Onischuk v. Alberta et al., 2013 ABQB 89

• Judge: Costigan,Doreen Sulyma,Peter Costigan,Rooke
• Neutral Citation: 2013 ABQB 89
• Subject Matter: LIMITATION OF ACTIONS,PRACTICE,ACTIONS,COURTS
• Citation: 2013 ABQB 89,(2013), 555 A.R. 330 (QB),555 AR 330,(2013), 555 AR 330 (QB),555 A.R. 330
• Date: 26 November 2012
• Court: Court of Queen's Bench of Alberta (Canada)

Onischuk v. Alta. (2013), 555 A.R. 330 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MR.011

Daniel W. Onischuk (plaintiff) v. Her Majesty the Queen in Right of Alberta, Canadian National Railway Company, Fraser Milner Casgrain LLP, Her Majesty the Queen in Right of Canada, Attorney General of Canada, Governor General of Canada, Alberta Justice and Attorney General, Alberta Justice, Government of Alberta Ministry of Alberta Justice, Government of Alberta Ministry of Alberta Justice and Attorney General, Alberta Health and Wellness, Government of Alberta Ministry of Health and Wellness, Alberta Transportation Safety Board, Alison Redford, Lorne Merryweather, Christopher Holmes, Peter Barber, Lorena K. Harris, John T. Henderson, Doreen Sulyma, Peter Costigan, David G. McLean, Hugh J. Bolton, Edward Lumley, Michael Armellino, Sean Finn, E. Hunter Harrison and V. Maureen Kempston Darkes (defendants)

(1103 00285; 2013 ABQB 89)

Indexed As: Onischuk v. Alberta et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Rooke, A.C.J.Q.B.

February 6, 2013.

Summary:

In 2007, the plaintiff (self-represented) sued the Canadian National Railway (CNR), a number of CNR employees, the Province of Alberta, several of its ministers, as well as ministers, boards and agencies of Canada, alleging that he was exposed to toxic chemicals as a result of voluntarily participating in a clean up of chemicals following the derailment of a CNR train in 2005 (QB action). A Queen's Bench judge struck the statement of claim. The plaintiff unsuccessfully appealed. In January 2011, the plaintiff brought another action (second QB action). The plaintiff brought an identical action in the Federal Court (FC action). A Prothonotary struck the FC action. A Federal Court judge and the Federal Court of Appeal affirmed the Prothonotary's decision. Leave to the Supreme Court of Canada was denied. With two exceptions, the pleadings in the second QB action were, in essence, a duplication from the QB action, as well as the FC action. The first exception was that members of the judiciary and legal counsel who were involved in the QB action were added as defendants, as a result of allegations against them of negligence, bias, discrimination, misrepresentation, fraud and deceit. Secondly, the claim now included several forms of unavailable and non-sensible relief. The defendants applied to strike the statement of claim. Alternatively, they sought summary judgment.

The Alberta Court of Queen's Bench declared the plaintiff a vexatious litigant under s. 23 of the Judicature Act and ordered that the plaintiff could not institute any further proceedings without leave of the court. The court struck the statement of claim. In the alternative, the court would grant summary judgment to the defendants.

Actions - Topic 2601

Duplicitous or vexatious actions - General - The Alberta Court of Queen's Bench stated that "[t]he courts have repeatedly identified the following characteristics as indicia of vexatious proceedings: (a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding ; (b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious ; (c) those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights; (d) generally, cases where the grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings, or the judiciary involved in rulings on previous cases; (e) the failure of the person instituting the subsequent proceedings to pay the costs of unsuccessful earlier proceedings; and (f) conduct in persistently taking unsuccessful appeals from judicial decisions." - See paragraph 10.

