Onischuk v Alberta, 2013 ABQB 89

Court of Queen ’ s Bench of Alberta Citation: Onischuk v Alberta, 2013 ABQB 89 Date: 20130206 Docket: 1103 00285 Registry: Edmonton Between: Daniel W.

Onischuk Plaintiff - and - 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 _______________________________________________________ Reasons for Decision of the Honourable Associate Chief Justice J.D. Rooke _______________________________________________________ I. Introduction

[ 1 ] On November 26, 2012, at a hearing on notice, to which he failed to attend, I declared the Plaintiff, Daniel W. Onischuk ( “ Onischuk ” ), to be a person that has instituted vexatious proceedings within Alberta pursuant to s. 23 of the Judicature Act , RSA 2000, c J-2. His claim against all Defendants in this action was struck pursuant to Rule 3.68 of the Alberta Rules of Court , Alta Reg 124/2010. The Reasons for these decisions are set out below. II.

Factual Background [ 2 ] Onischuk has initiated various court actions over the last several years, the first of which, Action No. 0703 10092 ( “ the First Q.B. Action ” ), was commenced on August 8, 2007 in this Court. In the First Q.B. Action, Onischuk alleged that he was exposed to toxic chemicals as a result of voluntarily participating in a clean up of chemicals that spilled into Lake Wabamun, following the derailment of a Canadian National Railway ( “ CNR ” ) train in 2005. [ 3 ] The First Q.B.

Action was brought against CNR and a number of its employees, the Province and several of its ministries, as well as ministries, boards and agencies of Canada. The action against both Alberta and Canada was discontinued without costs by Onischuk on October 21, 2009 and February 10, 2009 respectively. In relation to the remaining Defendants, his claim was struck on February 10, 2009 and October 21, 2009 by orders of Sulyma J. on the basis that no cause of action was disclosed. [ 4 ] Onischuk unsuccessfully appealed Sulyma J. ’ s decision striking his claims to the Court of Appeal.

He filed a Notice of Appeal within the designated time period, but failed to file the required transcripts and Appeal Digest within time. As a result, his appeal was struck. Onischuk filed an application to restore his appeal and a second application to retroactively extend the time to appeal.

The two applications were heard together and dismissed by Costigan J.A., Onischuk v Canadian National Railway Co. , 2010 ABCA 411 , on the basis that the appeal did not have arguable merit, there was no reviewable error on the face of the Order striking the appeal, and that Onischuk had neither demonstrated an intention to proceed with the appeal, nor shown the necessary diligence in the prosecution of the appeal. [ 5 ] On January 6, 2011, Onischuk filed the within claim ( “ the Second Q.B. Action ” ). Onischuk also filed a nearly identical claim in the Federal Court on January 7, 2011 ( “ the F.C. Action ” ).

The F.C. Action was struck by Prothonotary Lafreni è re for lack of jurisdiction, failure to disclose a reasonable cause of action, futility and abuse of process. Prothonotary Lafreni è re ’ s decision was upheld on appeal to the Federal Court Trial Division (Order of Justice Bedard, dated May 11, 2011) and the Federal Court of Appeal: Onischuk v Alberta , 2011 Carswell Nat 6111 (FCA) (WL) .

Leave to Appeal to the Supreme Court of Canada was denied: Onischuk v Alberta , 2012 Carswell Nat 359 (SCC) (WL) . [ 6 ] With two notable exceptions, the pleadings in the current action are, in essence, a duplication from the First Q.B. Action, as well as the F.C. Action. The first exception is that members of the judiciary and legal counsel who were involved in the First Q.B. Action were added as Defendants, as a result of allegations against them of negligence, bias, discrimination, misrepresentation, and fraud and deceit, among others.

Secondly, the claim by Onischuk now includes several forms of unavailable and non-sensible relief. For example, he requested that defence counsel and the judiciary submit to various forms of “ lie detection exams ” and the administration of a “ truth serum ” drug. [ 7 ] That is a brief summation of the relevant facts before me in this proceeding. I accept the

summary of facts given by Counsel for CNR, in its brief and have reproduced and appended same to these Reasons. III. Analysis A. Is the Plaintiff a Vexatious Litigant? [ 8 ] Where the Court is satisfied that a person has instituted vexatious proceedings or has conducted proceedings in a vexatious manner, the Court has the power to order that the proceeding not be continued and that the person not institute further proceedings without leave of the Court: Judicature Act , ss. 23 and 23.1 . The relevant provisions of ss. 23 and 23.1 of the Judicature Act read as follows:

23(2) For the purposes of this Part, instituting vexatious proceedings or conducting a proceeding in a vexatious manner includes, without limitation, any one or more of the following: (

a) persistently bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction; (

b) persistently bringing proceedings that cannot succeed or that have no reasonable expectation of providing relief; (

c) persistently bringing proceedings for improper purposes; (

d) persistently using previously raised grounds and issues in subsequent proceedings inappropriately; (

e) persistently failing to pay the costs of unsuccessful proceedings on the part of the person who commenced those proceedings; (

f) persistently taking unsuccessful appeals from judicial decisions; (

g) persistently engaging in inappropriate courtroom behaviour. 23.1(1) Where on application or on its own motion, with notice to the Minister of Justice and Attorney General, a Court is satisfied that a person is instituting vexatious proceedings in the Court or is conducting a proceeding in a vexatious manner, the Court may order that (

a) the person shall not institute further proceeding or institute proceedings on behalf of any other person, or (

b) a proceeding instituted by the person may not be continued, without leave of the Court. [ 9 ] Counsel for CNR submitted a thorough, and, I find, accurate, review of the law in this area, citing at length several prior decisions addressing the concept behind vexatiousness and the important function of a vexatious litigant declaration to maintain the integrity of the judicial system: Del Bianco v 935074 Alberta Ltd. , 2007 ABQB 150 (Romaine J.) , Jamison v Denman , 2004 ABQB 593 (Watson J., as he then was) , Prefontaine v Pairs , 2007 ABQB 77 (Marshall J.) , O ’ Neill v Deacons , 2007 ABQB 754 (Wittmann A.C.J., as he then was) .

