Serdahely Estate, Re

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Acton, J.
• Citation: (2008), 453 A.R. 337 (QB),2008 ABQB 472
• Date: 30 May 2008

Serdahely Estate, Re (2008), 453 A.R. 337 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AU.042

In The Matter Of the Estate of Rose Ann Serdahely, also known as Rozalia Ann Serdahely, Deceased

Paul Haljan, as Trustee of a Testamentary Charitable Trust Constituted by Rose Ann Serdahely, Deceased, in Her Will of October 2000 (plaintiff) v. Mary Popke and Bernadette (Bonnie) Boykiw, Executors of the Estate of Rose Ann Serdahely, Deceased, under Grant of Probate dated December 31, 2005, and Olga Bolt (defendants)

(0703 15784; 2008 ABQB 472)

Indexed As: Serdahely Estate, Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Acton, J.

August 1, 2008.

Summary:

Litigation arose in a dispute regarding the validity of a 1996 holograph will and a 1999 formal will made by Serdahely. The formal will named three executors, including Popke and Boykiw, and, apart from specific bequests, directed that the estate be divided equally among the three executors. The holograph will was in the possession of Haljan, a lawyer who had provided legal advice to Serdahely. It appointed Haljan as executor and Bolt as substitute executor, made specific dispositions including property to Bolt and her husband, and provided that the residue of the estate was to be distributed to Haljan's two sons. Johnstone, J., held that the formal will was the last will of the deceased and had been formally proven. There followed a lengthy series of further applications, actions and appeals. Haljan brought the present action against Popke, Boykiw and Bolt. In this action Haljan alleged that there was a third holograph will made after the formal will, that Smith, J., who granted probate of the formal will had no jurisdiction to do so, and that Popke and Boykiw administered the estate without authority and converted the estate assets to their own use as purported beneficiaries. Popke and Boykiw applied for dismissal of the action under rule 129 of the Rules of Court. They also sought a declaration under s. 23.1 of the Judicature Act that Haljan was a vexatious litigant. Haljan cross-applied to amend the Statement of Claim to include a claim against Popke and Boykiw for unjust enrichment. Haljan asserted that Popke and Boykiw had been paid twice for  the costs that Johnstone, J., had awarded against Haljan and Bolt, once by Haljan and once by Bolt when she surrendered a claim against Popke and Boykiw in a separate action. Haljan also sought to amend the Statement of Claim to include a claim against Bolt for reimbursement of the costs Haljan paid that were awarded jointly against them.

The Alberta Court of Queen's Bench dismissed Haljan's application to amend the Statement of Claim. The court granted the rule 129 application brought by Popke and Boykiw and struck the Statement of Claim in its entirety. The court also declared that Haljan was a vexatious litigant and ordered that Haljan could not institute further proceedings or continue any proceeding which he had initiated, other than those which he commenced on behalf of others as their lawyer, without leave of the court in which the proceeding was initiated or continued.

Actions - Topic 2602

Duplicitous or vexatious actions - Vexatious litigant - What constitutes - Litigation arose in a dispute regarding the validity of a 1996 holograph will and a 1999 formal will made by Serdahely - The holograph will was in the possession of Haljan, a lawyer who had provided legal advice to Serdahely - It appointed Haljan as executor and left the residue of the estate to Haljan's sons - Johnstone, J., held that the formal will was the last will of the deceased and had been formally proven - There followed a lengthy series of further applications, actions and appeals - The present action was the fourth claim arising from these facts brought by Haljan, either as a party or as the lawyer for some of the beneficiaries under the holograph will - In this action, Haljan alleged, inter alia, that there was a third holograph will - The Alberta Court of Queen's Bench granted a declaration that Haljan was a vexatious litigant under s. 23.1 of the Judicature Act and it ordered that he could not institute further proceedings or continue any proceeding which he had initiated, other than those commenced on behalf of others as their lawyer, without leave of the court - Haljan had brought more than one action to determine issues that had already been decided; he brought applications that no reasonable person could expect to succeed; he harassed the defendants with multiple proceedings for no legitimate purpose; he rolled grounds and issues from one action into subsequent actions; he appealed virtually every decision and often sought leave to re-argue lost appeals; and he only paid costs when execution proceedings were commenced and his assets were about to be seized - See paragraphs 75 to 81.

