Dmyterko v Nissan Canada Inc, 2021 ABQB 405

Court of Queen’s Bench of Alberta Citation: Dmyterko v Nissan Canada Inc, 2021 ABQB 405 Date: 20210521 Dockets: 2001 10292, 2001 10725, 2001 12765, 2001 12769, 2001 16014, 2001 16015, 2101 00913, 2101 01669 Registry: Calgary Between: Docket 2001 10292 Janice Dmyterko Plaintiff - and - Nissan Canada Inc Defendant And between: Docket 2001 10725 Janice Dmyterko Plaintiff - and - Judy Sharratt and Barry Herchuk Defendants And between: Docket 2001 12765 Janice Dmyterko

Plaintiff - and - EIA (Edmonton International Airport) Defendant And between: Docket 2001 12769 Janice Dmyterko Plaintiff - and - George Clooney, Julia Roberts, Cindy Crawford, Rande Gerber, Brad Pitt, Jennifer Aniston, and Angelina Jolie Defendants And between: Docket 2001 16014 Janice Dmyterko Plaintiff - and - Shaw and Shaw Communications Defendants And between: Docket 2001 16015 Janice Dmyterko Plaintiff - and - Apple Computers and all their named companies Apple Inc.

Defendants And between: Docket 2101 00913 Janice Dmyterko Plaintiff - and - RBC (Royal Bank of Canada) Defendant And between: Docket 2101 00913 Janice Dmyterko Plaintiff - and - Alberta Dental Association and College Defendant And between: Docket 2101 01669 Janice Dmyterko Plaintiff - and - Rogers Communications

Defendant _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ [ 1 ] Between September 1, 2020 and February 4, 2021, Janice Dmyterko [Ms. Dmyterko] filed 14 Statements of Claim in the Alberta Court of Queen’s Bench. One action was discontinued.

The remaining thirteen were struck out as abusive litigation: • Alberta Court of Queen’s Bench Docket 2001 10628 : Dmyterko v British Royal Monarch, British Monarchy, Monarchy of the United Kingdom, Queen Elizabeth, the Queen, Elizabeth Bowes-Lyon, Princess Margaret, Countess of Snowdon, Queen Elizabeth II, Prince Philip, Prince Charles, Duchess Camilla, Prince William, Duchess Kate, Prince George, Princess Charlotte, Prince Louis, Prince Harry, Meghan Markle - Statement of Claim filed September 9, 2020, discontinued December 2, 2020.

Dmyterko v Telus , 2021 ABQB 175 [ Dmyterko #1 ], actions struck out 2021 ABQB 220 [ Dmyterko #3 ] • Alberta Court of Queen’s Bench Docket 2001 12768 - Dmyterko v Telus • Alberta Court of Queen’s Bench Docket 2101 01670 - Dmyterko v Koodo Mobile Dmyterko v Simplii Financial , 2021 ABQB 198 [ Dmyterko #2 ], actions struck out 2021 ABQB 251 [ Dmyterko #5 ] • Alberta Court of Queen’s Bench Docket 2101 01667 - Dmyterko v Simplii Financial • Alberta Court of Queen’s Bench Docket 2101 01668 - Dmyterko v CIBC Investment Banking Dmyterko v Nissan Canada Inc , 2021 ABQB 219 [ Dmyterko #4 ], actions struck out 2021 ABQB 286 [ Dmyterko #6 ]: • Alberta Court of Queen’s Bench Docket 2001 10292 - Dmyterko v Nissan Canada Inc • Alberta Court of Queen’s Bench Docket 2001 10725 - Dmyterko v Judy Sharratt and Barry Herchuk • Alberta Court of Queen’s Bench Docket 2001 12765 - Dmyterko v EIA (Edmonton International Airport) • Alberta Court of Queen’s Bench Docket 2001 12769 - George Clooney, Julie Roberts, Cindy Crawford, Rande Gerber, Brad Pitt, Jennifer Aniston, and Angelina Jolie • Alberta Court of Queen’s Bench Docket 2001 16014 - Dmyterko v Shaw and Shaw Communications • Alberta Court of Queen’s Bench Docket 2001 16015 - Dmyterko v Apple Computers • Alberta Court of Queen’s Bench Docket 2101 00913 - Dmyterko v RBC (Royal Bank of Canada) • Alberta Court of Queen’s Bench Docket 2101 00913 - Dmyterko v Alberta Dental Association and College • Alberta Court of Queen’s Bench Docket 2101 01669 - Dmyterko v Rogers Communications [ 2 ] Ms.

Dmyterko has not appealed Dmyterko #1-6 . [ 3 ] In the Dmyterko #1 -6 decisions, I came to the following conclusions: 1. Ms. Dmyterko consistently and persistently files hopeless and abusive lawsuits ( Dmyterko #1 at paras 19-22 ; Dmyterko #2 at paras 14-17 ; Dmyterko #4 at paras 52-55 ); 2. Ms. Dmyterko consistently and persistent seeks excessive and impossible remedies ( Dmyterko #1 at paras 23-26 ; Dmyterko #2 at paras 18-22 ; Dmyterko #4 at paras 62-67 ); 3. Ms. Dmyterko’s abuse of the Court cannot be managed by processes such as case management because, when she repeatedly returns to the Court, Ms.

