Chutskoff Estate v. Bonora et al.

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Michalyshyn, J.
• Citation: (2014), 598 A.R. 35 (QB),2014 ABQB 628
• Date: 15 October 2014

Chutskoff Estate v. Bonora (2014), 598 A.R. 35 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. OC.107

Dr. Brian Chutskoff, Executor and Trustee under the Last Will and Testament of Charles Chutskoff, Deceased (applicant/plaintiff) v. Doris Celestina Esther Bonora, Reynolds Mirth Richards & Farmer LLP and John Doe (respondents/defendants)

(0803 06510; 2014 ABQB 628)

Indexed As: Chutskoff Estate v. Bonora et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Michalyshyn, J.

October 15, 2014.

Summary:

The plaintiff, Dr. Brian Chutskoff, sued a named lawyer (Bonora), a second unidentified lawyer and the law firm of Reynolds Mirth Richards & Farmer (defendants) (RMRF Action), alleging negligence and breach of fiduciary duty. Chutskoff alleged that the defendants agreed to represent him in challenging the Alberta registration of a Saskatchewan judgment, but changed their mind a few days later, thereby compromising his ability to respond to the historically successful registration of the judgment. The RMRF Action was the latest installment in a set of related legal actions that grew from a dispute in Saskatchewan over the administration of a will and spanned 13 years. Chutskoff, who was self-represented, applied to have a litigation representative appointed to represent him in the RMRF Action.

The Alberta Court of Queen's Bench, per Michalyshyn, J., in a decision reported (2014), 590 A.R. 288, considered whether Chutskoff was a vexatious litigant (Judicature Act, s. 23(1)). The court declared Chutskoff to be a vexatious litigant. The RMRF Action was struck in its entirety as vexatious litigation. The court held that as a vexatious litigant, Dr. Chutskoff was restricted from filing or continuing actions in all Alberta courts without consent of the courts. The court opined that if it was in error about the RMRF litigation being vexatious, then Dr. Chutskoff had the capacity to conduct his own litigation and his application for a litigation representative was dismissed. When a draft copy of the formal judgment in the vexatious litigation decision was circulated by defence counsel, Dr. Chutskoff disagreed with the decision. He applied to have Michalyshyn, J., recuse himself for bias, to reopen the litigation and sought a stay of proceedings in a previous contempt proceeding ([2014] A.R. Uned. 363).

The Alberta Court of Queen's Bench denied Dr. Chutskoff leave to advance his application and confirmed the formal judgment as drafted by defence counsel. This application simply confirmed that Dr. Chutskoff was a vexatious litigant.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - [See both Practice - Topic 46 ].

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - Dr. Chutskoff pursued litigation over a will for over 13 years - Ultimately, an applications judge struck the action and issued a vexatious litigant declaration (Judicature Act) - When defence counsel circulated a draft order, Dr. Chutskoff disagreed with the decision and applied to have the applications judge recuse himself for bias, to reopen the litigation, and to stay previous contempt proceedings - The Alberta Court of Queen's Bench denied Dr. Chutskoff leave to continue his application and confirmed the formal judgment as drafted - The court stated that Dr. Chutskoff was continuing his pattern of failed promises and delay, his allegations of a tangled web of conspiracy and judicial misconduct, and his relentless attempts to re-litigate disputes over a decade old - This application simply confirmed he was a vexatious litigant - It illustrated why his access to the courts should be restricted to curb his abuse of court - See paragraphs 8 to 43.

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - A plaintiff, who was declared to be a vexatious litigant, sought to continue proceedings, arguing that "access to justice" (i.e., his being able to continue the litigation unfettered), was an overriding principle - The Alberta Court of Queen's Bench stated that "access to justice" did not mean an unlimited right to abuse the courts, state resources, and target litigants - See paragraphs 28 and 29.

Practice - Topic 1005

Parties - Parties unrepresented by counsel - Vexatious litigant - [See both Practice - Topic 46 ].

Cases Noticed:

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 13].

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al., [2011] 3 S.C.R. 422; 421 N.R. 338; 311 B.C.A.C. 1; 529 W.A.C. 1; 2011 SCC 52, refd to. [para. 15].

Workers' Compensation Board (B.C.) v. Figliola - see Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al.

Dykun v. Odishaw et al. (2000), 267 A.R. 318; 2000 ABQB 548, affd. (2001), 286 A.R. 392; 253 W.A.C. 392; 2001 ABCA 204, leave to appeal denied (2002), 289 N.R. 194; 299 A.R. 317; 266 W.A.C. 317 (S.C.C.), refd to. [para. 15].

R. v. Fearn (G.W.) (2014), 586 A.R. 182; 2014 ABQB 233, refd to. [para. 16].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183; 39 D.L.R.(4th) 481, refd to. [para. 19].

Ruskin Estate v. Chutskoff Estate (2013), 556 A.R. 183; 584 W.A.C. 183; 2013 ABCA 276, refd to. [para. 20].

Paniccia Estate et al. v. Toal (2012), 521 A.R. 73; 2012 ABQB 11, affd. (2012), 539 A.R. 349; 561 W.A.C. 349; 2012 ABCA 397, refd to. [para. 26].

Evans v. Sports Corp. (2011), 523 A.R. 80; 2011 ABQB 478, refd to. [para. 26].

Lewis Estates Communities Inc. et al. v. Brownlee LLP, [2013] A.R. Uned. 823; 2013 ABQB 731, refd to. [para. 27].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 28].

Vilardell v. Dunham (2014), 463 N.R. 336; 361 B.C.A.C. 1; 619 W.A.C. 1; 2014 SCC 59, refd to. [para. 30].

Trial Lawyers Association (B.C.) v. British Columbia - see Vilardell v. Dunham.

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R.(4th) 385, refd to. [para. 41].

Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc. (2012), 548 A.R. 195; 2012 ABQB 627, affd. (2012), 539 A.R. 206; 561 W.A.C. 206; 2012 ABCA 373, refd to. [para. 41].

Statutes Noticed:

Rules of Court (Alta.), rule 9.13 [para. 23].

Counsel:

Dr. Brian Chutskoff for himself;

Donald R. Cranston, Q.C. (Bennett Jones LLP), for the respondents/defendants.

This matter was considered by Michalyshyn, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on October 15, 2014.