CHUTSKOFF v BONORA, 2014 ABQB 389
2.11: Litigation representative required
3.68: Court options to deal with significant deficiencies
4.11: Ways the Court may manage action
The Plaintiff claimed against the Defendant lawyers and law firm for allegedly compromising his ability to respond to the registration of a Saskatchewan Judgment in Alberta. The primary issue was whether the Plaintiff and the litigation were vexatious. A secondary issue of the Plaintiff’s competence to conduct his own litigation was raised by the Plaintiff himself.
Justice Michalyshyn reviewed the Plaintiff’s extensive litigation history in both Saskatchewan and Alberta. The Plaintiff had been the administrator of an estate against which a claimant obtained Judgment in Saskatchewan. That litigation led to a series of reported Judgments and Appeals. The Plaintiff also initiated complaint proceedings against lawyers and judges. The Claimant then passed away and her estate attempted to enforce the Judgment by registration in Alberta. It was discovered that the Plaintiff had entirely depleted the estate funds in excess of $1 million. On its own motion, the Court had found the Plaintiff in criminal contempt for breach of various Court Orders. In the within Action, Justice Michalyshyn stated that litigation commonly referred to as “vexatious” may be struck under either Rule 3.68(2)(c) or (d), as the term is synonymous with impropriety and abuse of process. Micalyshyn J. found that both the Plaintiff and the litigation were vexatious. The Action was accordingly terminated immediately on the basis of Rules 4.11(d), and 3.68(2)(c) or (d).
Michalyshyn J. briefly commented on the secondary issue of whether or not the Plaintiff was competent to represent himself in the Action. Rule 2.11 explicitly indicates that for an adult person the existence or absence of legal capacity is defined in the Adult Guardianship and Trustees Act, SA 2008, c A-4.2. The two key aspects of capacity are the ability to understand (1) a litigation scenario, and (2) the foreseeable consequences of an action or inaction. Justice Michalyshyn concluded that any common law definition of legal capacity is irrelevant in Alberta, as the legislature has codified the appropriate legal test. There was no expert evidence of incompetence and the Plaintiff’s capacity was self-evident and obvious from his conduct in the litigation. There was no doubt the Plaintiff had capacity to conduct his own litigation. The Defendants were entirely successful and awarded Costs.View CanLII Details