Dmyterko v Simplii Financial, 2021 ABQB 198

Court of Queen’s Bench of Alberta Citation: Dmyterko v Simplii Financial, 2021 ABQB 198 Date: 20210316 Dockets: 2101 01667, 2101 01668 Registry: Calgary Between: Docket 2101 01667 Janice Dmyterko Plaintiff - and - Simplii Financial Defendant And between: Docket 2101 01668 Janice Dmyterko Plaintiff - and - CIBC Investment Banking Defendant _______________________________________________________ Memorandum of Decision

of the Associate Chief Justice J.D. Rooke _______________________________________________________ I. Introduction [ 1 ] On March 12, 2021, Counsel for Simplii Financial. [Simplii] and CIBC Investment Banking [CIBC] referred to the Court two Statements of Claim filed by Janice Dmyterko [Ms. Dmyterko] as candidate Apparently Vexatious Applications or Proceedings [AVAPs] pursuant to Civil Practice Note No. 7 [CPN7] paragraph 6. I am designated to receive and review potential CPN7 processes in Southern Alberta. [ 2 ] Both of Ms.

Dmyterko’s Statements of Claim are handwritten documents that are sometimes difficult to understand. Each complains about alleged improper actions resulting from Ms. Dmyterko’s borrowing money. A. Dmyterko v Simplii Financial - Alberta Court of Queen’s Bench Docket 2101 01667 [ 3 ] The 2101 01667 Statement of Claim was filed on February 4, 2021. Ms. Dmykerko did not pay a filing fee because she was granted a fee waiver. The Statement of Claim indicates that Ms.

Dmyterko had a chequing account and line of credit first with PC (President’s Choice) Financial and then with its successor Simplii “... for the longest time.” Ms. Dmyterko reports she used the chequing account overdraft. Simplii’s employees instructed Ms. Dmyterko that she must repay overdraft amounts in 30 days. Ms. Dmyterko rejected that, she only had to: ... pay it down when you could ... I told [the Simplii manager] that I did do the proper research before I even took an overdraft. I wanted to make sure I knew what was going on. ... [ 4 ] While Ms.

Dmyterko acknowledges she had debts with Simplii, she claims Simplii acted wrongly “... by giving me a hard time ...”, and listing Ms. Dmyterko’s debts in relation to Ms. Dmyterko’s credit rating. She says a “bait + switch” occurred, and that is illegal. An attached Simplii credit statement appears to, however, indicate that on April 2019 Simplii had written off a $4,741 debt owed by Ms. Dmyterko. [ 5 ] The 2101 01667 Statement of Claim seeks as remedies: 1. that the Court order Ms. Dmyterko’s debts be “written off”, 2. $2 million in US dollars in “compensation” for Simplii’s failure to accept Ms.

Dmyterko’s “research”, 3. $200 million is US dollars for stress because Ms. Dmyterko was told she had to pay her outstanding debts, 4. $1,000 for the five hours required for Ms. Dmyterko to prepare and file the Statement of Claim, and 5. Simplii is “... charged for the illegal “Bait and Switch.” B. Dmyterko v CIBC Investment Banking - Alberta Court of Queen’s Bench Docket 2101 01668 [ 6 ] Ms. Dmyterko’s 2101 01668 Statement of Claim was filed on February 4, 2021, again with a fee waiver. The Statement of Claim states Ms. Dmyterko had been a customer of CIBC for around 10 years.

In 2016-2017, CIBC: ... started to charge me a ridiculous fee of about $75 each time I paid my credit line with my other credit line account! It’s none of their business that along charge a fee for it which already put financial pressure on my finances. [Sic, emphasis in original.] [ 7 ] The Statement of Claim continues that CIBC employees were rude, asked about how Ms. Dmyterko would pay off her debts, when “[t]hat wasn’t any of their business.” Ms. Dmyterko also appears to indicate she should not have had to make payments on her debts because she had other expenses, and was receiving government social support.

