Mikova v Mihalik, 2017 ABQB 507

Court of Queen’s Bench of Alberta Citation: Mikova v Mihalik, 2017 ABQB 507 Date: 20170817 Docket: 1401 07178 Registry: Calgary Between: Katarina Mikova Plaintiff/Applicant - and - Miroslav Mihalik and Andrea Mihalik Defendants/Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.J. Hall _______________________________________________________ [ 1 ] The Applicant, Katarina Mikova, seeks to add David Wright, David G.

Wright Professional Corporation and Wright Law Office (hereinafter collectively referred to as “Wright”) as defendants in this lawsuit. [ 2 ] By Order of this Court on October 21, 2014, Wright was ordered to hold sale proceeds from a property in the amount of $37,410.95 in trust “pending resolution” of the action. [ 3 ] The Defendants/Respondents, Miroslav Mihalik and his daughter, Andrea Mihalik brought an application to summarily dismiss this action.

Upon the Court being advised by the Defendants that the Plaintiff had been properly served but failed to attend the application, Justice Kenny ordered, on July 8, 2015, that this action be dismissed. That Order was served upon the Plaintiff on July 13, 2015. It was provided to Wright on July 8, 2015. [ 4 ] On July 10, 2015 Wright released the trust funds to the Defendant, Andrea Mihalik.

[ 5 ] On July 29, 2015 the Plaintiff served the Defendants with an application to appeal the July 8, 2015 dismissed order. The matter was eventually heard by Justice Kenny on October 28, 2015. The Plaintiff and Defendants both made representations regarding service of the previous application for

Summary Dismissal.

Justice Kenny set aside her early July 8, 2015 order that had dismissed the action. [ 6 ] The result, however, is that the trust funds ordered to be held pending resolution of the action, have now been disbursed to the Defendant, Andrea Mihalik, and no longer secure the claim of the Plaintiff. [ 7 ] The Plaintiff seeks to add Wright as a defendant, claiming that he disbursed the funds in breach of trust. [ 8 ] For the Plaintiff to succeed in such a claim against Wright, she would have to establish that, notwithstanding the July 8, 2015 order of Justice Kenny dismissing the action, Wright continued to have a duty to hold the funds. [ 9 ] That is not the law.

Once an action has been dismissed it has reached “resolution” even if the appeal period has not yet passed; unless the adversely affected party has obtained a stay of the dismissal order; Rule 14.68 of the Alberta Rules of Court . [ 10 ] In this case, Wright was presented with an Order that dismissed the action. Unless he had information that the order had been improperly obtained, he was entitled to rely upon the order as having achieved resolution of the action. [ 11 ] Before me, there is no evidence that Wright had any such knowledge.

Therefore, the contemplated claim against Wright has no reasonable prospect of success. [ 12 ] Should evidence come to light that Wright had such knowledge, and should it eventually appear that the Plaintiff suffered damage as a result of Wright disbursing trust funds, then at that time the Plaintiff could commence action against Wright. However, at present, there is no demonstrated wrongdoing by Wright, nor has the Plaintiff suffered any damages. [ 13 ] In the result, the application to add Wright as a defendant in the action is dismissed. Heard on the 18 th day of July, 2017.

Dated at the City of Calgary, Alberta this 17 th day of August, 2017. R.J. Hall J.C.Q.B.A. Appearances: Katarina Mikova not represented by counsel Miroslav Mihalik and Andrea Mihalik not represented by counsel Richard Van Dorp for David Wright, David G. Wright Professional Corporation and Wright Law Office