IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160219

Docket: 18204

Registry:
Nelson

Between:

Robert Semenoff,
Executor of the Estate of Bill Semenoff, Deceased

Plaintiff

And

Mike Semenoff and
Marion Demosky

Defendants

Before:
The Honourable Mr. Justice A. Saunders

Reasons for Judgment

[1]            
The defendants seek dismissal of this action by way of the summary trial
rule, Rule 9-7, or alternatively by means of summary judgment, under Rule 9-6,
or by reason of want of prosecution. The defendants further seek an order that
both the plaintiff Robert Semenoff (“Robert”) as executor of the Estate of Bill
Semenoff, and the Estate be declared vexatious litigants.

[2]            
Robert’s father, the late Bill Semenoff (“Bill”), was a brother of the
defendants Mike Semenoff (“Mike”) and Marion Demosky (“Marion”). Bill was
father to the plaintiff Robert.

[3]            
It is common ground that the defendants, together with their late
brother Steve, began to care for their brother Bill following his being
involved in a motor vehicle accident in 1994. In or about 1995, Bill was
diagnosed with dementia and required home support. Marion was advised to have
Bill appoint an attorney. According to Marion – and this is not denied by the
plaintiff Robert – Bill’s other son Howard was not responsive to this
suggestion, and she had no means of contacting Robert. Bill executed a general
power of attorney, appointing Marion under the Power of Attorney Act,
R.S.B.C. 1996, c. 370 on January 18, 1996.

[4]            
Bill died on September 15, 2006.

[5]            
In the Notice of Civil Claim, filed March 8, 2012 and amended December
24, 2012, Robert alleges that between 1996 and Bill’s death, and continuing
thereafter, the defendants dishonestly took advantage of Bill for their own
personal benefit, enriched themselves at the expense of the estate, and failed
to provide an accounting of benefits they received and property they took. It
is alleged that the defendants committed criminal fraud. Remedies sought
against the defendants include general and punitive damages, disgorgement of
profits, and tracing.

[6]            
Robert has been examined for discovery by counsel for the defendants. He
has not examined the defendants for discovery, and has produced no list of
documents.

[7]            
As the respondent to an application for summary trial, the onus is on
the plaintiff to prove his claims: Gichuru v. Pallai, 2013 BCCA 60, at para. 35.

[8]            
Robert has failed to adduce any evidence in support of these grave allegations.
It is clear that this action is founded on nothing more than suspicion,
conjecture and speculation. He conceded during the hearing of this application
that evidence is lacking; nevertheless, he says he remains convinced that, to
borrow a phrase, “the truth is out there”.

[9]            
In respect of the application to have Robert declared a vexatious
litigant, the defendants point to two related actions in which they have been
directly involved. In a Supreme Court action commenced in the Rossland Registry
under Docket No. 8993, Robert and his brother Howard, as executors of
Bill’s estate, sued the present defendants and their brother Steve, apparently
in respect of ownership of the family acreage, located in Ootischenia, B.C.
That action was dismissed with costs on the defendants’ application, and a
Certificate of Pending Litigation (“CPL”) as against the whole of the property
was cancelled. The defendants were given liberty to apply for subdivision of
the property upon cancellation of the CPL, and the plaintiffs were given leave
to commence a fresh action as against the newly-divided sub-parcel on which
Bill’s former residence was situated. It appears that no further steps were taken
by the plaintiffs in this regard. The defendants did not pursue assessment of
their costs as the plaintiffs were destitute.

[10]        
The second such action the defendants point to is an action brought by
Robert as against his late father’s solicitor, a Mr. Bridgeman, claiming
professional negligence in respect of registration of Bill and his three
siblings – the present defendants, and Steve – as joint tenants of the
aforementioned acreage. Mr. Bridgeman third-partied the present
defendants. The case proceeded to trial over nine days in February 2013 before Mr. Justice
Mackinnon, and, following a no-evidence motion brought by the third parties
(the present defendants), the claim against Mr. Bridgeman was dismissed by
way of reasons for judgment issued June 7, 2013 (indexed as 2013 BCSC 1022).
Bridgeman was eventually awarded double costs (indexed as 2014 BCSC 174).

[11]        
The following excerpts from the trial reasons of Mackinnon J. are
illustrative of the plaintiff’s approach to that litigation:

[25] The plaintiff’s pleadings go on for pages making all
sorts of claims, including claims in contract. The trial management judge
described them as “prolix”. I agree and go further to label them, for the most
part, incomprehensible, vexatious and frivolous.

[41] [The plaintiff] spent hours describing his recollection
of his father’s life and proffered opinions in respect to his father’s
competence. He also attempted, through obtuse documentation and inadmissible
opinion evidence, to show the defendant was historically negligent and must
therefore be assumed negligent at bar.

[42] The plaintiff proffered absolutely no evidence to
support any of these claims. Indeed, he wasn’t a witness to any of the
activities that he is now bringing to the Court’s scrutiny.

[60] The plaintiff has utterly
failed to establish any of the many claims he has made. He failed to establish
the nature and extent of the retainer between Bill and the defendant Bridgeman.
He led no expert evidence as t the duty that might be owed in these
circumstances.