Paraphrasing from these decisions, I find that an accurate description of a vexatious litigant is one who repeatedly brings pleadings containing extreme, unsubstantiated, unfounded, and speculative allegations against a large number of individuals to exploit or abuse the court process for an improper purpose, or to gain an improper advantage. [ 10 ] The courts [1] 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. [ 11 ] Moreover, in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action. [ 12 ] For all of the reasons that follow, I found that Onischuk had instituted vexatious proceedings and conducted proceedings in a vexatious manner. [ 13 ] Onischuk continues 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 is dismissed, essentially the same action is re-filed with the addition of defendants, who are typically members of the judiciary or legal community who were involved in his prior litigation. He persistently brings proceedings for issues that have already been determined. He has a practice of ignoring or failing to follow court directives and a pattern of failing to meet procedural deadlines.

As Counsel for CNR indicated in his brief, Onischuk “ has unsuccessfully brought appeals at least four times to the Alberta Court of Appeal, the Federal Court, the Federal Court of Appeal including an application for Leave to Appeal to the Supreme Court of Canada ” : Brief of CNR , at p 19.

He has failed to pay the costs awarded against him by both the Federal Court Trial Division, as well as the Federal Court of Appeal. [ 14 ] His pleadings are excessively lengthy and replete with inflammatory accusations and ever expanding conspiracy theories against Counsel who have argued, and the Judiciary who have heard his applications. They contain irrelevant arguments, jurisprudence and legislation, and fail to advance a legitimate claim.

For example, the relief requested in the nature of lie detection exams is not a remedy known at law, and no reasonable person could expect to obtain it. [ 15 ] Onischuk ’ s actions have all the hallmarks of a vexatious litigant. His conduct has been improper and an abuse of the court processes. In the result, on November 26, 2012, I declared him to be a vexatious litigant within the meaning of s. 23 of the Judicature Act . B. Should the Claim Against the Defendants Be Struck? [ 16 ] All the Defendants request that Onischuk ’ s claims against them be struck pursuant to Rule 3.68 of the Alberta Rules of Court .

Rule 3.68(1) provides that the Court may strike out all or any part of a claim where the circumstances warrant. The relevant circumstances relied upon by the Defendants, under which a claim may be struck pursuant to Rule 3.68(1) are identified in Rule 3.68(2) as follows: ... (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper;

(

d) a commencement document or pleading constitutes an abuse of process; ... I shall address each. 1. No Cause of Action [17] All of the Defendants involved advance the argument that Onischuk’s pleadings disclose no cause of action against them.

Apleading should be struck only when it is plain and obvious that it discloses no reasonable cause of action: Wong v Leung, 2011 ABQB687 (Master Smart), Tottrup v Alberta (Minister of Environment), 2000 ABCA 121, Hunt v Carey Canada Inc., (SCC), [1990] 2 SCR 959. [18] In making this determination, the Court must assume that the allegations of fact made by the plaintiff are true, unless thestatement of claim contains bare allegations with no facts stated, speculative facts incapable of proof, facts found against the plaintiff inearlier stages, or patently ridiculous allegations: Hovsepian v Westfair Foods, 2001 ABQB 700 (Hart J.), Stevenson & Côté, AlbertaCivil Procedure Handbook, Vol 1, (Edmonton:Juriliber, 2012) at p 3-105, Note 4.

Additionally, the plaintiff must plead facts, and it isnot enough to plead a bare duty at law: C.H.S. v Alberta (Director of Child Welfare) 2008 ABQB 513 (Thomas J.). The general rule isthat where a statement of claim is unclear, it is to be construed generously. a. Judicial Defendants [19] Firstly, in relation to the claims against Costigan J.A. and Sulyma J., the alleged misconduct arises from actions performed intheir respective judicial capacities.

The doctrine of judicial immunity therefore applies. [20] The doctrine of judicial immunity applies so that a judge cannot be held civilly liable for any acts performed in his or herjudicial capacity, so long as “the judge believed that he or she was acting with jurisdiction in the course of his or her judicial duties”:Prefontaine v Gosman (2000), (AB KB), 270 AR 97, [2000] 6 WWR 530 (Q.B.) (Jones J.). [21] Several authorities address instances where plaintiffs have brought statement of claims against members of the judiciary.Generally, the wrongful conduct alleged occurred during the course of the plaintiffs’ previous action, with which each of the defendantjudges had some involvement.

In each case, the statement of claims were struck as either disclosing no cause of action against thedefendant judges as a result of the doctrine of judicial immunity, or on the basis that the plaintiff pleaded a cause of action notrecognized at law: Prefontaine v Gosman, S.G. v Larochelle, 2004 ABQB 123 (Wachowich C.J.), aff’d 2005 ABCA 111, Ringrose vClement (1982), 35 AR 62 (Master Funduk). [22] This is an analogous situation. Onischuk’s claim relates to allegations of misconduct by Sulyma J. and Costigan J.A. in thecourse of exercising their judicial duties in the First Q.B. Action.

Both Justices ruled against Onischuk in some manner, either by strikinghis claim in Queen’s Bench or dismissing his application to have his struck appeal restored to the list at the Court of Appeal. Both ofthese actions were within the Justices’ respective jurisdiction. [23] Therefore, even if the allegations contained in the Statement of Claim were assumed to be true, I find that the doctrine ofjudicial immunity applies such that no cause of action lies against the Defendants Costigan J.A. or Sulyma J.

b. Government Defendants [ 24 ] Both the Alberta Defendants and the Canada Defendants, with some exceptions related to specifically named ministries, were included in the First Q.B. Action. The claims against them arise out of two separate matters: (1) the initial derailment in 2005; and (2) the allegations of misconduct arising out of the First Q.B. Action. I will begin by addressing the new allegations related to misconduct in the First Q.B. Action.

