R. 275; 2014 ABQB 15, refd to. [para. 36].

Banque Royale du Canada v. Minieozzi, 2013 CarswellQue 6850; 2013 OCCQ 6566, affd. 2013 CarswellQue 9963; 2013 QCCA 1722, refd to. [para. 41].

Royal Bank of Canada v. Skrapec, [2011] B.C.T.C. Uned. 1827; 2011 BCSC 1827, revd. [2012] B.C.A.C. Uned. 3; 2012 BCCA 10, refd to. [para. 42].

Kearney v. KBC Bank Ireland Plc et al., [2014] IEHC 260, refd to. [para. 45].

McCarthy et al. v. Bank of Scotland Plc et al., [2014] IEHC 340, refd to. [para. 45].

Freeman et al. v. Bank of Scotland (Ireland) Ltd. et al., [2013] IEHC 371, refd to. [para. 46].

Dempsey v. Envision Credit Union et al., [2006] B.C.T.C. 750; 2006 BCSC 750, refd to. [para. 49].

Mortgage Holding Trust Co. v. Mainwaring, [2010] NZHC 1435, affd. [2010] NZCA 599, refd to. [para. 50].

Permanent Custodians Ltd. v. Virgin Investments Pty Ltd. et al., [2009] VSC 429, refd to. [para. 50].

Royal Bank of Canada v. Place (2010), 504 A.R. 230; 2010 ABQB 733, refd to. [para. 52].

Papadopoulos v. Borg et al., [2009] A.R. Uned. 74; 2009 ABCA 201, refd to. [para. 63].

Henry v. El et al., [2010] A.R. Uned. 451; 2010 ABCA 312, leave to appeal refused (2011), 426 N.R. 392; 524 A.R. 399; 545 W.A.C. 399 (S.C.C.), refd to. [para. 63].

Felthouse v. Bindley (1862), 11 C.B.(N.S.) 869; 142 E.R. 1037 (Ex Ch.), refd to. [para. 64].

Whitfield v. Chrysler Credit Canada Ltd. et al., [2001] A.R. Uned. 22 (Q.B.), refd to. [para. 67].

Williams v. Toronto-Dominion Bank et al., [2008] O.T.C. Uned. P28; 2008 CarswellOnt 7115 (Sup. Ct.), affd. [2009] O.A.C. Uned. 220; 176 A.C.W.S.(3d) 609; 2009 ONCA 335, leave to appeal refused (2009), 401 N.R. 395; 267 O.A.C. 399 (S.C.C.), refd to. [para. 67].

Williams v. Johnston - see Williams v. Toronto-Dominion Bank et al.

Herbison v. Canada (Attorney General) et al., [2013] B.C.T.C. Uned. 2020; 2013 CarswellBC 3390; 2013 BCSC 2020, affd. (2014), 364 B.C.A.C. 44; 625 W.A.C. 44; 2014 BCCA 461, refd to. [para. 67].

R. v. Gerlitz (C.H.) (2014), 589 A.R. 43; 2014 ABQB 247, refd to. [para. 67].

C.C. v. J.M. (2010), 351 Sask.R. 55; 2010 SKQB 79, refd to. [para. 68].

Canadian Imperial Bank of Commerce v. Piedrahita (2012), 386 N.B.R.(2d) 177; 999 A.P.R. 177 (T.D.), refd to. [para. 68].

Gravlin et al. v. Canadian Imperial Bank of Commerce et al., [2005] B.C.T.C. 839; 2005 CarswellBC 1443; 140 A.C.W.S.(3d) 447; 2005 BCSC 839, refd to. [para. 68].

Myers v. Blackman, 2014 ONSC 5226, refd to. [para. 68].

Drosdovech v. Ashfield et al., [2010] F.T.R. Uned. 565; [2011] 1 C.T.C. 12; 2010 FC 858, refd to. [para. 68].

Rubbert v. Boxrud (2014), 450 Sask.R. 147; 2014 SKQB 221, refd to. [para. 70].

Gidda et al. v. Hirsch et al., [2014] B.C.T.C. Uned. 1286; 2014 BCSC 1286, refd to. [para. 78].

Dempsey v. Envision Credit Union et al., [2006] B.C.T.C. Uned. 680; 2006 CarswellBC 2142; 60 B.C.L.R.(4th) 309; 2006 BCSC 1324, refd to. [para. 83].

Hajdu v. Family Responsibility Office (Ont.), [2012] O.T.C. Uned. 1835; 2012 ONSC 1835, refd to. [para. 83].

Squamish Indian Band et al. v. Capilano Mobile Park et al., [2011] B.C.T.C. Uned. 470; 2011 BCSC 470, affd. (2012), 318 B.C.A.C. 239; 541 W.A.C. 239; 2012 BCCA 126, refd to. [para. 83].

Munster v. Lamb (1883), 11 Q.B.D. 588; 52 L.J.Q.B. 726 (C.A.), refd to. [para. 86].

Hall v. Baxter (1922), 22 O.W.N. 207 (H.C.), refd to. [para. 86].

MBNA Canada Bank v. Luciani, [2011] O.T.C. Uned. 6347; 2011 ONSC 6347, refd to. [para. 88].

Minister of National Revenue v. Stanchfield (2009), 340 F.T.R. 150; 2009 FC 99, refd to. [para. 90].

