Date: 20110330
Docket: T-1067-10
Citation: 2011
FC 392
Montréal, Quebec, March 30, 2011
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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FRANCIS MAZHERO
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Plaintiff/Respondent
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and
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ANDREW FOX
JACQUES BENOIT ROBERGE
and
NEIL SHARKEY
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Defendants/Applicants
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REASONS FOR ORDER AND ORDER
[1]
This is a motion by defendants
Andrew Fox and Jacques Benoit Roberge (the applicants) for an Order pursuant to
subsection 40(1) of the Federal Courts Act, RSC 1985, c F-7 [FCA]
barring the plaintiff Francis Mazhero (the respondent) from continuing the
underlying action and from instituting any new proceedings in this Court
without first seeking and obtaining leave.
[2]
This
motion arises in the context of an action instituted by the respondent on July
5, 2010 against the applicants, as well as against Justice Neil Sharkey of the
Nunavut Court of Justice, in relation to an Order issued by Justice Sharkey on
August 14, 2009, wherein the respondent was declared to be a vexatious
litigant. In the underlying action, the respondent alleges that Justice
Sharkey’s Order was defamatory in nature and that, as such, Justice Sharkey
should be prosecuted under section 300 of the Criminal Code, RSC 1985, c
C-46. He further alleges in the underlying action that the applicants, both
Crown prosecutors, were negligent in failing to prosecute Justice Sharkey in
connection with the allegedly defamatory Order. The respondent seeks damages in
excess of $2.5 million from the applicants, and in excess of $3 million from
Justice Sharkey.
I. Issues
[3]
Only two
issues arise for consideration on this motion:
A. Are the respondent’s
procedural objections determinative?
B. Should the Court grant an
Order pursuant to subsection 40(1) of the FCA?
II. Analysis
A. Are the
respondent’s procedural objections determinative?
[4]
Before
considering whether an Order pursuant to subsection 40(1) of the FCA is
warranted, I will first address the procedural objections raised by the
respondent in his reply submissions.
[5]
First, the
respondent claims that the current proceedings should be “stopped immediately”
on account of the fact that neither the applicants nor Justice Sharkey paid
fees in order to have their respective statements of defence filed. Subsection
1(1) of Tariff A of the Federal Courts Rules, SOR/98-106 [FCR]
clearly outlines “fees payable on issuance”. Although fees are required for the
issuance of a “statement of defence and counterclaim adding a party”, no fees
are required for the issuance of a statement of defence alone.
[6]
Second,
the respondent claims that the applicants’ request for an order under
subsection 40(1) of the FCA is “fundamentally defective” because it was
brought by way of a motion as opposed to by way of application. This argument,
too, is without merit. The Federal Court of Appeal in Nelson v Canada (Minister of Customs and
Revenue Agency),
2003 FCA 127 at para 22, 301 NR 359 indicated, “Section 40 of the Federal Court
Act simply refers to an "application”. That term is sufficiently broad to
include originating applications and motions."
[7]
As to the
respondent’s third objection, that the applicants have not obtained the
necessary written consent from the Attorney General of Canada, once again –
there is no real issue here. Subsection 40(2) of the FCA indicates that
an application under subsection 40(1) “may be made only with the consent of the
Attorney General of Canada”. However, in this case, that consent has been
obtained. It is true that the initial written authorization, dated November 9,
2010, contained a typographical error in that it referred to an order under
subsection “41(1)” instead of subsection 40(1) of the FCA. However, that
typographical error was acknowledged, and a corrected authorization was filed on
December 7, 2010.
[8]
Finally,
the respondent argues that the current motion is not properly before the Court
because it was not brought in time. On September 17, 2010, Prothonotary Roza
Aronovitch ordered that the applicants had until October 20, 2010 to file and
serve an application under subsection 40(1) of the FCA. Although the
applicants did not meet this deadline, they did request an extension by way of
a letter to the Court dated October 21, 2010. They indicated that the delay was
a result of the fact that the Attorney General had not yet provided them with
the required written authorization. That extension was granted by Prothonotary
Richard Morneau on October 25, 2010, giving the applicants until November 15,
2010 to file an application under subsection 40(1). The applicants did not file
their materials until November 16, 2010. They requested an extension so that
their submissions could be accepted for filing. On November 26, 2010,
Prothonotary Morneau directed that despite being a day late, the applicants’
motion record was, nonetheless, to be accepted for filing.