The ancillary issues associated with the derailment in 2005 are more properly addressed later in my Reasons. [ 25 ] As against the Alberta and the Canada Defendants, the alleged misconduct respectively relates to the governments ’ failure to adequately supervise the actions of the lawyers and judges involved in Onischuk ’ s First Q.B. Action. The pleadings assert that Alberta is vicariously liable for the alleged misconduct of the lawyers involved in his prior action because the lawyers are licensed provincially.

The pleadings further assert that Canada is vicariously liable for the alleged misconduct of the judges, as they are appointed by the Federal Government and by the Governor General of Canada. [ 26 ] Even if the allegations of misconduct were true, no cause of action is disclosed as there are no existing legal duties on the Government Defendants as asserted by Onischuk’s pleadings. Neither Alberta, nor its Minister of Justice, is vicariously liable for members of the legal profession by virtue of the fact that it is a licensed profession.

Further, Canada is not vicariously liable for actions of members of the judiciary, as once judges are appointed, it no longer has responsibility for, or jurisdiction over, them. [ 27 ] In the result, I find that no cause of action lies against the Government Defendants, including: Her Majesty the Queen in Right of Alberta, Alberta Justice and Attorney General, Alberta Justice, Government of Alberta Ministry of Alberta Justice, Government of Alberta Ministry of Alberta Justice and Attorney General, Her Majesty the Queen in Right of Canada, Governor General of Canada, and the Attorney General of Canada.

In regards to the specific Government of Alberta Ministries and named individuals not included in this list, they are included below in the category “ Remaining Defendants ” . c. Remaining Defendants [ 28 ] In regards to the claims alleged against the remaining defendants, I find that it is plain and obvious that Onischuk ’ s pleadings disclose no reasonable cause of action against any of them.

Aside from the fact that the pleadings are generally incomprehensible, they contain 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 are an attempt to re-litigate the issues already determined by this Court in the First Q.B. Action.

Lastly, the relief requested, to have members of the bench and the bar submit to “ lie detection tests ” and the “ administration of a truth serum ” , is patently ridiculous. [ 29 ] For all of those reasons, I find that the pleadings disclose no reasonable cause of action against any of the remaining defendants. [ 30 ] All the pleadings were therefore struck pursuant to Rule 3.68 . 2. Frivolous, Irrelevant, or Improper [ 31 ] An alternative basis for striking the statement of claim arises where the claim is frivolous, irrelevant or improper.

The courts have held that a frivolous pleading is one that is indicative of bad faith or factually hopeless, or “ so palpably bad that the Court needs no real argument to be convinced of that fact ” : Wong v Leung , at para 27 , citing with approval Donaldson v Farrell , 2011 ABQB 11 , at para 20 (Graesser J.) , Re Serdahely Estate (Haljan v Popke) , 2008 ABQB 472 at para 21 (Acton J.) . [ 32 ] For the same reasons Onischuk ’ s pleadings disclose no cause of action, his pleadings are also frivolous, irrelevant and improper.

Again, Onischuk is attempting to re-litigate a matter that has already been determined by this Court. The complete lack of alleged facts to support Onischuk ’ s allegations of judicial impropriety, conspiracy, and wrongful conduct by the Defendants, renders his claims so palpably bad that I am satisfied they are properly classified as frivolous. Therefore, the Defendants ’ applications to strike are also granted on this ground.

3. Abuse of Process [33] The Alberta Court of Appeal (in upholding my decision in 2010 ABQB 538) discussed the concept of “abuse of process” inReece v Edmonton (City), 2011 ABCA 238, at paras 16-36, noting that: ...abuse of process is a compendious principle that the courts use to control misuses of the judicial system. Abuses of process can arise inmany different contexts, and there is no universal test or statement of the law that encompasses all of the examples. [34] Furthermore, the following passage from Reece is particularly relevant to the issues before me: [17] ...The most important aspect of Toronto v.

CUPE, [2003 SCC 63] however, is its confirmation that there is a residual discretion inthe courts, using the doctrine of abuse of process, to prevent re-litigation of issues even when the preconditions for issue estoppel and resjudicata are not present. The court (at para. 37) quoted with approval Canam Enterprises Inc. v.

Coles (ON CA),(2000), 51 O.R. (3d) 481 (C.A.) at para. 55: The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would bemanifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. Toronto v. CUPE discusses abuse of process in the context of the re-litigation of issues. It is not intended to be an exhaustive explorationof all the circumstances in which an abuse of process can arise.

As the court pointed out at para. 36: “The doctrine of abuse of process isused in a variety of legal contexts.” [18] The test for abuse of process has been stated in different ways, as the context requires. For example, in R. v. Scott, (SCC), [1990] 3 S.C.R. 979 the Court stated at p. 1007: ...abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principlesof justice underlying the community’s sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline theinterest of the accused in a fair trial.

But the doctrine evokes as well the public interest in a fair and just trial process and the properadministration of justice. ... [35] As noted (supra), aside from the fact that this is clearly an attempt to re-litigate a matter that has already been determined bythis Court, Onischuk’s pleadings essentially complain about those actions of lawyers and judges involved in his prior action, allegingconspiracies against him, tampering with court transcripts and files, misrepresentations, perjury, and acting against the public interest. Ihave found the proceedings to contain the hallmarks of vexatious litigation.

To allow Onischuk to continuously bombard counsel, thejudiciary, and this Court with lengthy pleadings, replete with inflammatory accusations, irrelevant legal argument, jurisprudence andlegislation, that advance no reasonable cause of action, is manifestly unfair to all parties involved and other participants vying for scarcejudicial resources. Consequentially, to allow this action to proceed would surely bring the administration of justice into disrepute. [36] For all of those reasons, I found that Onischuk’s pleadings are an abuse of process. The pleadings must also be struck underthis ground. C.