Courts - Topic 676

Judges - Disqualification - General - [See third Practice - Topic 2231 ].

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - The plaintiff argued that an application for probate was subject to different rules and the doctrine of res judicata should not apply as it would in a typical civil adversarial setting - The Alberta Court of Queen's Bench stated that "the plaintiff here suggests that applications for probate are unlike a civil suit because the civil suit is adversarial, while the point of an action regarding a will is to respect the testator's wishes, not determine 'which beneficiary wins and which loses'. I cannot help but comment that the litigation regarding this testator has been extremely adversarial, and I see no basis or authority for the proposition that res judicata should not apply" - See paragraphs 48 and 64 to 65.

Estoppel - Topic 379

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Cause of action - Litigation arose in a dispute regarding the validity of a 1996 holograph will and a 1999 formal will made by Serdahely - The holograph will was in the possession of Haljan, a lawyer who had provided legal advice to Serdahely - It appointed Haljan as executor and left the residue of the estate to Haljan's sons - Johnstone, J., held that the formal will was the last will of the deceased and had been formally proven - There followed a lengthy series of further applications, actions and appeals - In the present action brought by Haljan, Haljan alleged, inter alia, that Smith, J., who granted probate of the formal will, was barred from doing so because she sat on an appeal panel dealing with the validity of the will - The Alberta Court of Queen's Bench held that the claim that Smith, J., was disqualified from signing the grant of probate was the same claim made by Haljan before Smith, J., in 2006 when he applied to her to set aside the grant - At that time he argued that the Court of Queen's Bench was functus officio - He similarly sought a stay from Madame Justice Read and from the Court of Appeal - All of those applications were denied - The court held that the factors for issue estoppel were present here - Further, even if the question of jurisdiction arising from sitting on the appeal panel could be said to be different from the jurisdictional question of whether the Court of Queen's Bench was functus, cause of action estoppel applied - Haljan had an opportunity at each of the hearings to raise the claim made here, but he did not do so - See paragraphs 71 to 74.

Estoppel - Topic 379

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Cause of action - Litigation arose in a dispute regarding the validity of a 1996 holograph will and a 1999 formal will made by Serdahely - The holograph will was in the possession of Haljan, a lawyer who had provided legal advice to Serdahely - It appointed Haljan as executor and left the residue of the estate to Haljan's sons - Johnstone, J., held that the formal will was the last will of the deceased and had been formally proven - There followed a lengthy series of further applications, actions and appeals - In the present action brought by Haljan, Haljan alleged that there was a third holograph will made after the 1999 formal will - The Alberta Court of Queen's Bench held that Haljan was estopped from raising a claim regarding the third will by virtue of the doctrine of res judicata - The claim here was precisely what was decided in the earlier trial and upheld by the Court of Appeal, proving in solemn form the last will of the deceased - The Court of Appeal had also held that a further testamentary document could not be adduced because the evidence could have been produced at trial - Moreover, issue estoppel applied equally to issues which, while not expressly raised in the previous case, were necessarily assumed in it - The document alleged here to be the final will was an exhibit at the first trial - In pronouncing the formal will to be the final will, the court necessarily concluded that the other documents before it were not the final will - While Haljan argued that res judicata did not apply because the validity of the third document had not been adjudicated, cause of action estoppel arose from the principle that the parties must not conduct law suits by instalment - Haljan had an opportunity to make the argument asserted in the present claim at the previous trial - See paragraphs 47 to 66.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See both Estoppel - Topic 379 ].

Estoppel - Topic 387

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior proceedings - [See both Estoppel - Topic 379 ].