[9]
The
respondent points to the Federal Court of Appeal’s decision in Nowoselsky v Canada (Treasury Board), 2004 FCA 418, 329 NR 238 [Nowoselsky]
for the proposition that a request for extension of time can only be brought
under the FCR by way of a motion. It is true that the Court of Appeal
indicated in Nowoselsky that the effect of Rules 8(1) and 47(2) of the FCR
is that, “the Court cannot overcome the absence of a motion seeking an
extension of time by acting on its own motion.” However, the current matter is
distinguishable. In Nowoselsky, the applicant failed, altogether, to
request an extension of time for filing his appeal. In the current matter,
although the applicants did not submit a formal Notice of Motion requesting an
extension of the deadline set out in Prothonotary Aronovitch’s September 17th
Order, they did provide a written request, a copy of which was provided to the
respondent.
[10]
The
respondent also points to my decision in Apotex v Wellcome Foundation Ltd,
2004 FC 574, 33 CPR (4th) 166. In that case, I found that a prothonotary had
erred by ordering certain documentary disclosure, in part, because no formal
motion was before the Court. The associated rules (Rules 225, 227 and 229) were
similar to Rule 8(1) in that the Court was to act only “on motion”. However,
the circumstances of that case were significantly different. In that case, the
prothonotary had ordered, without a formal motion, disclosure of certain
documents prior to the parties issuing a statement of issues or an affidavit of
documents. Such an order can result in the production of irrelevant documents
and may be counterproductive.
[11]
Given the
special circumstances of this case, on the other hand, and upon reviewing Rule
55 of the FCR (which provides the Court discretion to dispense with
strict compliance with the rules where appropriate), I cannot find that the
directions issued by Prothonotary Morneau, allowing extended time for filing,
were improper. The extensions did not result in any prejudice to the
respondent, and, given the volume of material being submitted by the respondent
(as will be reviewed below), it must be noted that allowing an application
under subsection 40(1) of the FCA was certainly in line with the
objective of securing the “just, most expeditious, and least expensive
determination of every proceeding on its merits” as per Rule 3 of the FCR.
B. Should the Court
grant an Order pursuant to subsection 40(1) of the FCA?
[12]
Subsection
40(1) of the FCA reads:
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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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[13]
In
assessing whether a subsection 40(1) Order is warranted, regard should of
course be had to the respondent’s behaviour in this Court. However, proceedings
initiated in other courts may also be considered (Savard v Canada (Attorney
General), 2006 FC 46 at para 9, 146 ACWS (3d) 470; Canada v Warriner
(1993), 70 FTR 8, 44 ACWS (3d) 695 (TD)).
[14]
In
addition to the twelve proceedings initiated by the respondent in the Federal
Court and Federal Court of Appeal, the respondent also has an extensive history
before the Yukon Courts, as well as the Nunavut Courts. In Mazhero v Yukon
(Ombudsman & Privacy Commissioner), 2001 YKSC 520 at paras 39-41 [Yukon],
Justice Marceau of the Yukon Supreme Court had the following to say about the
respondent’s litigation history to that point (May 9, 2001):
39 A search of the public record
indicates that Mr. Mazhero has brought a multiplicity of proceedings, not only
in this court, but also in the Yukon Court of Appeal and in the Federal Court
of Canada. The matters revealed are as follows:
1. A total of 6 proceedings to
the Supreme Court of Yukon…
2. A total of 2 appeals from
decisions of this court…
3. A total of two proceedings before the
Federal Court - Trial Division and one proceeding before the Federal Court -
Appeal Division…
40 It is clear from reviewing the
numerous matters instigated by Mr. Mazhero that he seeks to attack both the
procedure of various public bodies designed to protect his rights, as well as
their members, employees and even counsel. It is also clear that all of the
proceedings initiated in this court that have been adjudicated upon to this
date have been found to be completely without merit.
