Celik v. Canada, 2002 FCT 1130

Date: 20021101

Docket: T-492-01

Neutral citation: 2002 FCT 1130

BETWEEN:

                                                                 MIHRALI CELIK

also known as Mihrali Celik carrying on business under the name and style of

OXFORD BUILDING MAINTENANCE ENGINEERING

( A Proprietorship ) London, Ontario, Canada

                                                                                                                                                          Plaintiff

                                                                                 and

                                HER MAJESTY THE QUEEN IN RIGHT OF CANADA

                                                                                                                                                      Defendant

                                               REASONS FOR ORDER AND ORDER

HENEGHAN J.

INTRODUCTION

[1]                 Mr. Mihrali Celik, carrying on business under the name and style of "Oxford Building Maintenance Engineering (a proprietorship)" (the "Plaintiff") appeals against the order of Associate Senior Prothonotary Giles, made on December 10^th, 2001. In his order, the Associate Senior Prothonotary dismissed a motion brought by the Plaintiff seeking reversal of his order made on October 11, 2001. By his order made on October 11, 2001, the Associate Senior Prothonotary had granted a motion brought by Her Majesty the Queen in Right of Canada (the "Defendant") to strike the Plaintiff's Statement of Claim as disclosing no cause of action.

BACKGROUND

[2]                 The Defendant filed a Notice of Motion dated September 21, 2001. Although that Notice of Motion did not refer specifically to any rule of the Federal Court Rules, 1998, the written representations filed in support make it clear that the Defendant relied on Rule 221(1)(c) and (f). Generally, the Defendant took the position that the action should be struck on the grounds that it is frivolous and vexatious and constitutes an abuse of process, insofar as it seeks improperly to re-litigate matters that have been adjudicated against the Plaintiff in a number of proceedings before this Court, the Federal Court of Appeal, the Ontario Supreme Court, the Ontario Superior Court of Justice and the Ontario Court of Appeal.

[3]                 On the basis of the written and oral submissions made by the parties before Associate Senior Prothonotary Giles on October 11, 2001, he granted the Defendant's motion to strike the Statement of Claim.

[4]                 Subsequently, the Plaintiff brought a motion dated December 10, 2001 seeking relief in the following terms:

1.      An Order to restore his Honour Prothonotary A.K. Giles' decision, dated October 11, 2001 or be set aside.

2.      An Order allowing the Plaintiff to continue and prosecute the action.

3.      An Order for directions, if necessary.

4.       Such further and other relief as this Honourable Court may deem just.

[5]                 The grounds of this motion included the following:

3.      That the learned motions court Prothonotary erred in striking the Plaintiff/Appellant's Statement of Claim based on wrong principle of the Federal law.

...

7.      That the learned motions court Prothonotary erred in avoiding the formal order when he informally asked Counsel for the Crown to explain and provide to the Plaintiff/Appellant list of correct payments which the defendant/Respondents Counsel ignored and took advantage from his informal order.

[6]                 Following a hearing on December 10, 2001, the Associate Senior Prothonotary dismissed the Plaintiff's motion.

[7]                 On December 19, 2001, the Plaintiff filed the notice of motion which is now before the Court. He seeks the following relief:

1.           An Order His Honor Prothonotary A.K. Giles's decision, dated December 10, 2001 be set aside.

2.          An Order allowing the Plaintiff / Appellant to continue and prosecute the action usual way to proceed to trial.

3.          In the alternative an Order that the action be conducted as a specially managed proceeding. Pursuant to Federal Court Rules 384, 385 (1) (a)(b)(c)

4.          An Order for directions, if necessary assist in the just and timely disposition of the action.

5.          Such further and other relief as this Honorable Court may deem just.

[8]                 The Plaintiff's motion record sets out the grounds of this motion in the following words:

1.           That the learned motions court Prothonotary erred in his application of the Federal law with respect to Jurisdiction of Trial Division Federal Court Act S. 17 (1) relief against the Crown.

2.          That the learned motions court Prothonotary erred in striking the Plaintiff/Appellant's Statement of Claim based on wrong principle of the Federal law.

3             That the learned motions court Prothonotary erred in hearing the motion absence of Statement of Defence pursuant to Federal Court Rules 204.

4.          That learned motions court Prothonary when he strike affidavit sworn by one of the Defendant / Respondent's Financial Officer on the ground that there was compelling evidence the Plaintiff / Appellant has been prejudiced by the affiant's error, not allowing for cross examination pursuant to Federal Court Rules 83.

