Date: 20060119
Dockets: T-685-03
T-1297-05
Citation: 2006 FC 46
Ottawa, Ontario, the 19th day of January 2006
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
JEAN-GUY SAVARD & ALBERT DUTERVILLE
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application filed by the Attorney General of Canada (the Attorney General) pursuant to section 40 of the Federal Courts Act (the Act) for an order by this Court prohibiting the defendant Jean-Guy Savard, an inmate of the Correctional Service of Canada (the Service), from instituting or continuing proceedings in the Federal Court without the Court's leave.
[2] I consider that the Attorney General's application is moot in docket T-685-03, as the applicants discontinued their application for judicial review by a letter dated July 14, 2003, filed in the Registry on July 18, 2003, in which they stated [TRANSLATION] "We hereby wish to abandon our application for judicial review in the aforementioned case".
[3] However, the Attorney General's application seeking a vexatious litigant ruling against Mr. Savard has not become moot, since on July 23, 2005, Mr. Savard filed in the Registry of this Court, in docket T-1297-05, a notice of application for judicial review dated July 18, 2005, seeking to quash the decision by the third administrative level of the Correctional Service of Canada on July 6, 2005, affirming a previous decision (on July 30, 2004) giving him a maximum security rating.
[4] In support of this application, the Attorney General filed four volumes of documents indicating that, between March 2, 1988 and August 29, 2003, 13 applications for judicial review or declaratory actions had been instituted in this Court by the inmate Savard against the Attorney General or Her Majesty the Queen.
[5] Those proceedings initiated by Mr. Savard in this Court dealt either with his security rating in the Service's penitentiaries, his transfer from one penitentiary to another, his placement in segregation or certain decisions of a disciplinary tribunal.
[6] Most of these proceedings were struck out by the Court on the grounds that they disclosed no cause of action, were scandalous, frivolous or vexatious or were otherwise an abuse of process.
[7] Three of Mr. Savard's proceedings (T-752-01, T-300-02 and T-662-02) were dismissed for delay.
[8] Only one of these proceedings was heard on the merits, namely that in docket T-59-01. His action was dismissed with costs.
[9] What is more, the Attorney General's record disclosed several applications for habeas corpus filed in the Quebec Superior Court by Mr. Savard. According to Canada v. Warrimer, [1993] F.C.J. 1007, this Court may pursuant to section 40 of the Act take into account proceedings initiated in provincial courts.
[10] All the proceedings filed by Mr. Savard in the Quebec Superior Court were dismissed or struck out.
[11] On a motion by the Quebec Attorney General's prosecutor, on October 15, 2002, Jean-Guy Savard was declared a vexatious litigant by the Honourable Richard Grenier of the Quebec Superior Court. It was ordered that any proceeding filed by Jean-Guy Savard in any of the districts included in the Quebec Appeal District would have to be authorized by the Associate Chief Justice of the Superior Court before it would be stamped, served and filed.
[12] Section 40 of the Federal Courts Act reads as follows:
| Vexatious proceedings
40. (1) If the Federal Court of Appeal or the Federal Court is satisfied, on application, that a person has persistently instituted vexatious proceedings or has conducted a proceeding in a vexatious manner, it may order that no further proceedings be instituted by the person in that court or that a proceeding previously instituted by the person in that court not be continued, except by leave of that court.
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Poursuites vexatoires
40. (1) La Cour d'appel fédérale ou la Cour fédérale, selon le cas, peut, si elle est convaincue par suite d'une requête qu'une personne a de façon persistante introduit des instances vexatoires devant elle ou y a agi de façon vexatoire au cours d'une instance, lui interdire d'engager d'autres instances devant elle ou de continuer devant elle une instance déjà engagée, sauf avec son autorisation.
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| Attorney General of Canada
(2) An application under subsection (1) may be made only with the consent of the Attorney General of Canada, who is entitled to be heard on the application and on any application made under subsection (3).