1158997 Alberta Inc. et al. v. Maple Trust Co. et al. (2013), 568 A.R. 286; 2013 ABQB 483, refd to. [para. 91].

Fearn v. Canada Customs (2014), 586 A.R. 23; 2014 ABQB 114, refd to. [para. 93].

Authors and Works Noticed:

Bloy, Thomas, Pseudo-law and Debt Enforcement (2013), NZ Law J. 47, pp. 50 [para. 50]; 54 [paras. 50, 51].

Cheshire, Geoffrey Chevalier, Fifoot, Cecil Herbert Stuart, and Furmston, Michael P., The Law of Contract (15th Ed. 2006), p. 62 [para. 64].

Waddams, Stephen M., The Law of Contracts (6th Ed. 2010), para. 92 et seq. [para. 64].

Counsel:

Raymond Steen (Witten LLP), for the plaintiff and defendant by counterclaim;

Anton Rogozinsky and Aileen J. Rogozinsky, for the defendant and plaintiff by counterclaim.

This case was heard on November 19, 2014, before Schlosser, Master, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for decision on December 16, 2014.

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19 practice notes
  • Potvin (Re), 2018 ABQB 652
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • September 7, 2018
    ...Debt Free”. Identical documents, except for names, addresses, and account information, are reproduced in Bank of Montreal v Rogozinsky, 2014 ABQB 771, 603 AR 261, Appendices A-D. As discussed below, collectively these documents claim that Mr. Potvin has unilaterally extinguished his mortgag......
  • Royal Bank of Canada v Anderson,
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • August 3, 2022
    ...40–48; Banque Royale du Canada c Minicozzi, 2013 QCCQ 6566 at para 21, aff’d 2013 QCCA 1722; Bank of Montreal v Rogozinsky, 2014 ABQB 771 at paras 24, 41–43, 56, 603 AR 261; Toronto-Dominion Bank v Thompson, [2015] OJ No 5141 (QL) at paras 7, 16 (Sup Ct (Sm Cl Ct)); Alb......
  • Labonte v Alberta Health Services, 2019 ABQB 41
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • January 22, 2019
    ...intimidation: Meads v Meads, at para 527; Fearn v Canada Customs, 2014 ABQB 233 at para 199, 586 AR 182; Bank of Montreal v Rogozinsky, 2014 ABQB 771 at para 78, 603 AR 261; Gidda v Hirsch, 2014 BCSC 1286 at para 84; R v Sands, 2013 SKQB 115 at para 18, 416 Sask R 279; R v Boxrud, 2014 SKQB......
  • DKD (Re) (Dependent Adult), 2018 ABQB 1021
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 17, 2018
    ...and are instead a form of intimidation: Meads v Meads, at para 527; Fearn v Canada Customs, at para 199; Bank of Montreal v Rogozinsky, 2014 ABQB 771 at para 78, 603 AR 271; Gidda v Hirsch, 2014 BCSC 1286 at para 84; R v Sands, 2013 SKQB 115 at para 18, 416 Sask R 279; R v Boxrud, 2014 SKQB......
  • Request a trial to view additional results
18 cases
  • Potvin (Re), 2018 ABQB 652
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • September 7, 2018
    ...Debt Free”. Identical documents, except for names, addresses, and account information, are reproduced in Bank of Montreal v Rogozinsky, 2014 ABQB 771, 603 AR 261, Appendices A-D. As discussed below, collectively these documents claim that Mr. Potvin has unilaterally extinguished his mortgag......
  • Royal Bank of Canada v Anderson,
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • August 3, 2022
    ...40–48; Banque Royale du Canada c Minicozzi, 2013 QCCQ 6566 at para 21, aff’d 2013 QCCA 1722; Bank of Montreal v Rogozinsky, 2014 ABQB 771 at paras 24, 41–43, 56, 603 AR 261; Toronto-Dominion Bank v Thompson, [2015] OJ No 5141 (QL) at paras 7, 16 (Sup Ct (Sm Cl Ct)); Alb......
  • Labonte v Alberta Health Services, 2019 ABQB 41
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • January 22, 2019
    ...intimidation: Meads v Meads, at para 527; Fearn v Canada Customs, 2014 ABQB 233 at para 199, 586 AR 182; Bank of Montreal v Rogozinsky, 2014 ABQB 771 at para 78, 603 AR 261; Gidda v Hirsch, 2014 BCSC 1286 at para 84; R v Sands, 2013 SKQB 115 at para 18, 416 Sask R 279; R v Boxrud, 2014 SKQB......
  • DKD (Re) (Dependent Adult), 2018 ABQB 1021
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 17, 2018
    ...and are instead a form of intimidation: Meads v Meads, at para 527; Fearn v Canada Customs, at para 199; Bank of Montreal v Rogozinsky, 2014 ABQB 771 at para 78, 603 AR 271; Gidda v Hirsch, 2014 BCSC 1286 at para 84; R v Sands, 2013 SKQB 115 at para 18, 416 Sask R 279; R v Boxrud, 2014 SKQB......
  • Request a trial to view additional results
1 firm's commentaries
  • What’s In A Name? (Why There Is No Copyright In Your Name)
    • Canada
    • Mondaq Canada
    • January 12, 2015
    ...from Bank of Montreal, used it for 15 years, made payments on it for 15 years and then stopped paying it: Bank of Montreal v. Rogozinsky, 2014 ABQB 771. The defendant was sued by BMO for the outstanding balance of $27,064 plus interest. In defence, the defendant argued, amongst other things......

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