Date: 20071106
Docket: T-1020-07
Citation: 2007 FC 1074
Ottawa, Ontario, November 6, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Applicant
and
KEYVAN
NOURHAGHIGHI
Respondent
REASONS FOR ORDER AND ORDER
O’KEEFE J.
[1]
This
is a motion by Keyvan Nourhaghighi (the respondent) for:
a. An Order striking out the
Applicant’s Notice of Application filed June 4, 2007 (“Vexatious Notice of
Application”) and dismissing the application pursuant to Rules 3, 4 and the
analogy of Rule 221(1)(a) (b) (c) (f), 221(2), 301(e) of the Federal Court
Rules, 2002 (“Rules”).
b. An Order providing that no
further proceedings be instituted or continued against the Respondent,
Honourable Major Keyvan Nourhaghighi (“Major”) by the Attorney General of
Canada, and the Deputy Attorney General of Canada, Department of Justice,
Ontario Regional Office, Roger Flaim, Karen Lovell, Amy Porteous, Sean
O’Donnell, Douglas R. Neville, Sally Thomson, (“Vexatious Counsel”), in the
Federal Court without leave of a judge of the Federal Court of Canada; where
the Vexatious Counsel disobeyed the orders and process of this Honourable
Federal Court of Canada, numerously;
IN THE ALTERNATIVE, an Order under that the
Court provides a precise definitions for the legal terms used in Section 40 of
the Federal Courts Act (“s. 40”), where there is no Rule and definition
to govern s. 40; that the order shall contain a clear reasons to Major’s
Question that Why s. 40 is not in the breach of s. 7 of the Canadian Charter
of Rights and Freedoms (“Charter”);
c. His costs of this motion to be
fixed in amount of $3000.00 to be paid by the Counsel, or by the
Applicant to Major, forthwith, in any event of the cause;
d. Such further and other relief
as the Respondent may seeks and this Honourable Federal Court may be permitted.
[2]
The
notice of application sought to be struck out is the application of Her Majesty
the Queen in Right of Canada for an order pursuant to subsection 40(1) of the Federal
Courts Act, R.S.C. 1985, c. F-7 (the Act) for “an order providing that no
further proceedings be instituted or continued by the respondent, Keyvan
Nourhaghighi in the Federal Court or the Federal Court of Appeal without leave
of a judge of the Federal Court of Canada.”
[3]
Both
parties are in agreement that as of the date of this application or the hearing
of this motion, the applicant has no matters filed before this Court.
[4]
The
applicant alleges that the respondent has commenced a number of files before
the Court since June 1999.
[5]
Mr.
Justice Campbell of this Court denied the applicant’s request for a similar
order by decision dated June 2, 1999. That application referred to nine actions
filed between May 20, 1995 and August 6, 1997 within which the statements of
claim were struck. Mr. Justice Campbell also noted that the applicant referred
to a further action filed on May 28, 1999 and two appeals that were before the Appeal Court.
[6]
The
respondent pointed out that he had been successful in some of the matters he
put before the Court.
[7]
The
applicant stated in her oral argument before me:
The Applicant today has taken the
position that it is inappropriate of the Crown to use the expression “since
June 1999”. I won’t go into that in any depth, but just make it clear that we
are not alleging that there are open files now. We are alleging that between
June 1999 and now there have been, I believe, three applications, two actions,
20-plus motions and several appeals. He is certainly correct that, as far as we
are aware, there is nothing currently going on.
[8]
Section
40 of the Federal Courts Act above, states:
|
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).
(3) A person
against whom a court has made an order under subsection (1) may apply to the
court for rescission of the order or for leave to institute or continue a
proceeding.
(4) If an
application is made to a court under subsection (3) for leave to institute or
continue a proceeding, the court may grant leave if it is satisfied that the
proceeding is not an abuse of process and that there are reasonable grounds
for the proceeding.
(5) A decision
of the court under subsection (4) is final and is not subject to appeal.
|
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.
(2)
La présentation de la requête visée au paragraphe (1) 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.
(3)
Toute personne visée par une ordonnance rendue aux termes du paragraphe (1)
peut, par requête au tribunal saisi de l'affaire, demander soit la levée de
l'interdiction qui la frappe, soit l'autorisation d'engager ou de continuer
une instance devant le tribunal.
(4)
Sur présentation de la requête prévue au paragraphe (3), le tribunal saisi de
l'affaire peut, s'il est convaincu que l'instance que l'on cherche à engager
ou à continuer ne constitue pas un abus de procédure et est fondée sur des
motifs valables, autoriser son introduction ou sa continuation.
(5)
La décision du tribunal rendue aux termes du paragraphe (4) est définitive et
sans appel.
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[9]
The
Federal Court of Appeal in Canada v. Olympia Interiors Ltd., [2004]
F.C.J. No. 868 stated at paragraph 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 combined with leave
of the Court. . . .
[10]
In
the present motion, the Court is dealing with a motion to strike the
application requesting an order pursuant to subsection 40(1) of the Act.
[11]
In David
Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 at
paragraph 15, Justice Strayer of the Federal Court of Appeal stated for the
Court:
For
these reasons we are satisfied that the Trial Judge properly declined to make
an order striking out, under Rule 419 or by means of the “gap” rule, as if this
were an action. This is not to say that there is no jurisdiction in this Court
either inherent or through Rule 5 by analogy to other rules, to dismiss in
summary manner a notice of motion which is so clearly improper as to be bereft
of any possibility of success. Such cases must be very exceptional and cannot
include cases such as the present where there is simply a debatable issue as to
the adequacy of the allegations in the notice of motion.
This Court believes the same reasoning applies
to the applicant’s application pursuant to section 40 of the Act.
[12]
As
such, I am of the view that the respondent’s request for an order striking out
the applicant’s notice of application filed June 4, 2007 must succeed as the
application is bereft of any possibility of success.
[13]
I
have reached this conclusion because:
1. The respondent had no
matters before this Court when the applicant’s application was filed nor at the
date of the hearing of this motion.
2. According to the
applicant’s arguments before me, the respondent has in the past, filed three
applications, two actions, 20-plus motions and several appeals.
3. According to the
respondent, he was successful on some of the matters.
[14]
If
the application was to go forward, I see no basis upon which the judge could
issue an order pursuant to subsection 40(1) of the Act. Accordingly, the
application would be bereft of success.
[15]
I am
not prepared to grant the other relief requested by the respondent except for
my order for costs as the other relief requested is not the proper subject
matter for this particular motion.
[16]
The
respondent shall have his costs of this motion and such costs shall be assessed
by an assessment officer.
ORDER
[17]
IT
IS ORDERED that:
1. The applicant’s
notice of application requesting an order pursuant to section 40 of the Act is
struck out.
2. The respondent shall
have his costs of the application; such costs shall be assessed by an
assessment officer.
“John
A. O’Keefe”
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