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Procureur général du Canada
(2) La présentation de la requête visée au paragraphe (1) nécessite le consentement du procureur général du Canada, lequel a le droit d'être entendu à cette occasion de même que lors de toute contestation portant sur l'objet de la requête.
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| Application for rescission or leave to proceed
(3) A person against whom a court has made an order under subsection (1) may apply to the court for rescission of the order or for leave to institute or continue a proceeding.
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Requête en levée de l'interdiction ou en autorisation
(3) Toute personne visée par une ordonnance rendue aux termes du paragraphe (1) peut, par requête au tribunal saisi de l'affaire, demander soit la levée de l'interdiction qui la frappe, soit l'autorisation d'engager ou de continuer une instance devant le tribunal.
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| Court may grant leave
(4) If an application is made to a court under subsection (3) for leave to institute or continue a proceeding, the court may grant leave if it is satisfied that the proceeding is not an abuse of process and that there are reasonable grounds for the proceeding.
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Pouvoirs du tribunal
(4) Sur présentation de la requête prévue au paragraphe (3), le tribunal saisi de l'affaire peut, s'il est convaincu que l'instance que l'on cherche à engager ou à continuer ne constitue pas un abus de procédure et est fondée sur des motifs valables, autoriser son introduction ou sa continuation.
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| No appeal
(5) A decision of the court under subsection (4) is final and is not subject to appeal.
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Décision définitive et sans appel
(5) La décision du tribunal rendue aux termes du paragraphe (4) est définitive et sans appel.
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[13] This Court and the Federal Court of Appeal have identified certain principles underlying section 40 of the Act.
[14] Stone J.A. of the Federal Court of Appeal stated the guiding principle in Canada v. Olympia Interiors Ltd., 2004 FCA 195, at paragraph 6:
¶ 6 The power conferred on the Court by subsection 40(1) of the Act is, of course, most extraordinary, so much so that it must be exercised sparingly and with the greatest of care. In a society such as ours, the subject is generally entitled to access the courts with a view of vindicating his or her rights. This concern was obviously in the mind of the legislators, seeing that some balance is built into section 40 by allowing proceedings to be instituted or continued with leave of the Court. As was stated in Law Society of Upper Canada v. Chavali (1998), 21 C.P.C. (4th) 20, at paragraph 20, with respect to parallel legislation of Ontario, "the order puts the Court in control of the process." The net effect is that a person who becomes the subject of a subsection 40(1) order is not totally foreclosed from instituting a fresh proceeding or of continuing an existing one. He or she must first obtain the Court's permission to do so.
[15] Canada v. Olympia Interiors Ltd., supra, involved an appeal from a judgment by my colleague Dawson J., who had declared Ms. David a vexatious litigant. Stone J.A. supported the approach by Dawson J., to exercising the discretion conferred by section 40 of the Act.
[16] That approach was based on certain judgments rendered by Ontario courts in connection with the power conferred by subsection 140(1) of the Courts of Justice Act, the wording of which is similar to that of subsection 40(1) of the Act.
[17] I refer to paragraphs 50, 51 and 52 of the reasons of Dawson J. in Canada v. Olympia Interiors, [2001] F.C.J. No. 1224:
¶ 50 An order under section 40(1) is an extraordinary remedy. However in appropriate cases the remedy is necessary in order to maintain respect for the judicial process and to protect others from frivolous and pointless litigation.
FACTORS TO BE CONSIDERED
¶ 51 As for the factors to be considered an application is brought pursuant to subsection 40(1) of the Act, in Vojic v. Canada (Minister of National Revenue), [1992] F.C.J. No. 902, T-663-92 and T-1300-92 (October 2, 1992) (T.D.), McGillis J. of this Court stated as follows:
Since this section is similar in wording to subsection 150(1) of the Courts of Justice Act, 1984, S.O. 1984 c. 11, guidance may be obtained in determining the law applicable to vexatious proceedings by referring to judgments rendered in Ontario.