[12]        
Justice Mackinnon’s reasons on costs are similarly revealing:

[8] The plaintiff’s submissions on costs were consistent with
his conduct at trial: rambling, unfocused, irrelevant and in many cases plain
wrong.

[10] I do not propose to dignify
his claims by repeating them. They are complete and utter nonsense. Counsel for
both the defendant and third parties acted properly, honourably and expediently
in what must have been the most trying of circumstances.

[13]        
The orders of Mackinnon J. in respect of the merits and in respect of
costs were appealed by Robert. The appeal was eventually moved to the inactive
list. In December 2014, Robert applied unsuccessfully before Frankel J.A. to
have the appeal removed from the inactive list (unreported Oral Reasons for
Judgment dated December 8, 2014). Robert’s application to a panel of three
appellate justices for a review of the order of Frankel J.A. was dismissed on
March 31, 2015 (indexed as 2015 BCCA 139). I am advised that Robert has sought
leave to appeal the dismissal of his application for review, to the Supreme
Court of Canada.

[14]        
The defendants also, during the hearing of the present application,
referred me to a fraudulent conveyance action brought by Robert against
Bridgeman and his wife, in which it was alleged that Bridgeman conveyed to his
wife his interest in their matrimonial home, for the purpose of defeating
execution of any judgment he might obtain in the professional negligence
action. Mr. Justice McEwen dismissed that action on October 11, 2012,
finding it to be an abuse of process, and made a vexatious litigant order
against Robert in respect of any further actions in Supreme Court related to,
connected with or arising out of the facts and matters alleged in the
professional negligence action or the wrongful conveyance action. The
circumstances are discussed in the aforementioned decision of Frankel J.A., at paras. 6-8.

[15]        
In respect of the conduct of the present defendant Marion in acting in
her capacity as attorney, Mackinnon J. made the following remarks in his
trial decision in the professional negligence claim:

[37] The plaintiff is preoccupied with conspiracy
theories which include claims that Mrs. Demosky abused her position of
trust as Bill’s power of attorney, took advantage of Bill’s advancing
disability for her own (and her siblings) advantage and generally acted to
deprive the plaintiff and his brother of an inheritance. Indeed, the plaintiff
has commenced other actions against Mrs. Demosky that make these
allegations.

[38] While it remains to be
determined whether he can prove any of these claims, my assessment of Mrs. Demosky
on this trial was that she is a genuinely caring person who dearly loved her
brother Bill. She consistently stepped up to the plate by sacrificing her own
time and money over many years, to ensure that Bill received the best of care.
For a time she not only had to look after Bill but also her husband who
suffered from Alzheimer’s disease, which eventually caused his death. I had
nothing but admiration for her efforts.

[16]        
Nothing in the evidence presented to me would lead to the conclusion
that Mackinnon J.’s assessment of Marion’s conduct was incorrect. To the
contrary, I am entirely satisfied, on the basis of the evidence of the
defendants, that there is no substance whatsoever to the plaintiff’s claim.
Bill was, throughout, entirely dependent upon his Canada Pension Plan and Old
Age Security benefits, and had no assets to speak of other than a registered
interest in joint tenancy in the aforementioned family acreage. The defendants
accessed Bill’s accounts to make payments on his behalf in respect of his
personal care expenses, his residency, and associated expenses such as
insurance, taxes and utilities. Marion incurred expenses personally in acting
under her power of attorney, but was exceedingly conservative in claiming those
expenses against Bill or his estate. She did make some minor expenditures after
Bill’s death, purportedly under the power of attorney, although she did not
appreciate that the power of attorney expired upon Bill’s death. I am satisfied
such expenditures were made in good faith, and without the defendants being
thereby enriched or advantaged.

[17]        
The payments have been fully accounted for in an analysis prepared by
Yule Anderson, Chartered Accountants, served on Robert in April, 2013. Despite
the accounting having been provided, Robert has persisted in maintaining the
present action.

[18]        
It is apparent to me that throughout the latter years of Bill’s life the
defendants acted towards him with charity, kindness and decency. It is shameful
that their generosity has been met with such hostility on the part of their
nephew, and that they have had to undergo the emotional and financial burden of
litigation.

[19]        
The action is dismissed.

[20]        
The plaintiff’s conduct in making allegations against the defendants of
dishonest and criminal conduct without any justification is reprehensible. The
defendants shall have their costs of this action, assessed as special costs.

[21]        
Robert Semenoff has demonstrated a propensity to abuse the civil justice
system through making grave allegations without any foundation in reality. He
might have drawn the appropriate lesson from the judgment given by Mackinnon J.,
but he did not do so; instead he persisted in maintaining the claim at bar,
without any proof of wrongdoing on the part of the defendants. He has instituted
and maintained vexatious legal proceedings, in the words of s.18 of the Supreme
Court Act, R.S.B.C. 1996 c. 443, habitually, persistently and without
reasonable grounds. I therefore order that Robert Semenoff must not, without
leave of the court, either in his own capacity or in his capacity as executor
of the estate of Bill Semenoff, institute a legal proceeding in any court.

“A. Saunders J.”