Dmyterko files new lawsuits against different and new Defendants ( Dmyterko #6 at para 14 ). [ 4 ] These findings of fact and law are a clear basis to evaluate whether Ms. Dmyterko should be subject to prospective court access restrictions pursuant to Judicature Act , RSA 2000, c J-2 , ss 23-23.1: Unrau v National Dental Examining Board , 2019 ABQB 283 ; Jonsson v Lymer , 2020 ABCA 167 [ Lymer ].

[ 5 ] Judicature Act , s 23.1 states: Where on application or on its own motion , with notice to the Minister of Justice and Solicitor 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 a further proceeding or institute proceedings on behalf of any other person, or (

b) a proceeding instituted by the person may not be continued, without the permission of the Court. [Emphasis added.] [ 6 ] Despite the clear language in Judicature Act , s 23.1, Slatter JA ruled, in Lymer at paras 43-48 , that the explicit authority provided by the Legislature should be “read down”. A judge who exercises that authority “... undermines the neutrality of the court.” What remains of the “on its own motion” authority is a “residual” authority: ...

The court should only act where the parties have for some reason failed to act, and the broader interests of the administration of justice are compromised. Vexatious litigant applications should primarily be litigant driven.

While the court has a residual ability to trigger a vexatious litigant application on its own motion, the court should only initiate the process where the litigants have failed to do so after invitation and the overall interests of the administration of justice are engaged, or there is another justification for doing so. [ Lymer at paras 48, 85 (d), emphasis added.] [ 7 ] Court access restrictions pursuant to Judicature Act , ss 23-23.1 are a “last ditch” step when everything else has failed: “...

Vexatious litigant orders should only be made when other procedural techniques have proven to be inadequate and the offensive conduct is persistent.”: Lymer at para 85 (f). [ 8 ] In the Dmyterko #1 -6 decisions, I concluded Ms. Dmyterko had engaged in repeated, persistent, abusive litigation, and that steps such as case management would not manage Ms. Dmyterko’s abuse of the Court.

I therefore in Dmyterko #6 at para 16 : 1. invited the Defendants in the Dmyterko lawsuits to initiate a Judicature Act , ss 23-23.1 court access restriction process, and 2. requested the Defendants respond, by May 10, 2021, as to whether they would take that step. [ 9 ] Defendants Rogers Communications, Royal Bank of Canada, Judy Sharratt, and Barry Herchuk responded that they would not be making a Judicature Act , ss 23-23.1 application in relation to Ms. Dmyterko. No response was received from any other Defendants in the Dmyterko #1 -#6 litigation. [ 10 ] The opposing parties in Ms.

Dmyterko’s litigation have therefore “for some reason failed to act”. The reason for their inaction is actually quite obvious. Ms. Dmyterko has a pattern of litigation where she initiates lawsuits against one or more parties, and then shifts to another target or targets, and so on. To date, she has not repeated her litigation, though many of her lawsuits are loosely organized under a broader allegation that actor George Clooney and his Hollywood allies are engaged in ongoing persecution and harassment of Ms. Dmyterko, and theft of her intellectual property. [ 11 ] That means that once Ms.

Dmyterko’s many lawsuits were struck out there is little reason for the individual Defendants to care about what Ms. Dmyterko does in the future, or, more generally, about the long-term and ongoing impact of Ms. Dmyterko on the Court and its operation. Court proceedings to impose court access restrictions are expensive: Gao v Ontario WSIB , 2014 ONSC 6497 at para 8 ; Olumide v Police Commissioner and Human Rights Commission , 2021 PECA 4 at para 9 .

Their associated documentary records are sometimes very extensive, such as the nine-binder affidavit that documented the abusive litigation conduct of the respondent in Martinez v Chaffin , 2019 ABQB 349 at para 11 . Abusive litigants often make strenuous efforts to frustrate court access restriction proceedings, e.g. IntelliView Technologies Inc v Badawy , 2018 ABQB 961 at paras 31-95 , aff’d 2019 ABCA 66 ; Alberta Lawyers Insurance Association v Bourque , 2018 ABQB 821 at paras 21-112 . [ 12 ] Abusive litigants affect more than the targets of the litigation.

Abusive litigants have a significant deleterious effect on court function. Recently, in Lochner v Ontario Civilian Police Commission , 2020 ONCA 720 , the Ontario Court of Appeal highlighted the harm that abusive litigants cause to all aspects of court operation, and, particularly, to staff function: Vexatious litigants are a drain on our system of justice. In addition to being a burden on the opposing parties, they are a burden on the judiciary and court personnel.