Actions - Topic 2602

Duplicitous or vexatious actions - Vexatious litigant - What constitutes - In 2007, the plaintiff (self-represented) sued the Canadian National Railway (CNR), a number of CNR employees, the Province of Alberta, several of its ministers, as well as ministers, boards and agencies of Canada, alleging that he was exposed to toxic chemicals as a result of voluntarily participating in a clean up of chemicals following the derailment of a CNR train in 2005 (first QB action) - A Queen's Bench judge struck the statement of claim - The plaintiff unsuccessfully appealed - In January 2011, the plaintiff commenced another action (second QB action) - The plaintiff brought an identical action in the Federal Court (FC action) - A Prothonotary struck the FC action - A Federal Court judge and the Federal Court of Appeal affirmed the Prothonotary's decision - Leave to the Supreme Court of Canada was denied - With two exceptions, the pleadings in the second QB action were, in essence, a duplication from the first QB action, as well as the FC action - The first exception was that members of the judiciary and legal counsel who were involved in the QB action were added as defendants, as a result of allegations against them of negligence, bias, discrimination, misrepresentation, fraud and deceit - Secondly, the claim now included several forms of unavailable and non-sensible relief - The Alberta Court of Queen's Bench declared the plaintiff a vexatious litigant under s. 23 of the Judicature Act and ordered that the plaintiff could not institute any further proceedings without leave of the court - The plaintiff continued to bring actions based on the same facts arising out of the derailment of a CNR train that occurred more than seven years ago - When one action was dismissed, essentially the same action was re-filed with the addition of defendants - He persistently brought proceedings for issues that had already been determined - He had a practice of ignoring or failing to follow court directives and a pattern of failing to meet procedural deadlines - He had failed to pay the costs awarded against him - His pleadings were excessively lengthy and replete with inflammatory accusations and ever expanding conspiracy theories - They contained irrelevant arguments, jurisprudence and legislation, and failed to advance a legitimate claim - His conduct had been improper and an abuse of the court processes - See paragraphs 8 to 15.

Courts - Topic 313

Judges - Independence of judiciary - Judicial immunity - [See first Practice - Topic 2230 ].

Limitation of Actions - Topic 207

Practice - Limitation period - Commencement of - [See Practice - Topic 5702 ].