41 Due to the overly litigious nature
of Mr. Mazhero, which, as noted above, has brought a total of 5 matters before
this court, some with additional motions brought within the original
proceeding, which have to date been completely without merit, it occurs to me this
might be an appropriate situation in which to enjoin Mr. Mazhero from issuing
further process in this court without first obtaining leave.
[15]
In Mazhero
v Yukon (Human Rights Commission), 2002 YKCA 5, the Yukon Court of Appeal dismissed a number of
the respondent’s appeals on the basis that the respondent had not materially
advanced the appeals towards a final hearing or determination. At paragraphs
16–19, it emphasized the speculative and repetitive nature of the proceedings
instituted by the respondent:
16 …Many of the steps he has taken have
been labelled in the past as unmeritorious, without legal foundation,
irrelevant and repetitive. One judge below went so far as to consider enjoining
the appellant from issuing further process in the Supreme Court without first
obtaining leave.
17 I make no ruling on these
observations by other judges. They are not pertinent to the applications before
me, but they do illustrate that the appellant engages in multiple litigation,
much of which is speculative. In such circumstances one would expect an
appellant, confronted with motions to dismiss, to aggressively defend the
merits of the appeal, or at least provide an explanation for the delays. Mr.
Mazhero's failure to appear at all may be an indication that he too considers
these appeals superfluous. Or, at a minimum, it indicates that the appellant
has no settled intention to proceed with these appeals.
…
19 The second point is that, while the
courts must maintain accessibility for all members of the public, the courts
also have a responsibility to protect parties from seemingly vexatious
proceedings. The respondent Commission is a public body with a mandate to serve
the public interest. The appellant has engaged in repetitive litigation against
it alleging things that to date have been held to be unfounded. Undoubtedly
such litigation has the capacity of interfering with the Commission's work by
the expenditure of time and resources. This then has the potential of
detrimentally affecting other members of the public who are relying on the
Commission to protect their rights. The Commission, just like any other
litigant, is entitled to know that proceedings will come to an end and when.
[16]
In Mazhero
v Federation of Nunavut Teachers, 2003 NUCJ 2, 179 ACWS (3d) 743 [Federation
of Nunavut Teachers], the Nunavut Court of Justice addressed an application
by the respondent arising out of numerous grievances the respondent had filed
against his employer, the Government of Nunavut, in relation to his former job
as a teacher in Chesterfield Inlet. These grievances related to: relocation and
storage assistance, allegations of defamation, harassment, supposed violation
of his Charter rights, invasion of privacy, wrongful dismissal, etc.
Justice Browne expressed concern with respect to the volume of material filed
by the respondent as well as his allegations against court staff. At paragraph
8, he indicated:
8 Mr. Mazhero files significantly more
material than any other individual (Plaintiff or Respondent), so much so that
the court registry staff and I, as case management judge, are unable to keep up
with the filing and all of our other tasks...
At paragraph 10:
10 I am concerned about derogatory
allegations that Mr. Mazhero is making against court staff. Those remarks are
inappropriate and will not be tolerated.
[17]
Justice
Browne also noted the unmeritorious nature of the respondent’s applications, as
well as his preoccupation with procedure, at paragraph 28:
28 I have case managed this file since
August. Mr. Mazhero is consumed with procedure and the grievance sits without
progress. Most, if not all, of Mr. Mazhero's applications are destined for
failure -- they do not advance the grievance process -- they have little merit
or chance of success. The numerous filings and actions of Mr. Mazhero have put
the court office under some pressure. Of more concern is the constant effort to
undermine court staff, counsel, judges and others involved directly or
peripherally with the grievance or court applications…
[18]
In an
Order issued by Justice Sharkey of the Nunavut Court of Justice on August 14,
2009, the respondent was declared to be a vexatious litigant for the purposes
of the Nunavut Court of Justice and Nunavut
Court of Appeal.
[19]
In Mazhero
v Government of Nunavut, 2010 NUCJ 11 [Nunavut], Justice Kilpatrick of the Nunavut
Court of Justice highlighted the respondent’s delay in prosecuting an
application filed two years earlier:
6 This Court understands that the
applicant is anxious to see his matter proceed to a hearing. However, this
applicant's insistence that he be given a hearing date before July 30th to suit
his convenience is neither reasonable nor practical due to the Court's heavy
scheduling commitments. This is so particularly in view of the applicant's own
decision to delay prosecution of the original application for two years in
favor of procedural litigation in the Court of Appeal. If there is delay in the
section 28 application being heard by this Court, the applicant would appear to
be largely the author of his own misfortune.