In the Alternative, Should the Defendants Be Granted

Summary Judgment? [37] The CNR, Canada, and Fraser Milner Casgrain LLP Defendants, including the individuals Lorena K. Harris and John T.Henderson (now Henderson P.C.J.), request that, in the alternative to striking Onischuk’s claim under Rule 3.68, I grant them

summaryjudgment pursuant to Rule 7.3 which provides:

7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded. [38] The test for

summary judgment is well established and requires the applicant(s) (here the CNR, Canada and Fraser MilnerCasgrain LLP Defendants) to show that there is no genuine issue for trial. Once the applicant(

s) has/have met that burden, the onus shiftsto the respondent (here Onischuk) to submit evidence to show that there is a genuine issue to be tried: Quadrangle Holdings Limited vCoady, 2012 ABQB 22, at para 28 (McCarthy J.). [39] I reiterate that Onischuk’s claims arise out of two separate matters: (1) the initial derailment in 2005; and (2) the allegations ofmisconduct arising out of the First Q.B. Action. [40] I turn first to address the allegations of misconduct arising out of the First Q.B. Action.

For the same reasons Onischuk’s pleadings disclose no reasonable cause of action, I find that there is no genuine issue for trial and nomerit to any part of his claim as against any of the Defendants. [41] In relation to the claims arising out of the 2005 derailment, three distinct issues emerge relative to the CNR, Canada, andAlberta Transportation and Safety Board Defendants. [42] Firstly, as against the Canada Defendants, a Release was voluntarily executed by Onischuk in favour of the Attorney Generalof Canada on February 10, 2009. The Release was provided as part of the settlement of the First Q.B.

Action between the CanadaDefendants and Onischuk, and provided that the Crown was released from: ...all manner of actions, causes of action, claims, costs or demands of any and every kind and nature whatsoever that the Plaintiff everhad, now has or can, shall or may hereafter have against the Crown arising out of or in any way related to, or connected with any claimfor injuries or damages to person or property, including all expenses arising therefrom, which the Plaintiff might have by reason of orarising out of or in connection with matters alleged in or pertaining to the Amended Amended Amended Statement of Claim in Court ofQueen’s Bench Action No. 0703 10092.

Brief of Law of Canada, et. al., at p 5. [43] The Release operates such that I find there is no merit to Onischuk’s claims against the Canada Defendants. [44] Secondly, as against the Board, the claims arise out of the alleged negligence of the Board to ensure proper trackmaintenance, inspection and emergency disaster safety measures were being properly performed. [45] In relation to these allegations, no duty of care is established between the Board and Onischuk.

The Board is a creature ofProvincial statute with no authority or jurisdiction to regulate CNR, a federally regulated railway: Traffic Safety Act, RSA 2000, c T-6, s22. Although the Board has some authority in relation to intra-provincial railways only, it is limited to hearing certain appeals from theRailway Administrator under s. 43 of the Railway (Alberta) Act, RSA 2000, c R-4.

Therefore, with no authority or jurisdiction over CNR,a duty of care cannot be established between the Board and Onischuk in relation to these circumstances. [46] Without a duty of care, Onischuk’s cause of action cannot be established: Cooper v Hobart, 2001 SCC 79 , [2001] 3SCR 537. Again, there is no merit to Onischuk’s claim against the Board, as no duty of care was owed in the circumstances.

[ 47 ] Third and finally on this matter, to the extent that Onischuk ’ s Statement of Claim pleads a cause of action against the CNR, the Canada Defendants, or the Board, arising out of the 2005 derailment, again I find that there is no merit to his claim. The current Statement of Claim was commenced on January 6, 2011. The derailment occurred more than five years ago. Onischuk ’ s action is therefore barred by virtue of s. 3 of the Limitations Act , RSA 2000, c L-12, which provides: ...if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding,... ...the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. [ 48 ] Onischuk ’ s First Q.B.

Action evidences he was aware of his alleged injuries, was aware that his allegations related to the conduct of the CNR Defendants, for which he seeks to hold Canada and the Board vicariously liable, and was aware that his allegations warranted bringing a proceeding. Having plead the Limitations Act as a defence, the Defendants are immune from liability and I am satisfied that there is therefore no genuine issue to be tried against them. [ 49 ] Having found that there is no merit to Onischuk ’ s claims against the Defendants, the onus shifts to him to produce evidence to the contrary.

Onischuk did not put forward any evidence, despite a Case Management Order granted on May 23, 2012, requiring him to provide any evidence he intended to rely upon in response to the various applications against him by August 30, 2012. He has therefore failed to discharge his burden. [ 50 ] Had I not already struck the claims against the Defendants, I would have found that

summary judgment was warranted in the circumstances. IV. Conclusion [ 51 ] Since 2007, Onischuk has attempted to seek redress for his alleged injuries suffered as a result of his voluntary participation in the clean up of chemicals into Lake Wabamun following the derailment of a CNR train in 2005. His First Q.B. Action was unsuccessful, being struck for disclosing no reasonable cause of action.

On numerous occasions he attempted to appeal that decision unsuccessfully and he wrote various letters to the judiciary requesting that they reconsider their decisions. [ 52 ] The within action combines issues from his First Q.B. Action, related to the derailment, with allegations of misconduct on the part of those lawyers and judges who were involved in his First Q.B. Action. He has persistently brought proceedings for issues that have already been determined by this Court, and unsuccessful appeals of those decisions.

He has failed to adhere to procedural guidelines set for him in case management, as well as failed to pay costs awarded against him in certain actions. [ 53 ] His actions are the hallmarks of a vexatious litigant: supra , at para 15. His pleadings disclose no reasonable cause of action against any of the Defendants, are frivolous and improper, and an abuse of the Court process. There is no merit to any of Onischuk ’ s claims against the Defendants.

[ 54 ] In the result, I declared Onischuk to be a person that institutes vexatious proceedings within Alberta, pursuant to s. 23 of the Judicature Act . I ordered that, without leave of this Court, Onischuk shall not institute any further proceedings against the Defendants or others, in relation to the 2005 derailment, in any level of court in Alberta. Additionally, with the exception of ongoing Queen ’ s Bench Action #1101 14786, Onischuk v Canmore , Onischuk shall not initiate before the courts in Alberta any proceedings, or continue any proceedings that he was a party to before the Alberta courts.

