Date: 20060504
Docket: T-1190-98
Citation: 2006 FC 562
Ottawa, Ontario, May 4, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
VIJAY KUMAR GOELA
Applicant
and
VIA RAIL CANADA INC.
Respondent
REASONS FOR ORDER AND ORDER
[1] In this motion, the Respondent and moving party, VIA Rail Canada Inc. (VIA), seeks an Order, pursuant to s. 40 of the Federal Courts Act, R.S.C. 1985, c. F-7: discontinuing the motion of Mr. Vijay Kumar Goela filed with the Court on September 16, 2005; and preventing Mr. Goela from initiating any further proceedings except by leave of the Court.
[2] Mr. Goela was an employee of VIA for many years. As an employee of VIA, he has been a member of the National Automobile Aerospace, Transportation and General Workers Union of Canada, or its predecessors (the Union). He claims that VIA owes him over $200,000. Since January 1999, he has been seeking the assistance of the Court in collecting this amount through a series of motions. The latest of his motions was filed in September 2005 and is before me as part of this application. Unfortunately, as discussed in these reasons, the Court cannot help him and his latest motion will be discontinued. However, I decline to go so far as to order that Mr. Goela may not institute any further proceedings whatsoever except by leave of the Court. Accordingly, VIA's application will succeed, in part.
Issues
[3] This application raises two issues:
- Should the motion of Mr. Goela, seeking to enforce Arbitrator Picher's Award of December 8, 1989 (described below), be discontinued?
- Should this Court order that Mr. Goela not institute any further proceedings except by leave of the Court?
Applicable Statutory Provision
[4] The applicable provisions of s. 40 of the Federal Courts Act reads as follows:
| 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.
(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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40. (1) La Cour 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.
(2) La présentation de la requête 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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History
[5] In the hope of explaining to Mr. Goela why his motion cannot succeed, I have chosen to include a fairly lengthy description of the background to this and earlier motions to this Court.
- Employment Security and Income Maintenance Agreement
[6] Mr. Goela's story begins in 1989 when he was an employee with VIA Rail and subject to the terms of a collective agreement between the Union and VIA. At that time, VIA and certain of its employees (including Mr. Goela) were also subject to a side agreement entitled the Employment Security and Income Maintenance Agreement (the Employment Security Agreement) effective January 1, 1989. Under Article 9.2 of this agreement, employees with eight years or more of service could not be laid off as a result of a technological, operational or organizational change which resulted in the abolition of their position or their displacement by a senior employee. These employees, who would otherwise have lost their jobs, were placed on Employment Security (ES) status and were paid 100% of their wages even though they were not required to report to work, although there were certain work obligations and availability requirements placed upon them. When VIA introduced operational changes which resulted in insufficient work being available for such employees, VIA was required to continue to pay them even in instances in which they had no work for them to perform.
- Arbitrator's Award
[7] The genesis of Mr. Goela's problems was a notice by VIA to the Union that a number of positions would be abolished on January 15, 1990, resulting in the lay off of 98 employees, including Mr. Goela. VIA had taken the position that the lay offs could be carried out pursuant to a Special Agreement. The protections under the Special Agreement were not as extensive as those under the collective agreement and, in particular, the Employment Security Agreement. The Union grieved and, in an award dated December 8, 1989 (the Arbitrator's Award), Arbitrator Michel G. Picher ruled in favour of the Union, as follows:
For the foregoing reasons the grievance must be allowed. The Arbitrator finds and declares that the notice served on the Union by the Corporation on October 11, 1989 was required to be served pursuant to Article 8 of the Employment Security and Income Maintenance Agreement contained within the parties' collective agreement, and not under Article J.1 of the Special Agreement. As the parties indicated to the Arbitrator at the hearing that they agree that the notice originally given may, in light of the Award, be deemed to have been given under Article 8 of the ESIMA, no further direction need be made by me in respect of a corrective notice. For the purposes of clarity, however, all affected employees are to be deemed eligible for such rights and benefits as flow to them from the serving of an article 8.1 notice.
[8] Thus, as of December 8, 1989, Mr. Goela, as an employee who was the subject of the lay off notice, was laid off effective January 15, 1990 pursuant to the terms of the Employment Security Agreement. At that point in time, the relevant provisions of the Employment Security Agreement provided that he was to be placed on ES status and was entitled to receive 100% of his wages.
