Re Onischuk, 2017 ABQB 553

Court of Queen’s Bench of Alberta Citation: Re Onischuk, 2017 ABQB 553 Date: 20170913 Docket: 24-2007617 Registry: Edmonton In the Matter of Bankruptcy of Therese Ann Onischuk Between: Therese Ann Onischuk Applicant - and - Exelby & Partners Ltd., Gary Howitt, R. Donald Wilson, Office of the Superintendent of Bankruptcy, et al, Official Receiver In Bankruptcy, et al, Canada Revenue Agency, et al Respondents _______________________________________________________ Reasons for Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I.

Introduction [ 1 ] Daniel Onischuk [“Mr. Onischuk”] is the subject of two vexatious litigant orders issued under the Judicature Act , RSA 2000, c J-2, ss 23-23.1. On November 26, 2012 I ordered that Daniel Onischuk was prohibited from initiating or continuing any proceedings in

the Provincial Court of Alberta, the Alberta Court of Queen’s Bench, and the Alberta Court of Appeal without leave of the relevant Court, see Onischuk v Alberta , 2013 ABQB 89 , 555 AR 330. The one exception I made in that order was for an appeal Mr. Onischuk was then conducting against the Town of Canmore concerning a contract to control feral rabbits. [ 2 ] On April 22, 2013 the Alberta Court of Appeal dismissed the Canmore feral rabbit appeal on the basis that Mr. Onischuk had no standing in that matter: Onischuk v Alberta , 2013 ABCA 129 , 227 ACWS (3d) 996. The Court of Appeal also declared Mr.

Onischuk “demonstrated a tendency to re-litigate matters”, was a vexatious litigant in relation to that specific manner, and therefore prohibited Mr. Onischuk from pursuing any further steps in that action without leave of that Court. That step closed the loophole left after my order was made the previous year. [ 3 ] On December 23, 2015 Therese Ann Onischuk [“Ms. Onischuk”], who is the wife of Mr.

Onischuk, filed a Statement of Claim against the City of Edmonton and Rod Risling ( Onischuk v Edmonton , Docket #1503-19515), which sought various remedies in relation to allegedly improper residential property tax assessments against the Onischuks’ home. Edmonton responded with an application to strike out the Statement of Claim as futile and barred by the Municipal Government Act , RSA 2000, c M-26. Mr. Onischuk attempted to participate in this action, but Yungwirth J ordered he may not represent Ms.

Onischuk. [ 4 ] On August 12, 2016, both Onischuks initiated another proceeding ( Onischuk v Edmonton Local Assessment Review Board , Docket #1603-14329), styled as an “Originating Application for Leave to Appeal & Judicial Review”, which made largely parallel allegations and claims as the Docket #1503-19515 action. Mr. Onischuk sought leave to participate in the Docket #1603-14329 action. This was followed on November 3, 2016 by an application that I recuse myself due to bias, and to quash all litigation activity restrictions on Mr.

Onischuk After many subsequent filings, on December 6, 2016, I dismissed the Docket #1603-14329 action. [ 5 ] On that date I also ordered Mr. Onischuk is prohibited from representing Ms. Onischuk in the Onischuk v Edmonton , Docket # 1503-19515 action, and that no further filings are permitted in that action without leave of Court. To my knowledge, there has been no further activity in the Onischuk v Edmonton , Docket # 1503-19515 action since that date. II. The Amended Application [ 6 ] On June 19, 2015, Ms. Onischuk was assigned into bankruptcy: Court Docket 24-2007617. Ms.

Onischuk’s bankruptcy received an absolute discharge on April 11, 2017. [ 7 ] Then, on August 25, 2017, Ms. Onischuk filed an “Amended Application for Leave”, naming the Respondents as parties. In brief, the Amended Application alleges conspiracy, malice, negligence, and bad faith by the Respondents in relation to the bankruptcy of both Mr. and Ms. Onischuk.

The Onischuks say they were injured as a result. [ 8 ] The Amended Application seeks many remedies, including: 1. leave to take legal actions against the Respondents; 2. to re-open the bankruptcies and reverse steps taken in those proceedings; 3. orders by this Court to order the Tax Court of Canada vacate or quash proceedings heard by that Court; 4. that any penalties assessed in court awards against the Respondents are largely paid only by named government employees, including from wages, pensions, and RRSPs; this is necessary to “discourage further and future abuses to the applicant and other people”; 5. designating this action a “public interest action for the betterment of the public” and that “absolutely no costs” be payable by Mr. and Ms.

Onischuk; 6. $100,000.00 in aggravated damages for civil rights violations, harassment, mental anguish, and other things; 7. $300,000.00 in punitive damages “to protect civil rights for the public & plaintiffs”; 8. an additional $760,000.00 in “general, aggravated &/or special damages”, which includes $400,000.00 for “personal credit rating (immediate and next 7 years)”; and 9. “leave for Applicant spouse Daniel Onischuk who is not a lawyer to file documents and temporarily represent Therese interests in court ...”. Though the Amended Application does not indicate Mr.

Onischuk as a party to the Amended Application, a number of the remedies sought extend to him as well, such as him having a different Trustee, Mr. Onischuk being granted leave to sue the alleged wrongdoers, and Mr. Onischuk being receiving pre-emptive immunity from cost awards. [ 9 ] On September 5, 2017, Counsel from the Attorney General of Canada, acting on behalf of the Canada Revenue Agency and Office of the Superintendent of Bankruptcy, wrote myself in relation to the Amended Application, noting that Mr.

