Dmyterko v Nissan Canada Inc, 2021 ABQB 996

Court of Queen’s Bench of Alberta Citation: Dmyterko v Nissan Canada Inc, 2021 ABQB 996 Date: 20210622 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 pursuant to Civil Practice Note 7 [CPN7] in decisions reported as Dmyterko v Telus , 2021 ABQB 175 [ Dmyterko #1 ], actions struck out 2021 ABQB 220 [ Dmyterko #3 ]; Dmyterko v Simplii Financial , 2021 ABQB 198 [ Dmyterko #2 ], actions struck out 2021 ABQB 251 [ Dmyterko #5 ]; and Dmyterko v Nissan Canada Inc , 2021 ABQB 219 [ Dmyterko #4 ], actions struck out 2021 ABQB 286 [ Dmyterko #6 ]. [ 2 ] Ms. Dmyterko did not make any Written Submissions in the three CPN7 processes conducted in Dmyterko #1 -6 .

She did, however, at one point interact with the Calgary Alberta Court of Queen’s Bench Clerks, seeking to obtain a restraining order against actor George Clooney. Ms. Dmyterko has not appealed any of the Dmyterko #1-6 decisions. [ 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 ] I concluded in Dmyterko #6 that Ms. Dmyterko appeared to be an appropriate candidate for prospective litigation gatekeeping by a Judicature Act , RSA 2000, c J-2 , ss 23-23.1 order.

Since Slatter JA in Jonsson v Lymer , 2020 ABCA 167 at para 85 (d) [ Lymer ] concluded that this Court should not exercise the own motion authority permitted under Judicature Act , s 23.1, I invited the Defendants in Ms. Dmyterko’s 13 lawsuits to initiate a Judicature Act , s 23.1 process, in light of Ms. Dmyterko’s broad, persistent, and unmanageable litigation record: Dmyterko #6 at para 16 . [ 5 ] Unsurprisingly, none did so.

The lawsuits that had targeted the Defendants had by then been terminated, so the Dmyterko litigation Defendants had no reason to incur additional litigation expenses where the benefit would be to reduce harm to the Court, and not themselves: Dmyterko v Nissan Canada Inc , 2021 ABQB 405 at paras 10-17 [ Dmyterko #7 ].

As I noted in Dmyterko #7 at para 17 , civil dispute litigants are not altruists, nor can they be expected to be altruists. [ 6 ] Given that none of the Dmyterko litigation Defendants responded that they would seek court access restriction gatekeeping proceedings, I concluded that I had satisfied the criteria set in Lymer for the Court to engage its residual own motion authority to initiate a Judicature Act , ss 23-23.1 court access gatekeeping process: Dmyterko #7 at para 18 . The persistent, abusive, and unmanageable character of Ms.

Dmyterko’s litigation had been previously identified and described: Dmyterko #7 at para 19 . [ 7 ] Ms. Dmyterko and the Minister of Justice and Solicitor General were requested to make submissions and file affidavit evidence, by June 9, 2021, in relation to two questions: whether Ms. Dmyterko’s 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? That deadline has passed, and nothing has been received from either Ms.

Dmyterko or the Minister. [ 8 ] My earlier and unappealed Dmyterko #1-6 decisions establish the factual basis for this Court to intervene and impose indefinite prospective court access gatekeeping restrictions on Ms. Dmyterko. Ms. Dmyterko targets a broad range of Defendants in relation to many different complaints. A narrow defendant and/or litigation focus court access restriction order is therefore ineffective. Global court access restrictions are instead warranted: Unrau v National Dental Examining Board , 2019 ABQB 283 at paras 787-799 . However, since Ms.