[9] What is important in this case is that the Arbitrator's Award did not take away the rights of the Union and VIA to negotiate changes to the collective agreement and the Employment Security Agreement; in other words, the rights and obligations of the parties were not cast in stone for all time. VIA and the Union successfully negotiated changes to those entitlements and benefits as evidenced by the Memoranda of Agreement dated December 19, 1989 and June 5, 1998 and the Calling Procedure Agreement, all of which are described below and all of which validly altered the work force situation of Mr. Goela.
- December 19, 1989 Memorandum of Agreement
[10] The first Memorandum of Agreement that followed the Arbitrator's Award was entered into on December 19, 1989 between the affected Unions and VIA (the 1989 MOA). While confirming the terms, conditions and benefits of each of the Collective Agreements with the Unions, including the Employment Security Agreement, the 1989 MOA provided specific measures related to the employees who were to be laid off. Of specific interest is clause 2.3. Pursuant to this clause, employees in the position of Mr. Goela were required to accept future vacancies within their regions and classification. An employee who failed to do so, "shall be placed on laid off status and forfeit their benefits under the Employment Security and Income Maintenance Agreement". It is clear that the 1989 MOA was intended to amend the terms of the Employment Security Agreement.
- March 5, 1997 Calling Procedure Agreement
[11] At the instigation of the Union, a new calling procedure was negotiated and agreed to on March 5, 1997 when the Union and VIA entered into an "Agreement Concerning the Establishment of Calling Procedures for Employees on Employment Security" (the Calling Procedure Agreement). This Agreement affected the ES employees, such as Mr. Goela, and established rights and obligations in addition to those set out in the Employment Security Agreement. In particular, this agreement set out a detailed procedure to be followed for the establishment of calling lists and the obligations of employees to remain available for work. Its effect was to further define the rights and obligations of the parties under clause 2.3 of the 1989 MOA.
[12] It is under this Calling Procedure Agreement that Mr. Goela's benefits, including pay, were suspended from January 30, 1998 to May 8, 1998. The suspension was put into effect when Mr. Goela failed to be available on three occasions during the month of January 1998. By Mr. Goela's calculations, this suspension resulted in a loss to him of $11,438.64. Mr. Goela commenced a grievance in relation to this loss of benefits. After investigating his complaint and concluding that it was without merit, his Union declined to pursue the grievance. Mr. Goela took various steps to address this alleged wrong, including appealing the Union's decision through the Union's internal procedure and filing a complaint against the Union with the Canada Industrial Relations Board (CIRB). Mr. Goela was unsuccessful at all stages.
[13] Mr. Goela submitted a letter dated April 17, 1997 from a Vice President of the Union advising VIA that the Union was "cancelling its authorization and agreement to [the 1997 Calling Procedure Agreement] covering its membership in the Via Ontario Region effective April 18, 1997". The problem that I have with this letter is there is absolutely no evidence that an individual with the Union can unilaterally terminate a valid agreement. In my view, the 1997 Calling Agreement was in force when he was suspended, and I give this letter no weight.
- June 5, 1998 Memorandum of Agreement
[14] On June 5, 1998 the Union and VIA entered into a Memorandum of Agreement governing the renewal of the collective agreement and the Employment Security Agreement (the 1998 MOA). As part of the 1998 MOA, the provisions of the Employment Security Agreement were altered to eliminate an employee's ability to remain on 100% of wages without a requirement to perform work. The 1998 MOA was perfectly clear; the 100% ES benefit no longer existed. Instead it was replaced with a number of options from which the employee could choose. In the face of Mr. Goela's repeated refusal to elect one of the available options, VIA chose "Option D" for him, this being the most popular option for employees in his position. As described by Mr. Goela's Union, that option provided as follows:
Option D is five years at 70% of pay, with no wage increases. Full benefits are paid during the five year period. During the five year period the employee may voluntarily accept temporary recalls which will extend the five year period. There is mandatory recall for permanent assignments. . . . If an Option D employee does, however, decline a permanent recall the employee is severed from the Company with a severance package . . . If the employee expires the five year period without a recall back to work, the employee is then severed with the above severance package. [Submission to CIRB, dated April 16, 1999, by the Union in response to complaint of unfair labour practice filed pursuant to s. 97(1) of the Canada Labour Code by Mr. Goela].
