Date: 20100311
Docket: T-2106-04
Citation:
2010 FC 281
Ottawa, Ontario, March 11, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
FRANCIS MAZHERO
Plaintiff
and
THE HONOURABLE J. EDWARD
RICHARD,
THE HONOURABLE BEVERLY BROWNE,
LUCILLE BERTRAND, JANE DOE AND JOHN DOE
Defendants
REASONS FOR ORDER AND ORDER
[1]
In
2004, Mr. Mazhero proffered to this Court a statement of claim directed against
the Honourable Beverly Browne, Judge of the Nunavut Court of Justice, the
Honourable J. Edward Richard, Judge of the Court of Appeal of Nunavut and
Lucille Bertrand, a Registry Officer at the Supreme Court of Canada.
[2]
According
to that statement of claim, Mr. Mazhero had commenced various proceedings in
the Nunavut courts and as
well had applied for leave to appeal to the Supreme Court of Canada. The basis
of all these proceedings was said to be an allegation made by the principal of
the school where he was teaching by which he claims he was maliciously
characterized as a child molester. His various proceedings in the Nunavut courts and
an application for leave to the Supreme Court of Canada were allegedly thwarted
by criminal activity and other malfeasance on the part of the defendants. He
sought damages and a declaration that their actions violated his constitutional
rights as provided for in the Canadian Charter of Rights and Freedoms.
[3]
The
Federal Court Registry sought directions as to whether the statement of claim
should be accepted for filing.
[4]
I
first directed that the statement of claim not be accepted for filing and that
the filing fee of $150 be returned to him on the grounds that the claim alleged
was beyond the jurisdiction of this Court which has no general criminal jurisdiction,
and certainly has no jurisdiction over judges or court officials of other
courts. I added, however, that if Mr. Mazhero still considered that the Federal
Court had jurisdiction, he could bring on a motion, without notice to the
defendants, requesting that the Court accept the statement of claim for filing.
The motion record was to set out reasons why he thought the Federal Court had
jurisdiction.
[5]
He
then filed the motion, although he did not set out grounds on which this Court
had jurisdiction.
[6]
I
then directed that the statement of claim be accepted for filing and on my own
motion on 25 November 2004 ordered that the action be dismissed as the
statement of claim disclosed no reasonable cause of action before this Court, was
scandalous, frivolous and vexatious, and was otherwise an abuse of process of
this Court. That decision is reported as Mazhero v. Nunavut (Court of
Justice, Judge), 2004 FC 1659. Mr. Mazhero’s appeal of that decision was
dismissed by the Federal Court of Appeal for want of prosecution in May 2006.
[7]
A
number of other non-relevant events transpired, including a complaint by Mr.
Mazhero to the Canadian Judicial Council about me and other judges of this
Court.
[8]
The
normal recourse for those not satisfied by a decision in first instance is to
launch an appeal, which Mr. Mazhero did. However Rule 397 and following of the Federal
Courts Rules permit the court of First Instance, in certain circumstances,
to reconsider, set aside or vary its original order. Now Mr. Mazhero has moved,
pursuant to Rule 399, for an order that my decision of 25 November 2004 be set
aside on the grounds that “the defendants Madam Justice Browne and Mr. Justice
Richard, jointly and severally, perpetrated a fraud upon the Federal Court and
the plaintiff in 2004.”
[9]
Rule
399(2)(b) provides that on motion, “…the Court may set aside or vary an order
…where the order was obtained by fraud.”
[10]
In
his supporting affidavit, he sets out a litany of complaints against the two
judges in question, complaints along the lines of the allegations in the
original statement of claim. He also asserts that my original order was fatally
flawed because I raised the question of this Court’s jurisdiction on my own
motion, without notice to the defendants. As they did not appear on the motion,
it follows that the defendants were not in position to perpetrate a fraud upon
this Court, and for that reason alone the motion to set aside should be
dismissed.
[11]
Mr.
Mazhero appears not to accept that the jurisdiction of this Court is limited by
section 101 of the Constitution Act, 1867. For the reasons expressed in
my 2004 order, this Court simply has no jurisdiction over the cause of action
alleged in the statement of claim, no matter how fraudulently Mr. Mazhero
asserts the defendants may have acted.
[12]
Since
that order was issued, in Crowe v. Canada (Supreme Court Judge), 2007 FC
1209, 319 F.T.R. 203, I again raised on my own motion the jurisdiction of this
Court over an action against various judges of the Supreme Court of Canada, the
Court of Appeal for Ontario, and the Ontario Superior Court of Justice. I
dismissed the action for lack of jurisdiction.
[13]
The
appeal of that order was dismissed by the Federal Court of Appeal in a decision
reported at 2008 FCA 298, 393 N.R. 50. Speaking for the Court, Mr. Justice
Pelletier stated at paragraphs 16 and 17:
[16]
The difficulty which Mr. Crowe faces is that the Federal Court is a
statutory court and, as such, has only the jurisdiction conferred upon it by
statute. It is not a court of inherent jurisdiction as are the provincial superior
courts:
46
As a statutory court, the Federal
Court of Canada has no jurisdiction except that assigned to it by statute. In
light of the inherent general jurisdiction of the provincial superior courts,
Parliament must use express statutory language where it intends to assign
jurisdiction to the Federal
Court…
[Ordon
Estate v. Grail, [1998] 3 S.C.R. 437, at para. 46.]
[17]
In ITO-International Terminal Operators Ltd. v. Miida Electronics
Inc., [1986] 1 S.C.R. 752, the Supreme Court of Canada set out the
conditions required to support Federal Court jurisdiction at p. 766:
The general extent of the jurisdiction of the
Federal Court has been the subject of much judicial consideration in recent
years. In Quebec North Shore Paper Co. v.
Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, and in McNamara
Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654, the
essential requirements to support a finding of jurisdiction in the Federal
Court were established. They are:
1. There
must be a statutory grant of jurisdiction by the federal Parliament.
2. There
must be an existing body of federal law which is essential to the disposition
of the case and which nourishes the statutory grant of jurisdiction.
3. The law
on which the case is based must be "a law of Canada" as
the phrase is used in s. 101 of the Constitution Act, 1867.
[14]
The
defendants, the Honourable J. Edward Richard and the Honourable Beverly Browne
have been vexatiously pursued in this Court, and this time retained counsel. It
is only fit and proper that the motion be dismissed, with costs taxed on a
solicitor/client basis.
[15]
Mr.
Mazhero is annoyed by the fact that the defendant Lucille Bertrand has not
appeared and filed representations. She is under no obligation to do so.
However no costs shall be awarded in her favour.
ORDER
THIS COURT ORDERS that:
1. The motion to
set aside this Court’s order of 25 November 2004 is dismissed, with costs in
favour of the Honourable J. Edward Richard and the Honourable Beverly Browne on
a solicitor/client basis.
“Sean Harrington”
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