Dmyterko does not appear to conduct appeals of Alberta Court of Queen’s Bench decisions, there is no reason to extend court access restriction gatekeeping to the Alberta Court of Appeal. Further, I agree with Manson (Estate) v Obsidian Energy Ltd , 2020 ABQB 632 at paras 34-39 , that this Court should not impose litigant gatekeeping steps that affect the Alberta Court of Appeal, until that Court clarifies the jurisdiction of the Alberta Court of Queen’s Bench to do so. [ 9 ] I therefore determine that Ms. Dmyterko is a vexatious litigant, and should be subject to a Judicature Act , ss 23-23.1 Order as

follows: 1. The “Interim Court Access Restrictions” Order filed on May 21, 2021 in Alberta Court of Queen’s Bench Actions No. 2001 10292, 2001 10725, 2001 12765, 2001 12769, 2001 16014, 2001 16015, 2101 00913, and 2101 01669 is vacated immediately. 2. Paragraph 3 of the “Order Striking Out Proceedings” Order filed on April 13, 2021 in Alberta Court of Queen’s Bench Actions No. 2001 10292, 2001 10725, 2001 12765, 2001 12769, 2001 16014, 2001 16015, 2101 00913, and 2101 01669 is vacated immediately. 3.

Janice Dmyterko is prohibited from commencing, or attempting to commence, or continuing, any appeal, action, application, or proceeding in the Alberta Court of Queen’s Bench, and on her own behalf or on behalf of any other person or estate, without an order of the Alberta Court of Queen’s Bench. 4. To commence or continue an appeal, application, or other proceeding in the Alberta Court of Queen’s Bench, Janice Dmyterko shall submit an application to the Chief Justice or Associate Chief Justice, or his or her designate: (

i) The Chief Justice or Associate Chief Justice, or his or her designate, may, at any time, direct that notice of an application to commence or continue an appeal, action, application, or proceeding be given to any other person. (ii) Any application shall be made in writing. (iii) Any application to commence or continue any appeal, action, application, or proceeding must be accompanied by an affidavit:

a) attaching a copy of the Order restricting Janice Dmyterko’s access to the Court of Queen’s Bench of Alberta;

b) attaching a copy of the appeal, pleading, application, or process that Janice Dmyterko proposes to issue or file or continue;

c) deposing fully and completely to the facts and circumstances surrounding the proposed claim or proceeding, so as to demonstrate that the proceeding is not an abuse of process, and that there are reasonable grounds for it;

d) indicating whether Janice Dmyterko has ever sued some or all of the defendants or respondents previously in any jurisdiction or Court, and if so providing full particulars;

e) undertaking that, if leave is granted, the authorized appeal, pleading, application or process, the Order granting leave to proceed, and the affidavit in support of the Order will promptly be served on the defendants or respondents; and

f) undertaking to diligently prosecute the proceeding. (iv) The Chief Justice or Associate Chief Justice, or his or her designate, may:

a) give notice of the proposed claim or proceeding and the opportunity to make submissions on the proposed claim or proceeding, if they so choose, to: (1) the involved potential parties; (2) other relevant persons identified by the Court; and (3) the Attorneys General of Alberta and Canada;

b) respond to and dispose of the leave application in writing; and

c) hold the application in open Court where it shall be recorded. 5. Leave to commence or continue proceedings may be given on conditions, including the posting of security for costs, and proof of payment of all prior cost awards. 6. An application that is dismissed may not be made again, directly or indirectly. 7. An application to vary or set aside this Order must be made on notice to any person as directed by the Court. 8. The Clerks of the Court of Queen’s Bench of Alberta shall refuse to accept or file any documents or other materials from Janice Dmyterko unless: (

i) Janice Dmyterko is a named party in the action in question, and (ii) if the documents and other materials are intended to commence or continue an appeal, action, application, or proceeding, Janice Dmyterko has been granted leave to take that step by the Court. 9.

The Clerks of the Court of Queen’s Bench of Alberta shall refuse any fee waiver application by Janice Dmyterko, unless leave to apply for a fee waiver has been granted by Associate Chief Justice Nielsen in Judicial Centres in Red Deer and north, or by Associate Chief Justice Rooke in Judicial Centres south of Red Deer, or by the delegates of the Associate Chief Justices. 10.

The approval of Janice Dmyterko as to the form and content of this Order is not required per Rule 9.4(2)(c). [ 10 ] Since this process was conducted on the Court’s own motion there is no order as to costs. [ 11 ] The Court will prepare and serve the Order giving effect to this decision. 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 22 nd day of June, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: None