[15] As a result, VIA put Mr. Goela into Option D and began paying him 70% of wages effective pay period 4 of 1999. This resulted in a pay decrease from $20.1025 per hour to $14.0717 per hour.
[16] At the same time as he began a grievance against VIA for the suspension of benefits under the Calling Procedure Agreement, Mr. Goela commenced a grievance in respect of the pay reduction. The Union determined that this complaint was also without merit and that Mr. Goela was being paid in accordance with the relevant provisions of the collective agreement and the Employment Security Agreement.
[17] Pursuant to the terms of the 1998 MOA, VIA terminated Mr. Goela's employment, as of February 4, 2004. He has grieved his termination and this grievance has yet to be resolved.
History before this Court
[18] In June 1998, Mr. Goela filed the Arbitrator's Award of December 8, 1989 with the Federal Court pursuant to s. 66(1) of the Canada Labour Code. Section 66(2) of the Canada Labour Code provides that an arbitrator's order or decision so filed "has the same force and effect, and all proceedings may be taken thereon, as if the order or decision were a judgment obtained in the Court." Since this filing, Mr. Goela has brought a series of motions to this Court seeking to enforce the Arbitrator's Award and to have VIA declared to be in contempt of the award. The sequence of these motions is set out in the following.
- The First Motion
[19] In January 1999, Mr. Goela filed a motion in this Court, seeking an order to compel VIA to pay him specified wages and benefits allegedly owed to him as a result of the Arbitrator's Award and the provisions in Employment Security Agreement. Mr. Goela also asked VIA to show cause why it should not be held in contempt of court for failing to comply with the Award.
[20] In an Order dated February 8, 1999, Madam Justice Reed dismissed the motion. She found that
(i) the Arbitrator's Award did not create a foundation for the relief sought;
(ii) Mr. Goela did not show that he was entitled to the wages sought under the applicable agreements;
(iii) the disputed facts were not a matter for the Court to decide, but should be pursued through the grievance process set out in the collective agreements; and
(iv) costs of $500 should go to VIA.
- The Second Motion
[21] In January 2003, Mr. Goela brought a motion to seek wages and benefits pursuant to the Arbitrator's Award and Employment Security Agreement, and for VIA to show cause why it should not be held in contempt of court.
[22] In an Order dated January 14, 2003, Prothonotary Lafrenière dismissed the motion because the issues were substantially the same as the previous motion decided by Justice Reed; the motion was res judicata. Prothonotary Lafrenière also commented that the grievance process, rather than the Court, was the proper forum for the dispute. $500 in costs was awarded to VIA.
[23] Mr. Goela appealed Prothonotary Lafrenière's decision. On February 13, 2003, Mr. Justice Russell dismissed the appeal and agreed with the reasoning of Prothonotary Lafrenière. Justice Russell described Mr. Goela's repeated litigation as vexatious but recognized that Mr. Goela, as a self-represented litigant, did not comprehend the legal process. $300 in costs was awarded to VIA.
- The Third Motion
[24] In March 2005, Mr. Goela filed a motion in this Court seeking substantially the same wages and benefits as above, in larger amounts adjusted for the passage of time.
[25] In a hearing on March 7, 2005, Mr. Justice Campbell refused to accept filing of the motion on the basis that the same issues had been decided previously by Justices Reed and Russell and Prothonotary Lafrenière. A review of the transcript of this matter shows that Justice Campbell explained at some length that it was not appropriate for Mr. Goela to continue seeking his specified relief in this Court. He concluded with these remarks:
You had your answer. You have had your answer from Justice Reed, you have had your answer from Prothonotary Lafrenière, you have had your answer from Justice Russell. I have already told you the answer is binding. I do not fault the Registry for taking your motion, but I am here considering whether it should have been file: [sic] I am telling you that is should not have been, because there is absolutely no hope for you to gain access to justice here, consequently I am rejecting your motion...
This case is finished, sir. It is not to be brought back here.
