Dykun v. Odishaw et al., 2001 ABCA 204

• Judge: McClung, McFadyen and Picard, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: July 27, 2001
• Citations: 2001 ABCA 204;(2001), 286 A.R. 392 (CA)

Dykun v. Odishaw (2001), 286 A.R. 392 (CA);

    253 W.A.C. 392

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. AU.006

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

(0003 0421AC; 2001 ABCA 204)

Indexed As: Dykun v. Odishaw et al.

Alberta Court of Appeal

McClung, McFadyen and Picard, JJ.A.

July 27, 2001.

Summary:

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

The Alberta Court of Queen's Bench, in a decision reported at 267 A.R. 318, allowed the application on the bases 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. The plaintiff appealed. The defendants sought security for costs of the appeal. The plaintiff sought to examine the defendants on their application under rule 266.

In a decision reported at 277 A.R. 194; 242 W.A.C. 194, the Alberta Court of Appeal, per Wittmann, J.A., denied the plaintiff's application for a rule 266 examination and ordered security for costs of the appeal in the amount of $11,500. The plaintiff appealed.

The Alberta Court of Appeal dismissed the appeal.

Courts - Topic 689

Judges - Disqualification - Bias - Arising out of participation in prior proceedings - The Alberta Court of Appeal stated that "... the mere fact that a party has lost some motions or a suit before a judge (without a jury) does not entitle that litigant to be thereafter free of that judge. That is so both in later suits of a broadly similar nature, and in later motions in the same suit." - See paragraph 8.

Practice - Topic 8206

Costs - Security for costs - Security for costs of an appeal - Application - Evidence - Discovery - The plaintiff's statement of claim was struck on the bases that it was frivolous and vexatious and an abuse of process - The plaintiff was ordered 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 plaintiff appealed - The defendants sought security for costs of the appeal - The plaintiff applied to examine the defendants on their application under rule 266 - A single judge of the Alberta Court of Appeal denied the plaintiff's application for an examination where there was nothing in the defendants' knowledge that the plaintiff needed to defend the security for costs application - The Alberta Court of Appeal dismissed the plaintiff's appeal.

Practice - Topic 8209

Costs - Security for costs - Security for costs of an appeal - Grounds for - Special circumstances - The plaintiff's statement of claim was struck on the bases that it was frivolous and vexatious and an abuse of process - The plaintiff was ordered 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 plaintiff appealed - The defendants sought security for costs of the appeal - A single judge of the Alberta Court of Appeal ordered security for costs of the appeal where the plaintiff's poverty was established and the plaintiff had no reasonable prospect of success - The Alberta Court of Appeal affirmed the order.

Practice - Topic 8875

Appeals - Leave to appeal - From allowance or dismissal of interlocutory application - The plaintiff's statement of claim was struck on the bases that it was frivolous and vexatious and an abuse of process - The plaintiff was ordered 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 plaintiff appealed - The defendants sought security for costs of the appeal - The plaintiff applied to examine the defendants on their application under rule 266 - A single judge of the Alberta Court of Appeal denied the plaintiff's application and allowed the defendants' application - The plaintiff appealed - The Alberta Court of Appeal dismissed the appeal where, inter alia, leave to appeal was not obtained as required by rule 505(6).

Cases Noticed:

Earl of Bath v. Sherwin (1709), 4 Bro. Parl. Cas. 373; 2 E.R. 253 (H.L.), refd to. [para. 6, footnote 1].

Broda v. Broda (2001), 286 A.R. 120; 253 W.A.C. 120 (C.A.), refd to. [para. 8].

Counsel:

The appellant appeared in person;

S.J. Weatherill, for the respondents.

This appeal was heard by McClung, McFadyen and Picard, JJ.A., of the Alberta Court of Appeal. The Court of Appeal delivered the following decision on July 27, 2001.