Date: 20071119
Docket: T-1526-07
Citation: 2007 FC 1209
BETWEEN:
RON CROWE
Plaintiff
and
THE HONOURABLE CHIEF JUSTICE
OF CANADA BEVERLY MCLACHLIN,
THE HONOURABLE JUSTICE CHARRON,
THE HONOURABLE JUSTICE ROTHSTEIN OF THE
SUPREME COURT OF CANADA,
THE HONOURABLE CHIEF JUSTICE OF ONTARIO ROY MCMURTRY,
THE HONOURABLE JUSTICE FELDMAN,
THE HONOURABLE JUSTICE LANG OF THE COURT
OF APPEAL FOR ONTARIO,
THE HONOURABLE MADAM JUSTICE JANET WILSON
OF THE ONTARIO SUPERIOR COURT OF JUSTICE,
THE HONOURABLE RICHARD SCOTT, CHIEF
JUSTICE OF MANITOBA
AND CHAIRPERSON OF THE JUDICIAL CONDUCT
COMMITTEE OF
THE CANADIAN JUDICIAL COUNCIL (in their
judicial and private capacities)
and THE CANADIAN JUDICIAL COUNCIL
Defendants
REASONS FOR ORDERS
[1]
The question raised by the motions to dismiss which are before me
is whether a $5 billion dollar action in damages lies in this Court against:
a) a judge of the Ontario Court of Justice who, on motion for
summary judgment, ordered that the issue of whether Mr. Crowe was bound by Minutes
of Settlement he signed be decided by way of summary trial;
b) the three judges of the Ontario Court of Appeal who dismissed
his application for leave to appeal that order;
c) the three judges of the Supreme Court of Canada who in turn
dismissed his application for leave to appeal from the Court of Appeal; and
d) the Canadian Judicial Council, and its Chair, who would not
investigate his complaint against the motions judge.
[2]
The answer lies in three decisions of the Supreme Court: Morier
and Boiley v. Rivard, [1985] 2 S.C.R. 716, ITO-International Terminal
Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752; and Toronto
(City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77.
[3]
The motions are granted. The Statement of Claim is struck out in
its entirety, without leave to amend, and the action is dismissed for the
following three reasons, not all of which are equally applicable to each
defendant:
a) the
action is beyond the subject matter jurisdiction of this Court;
b) the Statement of Claim discloses no reasonable cause of action
as the principle of judicial immunity serves as a complete defence; and
c) the action is otherwise an abuse of process.
[4]
Last month I struck Mr. Crowe’s Statement of Claim and dismissed this
action as directed against his disability underwriters, officers and directors;
his former solicitor of record in the Ontario Superior Court of Justice action;
and the Attorney General of Canada as representing the Federal Crown. The
reasons are reported as Crowe v. Attorney General of Canada, 2007 FC
1020. Mr. Crowe has appealed those orders.
[5]
The remaining defendants subsequently brought on their own
motions to have the Statement of Claim struck, and the action dismissed as
against them.
I. Background
[6]
As previously reported, this action has its genesis in a
disability insurance policy Mr. Crowe had with ManuLife. With the aid of
counsel, he instituted proceedings against it in the Ontario Superior
Court. During a mandatory mediation session, the parties and their solicitors
signed a document they titled “Minutes of Settlement”. The Minutes purportedly
record an agreement to settle. The underwriters agreed to pay Mr. Crowe
$65,000, and he agreed to “…sign a full and final release in a form
satisfactory to the defendant including an exclusion for any future disability
claims up to March 6, 2007 should the plaintiff return to work between now and
March 6, 2007 with the same policy holder.”
[7]
Shortly thereafter ManuLife proffered a release document. Mr.
Crowe refused to sign it. He was of the view that the terms were inconsistent
with and contrary to the terms of settlement as expressed in the Minutes. He
dismissed his solicitor and then represented himself in the action.
[8]
ManuLife moved for summary judgment on the Minutes of Settlement.
Mr. Crowe countered with dismissal thereof. On December 9, 2005, the motions
judge, Madam Justice Wilson, ordered “on the agreement of both parties that the
motions outstanding as brought by the parties shall proceed by Summary
Trial to determine whether the Plaintiff is bound by the settlement reached at
the mediation.” She set down the summary trial for the week of February 27,
2006.
[9]
Mr. Crowe decided to appeal that order. Since, on its face, it
had been issued on consent, he required leave from the Ontario Court of Appeal
in accordance with section 133 of the Ontario Courts of Justice Act.