However, this Order did not require Onischuk to obtain leave to appeal the within decision to the Alberta Court of Appeal. [ 55 ] The claims against all the Defendants were struck pursuant to Rule 3.68 of the Alberta Rules of Court . In the alternative,

summary judgment would have been appropriate in the circumstances. [ 56 ] I also ordered costs as follows: ∙ The CNR, FMC, Canada, and Alberta Defendants, the Alberta Transportation Safety Board, Costigan J.A. and Sulyma J. shall each receive costs of this Action from Onischuk for $6,500.00; ∙ The CNR, FMC and Canada Defendants, the Alberta Transportation Safety Board and Costigan J.A. shall each receive disbursements of this Action from Onischuk for $500.00; and ∙ The Defendants have leave to pursue additional disbursements beyond the fixed amount of $500.00 on a taxation basis.

Heard on the 26 th day of November, 2012. Dated at the City of Edmonton, Alberta this 6 th day of February, 2013. J.D. Rooke A.C. J.C.Q.B.A. Appearances: Mr. Daniel W. Onischuk Self-Represented for the Plaintiff Ms. Marta E. Burns Tax Law Services, Department of Justice Canada for the Alberta Defendants Mr. Barry Benkendorf Department of Justice Canada

for the Canada Defendants Mr. 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 Mr. Michael S. Sestito Bennett Jones LLP for the Defendant, Fraser Milner Casgrain LLP Ms. Gwendolyn Stewart-Palmer Shores Jardine LLP for the Defendant, Alberta Transportation and Safety Board Mr. Ryan R. Ewasuik Brownlee LLP for the Defendant, the Honourable Justice Peter Costigan Ms. Phyllis A. Smith, Q.C. Emery Jamieson LLP for the Defendant, the Honourable Justice Doreen Sulyma

Appendix Statement of Facts Adopted by the Court (Reformatted): From Brief of Canadian National Railway et. al. ... 6. Mr. Onischuk has brought multiple claims against the CN Defendants and its Co-Defendants. The history of matters before the Court involving Mr. Onischuk is as follows: A. The First Q.B. Action 7. On August 8, 2007, Mr. Onischuk commenced the first Q.B. Action against the CN Defendants alleging that he sustained injuries while voluntarily participating in a clean up of chemicals that spilled into Wabamun Lake following the Derailment [2] . 8. Mr. Onischuk subsequently amended the Statement of Claim three times: (

a) On August 10, 2007, Mr. Onischuk filed an Amended Statement of Claim, which among other things, was amended to include additional named and unnamed officers and employees of CN; ministries, boards and agencies of the Government of Canada and the Government of Alberta; and unnamed employees of the Government of Canada and of the Government of Alberta. (

b) On August 7, 2008, Mr. Onischuk filed an Amended Amended Statement of Claim, which among other things, added minor changes to his claim against the CN Defendants; and (

c) On November 4, 2008, Mr. Onischuk filed an Amended Amended Amended Statement of Claim, which among other things, was amended to include references to 30 different provincial and federal acts and regulations as well as excerpts of the Criminal Code of Canada. Amended Amended Amended Statement of Claim in Action No. 0703 10092. 9. After the CN Defendants were served with the pleadings in the First Q.B. Action in November 2008, they brought two applications: (

a) The first application was to strike the claim against the CN Defendants on the basis that the Amended Amended Amended Statement of Claim had not been served on time; (

b) The second application was to strike the claim against the individual CN Defendants on the basis that the Amended Amended Amended Statement of Claim disclosed no cause of action against them, (collectively the “Notice of Motion to Strike the First Q.B. Action”).

Amended Notice of Motion filed January 14, 2009. 10. On February 10, 2009, Madam Justice Sulyma heard the first part of the CN Defendants’ Notice of Motion to Strike the First Q.B. Action. After hearing submissions from all parties Justice Sulyma ordered, with the exception of David G.A. McLean, that the Amended Amended Amended Statement of Claim be struck against the CN Defendants as it had not been served on time (the “February 10, 2009 Order”). Order of Madam Justice Sulyma dated February 10, 2009. 11. Following Justice Sulyma’s February 10, 2009 Order, Mr. Onischuk filed and/or served numerous materials objecting to the Court’s decision, including: (

a) On February 11, 2009, Mr. Onischuk served an unfiled motion that the Court reconsider the February 10, 2009 Order; (

b) On February 11, 2009, Mr. Onischuk served an unfiled brief and an amendment to the brief in support of his February 11, 2009 motion; (

c) On February 12, 2009, Mr. Onischuk filed a second motion requesting that Justice Sulyma reconsider the February 10, 2009 Order; (

d) On February 18, 2009, Mr. Onischuk filed yet another motion that Justice Sulyma reconsider the February 10, 2009 Order; (

e) On February 20, 2009, Mr. Onischuk filed “Plaintiff Brief Supplement C” supplementing his brief of February 17, 2009, the CN Defendants do not have record of this brief. Motions, Brief and Memos by Mr. Onischuk dated February 11, 2009, February 12, 2009, February 18, 2009 and February 20, 2009. 12. On May 28, 2009, the parties were scheduled to appear before Justice Sulyma to determine outstanding issues raised by the CN Defendants in their Notice of Motion to Strike the First Q.B. Action. Despite being served with notice of the application Mr.

Onischuk failed to appear and the hearing was rescheduled for June 23, 2009. However, despite being served with notice of the application, Mr. Onischuk again failed to appear at the June 23, 2009 hearing, which was rescheduled a second time for August 13, 2009. Notice of Motion by CN Defendants filed June 9, 2009 and Order of Madam Justice Sulyma dated June 23, 2009. 13. On August 13, 2009, Justice Sulyma ordered the second part of the CN Defendants’ Notice of Motion to Strike the First Q.B. Action be rescheduled for October 21, 2009. 14. Prior to and following the August 13, 2009 hearing Mr.