Practice - Topic 46

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

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action or "claim" which is statute barred - The plaintiff applied to amend the Statement of Claim to include a claim against the defendant, Bolt, for reimbursement of costs that were awarded jointly against them following a trial in which Johnstone, J., held that a 1999 formal will was the last will of Serdahely and had been formally proven - The Alberta Court of Queen's Bench dismissed the application - The application was made after the limitation period had passed and it did not relate to the same conduct, transaction or events as the original pleadings in the plaintiff's present action so as to come within the saving provision of s. 6(2) of the Limitations Act - The plaintiff's original pleadings asserted that there was a further holograph will, that Johnstone, J.'s decision was a nullity, and that the defendants, Popke and Boykiw (executors and beneficiaries under the 1999 formal will), administered the estate without authority - There was nothing in the original pleadings that would have put Bolt on notice that there was a claim proposed against her - To the contrary, the original pleadings indicated that she was added solely for the purpose of giving her notice of the action - See paragraphs 11 to 19.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - The plaintiff applied to amend the Statement of Claim to include a claim against the defendants, Popke and Boykiw, for unjust enrichment - The plaintiff asserted that the costs that Johnstone, J., had awarded against the plaintiff and Bolt in an earlier trial, had been paid to Popke and Boykiw twice, once by Haljan and once by Bolt when she surrendered a claim against Popke and Boykiw in a separate action - The Alberta Court of Queen's Bench held that the proposed amendments against Popke and Boykiw would be struck as frivolous and vexatious and the application to amend was therefore dismissed - There was nothing to suggest that settlement of Bolt's claim against Popke and Bokiw was meant to represent Bolt's payment of her share of the costs - The release expressly indicated that the only consideration for the release was discontinuance of the action without costs - Another serious problem with the claim was that the plaintiff was alleging that Popke and Boykiw were unjustly enriched - However, the plaintiff had not suffered a corresponding deprivation - Even if Popke and Boykiw were paid their costs twice, that alleged enrichment did not deprive the plaintiff - He owed the costs jointly and severally, and he paid what he owed, not more - See paragraphs 20 to 33.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - Litigation arose in a dispute regarding the validity of a 1996 holograph will and a 1999 formal will made by Serdahely - The holograph will was in the possession of Haljan, a lawyer who had provided legal advice to Serdahely - It appointed Haljan as executor and left the residue of the estate to Haljan's sons - Johnstone, J., held that the formal will was the last will of the deceased and had been formally proven - There followed a lengthy series of further applications, actions and appeals - In the present action brought by Haljan, Haljan alleged that there was a third holograph will made after the 1999 formal will - The Alberta Court of Queen's Bench held that the claim that there was a third will could be struck as frivolous and vexatious - Haljan continued to bring actions to re-litigate the issue of which will was Serdahely's final will - That had already been determined by the court, and that decision was upheld on appeal - The document that Haljan alleged to be the subsequent will was before the court in that trial - It was not a newly discovered document or a document that was hidden or unavailable - That was vexatious - Haljan was directly attacking Johnstone, J.'s order in a separate proceeding, having failed on appeal - The claim bore the hallmarks of a collateral attack - See paragraphs 38 to 46.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - Litigation arose in a dispute regarding the validity of a 1996 holograph will and a 1999 formal will made by Serdahely - The holograph will was in the possession of Haljan, a lawyer who had provided legal advice to Serdahely - It appointed Haljan as executor and left the residue of the estate to Haljan's sons - Johnstone, J., held that the formal will was the last will of the deceased and had been formally proven - There followed a lengthy series of further applications, actions and appeals - In the present action brought by Haljan, Haljan alleged, inter alia, that Smith, J., who granted probate of the formal will, had no authority to grant the letters of probate because she sat on a Court of Appeal panel in the action - Haljan cited s. 11 of the Court of Appeal Act, which essentially said that no judge could sit on an appeal of their own decision - The Alberta Court of Queen's Bench concluded that this claim was factually hopeless and therefore frivolous and vexations - Smith, J., had sat on the appeal panel that heard Haljan's appeal from an order of Wilson, J., and on his application for leave to re-argue that appeal - The order that Haljan impugned was granted in 2006, and was not the verdict, judgment, order or decision that was the subject of the appeal - Section 11 of the Act had no application to a judge who sat as an ad hoc member of an appellate panel hearing a subsequent application in the same matter - Moreover, in Broda v. Broda, the Court of Appeal noted that "the mere fact that a party has lost some motion or suit before a judge (without a jury) does not entitle that litigant to be thereafter free of that judge" - See paragraphs 67 to 70.

