Chutskoff Estate v. Bonora et al., (2014) 590 A.R. 288 (QB)

• Judge: Michalyshyn, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 16, 2013
• Citations: (2014), 590 A.R. 288 (QB);2014 ABQB 389

Chutskoff Estate v. Bonora (2014), 590 A.R. 288 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JL.015

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

(0803 06510; 2014 ABQB 389)

Indexed As: Chutskoff Estate v. Bonora et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Michalyshyn, J.

June 24, 2014.

Summary:

Ths 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, on its own motion, 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.

Actions - Topic 2602

Duplicitous or vexatious actions - Vexatious litigant - What constitutes - [See first Practice - Topic 46 and both Practice - Topic 5370 ].

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - [See both Practice - Topic 5370 ].

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - Chutskoff sued two lawyers and a law firm (RMRF Action), alleging negligence and breach of fiduciary duty - The RMRF Action was the latest installment in a 13 year litigation that grew from a dispute in Saskatchewan over a will - The Alberta Court of Queen's Bench struck the RMRF Action, holding that it had "devolved into a textbook example of vexatious litigation" (i.e., an abuse of process) - The court, on its own motion, also declared Chutskoff to be a vexatious litigant under the Judicature Act and prohibited him from filing or continuing actions in all Alberta courts without consent of the court - See paragraphs 131 to 138.

Practice - Topic 215

Persons who can sue and be sued - Individuals - Mental capacity - Chutskoff sued two lawyers and a law firm (RMRF Action), alleging negligence and breach of fiduciary duty - The RMRF Action was the latest installment in a 13 year litigation that grew from a dispute in Saskatchewan over a will - Chutskoff applied to have a litigation representative appointed to represent him because he was at a gross disadvantage as an unrepresented litigant - The Alberta Court of Queen's Bench declared Chutskoff to be a vexatious litigant and struck the RMRF Action as vexatious - The court opined that if it was in error on the vexatiousness issue, Chutskoff had the capacity to conduct his own litigation and his application for a litigation representative was dismissed - The court made its determination of capacity based on the test in s. 1(d) of the Adult Guardianship and Trustees Act - See paragraphs 139 to 151.

Practice - Topic 1005

Parties - Parties unrepresented by counsel - Vexatious litigant - [See both Practice - Topic 5370 ].

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous or vexatious - [See both Practice - Topic 5370 ].

Practice - Topic 5361

Dismissal of action - Grounds - General and want of prosecution - Abuse of process - [See both Practice - Topic 5370 ].

Practice - Topic 5370

Dismissal of action - Grounds - General and want of prosecution - Frivolous or vexatious actions - The Alberta Court of Queen's Bench discussed the principles applicable in determining whether litigation was vexatious, including the indicia of vexatious litigation - The court noted, inter alia, that vexatious litigation could be struck under either rule 3.68(2)(c) or (d) of the Rules of Court, as the term "vexatious" was synonymous with impropriety and abuse of process - Also, the court's inherent jurisdiction to prevent abuse by control of court processes provided a parallel jurisdiction to strike out vexatious and abusive litigation - See paragraphs 80 to 93.

Practice - Topic 5370

Dismissal of action - Grounds - General and want of prosecution - Frivolous or vexatious actions - Chutskoff sued two lawyers and a law firm (RMRF Action), alleging negligence and breach of fiduciary duty - The RMRF Action was the latest installment in a 13 year litigation that grew from a dispute in Saskatchewan over a will - The Alberta Court of Queen's Bench struck the RMRF Action, holding that it had "devolved into a textbook example of vexatious litigation" (i.e., an abuse of process) - It was a collateral attack on the outcomes in multiple prior proceedings, most of the relief sought was unavailable, proceedings kept escalating, Chutskoff historically ignored court orders, there were persistent unsuccessful appeals, Chutskoff raised unsubstantiated allegations of conspiracy, fraud and misconduct by government and legal actors, and matters were litigated for an improper purpose - See paragraphs 94 to 131.

Words and Phrases

Vexatious - The Alberta Court of Queen's Bench discussed the meaning of the word "vexatious" as it appeared in rules 3.68(2)(c) and (d) of the Alberta Rules of Court - See paragraphs 80 to 93.

Cases Noticed:

Masterman-Lister v. Brutton & Co., [2002] E.W.C.A. Civ. 1889 (U.K.C.A.), refd to. [para. 58].

Reece et al. v. Edmonton (City) (2011), 513 A.R. 199; 530 W.A.C. 199; 335 D.L.R.(4th) 600; 2011 ABCA 238, refd to. [para. 80].

V.W.W. v. Leung (2011), 530 A.R. 82; 2011 ABQB 688, refd to. [para. 80].

Wong v. Leung - see V.W.W. v. Leung.

McMeekin v. Alberta (Attorney General) et al. (2012), 537 A.R. 136; 2012 ABQB 144, refd to. [para. 80].

Mazhero v. Ombudsman and Privacy Commissioner (Yuk.), 2001 YKSC 520, refd to. [para. 81].

Canam Enterprises Inc. v. Coles et al. (2000), 139 O.A.C. 1; 51 O.R.(3d) 481 (C.A.), affd. [2002] 3 S.C.R. 307; 296 N.R. 257; 167 O.A.C. 1; 2002 SCC 63, refd to. [para. 81].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 82].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 84].

Onischuk v. Alberta et al. (2013), 555 A.R. 330; 2013 ABQB 89, refd to. [para. 85].

Stout v. Track (2013), 574 A.R. 59; 2013 ABQB 751, refd to. [para. 85].

Jamieson et al. v. Denman et al. (2004), 365 A.R. 201; 2004 ABQB 593, refd to. [para. 86].