At least the judiciary has mechanisms to attempt to address the conduct of vexatious litigants, but court personnel are ill-equipped to do anything when faced with a barrage of telephone calls, emails, and other communications frequently characterized by incendiary and rude remarks . The cost and time incurred by opposing parties is significant, and adverse costs awards frequently cannot be relied upon to discourage future comparable behaviour. [Emphasis added.] [ 13 ] I confirm that the Ontario Court of Appeal’s experience with abusive litigants applies in our Court.

Their misconduct directed to court staff, particularly Clerks of the Court, and Judicial Assistants, is a very real issue. These court staff are professionally obliged to attempt to assist litigants, even when those litigants are misusing the Court, and abusing its staff. [ 14 ] The harassment and abuse received by the Court ranges widely.

For example, recently Alberta Court of Queen’s Bench staff and judges have been targeted with documents threatening “the gallows” as retaliation for court personnel discharging their legal and professional obligations: see AVI v MHVB , 2020 ABQB 489 and AVI v MHVB , 2020 ABQB 790 for discussion of this “Magna Carta

Lawful Rebel” phenomenon. [ 15 ] More conventional counter-attacks also occur. Personally, I have repeatedly been the target of futile and abusive litigation: e.g. Williams v Payette (June 11, 2019), Toronto T-1200-18 (FC), reconsideration rejected (17 September 2019), Toronto T-1200-18 (FC); Potvin v Rooke (3 March 2019), Calgary T-1546-18 (FC), aff’d 2019 FCA 285 ; Williams v Rooke (12 August 2019), Ottawa T- 2105-18 (FC); Rooke v Williams , 2020 FC 1070 . I am far from the only judge, Master, or staff member of this Court to have targeted with retaliatory lawsuits by abusive litigants.

This pattern of expanding litigation that targets decision-makers in dispute resolution processes is a well-known characteristic of the querulous paranoia psychiatric condition: Gary M Caplan & Hy Bloom, “Litigants Behaving Badly: Querulousness in Law and Medicine” 2015 44:4 Adv Q 411; Paul E Mullen & Grant Lester, “Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous Paranoia to Querulous Behaviour” (2006) 24 Behav Sci Law 333; Yves-Marie Morissette, “Querulous and Vexatious Litigants as a Disorder of a Modern Legal System”, 24 Can Crim L Rev 265. [ 16 ] Stratas JA in Canada v Olumide , 2017 FCA 42 at paras 19-20 has described how an individual abusive litigant consumes many times the court resources than other litigants, and inaction amplified that negative effect: The Federal Courts have finite resources that cannot be squandered.

Every moment devoted to a vexatious litigant is a moment unavailable to a deserving litigant. The unrestricted access to courts by those whose access should be restricted affects the access of others who need and deserve it. Inaction on the former damages the latter. ... This isn’t just a zero-sum game where a single vexatious litigant injures a single innocent litigant. A single vexatious litigant gobbles up scarce judicial and registry resources, injuring tens or more innocent litigants.

The injury shows itself in many ways: to name a few, a reduced ability on the part of the registry to assist well-intentioned but needy self-represented litigants, a reduced ability of the court to manage proceedings needing management, and delays for all litigants in getting hearings, directions, orders, judgments and reasons. [ 17 ] The simple fact is that the individual litigant does not care about whether or not courts function. They are instead concerned about their bottom line: ending abusive litigation directed at them as quickly as possible, with the minimum of expense.

The Dmyterko #1-6 Defendants have a perfectly good reason to not pursue a Judicature Act , ss 23-23.1 application. They simply don’t care – nor should they, from their individual perspective. Ms. Dmyterko is now someone else’s problem, and those “someone elses” will always include the Court, its staff, and justices. However, we who manage the trial courts care. In my opinion, this is a shortcoming of the Lymer approach of primarily delegating abusive litigant management to parties. Parties care only about themselves. They are not altruists, nor can they reasonably expect to be altruists.

Damage and degradation of the court apparatus is somebody else’s problem. I am prepared to take that on for trial courts. [ 18 ] In any case, I believe I have now satisfied the criteria set in Lymer to exercise this Court’s residual authority to initiate a Judicature Act , ss 23-23.1 process on the Court’s own motion. [ 19 ] I have previously identified how Ms. Dmyterko’s litigation is an abuse of the Court. I therefore request Ms.

Dmyterko make written submissions as to whether her persistent abusive litigation: 1. should result in prospective court access restrictions, pursuant to Judicature Act , ss 23-23.1, and 2. what should be the scope of court access restrictions, if any? [ 20 ] A copy of this decision will be directed to the Minister of Justice and Solicitor General pursuant to Judicature Act , s 23.1(1). [ 21 ] Submissions and supporting affidavit evidence should be received from Ms. Dmyterko by June 9, 2021.

If the Ministry seeks to participate in this process, I request that its written submissions and affidavit evidence is received on the same date. [ 22 ] The Court will prepare and serve an interim court access restriction order on Mr. Dmyterko’s Alberta Court of Queen’s Bench litigation activities. 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 21 st day of May, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: None