Practice - Topic 5408.1

Judgments and orders - General - Collateral attack - [See second Practice - Topic 2231 ].

Restitution - Topic 63

Unjust enrichment - Requirement of enrichment at plaintiff's expense - [See first Practice - Topic 2231 ].

Cases Noticed:

C.H.S. et al. v. Director of Child Welfare (Alta.) (2006), 403 A.R. 103; 2006 ABQB 528, affd. (2006), 401 A.R. 215; 391 W.A.C. 215; 2006 ABCA 355, refd to. [para. 8].

Crane et al. v. Brentridge Ford Sales Ltd. et al. (2008), 437 A.R. 169; 433 W.A.C. 169; 2008 ABCA 216, refd to. [para. 14].

Calgary Mack Sales Ltd. v. Shah et al. (2005), 380 A.R. 195; 363 W.A.C. 195; 2005 ABCA 304, refd to. [para. 16].

Jamieson et al. v. Denman et al. (2004), 365 A.R. 201; 2004 ABQB 593, refd to. [para. 20].

Canada (Minister of Citizenship and Immigration) v. Seifert (2002), 221 F.T.R. 228 (T.D. Protho.), refd to. [para. 21].

876502 Ontario Inc. et al. v. Propco Holdings (Ontario) 10 Ltd. et al. (1997), 49 O.T.C. 356 (Gen. Div.), refd to. [para. 22].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81, refd to. [para. 31].

Pacific National Investments Ltd. v. Victoria (City) et al., [2004] 3 S.C.R. 575; 327 N.R. 100; 206 B.C.A.C. 99; 338 W.A.C. 99; 2004 SCC 75, refd to. [para. 31].

Lang Michener v. Fabian (1987), 59 O.R.(2d) 353 (H.C.), refd to. [para. 39].

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, refd to. [para. 40].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, refd to. [para. 44].

Coughlin, Re, [1948] 2 All E.R. 68 (C.A.), refd to. [para. 48].

Mohan v. Broughton, [1900] P. 56 (C.A.), refd to. [para. 48].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 49].

420093 B.C. Ltd. v. Bank of Montreal (1995), 174 A.R. 214; 102 W.A.C. 214 (C.A.), refd to. [para. 51].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 56].

Ernst & Young Inc. v. Central Guaranty Trust Co. (2006), 397 A.R. 225; 384 W.A.C. 225; 2006 ABCA 337, refd to. [para. 57].

Hill v. Hill (1966), 56 W.W.R.(N.S.) 260 (B.C.C.A.), refd to. [para. 59].

Doering v. Grandview (Town), [1976] 2 S.C.R. 621; 7 N.R. 299, refd to. [para. 62].

Broda v. Broda (2001), 286 A.R. 120; 253 W.A.C. 120 (C.A.), refd to. [para. 69].

O'Neill et al. v. Deacons et al. (2007), 441 A.R. 60; 83 Alta. L.R.(4th) 152; 2007 ABQB 754, refd to. [para. 77].

Statutes Noticed:

Court of Appeal Act, R.S.A. 2000, c. C-30, sect. 11 [para. 67].

Judicature Act, R.S.A. 2000, c. J-2, sect. 23(2), sect. 23.1 [para. 75].

Limitations Act, R.S.A. 2000, c. L-12, sect. 6(1), sect. 6(2), sect. 6(4) [para. 13].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), pp. 1068 [para. 65]; 1070 [para. 52]; 1078 [paras. 50, 55]; 1079 [para. 55].

Counsel:

Philip G. Lister, Q.C., for the plaintiff, Paul Haljan;

David B. Mercer and Ryan O'Connor (Nickerson Roberts), for the defendants, Mary Popke and Bernadette (Bonnie) Boykiw;

Tammy L. Olson (Hajduk Gibbs LLP), for the defendant, Olga Bolt.

These applications were heard on May 30, 2008, before Acton, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on August 1, 2008.