5.          That the learned motions Prothonotary failed to assess damages caused by the Defendant / Respondent's failure to release relevant and probative evidentiary material requested by the plaintiff / Appellant via the Federal Freedom of Information Act which designed to deprive the opportunity to make full answer to an alleged payments of the Federal Building cleaning contract for 185 Ouellette Avenue Federal Building, which in essence is a cover up, resulted in a Miscarriage of Justice

6.           That the learned motions court Prothonotary erred in under the Federal Law to realize that the plaintiff / Appellant was not requesting to change other courts order or put new interpretation because this action arises against Crown for double billings which caused injuries and damages to the Plaintiff / Appellant

7.           That the learned motions court Prothonotary erred in avoiding the formal order when he informally asked Counsel for the Crown to explain and provide to the Plaintiff / Appellant list of correct payments which the defendant / Respondents Counsel ignored and took advantage from his informal order.

[9]                 In the Statement of Claim filed in this action, the Plaintiff seeks a declaration that the Defendant failed to produce relative and probative information sought by the Plaintiff before the commencement of a trial relative to a cleaning contract for premises situated at 185 Ouelette Avenue, Federal Building, Windsor, Ontario. In his decision, the Associate Senior Prothonotary determined that the issue had been fully adjudicated in a Court of competent jurisdiction and acceded to the Defendant's request to strike the Statement of Claim, as being vexatious and an abuse of process.

[10]            An extensive history of litigation lies behind the present action. In 1985, the Plaintiff commenced proceedings in this Court being cause No. T-2468-85, seeking a declaration that a cleaning contract for the Federal Building at Ouelette Avenue, Windsor, had been wrongfully terminated by the Defendant. He also sought damages. That action was commenced in November 1985 and judgment was delivered on September 24, 1988, in favour of the Defendant. The Court found that the contract had been terminated in accordance with the contract and that the termination was justified.

[11]            A notice of appeal was filed against that judgment in cause A-1054-88 in the Federal Court of Appeal. This notice of appeal was struck out on procedural grounds on March 14, 1989, since the Plaintiff had failed to serve his notice of appeal. An application to set aside the order of March 4, 1989 was refused on November 2, 1989.

[12]            Proceedings were commenced in the Supreme Court of Ontario by the Attorney General of Canada against U.S.F. & G. Insurance Co. of Canada, formerly Fidelity Insurance Company of Canada, on July 15, 1986, being cause No. 12807/86 in the Supreme Court of Ontario. This action arose in relation to a performance bond provided by U.S.F. & G. Insurance Co. relative to the cleaning contract between the Plaintiff and the federal Crown.

[13]            Consent judgment was entered in the main action in file 12807/86, Supreme Court of Ontario, on April 19, 1989, in favour of the Attorney General of Canada. Damages, pre-judgment interest and costs were agreed and the judgment is dated April 19, 1989.

[14]            On November 14, 1986, U.S.F. & G. Insurance Co. of Canada issued a third party claim against the Plaintiff in the Supreme Court of Ontario, being file No. 12807/86. Judgment in the third party action, Court File No. 5596F/90, a continuation of Court File 12807/86 in the Supreme Court of Ontario, was granted on March 24, 1999 by Justice Browne, in favour of U.S.F. & G. Insurance Co. against the Plaintiff.

[15]            A notice of appeal was filed by the Plaintiff, the third party, in the Ontario Court of Appeal in File No. C-31897 and by an endorsement of the Ontario Court of Appeal, dated August 21, 2000, the appeal was dismissed.

[16]            A further application was made to the Ontario Court of Appeal on August 31, 2000 in Court File C-31897 for reconsideration and the introduction of fresh evidence on appeal. This request was denied in a letter dated September 21, 2000, from Mr. John H. Kromkamp, Senior Legal Officer with the Ontario Court of Appeal.

[17]            The third party, that is the Plaintiff in the present action, filed a motion before the Ontario Superior Court of Justice for the introduction of fresh evidence in Court File No. 12807A/86 on October 17, 2000. A supplementary motion record, dated December 4, 2000 was filed. By an endorsement and order dated December 11, 2000, the third party's motion to introduce fresh evidence was denied by Justice Browne.

[18]            By a notice of appeal dated December 19, 2000 filed in the Ontario Court of Appeal, the Plaintiff sought to appeal that order.

[19]            The Ontario Court of Appeal issued an endorsement on June 28, 2001 dismissing the appeal from the Order of Justice Browne made on December 11, 2000.

[20]            A notice of action from Oxford Building Maintenance Engineering directed to Her Majesty the Queen in Right of Canada was filed in the Ontario Court (General Division), Court File No. 2770 on December 19, 1997. A notice of discontinuance in this matter was filed on December 24, 1997 and a further notice of discontinuance was filed on April 15, 1998.

