Anokhina v Banovic, 2018 ABQB 1012

Court of Queen’s Bench of Alberta Citation: Anokhina v Banovic, 2018 ABQB 1012 Date: 20181212 Docket: 1703 19233 Registry: Edmonton Between: Natalia Viktorovna Anokhina (aka Natalia Banovich, aka Natalia Aksenova) Plaintiff/Respondent - and - Todor Banovic and Adrienne Elaine Camarena Defendant/Applicant _______________________________________________________ Decision of the Honourable Mr. Justice Douglas R. Mah _______________________________________________________ Introduction [ 1 ] The issue in this application (to paraphrase a famous philosopher) is whether this is a case of déjà vu all over again.

Background Facts [ 2 ] The parties are all connected to one Vlado Banovic (“Vlado”). To minimalize confusion, I will refer to all the parties by their first names. [ 3 ] The Defendant Todor Banovic (“Todor”) is Vlado’s adult son while the other Defendant, Adrienne Camarena (“Adrienne”), is Todor’s wife. [ 4 ] Vlado and his previous wife (now deceased) formerly owned what I will refer to as the Heath Road Property. There was a mortgage of $275,000 registered against the Heath Road Property.

After Vlado’s first wife died, the Heath Road Property was transferred to Vlado (50%) and his two children Todor and Suzanna (25% each) on December 1, 2004. [ 5 ] Vlado and the Plaintiff Natalia married in March 2006. They built a new matrimonial home between 2010 and 2017. They obtained $400,000 worth of financing in or about June 2012 when major construction began. [ 6 ] Natalia says in August 2012 or thereabout, unbeknownst to her, Vlado diverted $275,000 of that financing to pay out the mortgage on the Heath Road Property.

On August 29, 2013, Vlado transferred his interest in the Heath Road Property to Todor and Adrienne for $1.00. [ 7 ] Vlado and Natalia initially separated in 2014, reconciled for a while starting in 2015 and finally separated in May 2017. [ 8 ] Natalia says that in the course of disclosure in the matrimonial litigation that ensued with Vlado, she discovered in late 2017 that Vlado had surreptitiously used their mortgage funds to pay out the indebtedness against the Heath Road Property, now owned by Todor and Adrienne.

Shortly thereafter, she commenced this action, a claim for unjust enrichment against Todor and Adrienne. The First Application [ 9 ] On March 23, 2018 Todor and Adrienne brought an application for

summary dismissal in regular civil chambers before Justice Michalyshyn. These defendants were represented at the time by Virk Law but not by Mr. Virk himself, but rather by Mr. Virk’s associate, Mr. Horne. [ 10 ] The basis of the

summary dismissal application was that the Natalia had not commenced her action within the two year limitation period. After hearing argument, Justice Michalyshyn reserved his decision. He delivered an oral decision on April 13, 2018, dismissing the

summary dismissal application, giving reasons spanning some seven pages of transcript. Justice Michalyshyn’s Order was not appealed. The Second Application [ 11 ] By way of a special application, the Defendants Todor and Adrienne, now represented by Mr. Virk himself, brought a second

summary dismissal application again relying on the limitation period. This application was heard by me on October 24, 2018. Mr. Najmeddine, who has acted for Natalia throughout, asserted that res judicata applies to the limitation defence and therefore the application should be dismissed again. [ 12 ] During argument, there was suggestion by Mr. Virk that the decision of Justice Michalyshyn was not intended to be final as the matter had been slated for a special.

I determined I should review the transcript of proceedings before Justice Michalyshyn and I ordered the transcript of both the April 6, 2016 and the April 13, 2018 attendances before him. I provided copies to counsel and invited further input by November 30, 2018. Mr. Najmeddine obliged. I received no further submissions from Mr. Virk. Discussion [ 13 ] The assertion that Justice Michalyshyn’s Order of April 13, 2018 was somehow not intended to be final is defeated by the opening lines of the April 13, 2018 transcript: THE COURT: Welcome. Please be seated.

So I have a decision for you, although I had a question too. Nothing turns on it, I don’t think, but let me ask you the question first. Somewhere in the court file, I noted a scheduling confirmation for special chambers in October, October 24, 2018, half-day special chambers, civil. It doesn’t say what it is. I was just curious about that. Is there something else? MR. HORNE: That’s for the counterclaim, My Lord. THE COURT: Okay. All right. So it has nothing to do with this judgment application? MR.