The Statement of Claim includes copies of Equifax statements that appear to indicate that Ms. Dmyterko owed a debt of $15,388 that was written off, and that Mr. Dmyterko’s debts were related to a bankruptcy. [ 8 ] The 2001 01668 Statement of Claim seeks as remedies: 1. refund of the $75 fees and interest, 2. $3 million in US dollars for “additional financial stress”, 3. $2 million in US dollars for the “cost to recover my credit rating”,

4. $15 billion in US dollars for the inconvenience of not having a credit card, 5. “Misc charges $2 million”, and 6. that debts from CIBC are removed from Ms. Dmyterko’s credit rating. [9] After review of Ms. Dmyterko’s filings, I conclude that these are AVAPs and should be subject to a CPN7 “show cause”document-based review. II. CPN7 [10] CPN7 is a practice implemented by the Court to better manage litigation that, on its face, appears to be unmeritorious, has noprospect of success, or is otherwise abusive and vexatious.

This practice is intended to provide a timely, proportionate, and cost-effectiveresponse to the litigants: Unrau v National Dental Examining Board, 2018 ABQB 874 [Unrau #1]. [11] If, on initial review by the Court, the pleading appears to be unmeritorious, has no prospect of success, or is otherwise abusiveand vexatious, then the Court issues a first written decision that identifies the apparent issue(

s) which may be a basis to apply Rule 3.68and strikes out the pleading. The party who filed the pleading is then given an opportunity to, within 14 days, provide the Court aWritten Submission of up to a total of ten pages in length that responds to, and demonstrates why, the pleading is a legitimate action andshould be permitted to continue. The Written Submission must be served on the other parties to the litigation. [12] CPN7 is not for “close calls”, but instead the Court intervenes by this mechanism when the defect(

s) in question are “apparenton the face of the pleading”, and the suspect pleadings are “clearer cases of abuse”: Unrau #1, at paras 22, 24. Only restricted forms ofevidence are considered by the Court when it conducts a CPN7 review, since this process has a very narrow focus, and operates toexamine a single document and its content: Ubah #2 at paras 24-48. There are exceptions to that rule.

For example, the Court mayexamine other documents in the same proceeding that are related to the suspect filing (Ubah #2 at para 35), or documents and recordsthat are evidence that the AVAP is an attempt to litigate an issue that has already been decided or closed (Ubah #2 at para 45). III. Analysis [13] Ms. Dmyterko’s Statements of Claim both exhibit the same two apparent issues, so I will address them together. C.

Inadequate Pleadings [14] An application or statement of claim sets the issues to which the opposing party must respond, and alerts that party of the caseit must meet: Whiten v Pilot Insurance Co, 2002 SCC 18 at para 87. Proper pleadings require more than simply bare assertions, or “baldallegations” of wrongdoing: GH v Alcock, 2013 ABCA 24 at para 58; Mancuso v Canada (National Health and Welfare), 2015 FCA227 at paras 16-20.

Pleadings must provide a basis for the Court and other litigants to make a meaningful response, and indicate to theresponding parties the “... who, when, where, how and what gave rise to its liability.”: Mancuso v Canada (National Health andWelfare) at para 19. [15] Ms. Dmyterko cannot file inadequate pleadings and then either supplement those claims, or expect the Defendants to “fill inthe blanks”: Mancuso v Canada (National Health and Welfare) at para 20.

A lack of specificity is not merely a technical defect, butgoes to the core of the claim: GH v Alcock at para 58, citing AL v Ontario (Minister of Community and Social Services) (2006), (ON CA), 274 DLR (4th) 431, 218 OAC 150 (Ont CA). Inadequate pleadings abuse the court’s process because arespondent cannot defend against unclear and non-specific claims and the court cannot control the proceedings, identify the proposedargument, or make findings on the relevant facts: Unrau v National Dental Examining Board, 2019 ABQB 283 at para 629 [Unrau #2]. [16] Ms.

Dmyterko’s Statements of Claim do make certain basic allegations that could be a basis for a valid claim. She says theSimplii employees were wrong in their

interpretation of how bank overdrafts operated. She says CIBC charged her $75 without a legalbasis. Both these claims could, arguably, be the foundation for a lawsuit, probably for a breach of contract. However, that is the pointwhere the “who, when, where, how, and what” ends. The remainder of Ms. Dymterko’s claims are bald allegations. What was the basisfor the contract disagreements? Why did Ms. Dymterko’s research lead her to conclude she did not have to pay back her overdraft debts?What was the “bait + switch”? When did these events occur? Why should Ms.