Since his was an ordinary action, not taken under the simplified procedure
rules, Madam Justice Wilson could only order a summary trial with his consent.
He was duped into giving that consent by all concerned, including Madam
Justice Wilson herself. Among other things, he submitted that it was improper
for her to raise the suggestion of a summary trial as a suitable alternative
mode of trial, and that she gave him inaccurate, incomplete and misleading
information as to the difference between summary trial and an ordinary trial.
The Court of Appeal panel comprising Chief Justice McMurtry, and Justices
Feldman and Lang, dismissed his application for leave to appeal.
[10]
Mr. Crowe in turn sought leave to appeal that decision to the
Supreme Court of Canada. In his Notice of Application, he raised several
issues. He asked whether a court was allowed to “persuasively inveigle” the
consent of an unrepresented party to transfer an action to summary trial, and
whether a “consent” order could be seen to have been agreed to when the order
was not within the jurisdiction of the court in the first place. He also raised
the issue as to whether he was being precluded from claiming extra contractual
damages as a result of that order.
[11]
The Supreme Court panel, made up of Chief Justice McLachlin and
Justices Charron and Rothstein, dismissed his application.
[12]
While this was going on, he complained about Madam Justice
Wilson’s conduct to the Canadian Judicial Council. The Council, chaired by
Chief Justice Scott of Manitoba, refused to entertain the complaint.
[13]
Leaving aside other actions Mr. Crowe has instituted in the
Ontario Superior Court of Justice, he has instituted proceedings in this Court
and seeks damages in the amount of $5 billion dollars against ManuLife, its
officers and directors, his former solicitor, Paul Greco, the Attorney General
of Canada as representing the Federal Crown, the judges identified in the
current style of cause and the Canadian Judicial Council, as well as its Chair.
II. The First Orders to
Dismiss
[14]
The Statement of Claim was struck, without leave to amend, and
the action was dismissed as against the underwriters, their officers and
directors, and Mr. Greco, Mr. Crowe’s former solicitor, on the basis that the
cause of action was beyond the subject matter jurisdiction of this Court. The
matters complained of were matters of property and civil rights in the
province. Reliance was placed on the decision of the Supreme Court of Canada in
ITO, above.
[15]
The Statement of Claim was struck without leave to amend and the
action was dismissed as against the Attorney General on different grounds. This
Court has jurisdiction to entertain actions in damages against the Federal
Crown. The basis of such an action under the Crown and Liability Proceedings
Act is that, in certain circumstances, the Crown is vicariously liable for
acts or omissions of its servants. However, judges are not servants of the
Crown and so the Statement of Claim disclosed no reasonable cause of action.
[16]
It bears mentioning that during the hearing of these first motions
in Toronto on September 26, 2007, counsel appeared for the Canadian
Judicial Council and the other judges named in the Statement of Claim, with the
exception of the three Supreme Court judges. He asked the Court to dismiss the
action as against his clients (and by necessary implication, the three Supreme
Court judges as well): a) for the reasons submitted by the Attorney General in
his memorandum; or b) on the Court's own motion. I declined to do so because
the Attorney General stated that he had no mandate from the Supreme Court
Judges, and although the Court could raise the issue on its own motion, it
would not do so without giving Mr. Crowe appropriate notice.
[17]
Indeed, as mentioned at paragraph [32] of my first set of
reasons, it was not clear to me that the judges had been served, or at least
properly. It may well be that the appearance of counsel for the Canadian
Judicial Council and the Ontario judges constituted an appearance gratis and a
waiver of any irregularities in service. However, as regards the three Supreme
Court judges, Mr. Crowe’s affidavit of service states that they were
served by leaving copies at the federal Department of Justice’s offices in
Toronto marked to the attention of the Minister of Justice and Attorney General
of Canada. It was and remains my opinion that this was not valid personal
service as required under rule 128 of the Federal Courts Rules.
III. Motions which
precipitated the second hearing
[18]
Given what I had already decided, my concern that the three
judges of the Supreme Court were not on notice that an action had been
instituted against them, and my concern as to the propriety of the said action,
on October 15, on my own “motion”, I ordered Mr. Crowe to show cause as to why
the Statement of Claim should not be struck out as against the remaining
defendants on any of the following grounds:
a. Taking
into account the principle of judicial immunity, it discloses no reasonable cause
of action;
b. It
discloses no reasonable cause of action within the subject matter jurisdiction
of this Court;
c. It
is scandalous, frivolous, or vexatious or is an abuse of process of the Court.