Practice - Topic 46

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

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - In 2007, the plaintiff sued the Canadian National Railway (CNR), a number of CNR employees, the Province of Alberta, several of its ministers, as well as ministers, boards and agencies of Canada, alleging that he was exposed to toxic chemicals as a result of voluntarily participating in a clean up of chemicals following the derailment of a CNR train in 2005 (first QB action) - A Queen's Bench judge (Sulyma, J.) struck the statement of claim - The plaintiff unsuccessfully appealed (per Costigan, J.A.) - In January 2011, the plaintiff commenced another action (second QB action) - With two exceptions, the pleadings in the second QB action were, in essence, a duplication from the first QB action - The first exception was that members of the judiciary and legal counsel who were involved in the QB action were added as defendants, as a result of allegations against them of negligence, bias, discrimination, misrepresentation, and fraud and deceit - Secondly, the claim now included several forms of unavailable and non-sensible relief - The Alberta Court of Queen's Bench struck the statement of claim as against the judicial defendants - The plaintiff's claim related to allegations of misconduct by Sulyma, J., and Costigan, J.A., in the course of exercising their judicial duties in the first QB action - Both justices ruled against the plaintiff in some manner - Both of these actions were within the justices' respective jurisdiction - Even if the allegations in the statement of claim were assumed to be true, the doctrine of judicial immunity applied such that no cause of action lay against the judicial defendants - See paragraphs 19 to 23.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - In 2007, the plaintiff sued the Canadian National Railway (CNR), a number of CNR employees, the Province of Alberta, several of its ministers, as well as ministers, boards and agencies of Canada, alleging that he was exposed to toxic chemicals as a result of voluntarily participating in a clean up of chemicals following the derailment of a CNR train in 2005 (first QB action) - A Queen's Bench judge (Sulyma, J.) struck the statement of claim - The plaintiff unsuccessfully appealed (per Costigan, J.A.) - In January 2011, the plaintiff commenced another action (second QB action) - With two exceptions, the pleadings in the second QB action were, in essence, a duplication from the first QB action - The first exception was that members of the judiciary and legal counsel who were involved in the QB action were added as defendants, as a result of allegations against them of negligence, bias, discrimination, misrepresentation, and fraud and deceit - Secondly, the claim now included several forms of unavailable and non-sensible relief - The Alberta Court of Queen's Bench struck the statement of claim as against the government defendants - As against the Alberta and the Canada defendants, the alleged misconduct respectively related to the governments' failure to adequately supervise the actions of the lawyers and judges involved in the plaintiff's first QB action - The pleadings asserted that Alberta was vicariously liable for the alleged misconduct of the lawyers involved in his prior action because the lawyers were licensed provincially - The pleadings further asserted that Canada was vicariously liable for the alleged misconduct of the judges, as they were appointed by the federal government and by the Governor General of Canada - Even if the allegations of misconduct were true, no cause of action was disclosed as there were no existing legal duties on the government defendants - Neither Alberta, nor its minister of justice, was vicariously liable for members of the legal profession by virtue of the fact that it was a licensed profession -Further, Canada was not vicariously liable for actions of members of the judiciary, as once judges were appointed, it no longer had responsibility for, or jurisdiction over, them - See paragraphs 24 to 27.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - In 2007, the plaintiff sued the Canadian National Railway (CNR), a number of CNR employees, the Province of Alberta, several of its ministers, as well as ministers, boards and agencies of Canada, alleging that he was exposed to toxic chemicals as a result of voluntarily participating in a clean up of chemicals following the derailment of a CNR train in 2005 (first QB action) - A Queen's Bench judge (Sulyma, J.) struck the statement of claim - The plaintiff unsuccessfully appealed (per Costigan, J.A.) - In January 2011, the plaintiff commenced another action (second QB action) - With two exceptions, the pleadings in the second QB action were, in essence, a duplication from the first QB action - The first exception was that members of the judiciary and legal counsel who were involved in the QB action were added as defendants, as a result of allegations against them of negligence, bias, discrimination, misrepresentation, and fraud and deceit - Secondly, the claim now included several forms of unavailable and non-sensible relief - The Alberta Court of Queen's Bench struck the statement of claim - It was plain and obvious that the plaintiff's pleadings disclosed no reasonable cause of action - Aside from the fact that the pleadings were generally incomprehensible, they contained scandalous allegations of evidence tampering, altering and falsifying court documents, misrepresentations by the judiciary and legal counsel, perjury, knowingly filing false affidavits, and conspiracy, all without the necessary statements of material facts - Moreover, the pleadings were an attempt to re-litigate the issues already determined in the first QB action - Further, the relief requested, to have members of the bench and the bar submit to "lie detection tests" and the "administration of a truth serum", was patently ridiculous - See paragraphs 28 to 30.