A review of the Ontario authorities reveals that the categories for vexation are never closed and the history of the proceedings must be examined carefully to determine if the conduct of the litigant is vexatious in nature. Proceedings have been held to be vexatious in circumstances where there were no reasonable grounds to institute the action, the issue had already been determined by the court and unsuccessful appeals were pursued. [See Foy v. Foy (1979), 102 D.L.R. (3d) 342 (Ont. C.A.); Re Mascan Corp. and French (1988), 49 D.L.R. (4th) 434 (Ont. C.A.); Lang Michener et al. and Fabian et al. (1987), 37 D.L.R. (4th) 685 (Ont. H.C.J.)]. In Lang Michener et al. and Fabian et al., supra, the Court observed that is is "a general characteristic of vexatious proceedings that grounds and issues tend to be rolled forward into subsequent actions and repeated and supplemented . . . " . . .
¶ 52 A respondent's behaviour both in and out of the court has been held to be relevant. In Canada (Attorney General) v. Mishra, [1998], F.C.J. No. 562, T-617-98 (May 1, 1998) (F.C.T.D.), aff'd [2000] F.C.J. No. 1734, A-311-98 (October 24, 2000) (F.C.A.), Nadon J. placed emphasis on the fact that a similar order had been made declaring the respondent to be a vexatious litigant in Ontario.
[18] Recently, Sexton J.A. of the Federal Court of Appeal restated the section 40 rules in Campbell v. Canada (Minister of National Revenue), 330 N.R. 373, from which I quote paragraphs 19 and 20:
¶ 19 I have reviewed the authorities provided by the respondent in support of this request and note that all of them relate to situations where an alleged vexatious litigant had commenced a number of different actions, quite often in different courts, as a result of which an order was issued under s. 40 of the Federal Courts Act. I have not been directed to any case where a person has been declared to be a vexatious litigant arising out of the actions in only one proceeding. While I am of the view that ss. 40(1) of the Federal Courts Act can be interpreted so as to permit an order being issued against such a person preventing that person from bringing further proceedings in the court, in my view such an order cannot be made lightly: R. v. Olympia Interiors, [2004] F.C.J. No. 868, 2004 FCA 195 per Stone J.A..
The power conferred on the Court by subsection 40(1) of the Act is, of course, most extraordinary, so much so that it must be exercised sparingly and with the greatest of care. In a society such as ours, the subject is generally entitled to access the courts with a view of vindicating his or her rights. This concern was obviously in the mind of the legislators, seeing that some balance is built into section 40 by allowing proceedings to be instituted or combined with leave of the Court.
¶ 20 In Mascan Corp. v. French (1988) 49 DLR (4th) 434 the Ontario Court of Appeal held that it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented.
[19] In the case at bar, I feel that the Attorney General has established that Mr. Savard is a vexatious litigant and is entitled to the order he is seeking. Since his incarceration in various Service penitentiaries, Mr. Savard has continually instituted a number of proceedings in this Court and in the Quebec Superior Court challenging various decisions of the Service, especially regarding his security rating, an important factor in the type of penitentiary where he will be held. The great majority of those proceedings were struck out and none has been successful.
[20] Mr. Savard's actions justify requiring that before continuing in docket T-1297-05 or instituting new proceedings against the Service or Her Majesty the Queen regarding his detention, Mr. Savard must obtain this Court's leave. I would add that if Mr. Savard feels that he has been badly treated, he has access to the grievance procedures set out in section 90 of the Corrections and Conditional Release Act.
ORDER
IN VIEW OF the motion filed by the Attorney General of Canada, the Court:
DECLARES the applicant Jean-Guy Savard (the applicant) a "vexatious litigant";
ORDERS that the applicant request this Court's leave before filing any statement of claim, application for judicial review or motion in the Registry of the Federal Court or continuing proceedings in docket T-1297-05;
ORDERS that the Federal Court Registry act accordingly;
Without costs.
"François Lemieux"
Certified true translation
K. Harvey
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