- The Fourth Motion
[26] In September 2005, and in spite of Justice Campbell's direction, Mr. Goela filed another motion with this Court. This is the motion that is now before me as part of this application by VIA. Having reviewed the motion I am satisfied that Mr. Goela seeks the same relief as had been sought in the earlier motions, with an increase in the total amount claimed to reflect the passage of time. The hearing of the motion was adjourned to provide VIA with an opportunity to seek directions on bringing the present s. 40 application.
Problems with Mr. Goela's actions
[27] The fundamental flaw in Mr. Goela's submissions to his employer, to his Union, to the CIRB and to this Court is his failure to accept that the collective agreement and the Employment Security Agreement could be amended by agreement between VIA and the Union. As I noted above, there is absolutely nothing in the Arbitrator's Award of December 8, 1989 that prevented further amendments to any part of those agreements. Contrary to Mr. Goela's view, his right to 100% wages until age 65 did not become entrenched in the Arbitrator's Award. His failure to accept this simple and incontrovertible fact has led to endless litigation that cannot ever succeed.
[28] A careful reading of the Arbitrator's Award shows that the Arbitrator did nothing more than declare that VIA had acted improperly in serving lay off notices to the affected employees. The Arbitrator did not direct VIA to pay money or - most importantly - prevent the Union and VIA from negotiating amendments to the rights and obligations of the parties to the collective agreement or the Employment Security Agreement. The parties were free to negotiate an end to employees' rights to 100% wages until age 65 and to establish clear calling procedures; VIA and the Union have done exactly that.
[29] Mr. Goela's mistaken interpretation of the Arbitrator's Award led him to file the award with this Court. As noted above, s. 66(2) of the Canada Labour Code provides that an arbitrator's order or decision so filed "has the same force and effect, and all proceedings may be taken thereon, as if the order or decision were a judgment obtained in the Court." The purpose of this provision is to ensure that an award of an arbitrator can be enforced, if necessary, through the Court. With the registration of an award, an affected party may bring an application to enforce the award or to have the offending party held to be in contempt.
[30] However, while it appears that awards may easily be registered with the Court, it does not follow that all awards can be the subject of enforcement or contempt proceedings. Quite simply, there must be something in the award that is capable of enforcement by the Court. There can be no compulsory enforcement of an award which is merely declaratory Telus Mobility v. Telecommunications Workers Union (2002), 226 F.T.R. 133, 2002 FCT 1268 at para. 42, aff'd (2004), 317 N.R. 317, 2004 FCA 59. Further, whatever violation is alleged must be found within the Award and not by some assumption from the surrounding circumstances (Telus at para. 38).
[31] In this case, Mr. Goela has a mistaken belief that filing the Arbitrator's Award created rights that he could enforce in perpetuity. However, there is nothing in the award that could be enforced by the Court; nor, can I see any breach of the award by VIA or the Union.
[32] Based on this conclusion as to the effect of the filing of the award, it is clear that Mr. Goela's motion is without merit. What Mr. Goela is really complaining about are the actions of his Union in negotiating away his right to 100% wages until age 65, as contained in the provisions of the Employment Security Agreement. The negotiations since the Arbitrator's Award have affected him in a number of ways. The most significant changes have been the reduction to 70% of his wages and five-year cap set out in the 1998 MOA and the calling procedures set out in the Calling Procedure Agreement. The Union had every right to enter into these arrangements and VIA had every right to enforce the terms of the agreements against its employees, including Mr. Goela.
[33] The final concern that I have with Mr. Goela's actions before this Court is that he has had every opportunity to pursue remedies under the terms of his collective agreement. It is well established that the Court is not intended to become an alternate or parallel procedure to the dispute resolution provided for in collective labour bargaining (Weber v. Ontario Hydro, [1995] 2 S.C.R. 929). In my view, the facts giving rise to Mr. Goela's claim arise exclusively out of the agreements between his Union and VIA and, as a result, should be dealt with through the well-established procedures for such disputes.
[34] Indeed, Mr. Goela has made and continues to make numerous attempts to commence grievance proceedings in respect of his suspension, the pay reduction and his severance. Procedures for redress under the applicable collective agreement - and not his fundamentally flawed attempt to enforce the Arbitrator's Award in this Court - constitute the appropriate recourse for him. The fact that he has not been successful with VIA, the Union or the CIRB does not make the motions based on the Arbitrator's Award any more appropriate. Having unsuccessfully exhausted all avenues of redress under his collective agreement procedures, it is simply not open to Mr. Goela to file and attempt to enforce the Arbitrator's Award with this Court. This would be true even if there was anything to enforce in the Award, which there is not.