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - In 2007, the plaintiff sued the Canadian National Railway (CNR), a number of CNR employees, the Province of Alberta, several of its ministers, as well as ministers, boards and agencies of Canada, alleging that he was exposed to toxic chemicals as a result of voluntarily participating in a clean up of chemicals following the derailment of a CNR train in 2005 (first QB action) - A Queen's Bench judge struck the statement of claim - The plaintiff unsuccessfully appealed - In January 2011, the plaintiff commenced another action (second QB action) - The plaintiff brought an identical action in the Federal Court (FC action) - A Prothonotary struck the FC action - A Federal Court judge and the Federal Court of Appeal affirmed the Prothonotary's decision - Leave to the Supreme Court of Canada was denied - With two exceptions, the pleadings in the second QB action were, in essence, a duplication from the first QB action, as well as the FC action - The first exception was that members of the judiciary and legal counsel who were involved in the QB action were added as defendants, as a result of allegations against them of negligence, bias, discrimination, misrepresentation, fraud and deceit - Secondly, the claim now included several forms of unavailable and non-sensible relief - The Alberta Court of Queen's Bench struck the statement of claim - The plaintiff's pleadings were frivolous, irrelevant and improper - The plaintiff was attempting to re-litigate a matter that had already been determined by the court - The complete lack of alleged facts to support the plaintiff's allegations of judicial impropriety, conspiracy, and wrongful conduct by the Defendants, rendered his claims so palpably bad that they were properly classified as frivolous - See paragraphs 31 and 32.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - In 2007, the plaintiff sued the Canadian National Railway (CNR), a number of CNR employees, the Province of Alberta, several of its ministers, as well as ministers, boards and agencies of Canada, alleging that he was exposed to toxic chemicals as a result of voluntarily participating in a clean up of chemicals following the derailment of a CNR train in 2005 (first QB action) - A Queen's Bench judge struck the statement of claim - The plaintiff unsuccessfully appealed - In January 2011, the plaintiff commenced another action (second QB action) - The plaintiff brought an identical action in the Federal Court (FC action) - A Prothonotary struck the FC action - A Federal Court judge and the Federal Court of Appeal affirmed the Prothonotary's decision - Leave to the Supreme Court of Canada was denied - With two exceptions, the pleadings in the second QB action were, in essence, a duplication from the first QB action, as well as the FC action - The first exception was that members of the judiciary and legal counsel who were involved in the QB action were added as defendants, as a result of allegations against them of negligence, bias, discrimination, misrepresentation, fraud and deceit - Secondly, the claim now included several forms of unavailable and non-sensible relief - The Alberta Court of Queen's Bench struck the statement of claim - Aside from the fact that this was clearly an attempt to re-litigate a matter that had already been determined, the plaintiff's pleadings essentially complained about actions of lawyers and judges involved in his prior action, alleging conspiracies against him, tampering with court transcripts and files, misrepresentations, perjury, and acting against the public interest - To allow the plaintiff to continuously bombard counsel, the judiciary, and the court with lengthy pleadings, replete with inflammatory accusations, irrelevant legal argument, jurisprudence and legislation, that advanced no reasonable cause of action, was manifestly unfair to all parties involved and other participants vying for scarce judicial resources - Consequentially, to allow this action to proceed would surely bring the administration of justice into disrepute - The plaintiff's pleadings were an abuse of process - See paragraphs 33 to 36.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - In 2007, the plaintiff sued the Canadian National Railway (CNR), a number of CNR employees, the Province of Alberta, several of its ministers, as well as ministers, boards and agencies of Canada, alleging that he was exposed to toxic chemicals as a result of voluntarily participating in a clean up of chemicals following the derailment of a CNR train in 2005 (first QB action) - A Queen's Bench judge struck the statement of claim - The plaintiff unsuccessfully appealed - In January 2011, the plaintiff commenced another action (second QB action) - The plaintiff brought an identical action in the Federal Court (FC action) - A Prothonotary struck the FC action - A Federal Court judge and the Federal Court of Appeal affirmed the Prothonotary's decision - Leave to the Supreme Court of Canada was denied - With two exceptions, the pleadings in the second QB action were, in essence, a duplication from the first QB action, as well as the FC action - The first exception was that members of the judiciary and legal counsel who were involved in the QB action were added as defendants, as a result of allegations against them of negligence, bias, discrimination, misrepresentation, and fraud and deceit - Secondly, the claim now included several forms of unavailable and non-sensible relief - The Alberta Court of Queen's Bench granted summary judgment to the defendants - With respect to the allegations of misconduct arising out of the first QB action, there was no genuine issue for trial and no merit to any part of that claim - In respect to the claims arising out of the 2005 derailment, there was no genuine issue for trial and the claim was statute-barred under the Limitations Act - See paragraphs 37 to 50.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Practice - Topic 5702 ].