[20]
As already
mentioned, the respondent has initiated 12 proceedings in this Court and in the
Federal Court of Appeal over the last ten years. Of those 12 proceedings, 8
have been dismissed, 1 file has been ordered closed, and the remaining 3
have yet to be ultimately decided.
[21]
Between
March and June of 2001, the respondent initiated 4 proceedings. All were
related to the judicial review of grievances that the respondent had filed with
various boards and tribunals - some of which were grievances against his former
employer, the Yukon Territorial Government.
[22]
On March
19, 2001, the respondent brought an application for judicial review in the
Federal Court of Appeal (A-185-01) of a decision of the Canada Industrial
Relations Board (CIRB). The respondent sought to have one of his complaints to
the CIRB referred for an expedited hearing. During the lifetime of this file,
the respondent filed approximately 15 interlocutory motions, only one of which
was partially successful. In fact, the volume of materials being filed with the
Registry was so high that, on April 2, 2004, Justice Karen Sharlow directed
that a temporary hold be placed on any further submissions:
There are numerous items of
correspondence and motions in this file that have yet to be dealt with by the
Court. It is not possible to deal with them unless the flow of paper is stopped
for a time. Therefore, until further notice, no further documents are to be
submitted in this matter by any party…
[23]
In this
regard, Justice Sharlow later noted, “the propensity of Mr. Mazhero to file
numerous motions, and to attempt to supplement his motions continually by
letters and amendments, has contributed to the delay of which he now complains”
(Mazhero v Canada (Industrial Relations Board), 2004 FCA 151 at para 36,
320 NR 1). The respondent’s application was ultimately dismissed on February
17, 2005 when the respondent did not appear for the hearing. The Court
indicated that it was, “unable to find any error in the decision sought to be
reviewed that would warrant [its] intervention” (Mazhero v Canada (Industrial Relations Board), 2005 FCA 69 at para 1).
[24]
On April
4, 2001, the respondent brought an application in the Federal Court (T-598-01)
seeking the judicial review of a decision of the Yukon Teachers’ Staff Relations
Board which had refused to process a complaint filed by the respondent earlier
that year. This application was dismissed in August 2001 by Justice Francis
Muldoon who found that the Federal Court lacked jurisdiction to hear and
determine the application.
[25]
On April
11, 2001, the respondent brought another application in the Federal Court of
Appeal (A-245-01) seeking judicial review of a decision made by the Yukon
Public Service Staff Relations Board refusing to consolidate complaints made by
the respondent earlier that year. The Court of Appeal dismissed this
application on July 4, 2001 after indicating that it lacked jurisdiction to
hear the matter.
[26]
On June
29, 2001, the respondent appealed two orders that had been rendered in
T-598-01, above, to the Court of Appeal (A-401-01). These appeals were
ultimately dismissed because the respondent failed to respond to a Notice of
Status Review within the time specified to do so.
[27]
Between
March 2004 and May 2005, the respondent initiated another five proceedings in
the Federal Court and the Federal Court of Appeal.
[28]
On March
12, 2004, the respondent brought an application (T-313-04) seeking judicial
review in this Court of two decisions made by the Office of the Information
Commissioner regarding records that the respondent had requested. Over the
course of this application, the respondent wrote to the Court approximately 22
times and brought a total of 12 interlocutory applications, all of which were
dismissed. On January 5, 2006, this application was dismissed by Prothonotary
Roger Lafrenière as being “so improper” as to be “bereft of any possibility of
success”.
[29]
On April
20, 2004, the respondent initiated an action in this Court (T-792-04) alleging
that a number of police officers had improperly arrested and detained him in
Iqaluit in December of 2003. This action has yet to be finally determined. Thus
far, the respondent has written to the Court approximately 89 times and has
brought approximately 29 interlocutory applications. All 29 interlocutory
applications were dismissed or held in abeyance except for 2 which were only
partially successful.