[35] In conclusion, it is clear, based on the decisions of Justices Reed, Russell and Campbell and Prothonotary Lafrenière and on my detailed review of the record, that the current proceeding is without merit. As Justice Reed first decided and as I have concluded, there is no foundation for the relief sought by Mr. Goela. Further, this Court is not the proper forum for Mr. Goela's dispute with his Union and with VIA. I find the current motion to be vexatious and without merit. Accordingly, I will allow the application to discontinue the motion. Further, I am prepared to order that no further motions or other proceedings may be brought by Mr. Goela with respect to the Arbitrator's Award, except with the leave of the Court.
Vexatious Proceedings
[36] In addition to seeking a discontinuance of the motion, VIA requests that I make a more general finding that Mr. Goela has persistently instituted vexatious proceedings, as contemplated by s. 40, and that I order that he may not bring any further proceedings to this Court except by leave.
[37] I note that a s. 40 application may only be made with consent of the Attorney General, which was obtained by VIA.
[38] The purpose and effect of an order made under this section was described by the Federal Court of Appeal in Canada v. Olympia Interiors Ltd. (2004), 323 N.R. 191, 2004 FCA 195 at para. 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.
[39] In the recent decision in Campbellv. Canada (2005), 330 N.R. 373, 2005 FCA 49, leave to appeal refused, [2005] S.C.C.A. No. 162, the Court of Appeal considered s. 40 of the Federal Courts Act. In that case, the litigant had filed, in the Tax Court of Canada, a notice of appeal with respect to the 2002 taxation year. The notice included numerous documents containing lewd and offensive material and did not indicate any grounds of appeal or relief sought. The Tax Court dismissed Mr. Campbell's appeal and he filed a notice of appeal with the Court of Appeal. Subsequent to the filing of this notice, Mr. Campbell served and filed a series of motions. In addition to lacking relevance, the motions contained very offensive allegations and materials. The Respondent brought an application for an order under s. 40 prohibiting Mr. Campbell from initiating any other proceeding in the Court of Appeal without the leave of the Court. The Court of Appeal categorized the entire proceeding as being vexatious and, on this basis, quashed the appeal (at para. 17). However, the Court refused to grant the broader relief of ordering Mr. Campbell to be a vexatious litigant so that he could bring no further proceedings without leave of the Court. At para. 19, Justice Sexton expressed the view that the court should proceed with caution in a s. 40 matter where the actions of the person arise out of the actions in only one proceeding. While dismissing the request for a general vexatious litigant order, Justice Sexton left the door open by stating, at para. 22, "were his actions to be repeated, there might well be grounds for such an order."
[40] In my view, the situation that I am faced with is similar to that considered by the Court of Appeal in Campbell, above. I have no problem in declaring the motion to be vexatious and discontinuing it and taking steps to ensure that no further proceedings are brought with respect to the Arbitrator's Award. However, the more general order requires further analysis. In considering whether to take the extraordinary step of declaring Mr. Goela to be a vexatious litigant for all purposes before this Court, the following facts favour the granting of such an order:
- Mr. Goela has repeatedly initiated ill-founded motions in this Court that stand no chance of success.
- In each motion, he has rolled forward the grounds and issues raised in previous motions into subsequent motions.
- He has initiated substantially the same claim at all levels of arbitration, including before the Union, the CIRB, and the Federal Court, despite decisions at all levels informing him that his claim does not have merit.
- In February 2003, Justice Russell recognized the vexatious conduct of Mr. Goela but did not hold that behaviour strongly against him, citing his confusion and lack of knowledge regarding the judicial process and his self-represented status.
- In March 2004, Justice Campbell went to considerable length to explain to Mr. Goela that his claim had been fully determined, that it was without merit, and that he was not to return this matter to the Court. Mr. Goela ignored Justice Campbell, just as he ignored the other judges and prothonotaries who attempted to end this ongoing series of motions.
- He has failed to pay a previous costs awards.