[19]
It may be that Mr. Crowe was concerned about the validity of the service
of his Statement of Claim upon the three Supreme Court judges because he filed
a second affidavit of service stating that they were served at the Supreme
Court building in Ottawa on October 15, 2007.
[20]
Thereafter, separate motions to dismiss were brought on by the
Canadian Judicial Council et al. and by the three Supreme Court judges.
IV. The Court's Own Motion
[21]
During the hearing on November 6, 2007, I suggested to Mr. Crowe
that the Court’s own motion was now moot in light of the motions taken by
the remaining defendants themselves. He disagreed. He suggests that the
defendants may not have brought on their own motions if the Court had not
called upon him to show cause, and in his statement of points in issue asked
“can the court reasonably be seen to be acting judicially, or rather is it
acting as advocate for the remaining defendants?”
[22]
This Court is a court of common law, admiralty and equity, and a
superior court of record as stated in section 4 of the Federal Courts Act.
It is the Constitution and the Parliament which give the Court jurisdiction,
not the parties. The Court cannot stand idly by and allow the administration of
justice to fall into disrepute and ought to question whether a proceeding which
apparently discloses no reasonable cause of action within or without the
jurisdiction of the Court should continue. To do otherwise would be to allow
the process of the Court to be abused.
[23]
When speaking of the Court raising an issue on its own motion,
the word “motion” is not intended to conjure up a formal notice of motion, with
a statement of facts, issues, and written representations as contemplated by
the Rules. Rather, it denotes an expression of concern by the Court coupled
with an opportunity for the party to address those concerns.
[24]
The result is not preordained. In Wire Rope Industries of
Canada (1966) Ltd. v. B.C. Marine Shipbuilders Ltd. et al., [1981] 1 S.C.R.
363, which I mentioned in my earlier set of reasons, the parties, the Federal
Court, and the Federal Court of Appeal, all assumed the Federal Court had
jurisdiction. The Supreme Court, on its own motion, called upon the parties to
justify that assumption, but ultimately agreed that the Federal Court did have
jurisdiction. A similar case to this as regards the Canadian Judicial Council
is Chavali v. Canada, [2000] F.C.J. No. 1602, affirmed [2002] F.C.J. No.
770, leave to appeal dismissed [2002] S.C.C.A. No. 364. The rule I invoked,
rule 221, reflects this Court’s “…inherent and residual discretion to prevent
an abuse of the court’s process.” Toronto (City), above, per
Madam Justice Arbour at paragraph 35.
[25]
It follows that such an expression of concern does not convert
the judge into an advocate for one of the parties. Mr. Crowe did not bring on a
motion that I recuse myself. I would certainly not do so on my own account. I
cannot believe that “an informed person, viewing the matter realistically and
practically - and having thought the matter through…” would consider that there
was an apprehension of bias (Committee for Justice and Liberty v. Canada
(National Energy Board), [1978] 1 S.C.R. 369, per Mr. Justice de Grandpré
at p. 394.)
[26]
As I said in Gordon v. Canada (Minister of
National Defence), 2005 FC 223, [2005] F.C.J. No. 276, at paragraph 12:
The role played by a judge or other
decision-makers in interlocutory matters has come up for decision before. A
recent case, which I consider most helpful, is Charkaoui (Re), 2004 FC
624, a decision of my colleague Simon Noël J. He dealt with an application for
disqualification of a judge and the principles relating thereto at paragraphs 5
and following. He said at paragraph 8:
The presumption of integrity and
judicial impartiality is such that it allows the judge to act and make rulings
in circumstances where he or she has already acquired knowledge in earlier
proceedings and decisions involving the same parties.
V. Federal Court Jurisdiction
[27]
For the reasons expressed in dismissing the action against
ManuLife and Mr. Crowe’s former solicitor, I hold that this Court has no
jurisdiction over the subject matter of the claim as directed against Madam
Justice Wilson, Chief Justice McMurtry, Justices Feldman and Lang, Chief
Justice McLachlin, Justices Charron and Rothstein. Self-represented and
undaunted by precedent, Mr. Crowe submits that as long as a federal statute can
be invoked, the Federal Court has jurisdiction unless that jurisdiction has
been expressly removed. There are a number of federal statutes which can be
invoked including the Constitution Act with its Charter provisions,
the Supreme Court Act and the Judges Act.
[28]
However, as stated by the Supreme Court many times, including in ITO,
above, at page 766, to support a finding of jurisdiction in this Court:
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.
