O'Neill v. Deacons,

• Judge: Wittmann
• Neutral Citation: 2007 ABQB 754
• Court: Court of Queen's Bench of Alberta (Canada)
• Date: 13 November 2007
• Citation: 2007 ABQB 754,(2007), 441 A.R. 60 (QB),441 AR 60,83 Alta LR (4th) 152,[2007] AJ No 1397 (QL),(2007), 441 AR 60 (QB),[2007] A.J. No 1397 (QL),441 A.R. 60

O'Neill v. Deacons (2007), 441 A.R. 60 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JA.034

James E. O'Neill and Patricia Moore-O'Neill (respondents/plaintiffs) v. William G. Deacons, Donald Horton and Fiona Horton (applicants/defendants)

(0701 04667; 2007 ABQB 754)

Indexed As: O'Neill et al. v. Deacons et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Wittmann, A.C.J.Q.B.

December 10, 2007.

Summary:

The defendants applied to have the plaintiff, Moore-O'Neill, precluded from instituting any proceedings, or continuing any proceeding presently instituted, without leave of the court, pursuant to s. 23.1 of the Judicature Act.

The Alberta Court of Queen's Bench allowed the application, after finding that Moore-O'Neill was a vexatious litigant.

Actions - Topic 2602

Duplicitous or vexatious actions - Vexatious litigant - What constitutes - The Alberta Court of Queen's Bench stated that "The criteria for declaring an individual a vexatious litigant that are set out in s. 23(2) of the Judicature Act are relatively new. The Judicature Act was amended to add those criteria in June, 2007. Prior to the amendment, the courts relied upon a common law definition of vexatiousness. As s. 23(2) does not purport to provide an exclusive list of relevant criteria, the definitions and factors considered by the courts prior to June, 2007 remain helpful." - See paragraph 22.

Actions - Topic 2602

Duplicitous or vexatious actions - Vexatious litigant - What constitutes - The defendants applied to have the plaintiff, Moore-O'Neill, precluded from instituting any proceedings, or continuing any proceeding presently instituted, without leave of the court, pursuant to s. 23.1 of the Judicature Act - The Alberta Court of Queen's Bench allowed the application - Moore-O'Neill was no stranger to the province's courts - Her appearances tended to involve disputes with landlords or disputes over animals - In the former, she was usually a defendant, though she appeared to defend aggressively, making full use of her right to initiate motions - In the latter, she was a plaintiff or plaintiff by counterclaim - The proceedings in which she was involved tended to be volatile and take on a personal tone - Allegations of assault appeared to be a consistent feature - She had persistently abused the courts' processes for improper purposes - Her failure to pay the costs of numerous failed applications, her persistence in bringing such applications, and her attempts to mislead the court were incidences of conduct that brought her within the scope of s. 23(2) of the Judicature Act - She was a vexatious litigant.

Evidence - Topic 1525

Hearsay rule - Hearsay rule exceptions and exclusions - General - [See Evidence - Topic 3358 ].

Evidence - Topic 1587

Hearsay rule exceptions - Business records - Regular entries - Summaries of records - [See Evidence - Topic 3358 ].

Evidence - Topic 3091

Documentary evidence - Secondary evidence - General - Summaries - [See Evidence - Topic 3358 ].

Evidence - Topic 3358

Documentary evidence - Judicial proceedings - Transcript of evidence from prior proceedings - The defendants applied to have the plaintiff, Moore-O'Neill, precluded from instituting any proceedings, or continuing any proceeding presently instituted, without leave of the court, pursuant to s. 23.1 of the Judicature Act - Two of the defendants (the Hortons) asked their counsel to investigate other civil actions involving Moore-O'Neill - Searches were conducted in Calgary and Edmonton - A summary of the results was attached to an affidavit filed in the present action - The Alberta Court of Queen's Bench held that it would be improper to admit the summary of proceedings in evidence - A summary of a business record or court document did not fall within any exception to the hearsay rule - However, the prior orders, reported decisions and transcripts of proceedings which the Hortons had introduced in evidence were admissible under the Alberta Evidence Act - See paragraphs 13 to 15.

Evidence - Topic 3360

Documentary evidence - Judicial proceedings - Reasons for judgment or order from prior trial or proceedings - [See Evidence - Topic 3358 ].

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - [See both Actions - Topic 2602 ].

Practice - Topic 3077

Applications and motions - Applications - Affidavit evidence - Content of - [See Evidence - Topic 3358 ].

Cases Noticed:

Kallaba v. Bylykbashi (2006), 207 O.A.C. 60 (C.A.), leave to appeal denied (2006), 358 N.R. 394; 227 O.A.C. 394 (S.C.C.), refd to. [para. 14].

O'Neil v. Peden et al., [2006] A.R. Uned. 616; 2006 ABQB 715, refd to. [para. 16].

Midwest Property Management v. Moore (2003), 341 A.R. 386; 2003 ABQB 581, refd to. [para. 17].

Moore v. Tkachyk, [2002] A.J. No. 877; 2002 ABQB 653, refd to. [para. 18].

Lonepine Kennels v. Tkachyk - see Moore v. Tkachyk.

Moore v. Bedi (2006), 380 A.R. 336; 363 W.A.C. 336; 2006 ABCA 30, refd to. [para. 19].

Jamieson et al. v. Denman et al. (2004), 365 A.R. 201; 2004 ABQB 593, refd to. [para. 22].

Lang Michener v. Fabian et al. (1987), 59 O.R.(2d) 353 (H.C.), refd to. [para. 23].

Statutes Noticed:

Judicature Act, R.S.A. 2000, c. J-2, sect. 23(2) [para. 20].

Authors and Works Noticed:

Nova Scotia, Law Reform Commission, Report onVexatious Litigants (2006), p. 7 [para. 24].

Counsel:

Patricia Moore-O'Neill, not represented by counsel;

V.A. MacDonald, Q.C., for the applicants.

This application was heard on November 13, 2007, by Wittmann, A.C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on December 10, 2007.