Onischuk filed and/or served numerous materials objective to the Court’s decision, such as: (

a) on August 13, 2009, Mr. Onischuk filed a motion to rescind any orders dismissing claims against the CN Defendants;

(

b) on August 13, 2009, Mr. Onishcuk filed a “memorandum” in support of his motion to rescind any orders dismissing claims against the CN Defendants; and (

c) on August 14, 2009, August 19, 2009 and August 21, 2009 Mr. Onischuk filed various documents in support of his motion to rescind any orders dismissing claims against the CN Defendants. Motions, Memorandums and Briefs by Mr. Onischuk dated August 13, 2009, August 14, 2009, August 19, 2009 and August 21, 2009. 15. On October 21, 2009, Justice Sulyma heard the second part of the CN Defendants’ Notice of Motion to Strike the First Q.B. Action.

After hearing arguments of all parties Justice Sulyma ordered that the Amended Amended Amended Statement of Claim be struck against the remaining CN Defendants as it disclosed no cause of action (the “October 21, 2009 Order”). Order of Justice Sulyma dated October 21, 2009. 16. The cumulative result of both the February 10, 2009 Order and the October 21, 2009 Order was to strike all the claims against the CN Defendants as it had not been served on time and it disclosed no cause of action. 17. Following the October 21, 2009 Order, Mr.

Onischuk wrote to Justice Sulyma re-stating his arguments made during the October 21, 2009 hearing against striking the Amended Amended Amended Statement of Claim. Correspondence by Mr. Onischuk dated October 27, 2009. 18. On March 5, 2010, Mr. Onischuk filed a Civil Notice of Appeal with the Alberta Court of Appeal. However, he did not complete the required steps to maintain his appeal and on June 21, 2010 Mr. Onischuk’s appeal was struck. Mr.

Onischuk subsequently brought an application filed October 15, 2010 for an order restoring his appeal and an application filed November 24, 2010 for an order retroactively extending his time to appeal, staying costs of the First Q.B. Action and deferring appeal costs and securities. Onischuk v. Canadian National Railway Co. , 2010 AB[CA] 411, [at] para. 7. 19. On December 21, 2010, Justice Costigan dismissed the Plaintiff’s applications on the basis that there was no reviewable error on the face of the October 21, 2009 Order. Furthermore the Court was not satisfied that Mr.

Onischuk had demonstrated an intention to proceed with the appeal or the necessary diligence in the prosecution of the appeal. Onischuk v. Canadian National Railway Co. , supra , at para. 7. 20. On December 21, 2010, Mr. Onischuk wrote to the Chief Justice of the Alberta Court of Appeal, the Honourable Madam Justice Fraser and the Attorney General of Alberta, the Honourable Alison Redford (as she was then) stating that “a gross miscarriage of justice” had occurred as [a] result of the decisions of Justice Sulyma and Justice Costigan and “petitioned” for “(

i) a stay of costs and orders, (ii) a review of the facts, rules, evidence, laws and case laws and all Justices decisions.” As far as the CN Defendants are aware Mr. Onischuk received no formal response to the letter. Correspondence by Mr. Onischuk dated December 21, 2010. B. The Federal Court Action

21. On January 7, 2011, Mr. Onischuk filed a Statement of Claim in the Federal Court Action. On March 24, 2011, Mr. Onischuk filed both an Amended Statement of Claim and an Amended Amended Statement of Claim. The Amended Amended Statement of Claim consisted of 58 pages of repetitive pleadings, difficult to understand arguments, jurisprudence, legislation and insulting accusations. Moreover, the Federal Court Action: (

a) essentially duplicates the allegations from the First Q.B. Action that the Derailment caused injury to Mr. Onischuk; (

b) contains serious accusations by Mr. Onischuk about what he characterizes as unfairness or impropriety in how the first Q.B. Action was dealt with, such as: (

i) allegations against Justice Sulyma of bias and negligence; (ii) allegations that CN and its external legal counsel were part of a conspiracy to discriminate and deprive Mr. Onischuk of his rights under the First Q.B. Action; (iii) allegations that “CN employees filed false, misleading affidavits” and that CN Defendants filed “misleading and/or false affidavits”; (iv) allegations that the CN Defendants “reneged on verbal agreements not to pursue costs”; (

v) allegations that court audio recordings, transcripts and the court records had been altered; (vi) allegations that the CN Defendants were negligent for “pursuing deceitful, misrepresentation(

s) of false affidavit(

s) of CN Defendants”; and (vii) allegations that CN’s external legal counsel, Fraser Milner Casgrain LLP and specifically, Mr. John Henderson (as he was then) and Ms. Lorena Harris “wilfully filed false and misleading affidavits and briefs”. Additionally, the relief sought by Mr. Onischuk in the Federal Court Action included an order that all of the defendants “undergo polygraph lie detector tests conducted by the United States F.B.I. or R.C.M.P.”. Amended Amended Statement of Claim, Action No. T-26-11. 22.

On April 6, 2011, a Prothonotary of the Federal Court struck the Amended Amended Statement of Claim on the basis it was plain and obvious that it disclosed no reasonable cause of action. Prothonotary Lafreni è re noted: “The action is simply an attack on a decision by the ABQB and an attempt to relitigate a claim which that court has already determined”. Costs in the amount of $500.00 were awarded against Mr. Onischuk. Order of Prothonotary Lafreniere, dated April 6, 2011. 23. Mr. Onischuk appealed the Prothonotary’s Order to the Federal Court Trial Division.

On May 11, 2011, Madam Justice B é dard upheld the decision of the Prothonotary and dismissed Mr. Onischuk’s appeal. Order of Justice Bedard dated May 11, 2011.

24. Mr. Onischuk then filed an appeal with the Federal Court of Appeal, Appeal No. A-255-11, appealing the decisions of the Federal Court Prothonotary and Madam Justice B é dard. Mr. Onischuk sought remedies such as an order for a new trial in Federal Court, the Federal Court of Appeal, the Alberta Court of Appeal or the Supreme Court of Canada, formal penalties imposed by the Law Society of Alberta and that certain Defendants undergo polygraph and other lie detector tests. Mr.