Onischuk is in violation of the November 26, 2012 vexatious litigant order, which prohibits him from “instituting ... proceedings ... on behalf of any other person ...”. The basis for this is that the Amended Application specifically states that Therese Onischuk authorizes Daniel Onsichuk to act on her behalf. [ 10 ] A simple review of the remedies sought in the Amended Application immediately and obviously discloses several indicia of vexatious litigation, as reviewed in Chutskoff v Bonora , 2014 ABQB 389 at para 92 , 590 AR 288, aff’d 2014 ABCA 444 , including:

1. collateral attacks against other court decisions (Tax Court of Canada actions, concluded bankruptcy proceedings); 2. that elements of the application are futile (the directions to the Tax Court of Canada), and 3. remedies that are excessive, disproportionate, or obviously unjustified (damages awards, damages targeting the personal property of individual government employees). [ 11 ] This, at a minimum, indicates a basis to conclude that the proposed litigation activities are in nature of an abuse of process.

I note, that in reaching this conclusion, I have not determined that those are all the forms of litigation abuse found in the Amended Application; a more thorough investigation may identify other Chutskoff v Bonora indicia. [ 12 ] On July 17, 2017 Ms. Onsichuk filed an Affidavit dated July 14, 2017 in this action. While Ms. Onischuk complains about her own alleged mistreatment, much of the Affidavit instead relates to Mr. Onischuk, and his allegedly unfair treatment. It details his attempts to find work, to establish a business, and how the Trustees refused to treat Mr.

Onischuk fairly, despite their knowledge of the Onischuks’ circumstances. Ms. Onischuk indicates the Respondents intend to harm Mr. Onischuk, and that is a basis for why he should be permitted to litigate against the Respondents. Paragraph 23 indicates Mr. Onischuk participated in preparing the Affidavit. Paragraph 24 explicitly argues in favour of Mr.

Onischuk receiving a remedy from the Amended Application: I also believe that the Courts can save valuable Court time and expenses for all parties by granting Daniel reliefs of Absolute discharge of all creditor debts, including any and all Canada Revenue and Government of Canada debts, all legal fees and all court costs, with a full refund of Trustee fees paid to date, plus interest, or at the very least, no further Trustee fees owed and an Absolute Discharge of ALL Daniels debts. [ 13 ] The Affidavit expands on the allegations of conspiracy and official misconduct found in the Amended Application.

For example, Ms. Onischuk claims that she and her husband were “unfairly targeted” by the audits they received in 2009-2013. This was: ... part of a fishing expedition with a political agenda to harm any people or business that was supporting nature conservation groups. ... We believe we have the legal right to associate with and donate to any lawful persons or groups and that the Canada Revenue Agency exceeded their role ... [ 14 ] Unsubstantiated allegations of conspiracy and official misconduct are another Chutskoff v Bonora indicium of abusive litigation. [ 15 ] The Amended Application and Ms.

Onishcuk’s Affidavit clearly indicate Mr. Onischuk is taking a major role in this proceeding, and is plausibly directing this action. For example, at p 22, the Amended Application describes Mr. Onischuk’s attempts to file documents in this action. Mr. Onischuk is described as being preoccupied by computer files damaged by computer viruses, and his preparation of a property tax appeal. This delayed the Amended Application. Mr. Onischuk is also described as driving this litigation by contacting law firms. [ 16 ] This continues a pattern that appeared in the Edmonton City litigation where Mr.

Onischuk has attempted to use his spouse as a proxy to engage in his own abusive litigation. III. Responding to the Onischuks’ Litigation Activities [ 17 ] Any one of the Chutskoff v Bonora indicia of abusive litigation is a basis on which a court may order a person’s litigation activities are restricted. Here, there are four obvious categories of litigation abuse evident on a first review of the Amended Application and Affidavit. [ 18 ] I have concluded Mr.

Onischuk uses his spouse as a mechanism to engage in his own litigation, and as a consequence bypass the court-ordered restrictions on his access to Alberta courts. [ 19 ] Judicature Act , s 23(4) authorizes this Court to expand the operation of the Onischuk v Alberta , Docket 1103-00285 vexatious litigant order: 23.1(4) The Court may at any time on application or on its own motion, with notice to the Minister of Justice and Solicitor General, make an order under subsection (1) applicable to any other individual or entity specified by the Court who in the opinion of the Court is associated with the person against whom an order under subsection (1) is made. [ 20 ] Ms.

Onischuk is clearly “associated” with Mr. Onischuk. She is his litigation proxy. [ 21 ] Ms.

Onischuk’s Amended Application also indicates she seeks to directly engage in abusive litigation for her own purposes. [ 22 ] I therefore order: 1. under Judicature Act , s 23.1(4), immediately, but on an interim basis, expand the operation of the Onischuk v Alberta , Docket 1103-00285 vexatious litigant order to include a prohibition against Therese Ann Onischuk initiating or continuing litigation in any Alberta courts without leave; 2. the Amended Application which is scheduled to be heard on September 14, 2017 is stayed; 3. Ms.

Onischuk has until September 29, 2017 to make any submissions in writing on whether the Onischuk v Alberta , Docket 1103-00285 vexatious litigant order should be expanded to include her, and the Amended Application struck out as an abuse of court processes; and

4. the Respondents have until October 6, 2017 to make any submissions in writing on whether the Onischuk v Alberta , Docket 1103-00285 vexatious litigant order should be expanded to include Therese Onischuk and the Amended Application struck out as an abuse of court processes; and [ 23 ] The Court will give the Minister of Justice and Solicitor General notice of this matter and requests that any submissions by the Minister of Justice and Solicitor General be filed with the Court and served on the parties by October 6, 2017. [ 24 ] This Court may make the interim order permanent after October 6, 2017. [ 25 ] The Court will prepare and file the Order for this decision.

No appearances Dated at the City of Edmonton, Alberta this 13 th day of September 2017. J.D. Rooke A.C.J.C.Q.B.A. Appearances: None