MIKOVA v MIHALIK, 2017 ABQB 507
14.68: No stay of enforcement
The Defendants obtained an Order dismissing the Action against them, partly because the Plaintiff did not attend an Application. Funds which were previously held pending the resolution of the Action were disbursed to the Defendants. The Plaintiff successfully applied to set aside the Order dismissing her Action arguing that she had not been properly served. The Plaintiff then applied to add the lawyer and the law firm who had disbursed the funds as additional Defendants in the Action, claiming a breach of trust.
Justice Hall noted that, pursuant to Rule 14.68 when an Action is dismissed “it has reached ‘resolution’ even if the appeal period has not yet passed” unless a stay is obtained. Hall J. stated that the lawyer who had released the trust funds would have understood that the Action had been resolved based on the Defendant providing the Order dismissing the Action. Hall J. stated that, for the Plaintiff to succeed against the lawyer, the Plaintiff would have to establish that the lawyer knew that he had a duty to hold the funds in trust notwithstanding that there was an Order dismissing the Action. Justice Hall held that there was no evidence that the lawyer had any knowledge that the Order dismissing the Action was obtained improperly, and therefore the claim against the lawyer had no chance of success. The Plaintiff’s Application to add the lawyer and the law firm as Defendants to the Action was dismissed.View CanLII Details