Dykun v. Odishaw et al.,

• Judge: Lee, J.
• Neutral Citation: 2000 ABQB 548
• Citation: 2000 ABQB 548,(2000), 267 A.R. 318 (QB),48 Alta LR (2d) 258,74 AR 259,[1986] AJ No 1021 (QL),267 A.R. 318,[1986] A.J. No 1021 (QL),267 AR 318,(2000), 267 AR 318 (QB)
• Date: 27 July 2000
• Court: Court of Queen's Bench of Alberta (Canada)

Dykun v. Odishaw (2000), 267 A.R. 318 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. AU.037

John Dykun (plaintiff) v. James H. Odishaw, Joseph P. Brumlik and Vivian R. Stevenson (defendants)

(Action No. 0003-13377; 2000 ABQB 548)

Indexed As: Dykun v. Odishaw et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

August 3, 2000.

Summary:

The defendants applied for, inter alia, an order striking out the plaintiff's statement of claim.

The Alberta Court of Queen's Bench allowed the application on the basis that the statement of claim was frivolous and vex­atious and an abuse of the court's process. The court ordered the plaintiff to deposit $20,000 as security for costs prior to insti­tuting any legal proceedings or process or commencing any action in Alberta against any of the defendants, waived the require­ments of rules 594 and 596 of the Alberta Rules of Court, and awarded costs to the defendants on a solicitor/client basis.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - The defendants applied for an order striking out the plain­tiff's state­ment of claim on the basis, inter alia, that it was false, frivolous or vexatious - The Alberta Court of Queen's Bench set out seven tests contained in an Ontario High Court decision, the satisfaction of any one of which would make a pro­ceed­ing vexa­tious - The court referred to the numer­ous prior pro­ceedings in various actions brought by the present plaintiff, pro­ceed­ings aris­ing out of the same matters - The court held that, in light of the history of the plaintiff's litiga­tion, the present state­ment of claim ful­filled all seven cri­teria in the Ontario decision - See para­graphs 41 to 44.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - The defendants applied for, inter alia, a declar­ation that the plaintiff's action was an abuse of process and an order striking the statement of claim - The Alberta Court of Queen's Bench granted the application - The particulars of the plaintiff's allega­tions revealed that he was essentially complain­ing about the outcomes of several applica­tions which he had brought unsuc­cessfully in other actions - This latest action was a collateral attack on the previ­ous decisions of the court and a clear case of abuse of process - See paragraphs 1 to 40.

Practice - Topic 8111

Costs - Security for costs - General prin­ciples - Where plaintiff has failed to sat­isfy prior judgment or order - The defen­dants applied for, inter alia, a declaration that the plaintiff's action was an abuse of process, an order striking the statement of claim and an order that the plaintiff deposit $20,000 as security for costs prior to insti­tuting any legal proceedings or process or commencing any action in Alberta against any of the defendants - The Alberta Court of Queen's Bench granted the application - There was a lengthy history of litigation commenced by the plaintiff against these defendants, the litigation had been costly and disruptive to the defendants, every statement of claim filed by the plaintiff against these defend­ants had been struck out on an interlocu­tory application, and the plaintiff had not paid any of the costs awarded against him - See paragraphs 45 to 53.

Practice - Topic 8129

Costs - Security for costs - Application - Evidence - The defendants applied for, inter alia, an order striking out the plain­tiff's statement of claim and ordering him to deposit $20,000 as security for costs prior to instituting any legal proceedings or process or commencing any action in Alberta against any of the defendants - The defendants did not file an affidavit, but submitted that their position was clear­ly evident from a review of the statement of claim and the proceedings of various prior actions which were referred to - The Alberta Court of Queen's Bench waived the requirements of rules 594 and 596 of the Alberta Rules of Court and granted the application - The defendants had made a deliberate and proper decision not to expose themselves to further abuse or questioning by the plaintiff by filing affi­davits - See paragraphs 2 and 54.

Cases Noticed:

Saskatoon Credit Union Ltd. v. Central Park Enterprises Ltd. (1988), 47 D.L.R.(4th) 431 (B.C.S.C.), refd to. [para. 38].

Solomon v. Smith and Montreal Trust Co., [1988] 1 W.W.R. 410; 49 Man.R.(2d) 252 (C.A.), refd to. [para. 38].

Demeter v. British Pacific Life Insurance Co., Occidental Life Insurance Co. of California and Dominion Life Assurance Co. (1984), 7 O.A.C. 143; 13 D.L.R.(4th) 318 (C.A.), refd to. [para. 38].

Hunter v. Chief Constable of West Mid­lands, [1981] 3 All E.R. 727 (H.L.), refd to. [para. 38].

Somasundaram v. Melchoir (M. Julius) & Co., [1989] 1 All E.R. 129 (C.A.), refd to. [para. 38].

Lang Mitchener and Fabian, Re (1987), 37 D.L.R.(4th) 685 (Ont. H.C.), refd to. [para. 42].

Winkler v. Winkler, [1991] 2 W.W.R. 369; 70 Man.R.(2d) 47 (Q.B.), affd. [1992] 1 W.W.R. 631; 70 Man.R.(2d) 45 (C.A.), refd to. [para. 42].

Counsel:

John Dykun appeared on his own behalf;

S.J. Weatherhill (Emery Jamieson), for the defendants.

This application was heard on July 27, 2000, by Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmon­ton, who delivered the following decision on August 3, 2000.