Onischuk’s appeal was quashed on August 15, 2011 and costs were awarded in the amount of $750.00 each to the CN Defendants and the other Defendants. Mr. Onischuk wrote to the Federal Court asking them to reconsider its decision. On September 12, 2011 the Federal Court of Appeal refused to reconsider its decision. Federal Court of Appeal Judgment, dated August 15, 2011 and Refusal to Reconsider dated September 12, 2011. 25. Mr. Onischuk has not paid costs ordered in the Federal Court Action or the Federal Court of Appeal. C. Application for Leave to the Supreme Court of Canada 26. On August 15, 2011, Mr.

Onischuk applied for Leave to Appeal to the Supreme Court of Canada to appeal the Federal Court of Appeal decision of August 15, 2011. Mr. Onischuk’s application for leave yet again consisted of repetitive pleadings, confusing arguments, insulting accusations, jurisprudence and legislation. Correspondence from Supreme Court of Canada Registry dated November 1, 2011 and Application for Leave to Appeal to Supreme Court of Canada without attachments. 27. On January 10, 2012, Mr. Onischuk served the CN Defendants with: (

a) a Notice of Motion to Registrar seeking various filing and service deadline extensions; and (

b) an amended Notice of Motion to the Registrar seeking alternative extensions to filing and service deadlines. Notice of Motion and Amended Notice of Motion dated January 10, 2010. 28. In response to the CN Defendants’ Memorandum of Argument, on January 16, 2012 Mr. Onischuk served the CN Defendants with his “Correspondence of Memorandum in Reply to CNR Response”, which essentially duplicated the allegations from the First Q.B. Action and the Federal Court Action and contained serious accusations by Mr. Onishcuk about what he perceived as unfairness or impropriety in how the First Q.B.

Action and Federal Court Action were dealt with. Correspondence of Memorandum in Reply to CNR Response. 29. On February 23, 2012, the Supreme Court of Canada dismissed Mr. Onischuk’s application for leave with costs to the CN Defendants and the other respondents.

Supreme Court of Canada Judgment dated February 23, 2012. D. The Current Action 30. On January 6, 2011, Mr. Onischuk commenced Court of Queen’s Bench Action No. 1103 00285 (the “Current Action”) against the CN Defendants. The Current Action: (

a) duplicates the Defendants from the First Q.B. Action and the Federal Court Action; (

b) duplicates the relief requested in the Federal Court Action; (

c) duplicates the allegations from the First Q.B. Action regarding the Derailment; (

d) duplicates the allegations from the Federal Court Action; (

e) contains serious allegations by Mr. Onischuk about what he characterizes as unfairness or impropriety in how the First Q.B. action was deal with, such as: (

i) allegations that Mr. Onischuk was unfairly and discriminatorily deprived of his legal rights; (ii) allegations against Justice Sulyma of bias and negligence; (iii) allegations against Justice Costigan of discrimination, bias and negligence[;] (iv) allegations that CN and its external legal counsel were part of a conspiracy to discriminate and deprive Mr Onischuk of his rights under the First Q.B. Action; (

v) allegations that CN employees filed false and misleading affidavits in support of applications made under the First Q.B. Action; (vi) allegations that CN and its external legal counsel reneged on agreements not to pursue costs; and (vii) allegations that court audio recordings, transcripts and court records of the First Q.B. Action were altered; and (

f) contains serious accusations by Mr. Onischuk about what he characterizes as unfairness or impropriety in how the Federal Court Action was dealt with, such as: (

i) contains allegations against Federal Court Prothonotary Lafreni è re of discrimination and negligence;

(ii) contains allegations against Madam Justice B é dard of the Federal Court Trial Division of discrimination and negligence; and (iii) contains allegations against Madam Justice Dawson, Mr. Justice Evans and Madam Justice Trudel of the Federal Court of Appeal of discrimination and negligence. Amended Amended Statement of Claim, Action No. 1103 00285. 31. At no time did the CN Defendants agree to waive their entitlement to costs in the First Q.B. Action, nor did the CN Defendants or any of its employees or directors swear inaccurate affidavits in support of the Notice of Motion to Strike the First Q.B. Action.

Affidavit of Jody Evely, attached for ease of reference without exhibits, at paras. 23 and 28. 32. On March 20, 2012, Mr. Onischuk filed an Amended Statement of Claim which consisted of more repetitive pleadings, confusing arguments, accusations and references to jurisprudence and legislation. Moreover, the Amended Statement of Claim named twenty-one additional defendants to the Current Action, including Justices involved in the First Q.B. Action and defence counsel involved in the First Q.B. Action and the Federal Court Action. In particular, Mr. Onischuk named the following individuals as defendants: (

a) Mr. Justice Costigan of the Alberta Court of Appeal; (

b) Madam Justice Sulyma of the Alberta Court of Queen’s Bench; (

c) Judge Henderson of the Provincial Court of Alberta, counsel for the CN Defendants in the First Q.B. Action prior to his appointment to the bench on March 23, 2009; (

d) The Governor General of Canada; (

e) The Honourable Alison Redford, Premier of the Province of Alberta; (

f) Ms. Lorena Harris, counsel for the CN Defendants in the First Q.B. Action and the Federal Court Action; (

g) Fraser Milner Casgrain LLP, counsel for the CN Defendants in the First Q.B. Action and the Federal Court Action; (

h) Mr. Peter Barber, counsel for the Alberta Ministry of Justice in the Federal Court Action; (

i) Mr. Chris Holmes, counsel for Alberta Ministry of Justice in the First Q.B. Action; and (

j) Mr. Lorne Merryweather, counsel for Alberta Ministry of Justice. Amended Amended Statement of Claim, Action No. 1103 00285.

33. On April 5, 2012, Mr. Onischuk filed an Amended Amended Statement of Claim which consisted of 51 pages of more repetitive pleadings, arguments, jurisprudence, legislation and insulting accusations. The Amended Amended Statement of Claim included extensive allegations of discriminations and negligence against Federal Court Prothonotary Lafreni è re, Madam Justice B é dard of the Federal Court Trial Division, Madam Justice Dawson of the Federal Court of Appeal, Mister Justice Evans of the Federal Court of Appeal and Madam Justice Trudel of the Federal Court of Appeal. Furthermore, Mr.