- He has, in his submissions before this Court on this and prior occasions, blatantly taken out of context the words of VIA, of members of the Union, and of various agreements and correspondence in order to support his argument, despite that the full context of many of those excerpts are in opposition to his position.
[41] In short, Mr. Goela's actions demonstrate a pattern of an obdurate denial and a wilful blindness to the unreasonable grounds of his claim, which have been explained by several decision-makers. However, does this pattern of behaviour in respect of this one proceeding warrant the application of s. 40?
[42] A note as to the payment of the costs awards should be made. This Court has awarded costs against Mr. Goela on three prior occasions, one of which remains outstanding. However, I put little weight on this one fact since it appears that Mr. Goela failed to pay the costs awarded by Prothonotary Lafrenière due to his mistaken belief that his appeal of Prothonotary Lafrenière's Order relieved him of the obligation to pay. In oral submissions before me, he recognized that this amount must be paid and undertook to do so.
[43] Mr. Goela's behaviour does not, in my view, warrant the extraordinary measure of preventing him from instituting any proceedings without the leave of the Court at this time. In his favour are the following facts:
- While Mr. Goela is obviously passionate about this matter, he has been polite to the Court during all of his hearings.
- Although he has taken submissions out of context in his filed materials and failed to provide the Court with all relevant documents (for example, on the First Motion, he failed to provide the Court with the Calling Procedure Agreement), he has not wilfully misrepresented the facts.
- He has not included inflammatory materials or statements in his motion records.
- All of his motions relate to one "proceeding", that being the filing of the Arbitrator's Award; there is not a multiplicity of proceedings.
[44] On balance, I do not believe that a broad order is warranted on these facts. Further, I believe that the dismissal of this motion and an order restricting Mr.Goela's rights with respect to the Arbitrator's Award will likely serve to stop the mischief that is occurring. However, should Mr. Goela choose to continue to pursue his unfounded claims to 100% of his wages until age 65 through this Court, there may well be sufficient grounds to grant the general order.
Conclusion
[45] In conclusion, I will make an order as follows:
- The motion of Mr. Goela, filed September 20, 2005, seeking to enforce the Arbitrator's Award is discontinued;
- No further proceedings against VIA or other parties may be brought in relation to the Arbitrator's Award or the Employment Security Agreement, except with the leave of the Court; and
- No further motions may be brought on Court File T-1190-98, except with the leave of the Court.
[46] There is no question that Mr. Goela is passionate about his perceived rights to 100% of his wages up to the age of 65. However, throughout, it appears that he has acted without the advice of counsel. When I asked him, in the hearing of this application, why he had not sought the advice of a lawyer, his response was that he could not afford one. This is unfortunate. The costs of obtaining a legal opinion would likely have been far less than the awards of costs against him on these futile motions. Should he choose to appeal this decision or contemplate other proceedings before this Court, I would urge him to seek legal advice; he has not been well-served by his own counsel.
[47] VIA seeks the costs of this motion on a solicitor-client basis. I note that VIA has not been fully successful and therefore decline to award costs on that basis. Nevertheless, I believe that substantial costs should be awarded in this situation; VIA has been forced to retain legal counsel and incur costs that would have been unnecessary but for the wilful blindness of Mr. Goela to the futility of his motions. In my discretion, and having considered the factors for an award of costs set out in Rule 400 of the Federal Courts Rules, I fix those costs at $3000, payable by Mr. Goela to VIA forthwith. Further, Mr. Goela is ordered to pay forthwith the costs previously awarded by Prothonotary Lafrenière and that remain unpaid.
ORDER
This Court orders that:
1. The motion of Mr. Goela, filed September 20, 2005, seeking to enforce the Arbitrator's Award is discontinued;
2. No further proceedings against VIA or other parties may be brought in relation to the Arbitrator's Award or the Employment Security Agreement, except with the leave of the Court;
3. No further motions may be brought on Court File T-1190-98, except with the leave of the Court;
4. Mr. Goela shall pay forthwith the $500 awarded against him pursuant to the Order of Prothonotary Lafrenière dated January 14, 2003; and
5. Costs, fixed in the amount of $3000, payable forthwith to VIA, are awarded against Mr. Goela.
"Judith A. Snider"
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