[29]
There has been no statutory grant to the Federal Court of
jurisdiction over an action for damages against Ontario and Supreme Court of
Canada judges, and the existing body of federal law is not essential or even
relevant to the disposition of the case.
[30]
Mr. Crowe argues that were it not for an order of Prothonotary
Milczynski, he would have amended his Statement of Claim to invoke a litany of
federal statutes. Prothonotary Milczynski’s order is not on point. It related
to the motions by ManuLife, Mr. Crowe’s former solicitor and the Attorney
General, which were originally presentable September 10. Mr. Crowe stated he
was not ready. The Prothonotary adjourned those motions sine die and
froze the action until disposition.
[31]
Once I rendered my earlier orders, her own order was spent.
However, in any event, rules 174 and 175 of the Federal Courts Rules
require a party to plead the material facts. A party may, or may not, raise any
point of law. Mr. Crowe was able to argue, wrongly in my view, that several
federal statutes gave this Court jurisdiction.
VI. Liability of the Canadian
Judicial Council
[32]
This Court has jurisdiction over the Canadian Judicial Council.
It is a federal board or tribunal and so its decisions are subject to judicial
review by this Court in virtue of section 18 and following of the Federal
Courts Act.(See Cosgrove v. Canadian Judicial Council, 2007 FCA 103,
279 .L.R. (4th) 352)
[33]
The Council owes its establishment to the Judges Act. It
consists of the Chief Justice of Canada and other Chief Justices and Associated
Chief Justices as enumerated in section 59 of that Act. Its objects are
to promote efficiency and uniformity, and to improve the quality of judicial
service in superior courts. Section 63 provides that it “…may investigate any
complaint or allegation made in respect of a judge of a superior court.”
[34]
It received, but declined, to investigate Mr. Crowe’s complaint
against Madam Justice Wilson. It should be borne in mind that its mandate in
that context is to, if it sees fit, investigate the conduct of judges, not the
correctness of their decisions. As to the appropriateness of Madam Justice
Wilson’s order, Mr. Crowe had two options. The first, which has run its course,
was to appeal. The second, which is still a live issue, is to seek to have the
order varied or set aside, a point on which more will be said.
[35]
It is open for Mr. Crowe to apply to this Court for judicial
review of the Council’s refusal to investigate. Although the normal delay of 30
days has long expired, section 18.1 of the Federal Courts Act allows a
judge of this Court to extend that delay.
[36]
A party seeking damages as a result of a decision of a federal
board or tribunal is caught in a procedural morass. On the one hand, it is not
open to the Court to award damages in judicial review. On the other, a judicial
review is a condition precedent to an action for damages (Canada v.
Grenier, 2005 FCA 348, [2006] 2 F.C.R. 287). There have been instances
where, if the Statement of Claim discloses a fairly arguable cause of action,
the Court has stayed that action rather than dismiss it (Momi v. Canada
(Minister of Citizenship and Immigration), 2006 FC 738, [2007] 2 F.C.R.
291). However, Mr. Crowe’s Statement of Claim discloses no reasonable cause of
action against the Canadian Judicial Council, or its acting chair, Chief
Justice Scott. Even if the Council and Chief Justice Scott were not clothed
with judicial immunity, which seems rather peculiar since they were carrying
out duties imposed upon them by the Judges Act, the most Mr. Crowe
could have hoped for was a recommendation that Parliament remove Madam Justice
Wilson from office. Such a recommendation would not have put one penny in his
pocket. There is no causal connection between the alleged breach of duty he
says was owed him by the Council and its Chair and the five billion dollars in damages
he seeks.
VI. Judicial Immunity
[37]
It would be rather sterile to limit the dismissal of this action
to jurisdictional grounds, which are already under appeal as regards the other
defendants. The immunity of judges from suit is an important constitutional
principle. Judges are to act impartially. As Lord Denning stated in Sirros
v. Moore, [1974] 3 All E.R. 776, [1975] Q.B. 118 at page 136:
In this new age I would take my
stand on this: as a matter of principle the judges of superior courts have no
greater claim to immunity than the judges of the lower courts. Every judge of
the courts of this land ‑‑ from the highest to the lowest ‑‑
should be protected to the same degree, and liable to the same degree. If the
reason underlying this immunity is to ensure "that they may be free in
thought and independent in judgment," it applies to every judge, whatever
his rank. Each should be protected from liability to damages when he is acting
judicially. Each should be able to do his work in complete independence and
free from fear. He should not have to turn the pages of his books with
trembling fingers, asking himself: "If I do this, shall I be liable in
damages?" So long as he does his work in the honest belief that it is
within his jurisdiction, then he is not liable to an action. He may be mistaken
in fact. He may be ignorant in law. What he does may be outside his
jurisdiction ‑‑ in fact or in law ‑‑ but so long as he
honestly believes it to be within his jurisdiction, he should not be liable.