[30]
On
November 25, 2004, the respondent brought an action in this Court (T-2106-04)
against Justice Edward Richard of the Nunavut Court of Appeal, Justice Beverly
Browne of the Nunavut Court of Justice, as well as a registry officer at the
Supreme Court of Canada. The respondent alleged that the defendants had failed
to adequately expedite 3 actions, 3 petitions and 3 appeals that he had
initiated. On November 25, 2004, Justice Sean Harrington of this Court
dismissed the respondent’s action for being scandalous, frivolous and
vexatious. In Mazhero v Nunavut (Court of Justice, Judge), 2004 FC 1659 at para 3, 135 ACWS (3d)
415, Justice Harrington indicated:
3 I direct the statement of claim be
accepted for filing so that it can be assigned a proper docket number. However,
as Mr. Mazhero has not advanced any basis whatsoever for invoking this Court's
jurisdiction, on my own motion I strike the statement of claim in its entirety
pursuant to Rule 221, without leave to amend, and order that the action be
dismissed. The statement of claim discloses no reasonable cause of action
before this Court, is scandalous, frivolous and vexatious, and is otherwise an
abuse of process of this Court.
[31]
Justice
Harrington’s Order, however, did not end the matter for the respondent. He
brought more than 10 further motions, all of which were dismissed. On September
28, 2005, Justice Yves de Montigny ordered an end to further submissions by the
respondent with respect to this action, he ordered:
All further documentation submitted to
the Court by the Plaintiff on this file, be returned to him. The Court will
entertain no further motions in this action. This order may be subject to
change, pending the decision in the Plaintiff's file in the Court of Appeal.
[32]
Despite
Justice de Montigny’s Order, the respondent brought a further motion on January 29,
2010 seeking to set aside Justice Harrington’s 2004 Order. This motion was
dismissed by Justice Harrington on March 11, 2010. Justice Harrington indicated
that, “The defendants, the Honourable J. Edward Richard and the Honourable
Beverly Browne have been vexatiously pursued in this Court…” (Mazhero v Nunavut (Court of Appeal, Judge), 2010 FC 281 at para 14). Justice
Harrington reiterated that this Court did not have jurisdiction over the cause
of action alleged in the statement of claim.
[33]
The
respondent also appealed Justice Harrington’s 2004 Order to the Federal Court
of Appeal (A-703-04) on December 23, 2004. The respondent alleged that Justice
Harrington’s Order constituted a fraud and was an abuse of process. This appeal
was ultimately dismissed by the Federal Court of Appeal for delay. The court
records show that the respondent wrote to the Court approximately 26 times and
brought approximately 11 interlocutory applications, all of which were
dismissed, over the lifetime of this file.
[34]
On May 17,
2005, the respondent initiated an application for judicial review in this Court
(T-865-05) of a decision by the Executive Director of the Canadian Judicial
Council. The respondent had filed complaints against a number of judges with
the Executive Director and sought an order from this Court requiring the
Executive Director to send those complaints to the Chairperson of the Canadian
Judicial Council. The respondent named not only the Canadian Judicial Council
as respondents in the matter, but also: Prothonotary Mireille Tabib,
Prothonotary Roza Aronovitch, Justice Edward Richard, Justice Beverly Browne,
Justice Sean Harrington, Justice Yvon Pinard, Justice Konrad von Finckenstein,
Justice Robert Decary and Justice Denis Pelletier. On this file, the respondent
wrote to the Court 19 times, and brought six interlocutory applications, all of
which were dismissed. The overall application was dismissed on January 24, 2006
for delay.
[35]
On July 5,
2010, the respondent initiated the action underlying the current motion (T‑1067‑10).