[21]            The Plaintiff returned to the Federal Court and on April 15, 1998, commenced an action in the Federal Court Trial Division between Oxford Building Maintenance Engineering and Her Majesty the Queen in Right of Canada in cause No. T-955-98, relative to a security deposit that had been paid in connection with the cleaning contract for the building at 185 Ouelette Avenue. The action in T-955-98 was dismissed for delay following a status review by order dated July 29, 1998. A motion to set aside that order was denied by further order dated August 23, 1999. An appeal from that order to the Federal Court of Appeal was dismissed on August 24, 2000. An application for leave to appeal to the Supreme Court of Canada, made on December 19, 2000 in Supreme Court Registry File No. 28331 was dismissed on September 6, 2001.

[22]            Then there were two more actions commenced in the Ontario Court of Justice, being Court File No. 31176 and Court File No. B31288/89 against the Crown in Right of Ontario and a law firm. Upon motions by the defendants to strike the action on the grounds of res judicata and abuse of process, these motions were granted.

[23]            In his reasons for judgment, released on October 1, 1999, Mr. Justice Killeen recounted the lengthy litigation history involving the Plaintiff and the contract and dismissed the action. He characterized the Plaintiff as being unwilling to acknowledge and accept the results of prior litigation and stated as follows:

These actions taken by the plaintiff are unfortunate because, in them, the plaintiff is clearly attempting to re-litigate earlier court decisions which he has lost, directly or indirectly. Some litigants cannot accept their court defeats and then move on with their lives. I am afraid that this plaintiff falls into that category.

...

All lawsuits must observe the cycle of life itself. They must have a birth, life and then a final conclusion or death, if you will. Mr. Celik, in this action, as with his other one, wants to re-visit his past losses and, hopefully, grasp victory from the shards of past defeats. The principles of res judicata and abuse of process must be applied to dismiss this action along with his action against the provincial Crown and the lawyer defendants.

[24]            An appeal was taken against the judgment of Justice Killeen to the Ontario Court of Appeal in File No. C-33009 and by endorsement dated May 10, 2000, the Ontario Court of Appeal dismissed the appeal.

[25]            All the relevant documents in support of this lengthy history of litigation were before the Associate Senior Prothonotary when he made his initial order on October 11, 2001, granting the Defendant's motion to strike this Statement of Claim. The Associate Senior Prothonotary concluded his order as follows:

The Statement of Claim is struck out because this Court does not have jurisdiction to alter a decision of the Ontario Court and an attempt by means of a new action to place a new interpretation on decisions made in other Courts is an abuse of process.

[26]            Upon a motion for reconsideration heard by the Associate Senior Prothonotary on December 10, 2001, he confirmed his original order in the following terms:

IT IS HEREBY ORDERED THAT: This motion is dismissed because the Court has no jurisdiction to change the Order of a Trial or Appeal Court in Ontario and cannot make an Order for what amounts to interlocutory relief in the Ontario courts. This was explained in October when I informally asked Counsel for the Crown to explain a list of payments. I pointed out at that time that I had no jurisdiction to order an explanation but hoped that the production of one would put an end to litigation. An explanation has not been provided to the satisfaction of Mr. Celik, hence this motion. I have no jurisdiction now as I did not then.

ANALYSIS

[27]            The Plaintiff now appeals from the order of the Associate Senior Prothonotary dated December 10, 2001. That order dismissed a motion brought by the Plaintiff seeking to set aside an earlier order of the Associate Senior Prothonotary, dated October 11, 2001. The Plaintiff did not appeal the order of October 11.

[28]            The order under appeal, then, is a supplementary order to the order of October 11, 2001. In my opinion, the narrow issue raised on the present appeal is whether the Associate Senior Prothonotary exercised his discretion judicially when he confirmed, on December 10, 2001, his earlier order of October 11, 2001. However, having regard to the standard of review applicable to an appeal from a decision of the prothonotary, the merits of the order made on October 11, 2001 must necessarily be considered.

[29]            In Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.) the Federal Court of Appeal described the applicable standard of review relative to a decision of a prothonotary in the following terms:

... I am of the opinion that such orders ought to be disturbed on appeal only where it has been made to appear that

(a)          they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or

(b)        in making them, the prothonotary improperly exercised his discretion on a question vital to the final issue of the case.

In each of these classes of cases, the Motions Judge will not be bound by the opinion of the prothonotary; but will hear the matter de novo and exercise his or her own discretion.

[30]            The effect of the order made on October 11, 2001 was to make a final disposition of the Plaintiff's action; that is the inevitable result of the order striking out the Statement of Claim. The order made on December 10, 2001, upon a motion to reconsider, confirmed the earlier order. The result is the same, the Plaintiff's action is stricken out.    Accordingly, upon an appeal of that order, the Court must consider whether the Associate Senior Prothonotary erred in the exercise of his discretion in making the order of December 10, 2001, whereby he confirmed his earlier order striking out the Plaintiff's Statement of Claim on the basis that it is frivolous and vexatious and constitutes an abuse of process.

