Date: 19981009
Docket: T-1666-98
BETWEEN:
WALTER SCHEPANOW
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO,
BODAN ZAROWSKY, EUGENIA KARNAUH,
Executors of the Estate of Peter Starodub,
MITCHELL, BARDYN, ZALUCKY, IHOR BARDYN,
VICTOR LISHCHYNA, YAROSLAV MIKITCHOOK,
McMILLAN BINCH, W. BRAD HANNA, JOHN TAMMING,
MARKLE, MAY, PHIBBS, RICHARD EVENSON,
DUNDALK DISTRICT CREDIT UNION,
CANADIAN IMPERIAL BANK OF COMMERCE, and
BANK OF MONTREAL
Defendants
Reasons for Order
McKeown J.
[1] I dismissed the action with respect to the Defendants Bodan Zarowsky, Mitchell, Bardyn, Zalucky, Ihor Bardyn, Victor Lishchyna, Yaroslav Mikitchook, McMillan Binch, W. Brad Hanna, John Tamming, Markle, May, Phibbs and Richard Evenson (the "Defendant Solicitors") on October 5, 1998 on the basis that the Federal Court had no jurisdiction, and I reserved on the question of an order enjoining the Plaintiff from commencing further proceedings in this Court without leave of the Court.
[2] Subsection 40(1) of the Federal Court Act reads as follows,
| Where the Court is satisfied, on application, that a person has persistently instituted vexatious proceedings or has conducted a proceeding in a vexatious manner, the Court may order that no further proceedings be instituted by the person in the Court or that a proceeding previously instituted by the person in the Court not be continued, except by leave of the Court. |
[3] In accordance with subsection 40(2), the consent of the Attorney General of Canada was filed.
[4] Peter Starodub died on January 31, 1991. In his Last Will and Testament, he named the Defendants Bodan Zarowsky and Eugenia Karnauh as the Executors of his Estate. Mr. Zarowsky is a solicitor, and had prepared the Will. The Plaintiff in this action was the deceased" stepson. He was not named as a beneficiary under his late stepfather"s Will. I will briefly outline the extent of litigation in which he has engaged the Estate between 1991 and the present.
[5] In 1991, the Plaintiff commenced proceedings in the Ontario Court (General Division), challenging the validity of his stepfather"s Will. He alleged that the Will was procured by undue influence and fraud, and he alleged that the deceased lacked the requisite testamentary capacity when he executed the Will. Following a five-day trial, his allegations were dismissed. Mr. Justice Zelinsky did not find any vexatious conduct in this matter and he stated that the case probably arose because of the deceased lying to Mr. Schepanow. He did not assess costs against Mr. Schepanow, even though Mr. Schepanow lost his action.
[6] In 1994, Mr. Schepanow commenced a second proceeding in the Ontario Court (General Division), wherein he asserted that the assets in his late stepfather"s Estate were impressed with a trust in his favour. He claimed to be entitled to $250,000 from the Estate, on the basis of unjust enrichment, deceit and quantum meruit . This second application was dismissed in January 1996. Mr. Justice McRae stated,
| [t]here have been a multitude of proceedings launched by Mr. Schepanow and he has clearly demonstrated that his conduct is vexatious, frivolous and without any likely chance of success. |
[7] However, Mr. Justice Robins, in the Court of Appeal, in dismissing the appeal, stated,
| [w]e have some doubt as to whether McRae J. properly dismissed the application as "frivolous and vexatious", however, the appellant is in breach of at least three orders made against him in the course of the proceedings. He has made it clear that he cannot or will not comply with those orders... Non-compliance with these orders justifies the dismissal of the appellant"s application. |
[8] Mr. Schepanow then commenced a third proceed in the Ontario Court (General Division). This proceeding was dismissed by Mr. Justice Herold on January 9, 1998, who stated,
| [t]his is, in my view, one of the clearest and most flagrant examples of a vexatious proceeding and is, on its face, an abuse of the court process. |
[9] The claims advanced in these third proceedings were a repetition of Mr. Schepanow"s earlier claims to an interest in the assets comprising his stepfather"s Estate.
[10] Mr. Schepanow has filed complaints with the Law Society of Upper Canada in respect of a number of solicitors involved in the Estate and his litigation against it, including but not limited to the solicitors who are named as defendants in this action. These complaints have been dismissed by the Law Society.
[11] Following extensive unsuccessful litigation in the Ontario Court (General Division), Mr. Schepanow has now commenced this action against a number of solicitors who were involved with the Estate in various different ways. He has sued the solicitors who prepared the Will in question before me, the solicitor who prepared an earlier Will which Mr. Schepanow prefers, several solicitors involved in defending Mr. Schepanow"s unsuccessful litigation against the executors, the executors, and a solicitor who briefly acted for Mr. Schepanow.
[12] The Statement of Claim before the Federal Court is a rambling and incoherent document. The subject matter of the statement of claim does not come within the jurisdiction of the Federal Court.
[13] In support of this motion pursuant to s. 40 (1) of the Federal Court Act, the defendants rely on Re Lang Michener et al. and Fabian et al. (1987), 59 O.R. (2d) 353, in which the comparable Ontario provision, s. 150 of the Courts of Justice Act, 1984 was applied. However, I note that in Canada v. Warriner, (1993), 70 F.T.R. 8 in which McGillis J. applied s. 40 of the Federal Court Act, 1985, the respondent"s conduct "demonstrate[d] unequivocally that she [had] persistently instituted vexatious proceedings or [had] conducted a proceeding in a vexatious manner." In the matter before me, in light of the comments of the judge in the first proceeding in the Ontario Court (General Division) and of the Ontario Court of Appeal in the second proceeding, there is some equivocation on the question of vexatiousness. In my view, a section 40 Order from this Court would be premature at this time, particularly since the matter has been dismissed on the basis of this Court"s lack of jurisdiction. The subject matter of Wills and Estates is clearly a matter for provincial courts and, as I stated in my earlier Reasons, the Charter of Rights arguments must be attached to a subject matter in which this Court is a court of competent jurisdiction. The high standards required for a section 40 Order are not met at this time.
[14] Accordingly, the motion seeking to enjoin the Plaintiff from commencing any proceedings, except by leave of this Court, is dismissed without costs.
William P. McKeown
_____________________
JUDGE
OTTAWA, Ontario
October 9, 1998.