The respondent’s conduct to date on this file has been consistent with his
conduct in the past. He has filed, or attempted to file, a number of
interlocutory applications and documents. He has sent many letters to the Chief
Justice of this Court, as well as a letter to the Chief Justice of the Supreme
Court of Canada. His interaction with the Court Registry has been so extensive
that on November 2, 2010, the Registry requested directions from the Court. On
November 3, 2010, Prothonotary Morneau issued an Order restricting the
documents that could be filed with the Court as follows:
In order that this file does not become
even further clogged or saturated, based on the principle that this Court has
the implied jurisdiction to control its own process and upon a reading of rule
3 of the Federal Courts Rules (the Rules), this Court on its own motion hereby
orders that unless and until ordered or directed otherwise by this Court or the
case management judge to be designated, no document or motion material
submitted in the past by the plaintiff for filing, or to be submitted by the
plaintiff for filing, shall be filed by the Registry unless they are strictly
related to the following motions and do respect the requirements of the Rules:
1. The motion by the plaintiff for
summary judgment discussed in the direction of this Court dated September 17,
2010;
2. The motions by the defendants Andrew
Fox and Jacques Roberge identified in paragraph 2 of the order of this Court
dated September 17, 2010;
3. A motion in appeal of the instant
order.
[36]
The
respondent continues to submit motion materials and other documents that fall
outside the scope of the above Order. Those documents continue to be returned
to the respondent. The respondent also continues to write letters to the Chief
Justice of this Court. In one letter, received by the Court on December 30,
2010, the respondent alleged that a Prothonotary of this Court was a “natural
born racist”. In other letters, the respondent accuses a Prothonotary, and
various Registry officers, of being in contempt of Court.
[37]
Subsequent
to commencing the underlying action, the respondent also brought an appeal in
the Federal Court of Appeal on October 13, 2010 (A-384-10) related to the
T-792-04 action, as well as an application for judicial review in this Court on
February 23, 2011 (T-307-11). In relation to this latter application, on February
24, 2011, Prothonotary Morneau issued the following direction:
In order not to defeat the letter or
spirit of the order rendered by the Court on November 3, 2010 in file T-1067-10
or to allow said order (or any other order or direction issued thereafter in file
T-1067-10) to be worked around by, inter alia, the opening of new files,
and on the basis of the principle or rules relied upon in said order of
November 3, 2010, the notice of application filed in the instant file on
February 23, 2011 shall be struck out, the recorded entry and tariff receipt be
cancelled and this file is hereby directed to be closed and terminated
forthwith for all intents and purposes.
[38]
Relief
under subsection 40(1) of the FCA is exceptional and must only be
granted sparingly and with the greatest of care (Wilson v Canada (Revenue), 2006 FC 1535 at para 28, 305
FTR 250; Canada v Olympia Interiors Ltd (2004), 2004 FCA 195 at para
6, 323 NR 191). This is because the imposition of a requirement to seek leave
before instituting a court proceeding acts as a limit on a person’s access to
the judicial system.
[39]
At issue
is whether the respondent has “persistently instituted vexatious proceedings or
has conducted a proceeding in a vexatious manner” within the meaning of
subsection 40(1) of the FCA. I am satisfied that he has.
[40]
In Wilson v Canada (Revenue), 2006 FC 1535 at paras 30-31,
305 FTR 250, Justice Robert Barnes provided an overview of some of the indicia
of vexatious behaviour:
30 The authorities have interpreted
"vexatious" as being broadly synonymous with the concept of abuse of
process: see Foy v. Foy (1979), 102 D.L.R. (3d) 342 (Ont. C.A.). It is, therefore, not surprising that
one of the notable characteristics of a vexatious litigant is the propensity to
relitigate matters that have already been determined against him: see Vojic
v. Canada (Minister of National
Revenue),
[1992] F.C.J. No. 902 (T.D.).
31 Other indicia of vexatious behaviour
include the initiation of frivolous actions or motions, the making of unsubstantiated
allegations of impropriety against the opposite party, legal counsel or the
Court, the refusal or failure to abide by rules or orders of the Court, the use
of scandalous language in pleadings or before the Court, the failure or refusal
to pay costs in earlier proceedings and the failure to pursue the litigation on
a timely basis: see Vojic, above; Canada v. Warriner (1993), 70
F.T.R. 8, [1993] F.C.J. No. 1007; Canada v. Olympia Interiors Ltd.,
[2001] F.C.J. No. 1224, 2001 FCT 859; Mascan Corp. v. French (1988), 49
D.L.R. (4th) 434, 64 O.R. (2d) 1 (C.A.); Foy, above; Canada Post
Corp. v. Varma (2000), 192 F.T.R. 278, [2000] F.C.J. No. 851; and Nelson
v. Canada (Minister of Customs and Revenue Agency), [2002] F.C.J. No. 97,
2002 FCT 77.
[41]
While it
could be argued that virtually all of the indicia of vexatious behaviour
pointed to by Justice Barnes are engaged in the respondent’s case, there are a
few that stand out in particular.