Onischuk requested forms of unavailable relief such as that defence counsel and the Judiciary “submit to polygraph lie detector exams to be administered by a police agency originating from outside of Alberta, preferably from outside of Canada”. Amended Amended Statement of Claim, Action No. 1103 00285. 34. On April 26, 2012, Mr. Onischuk filed a Reply to the Statement of Defence of the CN Defendants. The Reply to the Statement of Defence reiterated his allegations of fraud and misconduct on [the] part of the CN Defendants, CN external legal counsel, Justice Sulyma and Justice Costigan. In particular, Mr.

Onischuk persisted in requesting “lie detection exams” be conducted on defence counsel and Judiciary including “voice stress, pupil response, blush response, and facial analysis...[and] for the use of a “truth serum” drug such as sodium pentathiol as these people are trained, practices and skilled in deception...[and] that such testing be done by the RCMP, CSIS or a US Federal policy agency”. Reply to the Statement of Defence, Action No. 1103 00285. 35.

On April 10, 2012, Mr[.] Onischuk wrote to the Honourable Associate Chief Justice Rooke of the Alberta Court of Queen[’s] Bench requesting the appointment of a Case Management Judge, to which all the Defendants subsequently agreed. On April 16, 2012, Justice Rooke wrote to all parties advising of his appointment as Case Management Judge in the Current Action and enclosing his Conditions and Guidelines for Case Management (the “Case Management Guidelines”).

The Case Management Guidelines included directions from the Court that applications require leave of Justice Rooke and moreover, that there was to be no communication with Justice Rooke except to arrange an application or Case Management meeting. Correspondence by Mr. Onischuk dated April 10, 2012 and Correspondence by Justice Rooke dated April 16, 2012. 36. On April 22, 2012, Mr. Onischuk agreed that the first Case Management meeting was to be held on May 23, 2012. On May 14, 2012 Mr.

Onischuk wrote to Justice Rooke asking that the Case Management meeting be adjourned to fall 2012 and suggesting that there was a potential bias in Justice Rooke acting as the Case Management Judge. Correspondence by Mr. Onischuk served April 22, 2012 and correspondence by Justice Rooke dated May 14, 2012 enclosing correspondence by Mr. Onishcuk dated May 14, 2012. 37.

On May 23, 2012, Justice Rooke ordered that the production of records and exchange of Affidavit of Records in the Current Action be waived pending the outcome of the various applications of the Defendants to strike the Current Action and for relief under the Judicature Act . Justice Rooke also ordered, after hearing from all parties, various filing deadlines in relation to the Defendants’ applications. Orders of Justice Rooke dated May 23, 2012. 38. On June 27, 2012, Mr.

Onischuk wrote to Justice Rooke requesting that the filing deadlines be extended and that the application be pushed back from November 26 and 27, 2012 to February 2013. On August 5, 2012, contrary to the Case Management Guidelines and

the Alberta Rules of Court, Mr. Onischuk served an unfiled “originating application” on the Defendants with 2 days notice of theapplication. Mr. Onischuk sought an order to extend the filing deadlines such that the application would be pushed back from November26 and 27, 2012 to March or April, 2013. The Plaintiff also sought an order to compel the Defendants to provide him with Affidavits andto submit to cross-examination and polygraph analysis. The Honourable Justice Rooke dismissed part of Mr. Onischuk’s application andextended a number of filing deadlines on August 9, 2012 (the “August 9, 2012 Order”).

Correspondence by Justice Rooke dated June 29, 2012 enclosing correspondence by Mr. Onischuk dated June 27, 2012; “Originating Application” dated August 7, 2012; Order of Justice Rooke dated August 9, 2012. 39. Notwithstanding the August 9, 2012 Order, on August 10, 2012, Mr. Onischuk wrote to Justice Rooke again requesting he reconsiderhis August 9, 2012 decision and extend the filing deadlines. Correspondence by Justice Rooke dated August 23, 2012 enclosing correspondence by Mr. Onischuk dated August 10, 2012. 40. On August 24, 2012, Mr.

Onischuk wrote again to Justice Rooke requesting that the filing deadlines be extended, suggesting thatJustice Rooke should recuse himself as the Case Management Judge, that an out of the province judge should be appointed in his placeand that a jury trial should be ordered. Mr. Onischuk again requested that select Defendants should be subject to a lie detector test. Correspondence by Mr. Onischuk dated August 24, 2012; Correspondence by Justice Rooke dated August 24, 2012. 41. On August 26, 2012, Mr.

Onischuk wrote again to Justice Rooke requesting for the fifth time that filing deadlines be extended, thatan out of the province judge be appointed and a jury trial be ordered. Correspondence by Mr. Onischuk dated August 26, 2012. 42. On September 14, 2012, Mr. Onischuk wrote to the Honourable Chief Justice Wittmann of the Alberta Court of Queen’s Benchalleging Justice Rooke was biased and requested that Justice Rooke be replaced as the Case Management Judge, that a jury trial beordered and that the proceedings in the Current Action be stayed until Mr.

Onischuk had finished his submissions in Court of AppealAction No. 1201-0014AC, Daniel W. Onishcuk v. Her Majesty the Queen of Alberta, A Town of Canmore. Correspondence by Mr. Onischuk dated September 14, 2012. [1] Prefontaine v Pairs, at para 15, Dykun v Odishaw, 2000 ABQB 548, at para 42 (Lee J.), Re Lang Michener and Fabian(1987), (ON SC), 37 DLR (4th) 685, at 691 (Ont. H.C.), Winkler v Winkler, (MB KB), [1991] 2WWR 369, at 374 (Man. Q.B.), aff’d (MB CA), [1992] 1 WWR 631 (Man. C.A.). [2] Defined earlier in the brief as Mr.

Onischuk’s claim that on or about August 6 to August 9, 2005, he was exposed tochemicals while voluntarily participating in a clean up of chemicals that spilled into Wabamun Lake following a derailment of CNrailcars on August 3, 2005.