Dymterko cease to be liable to pay her debts after she wasreceiving government social support? Why should the Court order Ms. Dymterko’s debts be written off when the documents she attachedto her Statements of Claim indicate that had already occurred? [17] I therefore request that Ms. Dmyterko explain how these Statement of Claim pleadings establish a basis for the Court andDefendants to make a meaningful response. D. Excessive or Impossible Remedies [18] Excessive or impossible remedies make litigation a hopeless proceeding that is an abuse of the Court: Unrau #2 at paras 620-625. Ms.

Dmyterko’s lawsuits seek millions, and sometimes billions, of dollars in damages. However, these claims relate to, at most,somewhat over $21,000 in debts. Further, the basis for these amounts is not identified in the Statement of Claim, except for refund of the$75 fee (or fees) in the 2101 01668 action and the $1,000 document preparation charge in the 2101 01667 action. [19] Some of the amounts claimed are incompatible with the alleged wrongdoing. For example, Ms. Dmyterko claims $15 billion

in US dollars because she could not obtain a credit card.

I believe I may take judicial notice that personal credit cards do not permitborrowing of billions of dollars. “Misc charges $2 million” is an extremely large sum that has no documented basis at all. [20] The 2001 01667 Statement of Claim appears to indicate the Court should initiate some kind of criminal or disciplinaryproceeding against Simplii, but provides no basis for why the Court would have that kind of authority, or, indeed, what that proceedingwould be. [21] At least some of the penalties sought appear to be a general “pain and suffering” damages claim, for example $200 million“for stress”.

That amounts greatly exceed the maximum amount of general damages that may be claimed for pain and suffering that wasset in Andrews v Grand & Toy Alberta Ltd, (SCC), [1978] 2 SCR 229, 83 DLR (3d) 452 at $100,000. After inflation, theAndrews v Grand & Toy Alberta Ltd general damages cap is now about $365,000. That amount was for a young adult whose injuriesled to near total disability. Ms. Dmyterko’s claims vastly exceed that cap, and Ms. Dmyterko does not allege injury that would warrantthe maximum $365,000 amount, but instead only “stress”. [22] Ms.

Dmyterko is asked to indicate how her claims in the two lawsuits are not excessive or impossible remedies. IV. CPN7 Analysis [23] Ms. Dmyterko’s Statements of Claim appear to be suitable candidates for review per CPN7. The Court therefore seeks aresponse from Ms. Dmyterko on these questions: 1. How do the Statements of Claim provide a basis for a meaningful response by the Court and Defendants? 2. How are the remedies sought in the Statements of Claim not excessive and/or impossible? [24] Ms. Dmyterko’s Alberta Court of Queen’s Bench Docket 2101 01667 and 2101 01668 Actions are stayed.

CPN7 nowadvances to its second step. 1. Ms. Dmyterko has until 14 days after this decision is filed to file and serve a Written Submission of no more than a total of 10pages, pursuant to CPN7, para 3(b). The Written Submission should be clearly addressed: “To the Attention of Associate Chief JusticeRooke”. 2. If no Written Submission is received by the Court by that deadline, the Court will proceed to render its final decision on whetherthe Statements of Claim should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(c)). 3. If Ms.

Dmyterko provides and serves a Written Submission, then the Defendants have seven days to each make a Written Replyof up to a total of 10 pages in length (CPN7, para 3(d)). The Written Replies should be clearly addressed: “To the Attention of AssociateChief Justice Rooke”. 4. After receipt of Ms.

Dmyterko’s Written Submission, and the Defendants’ Written Replies, if any, the Court will render its finaldecision on whether the Docket 2101 01667 and 2101 01668 Statements of Claim should be struck out in whole or in part, pursuant toRule 3.68 (CPN7, para 3(e)). [25] The Court will prepare and serve the Order staying this action. Ms. Dmyterko’s approval of that Order is dispensed with,pursuant to Rule 9.4(2)(c). Dated at the City of Calgary, Alberta this 16th day of March, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Jordan M. Gruman Anderson Avocats, Barristers, & Solicitors for the Defendants