[42]
First and
foremost, it is clear that the respondent has a history of initiating frivolous
proceedings and interlocutory applications. Justice Marceau of the Yukon
Supreme Court indicated in May 2001 that all of the proceedings initiated by
the respondent in that Court, to that date, had been “found to be completely
without merit” (Yukon, above). In November 2003,
Justice Browne of the Nunavut Court of Justice noted that "most, if not
all" of the respondent's applications were “destined for failure” (Federation
of Nunavut Teachers, above). The same could be said of the actions, applications
and appeals initiated by the respondent in this Court and in the Federal Court
of Appeal. All proceedings initiated by the respondent at the Federal level
that have reached final determination have been dismissed due to lack of
jurisdiction, due to delay, or due to lack of merit.
[43]
The sheer
volume of unmeritorious interlocutory applications filed by the respondent over
the past ten years is also remarkable. On a number of occasions, the
respondent’s zeal for filing interlocutory motions has resulted in this Court,
and the Court of Appeal, issuing directions designed to place limits on what
the respondent could file. Such was the case, for example, with the November 3,
2010 Order issued by Prothonotary Morneau in the underlying action.
[44]
The second
indicia that is clearly engaged by the respondent’s behaviour is, “the making
of unsubstantiated allegations of impropriety against the opposite party, legal
counsel or the Court”. The respondent, time and again, has levelled
unmeritorious and unsubstantiated allegations of impropriety against judges,
prothonotaries, Registry officers, and legal counsel. Justice Browne of the
Nunavut Court of Justice indicated that he was concerned with the
unsubstantiated "derogatory allegations" made by the respondent “against
court staff” (Federation of Nunavut Teachers, above). In T-2106-04,
above, Justice Harrington found that the respondent had “vexatiously pursued”
both Justice Richard of the Nunavut Court of Appeal and Justice Beverly Browne
of the Nunavut Court of Justice. File T-865-05, above, involved unsubstantiated
claims against a number of judges from various courts. And, of course, in the
underlying action, the respondent claims against a judge of the Nunavut Court
of Justice as well as two Crown counsel. Also of note in the underlying action
is that the respondent has levelled a number of entirely unfounded accusations
of impropriety against a prothonotary of this Court, as well as against a number
of Registry officers.
[45]
The third
indicia clearly engaged here is, “the failure to pursue the litigation on a
timely basis.” A review of the respondent’s litigation history shows that
numerous appeals and applications were dismissed due to delay. The Yukon Court
of Appeal dismissed a number of the respondent's appeals on the basis that he
had not materially advanced those appeals towards a final hearing or
determination (Human Rights Commission, above). Justice Kilpatrick of
the Nunavut Court of Justice found in Nunavut, above, that the respondent had made a “decision
to delay prosecution”. At the Federal level, files A-401-01, A-703-04, and
T-865-05 were all dismissed for delay.
[46]
For the
foregoing reasons, I am satisfied that the respondent has persistently
instituted vexatious proceedings and has conducted the underlying proceeding in
a vexatious manner within the meaning of subsection 40(1) of the FCA. As
such, I am granting the applicants’ motion and ordering that no further
proceedings be instituted by the respondent in this Court except by leave of
this Court, and that the underlying action against the defendants Andrew Fox,
Jacques Benoit Roberge and Neil Sharkey not be continued except by leave of
this Court.
ORDER
THIS COURT ORDERS that
1.
The
respondent, Francis Mazhero, is barred from bringing any further proceedings in
this Court except with leave of the Court.
2.
The
underlying action against the applicants Andrew Fox, Jacques Benoit Roberge and
Neil Sharkey not be continued except by leave of the Court.
3.
The
respondent, Francis Mazhero, shall pay to the applicants costs in the amount of
$1,000.00 payable forthwith.
“Danièle
Tremblay-Lamer”
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