HORNE: No, it doesn’t. [ 14 ] The Court of Appeal has provided this binding analysis of res judicata in, Ernst and Young Inc v Central Guaranty Trust Company , 2006 ABCA 337 , quoting liberally from Donald J. Lange, The Doctrine of Res Judicata in Canada , 2d ed (Ontario: LexisNexis Canada Inc, 2004): • The doctrine of res judicata has two branches: issue estoppel and cause of action estoppel. Issue estoppel precludes the litigation of

an issue previously decided in another court proceeding, while cause of action estoppel precludes the litigation of a cause of action that was determined in a previous court proceeding. • For issue estoppel to be successfully invoked, the following components must be present: the same issue as decided in the prior judicial decision, the same parties and finality of the prior decision. • The final component is whether or not special circumstances might exist to oust res judicata where the party must demonstrate that reasonable diligence was exercised in the first proceeding. [ 15 ] Mr.

Najmeddine invokes the issue estoppol form of res judicata . [ 16 ] There is no question the second application involves the same parties as the first application. It has all been within the same action. There is further no issue that the issue relating to the limitation period was the same in both applications. The two notices of application are nearly identical, the two versions of Todor’s Affidavit contain mostly the same factual allegations and the argument presented on behalf of the Defendants at both applications on limitation expiry was the same. [ 17 ] With regard to finality, Mr.

Virk asserted that there is no binding authority holding that res judicata applies to interlocutory applications. That is a dubious proposition as no coherent system of justice would permit repeated re-litigation of the same interlocutory issue in the same matter, conceivably week after week. The Court of Appeal states at para 38 of Ernst : 38 A decision need not determine the entire subject matter of the relevant litigation in order to meet the second precondition. Rather, the precondition is met where a decision finally disposes of a substantive right between the parties.

Consequentially, "a final disposition in an interlocutory proceeding may give rise to issue estoppel in a different proceeding:" Res Judicata, supra at 86 and 182. [ 18 ] If a final disposition of an interlocutory matter may give rise to issue estoppel in a different proceeding, then surely it would have the same effect in the same proceeding. [ 19 ] Finally, no particular special circumstances were raised.

I commented during the hearing before me that while Todor’s second Affidavit expanded upon the factual material contained in the first Affidavit, all of the information deposed to in the second Affidavit occurred well in the past and was certainly known by him at the time the first Affidavit was sworn. Consequently, there has been no demonstration of the exercise of diligence the first time around that permits a second try.

See also Hill v Hill , 2016 ABCA 49 at paras 29-31 . [ 20 ] Finally, apart from res judicata , I find that the attempt to re-litigate a matter already finally decided constitutes an abuse of the process of this court: Ernst at paras 52 to 54. [ 21 ] As Mr. Najmeddine points out in his November 30, 2018 submission, Justice Michalyshyn thoroughly reviewed the evidence before him (which was the same evidence before me), and found that the Plaintiff Natalia did not learn of her economic injury until sometime in the latter part of 2017. Thus, he concluded, that the Defendant’s

summary dismissal application based on the limitation period failed. I have been given no reason why the soundness or validity of that conclusion can be revisited. [ 22 ] The application before me is dismissed because of res judicata or because it is an abuse of process. Costs [ 23 ] Mr. Najmeddine requested full indemnity costs or costs in the sum of $2,500.00, payable forthwith. As Mr.

Virk has not had the opportunity to address the matter of costs, I provide him with an opportunity to do so, if he so wishes, by way of a no more than one- page single spaced letter, to be received by me no later than December 21, 2018. Order [ 24 ] I direct that Mr. Najmeddine prepare the Order arising from the hearing before me. With regard to the style of cause, an amendment was granted on consent at the beginning of the hearing to amend the Plaintiff’s name to be solely “Natalia Banovich”. A paragraph to that effect should be included in the Order and Mr.

Najmeddine should file an Amended Statement of Claim to reflect the amendment. Heard on the 24 th day of October, 2018. Dated at the City of Edmonton, Alberta this 12 th day of December, 2018.

Douglas R. Mah J.C.Q.B.A. Appearances: Belal Najmeddine Edmonton Law Office for the Plaintiff/Respondent Navdeep S. Virk Virk Law for the Defendant/Applicant