Cases Noticed:

Del Bianco et al. v. 935074 Alberta Ltd. et al., [2007] A.R. Uned. 556; 2007 ABQB 150, refd to. [para. 9].

Jamieson et al. v. Denman et al. (2004), 365 A.R. 201; 2004 ABQB 593, refd to. [para. 9].

Prefontaine v. Paris et al., [2007] A.R. Uned. 713; 2007 ABQB 77, refd to. [para. 9].

O'Neill et al. v. Deacons et al. (2007), 441 A.R. 60; 2007 ABQB 754, refd to. [para. 9].

Dykun v. Odishaw et al. (2000), 267 A.R. 318; 2000 ABQB 548, refd to. [para. 10, footnote 1].

Lang Mitchener and Fabian, Re (1987), 37 D.L.R.(4th) 685 (Ont. H.C.), refd to. [para. 10, footnote 1].

Winkler v. Winkler, [1991] 2 W.W.R. 369; 70 Man.R.(2d) 47 (Q.B. Fam. Div.), affd. [1992] 1 W.W.R. 631; 70 Man.R.(2d) 45 (C.A.), refd to. [para. 10, footnote 1].

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

V.W.W. v. Leung (2011), 530 A.R. 76; 2011 ABQB 687 (Master), refd to. [para. 17].

Tottrup v. Alberta (Minister of Environment) - see Tottrup v. Lund et al.

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204; 2000 ABCA 121, refd to. [para. 17].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 17].

Hovsepian et al. v. Westfair Foods Ltd. et al. (2001), 296 A.R. 283; 2001 ABQB 700, refd to. [para. 18].

C.H.S. et al. v. Director of Child Welfare (Alta.) (2008), 452 A.R. 66; 2008 ABQB 513, refd to. [para. 18].

Prefontaine v. Gosman et al., [2000] 6 W.W.R. 530; 270 A.R. 97 (Q.B.), refd to. [para. 20].

S.G. v. LaRochelle et al. (2004), 355 A.R. 46; 2004 ABQB 123, affd. (2005), 363 A.R. 326; 343 W.A.C. 326; 2005 ABCA 111, refd to. [para. 21].

Ringrose v. Stevenson; Ringrose v. MacDonald; Ringrose v. Haddad; Ringrose v. Clement (1982), 35 A.R. 62 (Q.B. Master), refd to. [para. 21].

Donaldson v. Farrell et al., [2011] A.R. Uned. 51; 2011 ABQB 11, refd to. [para. 31].

Serdahely Estate, Re (2008), 453 A.R. 337; 2008 ABQB 472, refd to. [para. 31].

Reece et al. v. Edmonton (City) (2010), 498 A.R. 43; 2010 ABQB 538, affd. (2011), 513 A.R. 199; 530 W.A.C. 199; 2011 ABCA 238, refd to. [para. 33].

Quadrangle Holdings Ltd. v. Coady et al. (2012), 531 A.R. 48; 2012 ABQB 22, refd to. [para. 38].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268, refd to. [para. 46].

Authors and Works Noticed:

Stevenson, William A., and Côté, Jean E., Alberta Civil Procedure Handbook (2012), vol. 1, p. 3-105 [para. 18].

Counsel:

Daniel W. Onischuk, the plaintiff, was self-represented;

Marta E. Burns (Tax Law Services, Department of Justice Canada), for the Alberta defendants;

Barry Benkendorf (Department of Justice Canada), for the Canada defendants;

Ward Hanson (Fraser Milner Casgrain LLP), for the defendants, Canadian National Railway Company, David G. McLean, Hugh J. Bolton, Edward Lumley, Michael Armellino, Sean Finn, E. Hunter Harrison and V. Maureen Kempston Darkes;

Michael S. Sestito (Bennett Jones LLP), for the defendant, Fraser Milner Casgrain LLP;

Gwendolyn Stewart-Palmer (Shores Jardine LLP), for the defendant, Alberta Transportation and Safety Board;

Ryan R. Ewasuik (Brownlee LLP), for the defendant, the Honourable Justice Peter Costigan;

Phyllis A. Smith, Q.C. (Emery Jamieson LLP), for the defendant, the Honourable Justice Doreen Sulyma.

This case was heard on November 26, 2012, by Rooke, A.C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for decision on February 6, 2013.