Once he honestly entertains this belief, nothing else will make him liable. He is
not to be plagued with allegations of malice or ill‑will or bias or
anything of the kind. Actions based on such allegations have been struck out
and will continue to be struck out. Nothing will make him liable except it be
shown that he was not acting judicially, knowing that he had no jurisdiction to
do it.
[38]
The immunity of the superior court judges in Canada was described
by the Supreme Court in Morier, above, at paragraphs 85 and following. The
issue in that case was whether members of the Commission de police du Québec
enjoyed the same immunity as superior court judges. They did, as stated by
Mr. Justice Chouinard at paragraph 110:
Indeed, there is no question in
the case at bar that appellants, members of the Commission de police, had the
necessary jurisdiction to conduct an inquiry and to submit a report. It is
possible that they exceeded their jurisdiction by doing or failing to do the
acts mentioned in the statement of claim. It is possible that they contravened
the rules of natural justice, that they did not inform respondent of the facts
alleged against him or that they did not give him an opportunity to be heard.
It is possible that they contravened the Charter of human rights and
freedoms. All of these are allegations which may be used to support the
respondent's other action to quash the report of the Commission de police and
the evidence obtained. This action continues to be before the Superior Court,
and of course I shall make no ruling upon it: but in my opinion these are not
allegations which may be used as the basis for an action in damages.
[39]
Morier makes it plain that the immunity of judges is not
absolute. They must be acting as judges. It is a condition precedent to any
claim that they do not honestly believe to be acting within jurisdiction. As Lord
Denning said: “Nothing will make him liable except it be shown that he was not
acting judicially, knowing that he had no jurisdiction to do it.”
[40]
Partial immunity from suit helps assure the independence of the
judiciary. As noted by Madam Justice Sharlow in Cosgrove, above:
[30] The independence of the judiciary is
a constitutional right of litigants, assuring them that judges will determine
the cases that come before them without actual or apparent interference from
anyone, including anyone representing the executive or legislative arms of
government: see Beauregard v. Canada, [1986] 2 S.C.R. 56 at paragraph
21, and R. v. Lippé, [1991] 2 S.C.R. 114 at page 139.
[31] Justice Strayer expressed this
principle as follows in Gratton v. Canadian Judicial Council (T.D.),
[1994] 2 F.C. 769, at paragraph 16 (cited with approval in Reference re
Remuneration of Judges of the Provincial Court of Prince Edward Island,
[1997] 3 S.C.R. 3, at paragraph 329):
Suffice it to say that independence of the
judiciary is an essential part of the fabric of our free and democratic
society. It is recognized and protected by the law and the conventions of the
Constitution as well as by statute and common law. Its essential purpose is to
enable judges to render decisions in accordance with their view of the law and
the facts without concern for the consequences to themselves. This is necessary
to assure the public, both in appearance and reality, that their cases will be
decided, their laws will be interpreted, and their Constitution will be applied
without fear or favour. The guarantee of judicial tenure free from improper
interference is essential to judicial independence. But it is equally important
to remember that protections for judicial tenure were "not created for the
benefit of the judges, but for the benefit of the judged".
VIII. Liability of Madam Justice
Wilson
[41]
Presumably, the three judges of the Ontario Court of Appeal who
refused leave to appeal were of the view that Madam Justice Wilson was acting
within her jurisdiction. The transcript of the proceedings before her on
December 9, 2005, clearly shows she was acting within her jurisdiction.
Furthermore, it is plain and obvious that she believed she was acting within
that jurisdiction.
[42]
Mr. Crowe’s point is that she could not order a summary trial on
the settlement issue without his consent. She, including everyone else,
obtained that consent by fraud. That proposition is completely bereft of
merit. Rather than rule on the underwriters’ motion for summary judgment, she
suggested that what had been agreed, or not agreed, at the mediation was a
discrete triable issue which could be decided quickly on a summary trial basis.
