Banovich v Banovic, 2021 ABQB 790

Court of Queen’s Bench of Alberta Citation: Banovich v Banovic, 2021 ABQB 790 Date: 20211001 Docket: 4803 168372 Registry: Edmonton Between: Natalia Banovich Plaintiff - and - Vlado Banovic Defendant _______________________________________________________ Endorsement of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Vlado Banovic applies for a declaration that Natalia Banovich has breached Alberta Rule 5.33 by using transcripts of the Questioning of Valdo Banovic conducted in this action in another action.

Natalia Banovich cross-applies for after-the-fact permission to use the Questioning transcript. [ 2 ] In June 2019, Ms. Banovich applied to have this divorce and matrimonial property action consolidated with the action in which it is alleged she has improperly used the questioning evidence of Valdo Banovic. Lema J. described the two pieces of litigation in his decision refusing the consolidation: Anokina v.

Banovic , 2019 ABQB 774 at para. 5 : • as of 2004, Vlado Banovic and his adult children Todor Banovic and Suzsanna Banovic owned a residential property in Edmonton (the Heath property) with 50, 25, and 25 per cent shares, respectively; • Vlado married Natalia Anokina in March 2006; • Natalia asserts that, after the marriage and while Vlado, Todor and Suzsanna owned the Heath property, she made various contributions to it, both financial and in the form of services, that increased, or at least maintained, its value and that they received the benefit of those contributions without giving anything in return;

• In 2013, Vlado transferred his 50 per cent interest in that property to Todor and Suzsanna. Later, Todor’s wife (Adrienne Camarena) acquired Suzsanna’s interest from her; • Natalia asserts that she continued making contributions to the property after Vlado sold his interest and, again, received nothing in return; • meanwhile, in 2014, Natalia and Vlado separated.

Natalia filed the divorce/matrimonial property (MP) action against him. (The MP aspect sought an equal division of matrimonial property.) Shortly after, they reconciled and resumed living together, until May 2017, when they separated again; • in September 2017, Natalia started an unjust-enrichment (UE) action against Todor and his wife, anchored on the claimed contributions to the Heath property.

She also filed certificate of lis pendens against it, anchoring her claimed interest; • in October 2017, Natalia revived and amended her divorce/MP action (the “divorce action”), seeking an unequal division of property and also asserting an unjust-enrichment claim against the Heath property and at least two other properties owned in whole or in part by Vlado, seeking recognition of a partial-ownership claim by way of constructive trust in all of them; • Vlado filed a defence and counterclaim in the divorce action (October 2017); • Todor and his wife later conditionally sold the Heath property to a third party, but claim that the purchaser withdrew because of the Certificate of Lis Pendens (CLP).

They eventually sold it to another third party (at a lower price), with Natalia discharging the CLP on the condition that the net sale proceeds (approximately $150,000) be held in trust pending the determination of her partial-ownership claim. The fund continues to be so held; • Todor and his wife filed a counterclaim in the UE action, seeking damages for claimed interference by Natalia in the first sale of the Heath property. They also defended in the UE action, and Natalia has defended in the counterclaim; • Todor and his wife later applied (twice) for

summary dismissal of Natalia’s UE action, largely on the basis of limitations. Michalyshyn J. denied that first application (unreported oral judgment).

Mah J. denied the second judgment on the basis of res judicata and abuse of process; • the UE action is almost ready for trial. (I gave a procedural order on June 4, 2019 outlining various lead-up steps, including the booking of trial dates); • the divorce action is not as far along (many applications to date concerning spousal support and the sale of the Heath property and another property); and • part of the procedural relief sought in June 2019 by Natalia was the consolidation of the divorce and UE actions, as well as an order compelling Todor to provide certain undertaking information. [ 3 ] I understand that Natalia Banovich does not have legal counsel in the UE action.

She is self-represented. She does have legal representation in this action, the divorce and matrimonial property action. [ 4 ] The materials filed on this application include four pages apparently from the transcript of the Questioning of Vlado Banovic in this action, which were an exhibit to an affidavit sworn by Natalia Banovich and filed by her in the “UE Action” on May 27, 2021.

The materials do not indicate what the application in the UE action was for, or whether that application ever proceeded. [ 5 ] The materials filed by Natalia Banovich on this application indicate that she attached the pages from Vlado Banovic’s Questioning in this action to the affidavit she filed in the UE Action to prove that Vlado Banovic’s son, who is one of the defendants in the UE Action, wrote cheques on a HELOC account secured against the Heath property which is the subject of the UE Action. [ 6 ] The implied undertaking of confidentiality in respect of information obtained through Questioning, which has been “codified” in Rule 5.33, exists to balance the fact that, in our civil litigation process, a litigant is obliged to submit to Questioning by the party adverse in interest.

But for the requirement that a litigant submit to Questioning, there would be no opportunity for a party to learn and test the evidence of the party opposite unless and until the party gave evidence at trial. The theory is that it mitigates the imposition on the party required to submit to cross-examination before trial that the evidence given on Questioning is confidential and is required to be maintained in confidence except for the uses that the party who did the Questioning is permitted to make of it at trial.

It cannot be used in another action or for any other purpose unless the Court otherwise orders, the parties agree, or the law otherwise permits. [ 7 ] Ms. Banovich’s use of the transcript of Questioning in the “divorce/MP” action was clearly a breach of the confidentiality requirement. She should not have used the excerpt from the Questioning transcript obtained in this, the divorce/MP, action, without permission from the Court or Vlado Banovic. [ 8 ] However, in my view, Ms. Banovich’s breach of the confidential requirement was a technical breach of that requirement.

And, it was the breach of a person who is self-represented. While the Rules of Court apply to a self-represented litigant just as forcefully as they apply to a litigant who has legal counsel, it is understandable that a person in Ms. Banovich’s position would not appreciate that she was not allowed to use evidence given in Questioning by Vlado Banovic in another action, in the background facts of which he had significant involvement. [ 9 ] Ms.

Banovich’s counsel on this application submitted that it was relevant to observe that Vlado Banovic is not a person who could be questioned in the UE action as specified in Rules 5.17(1), 5.18(1) or 5.37(1) – so Ms. Banovich had no option but to use the Questioning transcript from this action in the UE action. That submission is simply wrong. Vlado Banovic would be subject to questioning under oath before the hearing of an application in the UE action pursuant to Rule 6.8.

[ 10 ] In any event, as I have stated, in my view, Ms. Banovich’s breach of Rule 5.33 is technical. In my view, no consequence should flow from it. [ 11 ] Of course, now that she clearly is aware of the requirements of Rule 5.33 it is doubtful that a future breach of the rule would be seen in the same light. [ 12 ] I will dispose of both applications by ordering that Ms. Banovich not make any use of Questioning of Vlado Banovic in this action in any other action unless the requirements of Rule 5.33 have first been complied with. [ 13 ] It appears to me that these applications served little purpose.

Making a formal application to respond to a technical breach of the Rules by a self-represented litigant is, at best, a questionable use of resources. Neither party is entitled to costs. Heard on the 23 rd day of August, 2021. Dated at the City of Edmonton, Alberta this 01 st day of October, 2021. B.R. Burrows J.C.Q.B.A. Appearances: Jonathan Song for the Plaintiff Stephen Harfield for the Defendant