Bishop et al. v. Bishop, [2011] O.A.C. Uned. 185; 2011 ONCA 211, leave to appeal denied (2011), 428 N.R. 399; 291 O.A.C. 400 (S.C.C.), refd to. [para. 87].

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. 88].

Del Bianco et al. v. 935074 Alberta Ltd. et al., [2007] A.R. Uned. 556; 2007 ABQB 150, refd to. [para. 88].

McMeekin v. Alberta (Attorney General) et al. (2012), 543 A.R. 132; 2012 ABQB 456, refd to. [para. 89].

Curle v. Curle, 2014 ONSC 1077, refd to. [para. 89].

Fearn v. Canada Customs (2014), 586 A.R. 23; 2014 ABQB 114, refd to. [para. 89].

Starr et al. v. Houlden, [1990] 1 S.C.R. 1366; 110 N.R. 81; 41 O.A.C. 161, refd to. [para. 90].

Dahlseide v. Dahlseide et al., [2009] A.R. Uned. 281; 73 R.F.L.(6th) 57; 2009 ABCA 375, refd to. [para. 91].

Arabi v. Alberta et al. (2014), 589 A.R. 249; 2014 ABQB 295, refd to. [para. 92].

R. v. Fearn (G.W.) (2014), 586 A.R. 182; 2014 ABQB 233, refd to. [para. 92].

Wong v. Leung, 2010 ABQB 628, refd to. [para. 92].

Big Bear Hills Inc. et al. v. Bennett Jones Alberta Limited Liability Partnership et al. (2010), 507 A.R. 21; 2010 ABQB 764, refd to. [para. 92].

O'Neill et al. v. Deacons et al. (2007), 441 A.R. 60; 2007 ABQB 754, refd to. [para. 92].

McDonald Estate, Re (2013), 573 A.R. 1; 2013 ABQB 602, refd to. [para. 92].

Hughes Estate et al. v. Hughes et al. (2006), 396 A.R. 250; 2006 ABQB 159, varied on other grounds (2007), 417 A.R. 52; 410 W.A.C. 52; 285 D.L.R.(4th) 57; 2007 ABCA 277, refd to. [para. 92].

Allen v. Gray et al. (2012), 532 A.R. 252; 2012 ABQB 66, refd to. [para. 92].

Serdahely Estate, Re (2008), 453 A.R. 337; 2008 ABQB 472, refd to. [para. 92].

V.W.W. v. Leung (2011), 530 A.R. 82; 2011 ABQB 688, refd to. [para. 92].

McDonald Estate, Re (2013), 573 A.R. 1; 2013 ABQB 602, refd to. [para. 92].

Wong et al. v. Giannacopoulos et al. (2011), 510 A.R. 234; 527 W.A.C. 234; 2011 ABCA 206, refd to. [para. 92].

Pawlus v. BNP Paribas (Canada), [2007] A.R. Uned. 323; 2007 ABCA 325, refd to. [para. 92].

Koerner v. Capital Health Authority et al. (2011), 518 A.R. 35; 2011 ABQB 462, refd to. [para. 92].

Wong v. Leung et al. (2013), 563 A.R. 281; 2013 ABQB 327, leave to appeal refused (2014), 572 A.R. 235; 609 W.A.C. 235; 2014 ABCA 121, refd to. [para. 92].

V.W.W. v. Wasylyshen - see Wong v. Leung.

Wilson v. Revenue Canada (2006), 305 F.T.R. 250; 2006 FC 1535, refd to. [para. 92].

Ruskin v. Chutskoff Estate (2011), 366 Sask.R. 166; 506 W.A.C. 166; 2011 SKCA 10, refd to. [para. 95].

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. 97].

R. v. Anderson (F.) (2014), 458 N.R. 1; 350 Nfld. & P.E.I.R. 289; 1088 A.P.R. 289; 2014 SCC 41, refd to. [para. 103].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452, refd to. [para. 103].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 57 D.L.R.(4th) 231, refd to. [para. 106].

Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841; 225 N.R. 297, refd to. [para. 107].

R. v. Dell (B.M.) (2005), 367 A.R. 279; 346 W.A.C. 279; 2005 ABCA 246, refd to. [para. 107].

Cold Lake First Nations v. Alberta (Minister of Tourism, Parks and Recreation) et al. (2012), 522 A.R. 159; 544 W.A.C. 159; 2012 ABCA 36, leave to appeal denied [2014] SCCA No. 62, refd to. [para. 125].

First Western Development Corp. v. Superior Court (Andrisani) (1989), 261 Cal. Rptr. 116 (Cal. C.A.), refd to. [para. 134].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 145].

Malton v. Attia et al. (2013), 573 A.R. 200; 2013 ABQB 642, refd to. [para. 146].

Taubner Estate, Re, [2006] A.R. Uned. 216; 22 E.T.R.(3d) 148; 2006 ABQB 138, refd to. [para. 147].

MacDonald v. Taubner Estate - see Taubner Estate, Re.

Pente Investment Management Ltd. et al. v. Schneider Corp. et al. (1998), 62 O.T.C. 1; 101 A.C.W.S.(3d) 301 (Gen. Div.), affd. (1998), 113 O.A.C. 253; 42 O.R.(3d) 177 (C.A.), refd to. [para. 147].

Statutes Noticed:

Judicature Act, R.S.A. 2000, c. J-2, sect. 23(1) [para. 136]; sect. 23(2) [para. 131].

Rules of Court (Alta.), rule 2.11(c) [para. 141]; rule 3.68(2)(c), rule 3.68(2)(d) [para. 80]; rule 4.11(d) [para. 3].

Counsel:

Dr. Brian Chutskoff, for himself;

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

This decision was heard on September 16, 2013, with written submissions filed on May 9, 2014, by Michalyshyn, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on June 24, 2014.