By this time Mr. Crowe wanted to sue the underwriters for punitive
damages. She clearly pointed out that while he could make whatever arguments he
wanted about the underwriters' behaviour at a summary trial, that trial would
be limited to whether or not there was an enforceable settlement. If there was
not, the action would continue and he could seek such extra-contractual damages
as he saw fit.
[43]
After consenting that the matter proceed on that basis, Mr. Crowe
had second thoughts. He believes that as a result of her order he is bound
forever to the proposition that there was a settlement. Mr. Crowe is incorrect.
As he was self-represented at the time, Madam Justice Wilson used the expression
“misunderstanding” rather than more technical terms relating to the law of
mistake. She even obtained an admission from ManuLife’s solicitor that if Mr.
Crowe succeeded at the summary trial there was no settlement and the action
would continue.
[44]
Mr. Crowe relies upon the decision of the Ontario Court of Appeal
in Law Society of Upper Canada v. Ernst & Young,
(2003) 65 O.R. (3d) 577, 227 D.L.R. (4th) 577. He has completely
misunderstood the meaning of that case. The Law Society took action against its
former auditors and actuaries alleging damages arising from their understated
deficits and unpaid claim liabilities under its professional liability
insurance plan. The defendants denied they were in breach of contract, or
negligent. They moved for dismissal by way of summary judgment and also sought
a declaration on a question of law being whether a plaintiff had sustained
recoverable damages. Their point was that even if they were negligent, damages
were not recoverable because the Law Society had passed on its loss to its own
members through supplemental and increased levies. In order to permit the
matter to proceed in the way it did, they conceded, but only for the purposes
of their motions, that breach of contract, negligence and negligent misrepresentation
could be established. The motions judge declared that the
"passing-on" defence, so called, did not lie, but did hold that a
portion of the Law Society's claim, that being for lost interest it would have
earned on premiums, could not be maintained. This led to an appeal and
cross-appeal.
[45]
In the result, the Court of Appeal held that the motions judge
was wrong in ruling on the "passing-on" defence, because it was
not plain and obvious that such a defence did not lie. Consequently, the matter
should proceed to trial. However, two of the three judges were of the view that
the defendant's hypothetical admission of negligence was not fatal to a motion
for summary judgment. There is absolutely nothing in the case to stand for Mr.
Crowe's proposition that Madam Justice Wilson's order saddled him with a
settlement.
IX. Liability of the Other
Judges
[46]
It follows that the other judges were all acting as judges,
within their jurisdiction. There is absolutely nothing to support Mr. Crowe’s
flight of fancy that all of them were in collusion not only with each other,
but with ManuLife, the federal government and Mr. Crowe’s former solicitor, Mr.
Greco, with a view to defraud him.
[47]
Furthermore, as regards the Supreme Court, the law of supply and
demand comes into play. There are only so many appeals the court can hear. In
considering applications for leave, section 40(1) of the Supreme Court Act
provides that:
… where, with respect to the particular case
sought to be appealed, the Supreme Court is of the opinion that any question
involved therein is, by reason of its public importance or the importance of
any issue of law or any issue of mixed law and fact involved in that question,
one that ought to be decided by the Supreme Court or is, for any other reason,
of such a nature or significance as to warrant decision by it, and leave to
appeal from that judgment is accordingly granted by the Supreme Court.
X. Abuse of Process
[48]
As mentioned earlier in these reasons, Mr. Crowe had two ways in
which he could judicially express his displeasure with Madam Justice Wilson’s
order. The first was by way of appeal. The second is by motion to set aside or
vary it.
[49]
The appeal process has been exhausted. More recently, Mr. Crowe
had brought on a motion in the Ontario Supreme Court to have Madam Justice
Wilson’s order set aside on the grounds of fraud. That motion is pending. For
the reasons mentioned in Morier, above, it would be inappropriate for me
to comment thereon.
[50]
Mr. Crowe’s attacks in this Court on the judgments rendered in the
Superior Court of Justice, the Ontario Court of Appeal and the Supreme Court of
Canada are in effect collateral attacks or otherwise an abuse of process of the
Court (see: Toronto (City), above, and S.G. v. Larochelle, [2004]
A.J. No. 264, affirmed by the Alberta Court of Appeal, [2005] A.J. No. 242).
XI. Costs
[51]
Consistent with my first set of reasons, counsel for the Canadian
Judicial Council and the non-Supreme Court judges, who took the lead in
argument, limited his request for costs to $1,000. This is far below the Tariff
and shall be granted. The Supreme Court Justices did not seek costs and none
shall be granted.
"Sean
Harrington"
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