[31]            In the present case, the Plaintiff has structured his Statement of Claim under various headings including unlawful conduct by the Defendant relative to the Plaintiff's performance of the contract for the cleaning and maintenance of the building at 185 Ouelette Avenue, Windsor, Ontario, breach of fiduciary relationship, violations of the Charter of Rights and Freedoms, and the failure to disclose evidence.

[32]            The present motion relates to orders made by the Associate Senior Prothonotary and not to comments made by him in the course of proceedings before him. The Plaintiff places much weight upon the following comments of Associate Senior Prothonotary Giles on October 11:

No, Mr. Celik, I am sorry. This can't go on and on. I have told you what my decision is, and that is that the Statement of Claim must be struck out, and I have given you my reasons for doing so two ways. Now, I will say this to the Crown. It certainly looks to me as though it would be helpful to get in touch with the people in the Department of Public Works and find out exactly what the effect of this document is and have somebody explain it, perhaps in writing, to Mr. Celik. But that is only a public relations gesture. I can't make an Order.

[33]            I agree with the submissions made by the Respondent in connection with the present motion that by relying on these comments, the Plaintiff is attempting to misrepresent what happened before the Associate Senior Prothonotary on October 11, 2001. In my opinion, the comments quoted above merely represent an attempt by the Associate Senior Prothonotary to encourage some discussion between the parties in the hope of reaching a resolution which would satisfy, in some way, the Plaintiff. These comments do not form part of his order; the present appeal can deal only with an order made by the Associate Senior Prothonotary.

[34]            The basis for the Prothonotary's Order was the allegation that the Plaintiff's action was frivolous and vexatious, and constituted an abuse of process.

[35]            Rules 221(1)(c) and (f) are relevant and provide as follows:

Finally, in my view, a statement of claim should not be ordered to be struck out on the ground that it is vexatious, frivolous or an abuse of the process of the court, for the sole reason that in the opinion of the presiding judge, plaintiff's action should be dismissed. In my opinion, a presiding judge should not make such an order unless it be obvious that the plaintiff's action is so clearly futile that it has not the slightest chance of succeeding, whoever the judge may be before whom the case could be tried. It is only in such a situation that the plaintiff should be deprived of the opportunity of having 'his day in court'.

[37]            That test applies here. In my opinion, the extensive history of litigation that has taken place in relation to the contract in question, including the issue of evidence that was not made available to the Plaintiff by the Defendant, clearly illustrates the futility of this action. The issues have already been adjudicated and unfortunately for the Plaintiff, have been decided against him.

[38]            As for the allegation that the continuation of this action amounts to an abuse of process, in light of the prior decisions that have been rendered, I refer to Black v. NsC Diesel Power Inc. (Bankrupt) (2000), 183 F.T.R. 301 (T.D.). In that case, the Court held that repeated attempts to litigate, essentially the same dispute, by naming slightly different parties or applying in different capacities and relying on slightly different statutory provisions, constituted an abuse of process within the context of Rule 221(1)(f). In the present case, the Plaintiff is attempting to re-try issues that have already been addressed and dealt with in several courts, all of competent jurisdiction.

[39]            Upon my review of the materials filed on the motion, including copies of the relevant pleadings in actions taken in the Federal Court of Canada, the Federal Court of Appeal, the Supreme Court of Ontario (as it then was), the Ontario Superior Court, the Ontario Court of Appeal, and in an application for leave to appeal to the Supreme Court of Canada, it appears that the issues now raised by the Plaintiff in the Statement of Claim filed in this proceeding have already been aired and adjudicated, including the issue of introducing evidence that was allegedly unavailable at the time of trial.

[40]            I see no error in the manner in which the Associate Senior Prothonotary made his Order. He fully appreciated the applicable legal principles and the relevant facts. He properly exercised his discretion. The issues have been adjudicated in courts of competent jurisdiction. In these circumstances, the Statement of Claim in the present proceeding is frivolous and vexatious, and constitutes an abuse of process because the issues have already been decided. The appeal is dismissed with costs.

                                                  ORDER

The action is dismissed with costs.

                                                                                           "E. Heneghan"

                                                                                                      J.F.C.C.

OTTAWA, ONTARIO

November 1, 2002

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              T-492-01

STYLE OF CAUSE:              Mihrali Celik and others v. Her Majesty the Queen in Right of Canada

PLACE OF HEARING:                      Toronto, Ontario

DATE OF HEARING:                         June 10, 2002

REASONS FOR ORDER AND ORDER OF THE HONOURABLE MADAM JUSTICE HENEGHAN

DATED:                                                November 1, 2002

APPEARANCES:

Mihrali Celik                                             FOR THE PLAINTIFF

Mr. John Lucki                           FOR THE DEFENDANT

SOLICITORS OF RECORD:

Mihrali Celik                                             FOR THE PLAINTIFF

London, Ontario

Mr. Morris Rosenberg           FOR THE DEFENDANT

Deputy Attorney General of                   

Canada