Dockets:
T-1101-13
T-1325-13
T-1603-13
Citation : 2014 FC 119
Ottawa, January 31, 2014
PRESENT: THE CHIEF JUSTICE
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Docket:
T-1101-13
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BETWEEN:
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GARY SAUVE
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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and
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MONECO SOBECO
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Party-to-Action
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Docket:
T-1325-13
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BETWEEN:
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GARY SAUVE
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Plaintiff
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and
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HER MAJESTY THE QUEEN IN RIGHT OF CANADA
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Defendant
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and
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MONECO SOBECO
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Party-to-Action
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Docket:
T-1603-13
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AND BETWEEN:
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GARY SAUVE
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Plaintiff
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and
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HER MAJESTY THE QUEEN IN RIGHT OF CANADA
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Defendant
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REASONS FOR ORDERS AND ORDERS
[1]
These reasons relate to two Motions for security
for costs made on behalf of the Defendant/Respondent Royal Canadian Mounted
Police [RCMP], which were heard together in Ottawa on December 18, 2013. One of
those Motions concerns Court file T-1101-13. The other concerns Court files
T-1325-13 and T-1603-13. For the reasons that follow, those Motions will be
granted with modifications.
I. Background
[2]
Mr. Sauve is a former member of the RCMP. He was
dismissed from that organization after he was convicted of two counts of
criminal harassment involving his former spouse.
[3]
Mr. Sauve has now filed eight actions in this
Court against the RCMP in respect of monies he alleges are owed to him by the
RCMP, damages for harassment and other alleged wrongful acts and alleged
breaches of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being schedule B to the Canada Act, 1982 (UK), 1982, c 11 [Charter].
He has also filed an application for judicial review (T-1101-13) that will be
discussed further below.
[4]
To date,
Mr. Sauve has appeared in over 50 motions, case management conferences,
pre-trial conferences and appeals before this Court and the Federal Court of
Appeal [FCA] in connection with the above-mentioned actions and application for
judicial review. In most of those proceedings, he has represented himself.
[5]
In separate Endorsements to Orders granting
security for costs to the Defendant in Court files T-447-10 and T-682-10, which
were issued prior to the filing of the two actions mentioned in paragraph 1
above, Prothonotary Aronovitch characterized Mr. Sauve’s other six actions
against the RCMP as being “largely duplicative” (Sauve v Her Majesty the
Queen et al, Docket T-447-10, February 3, 2011 (FC) [Sauve T-447-10];
Sauve v Her Majesty the Queen et al, Docket T-682-10, February 3, 2011).
II. Preliminary matter
[6]
At the outset of his oral representations during
the hearing of these Motions, Mr. Sauve requested another hearing date on the
basis that he did not believe that he would get a fair hearing from me. In
support of this assertion, he stated that I had not listened to anything he had
said the last time that he appeared before me, in mid-2011. That hearing
involved an appeal of an Order issued by Prothonotary Aronovitch, which struck
out Mr. Sauve’s action in T-1-10 in its entirety and dismissed that action. In
relatively lengthy reasons of 27 pages, I dismissed Mr. Sauve’s appeal after
conducting a de novo review, based on the fact that Prothonotary
Aronovitch’s decision concerned a question that was vital to the final issue in
the case. In the course of my reasons for judgment, which Mr. Sauve suggested
were inordinately long, I took great pains to address each of Mr. Sauve’s
grounds for appeal. Mr. Sauve’s appeal from my judgment was dismissed by the
FCA in a very short decision (Sauvé v Her Majesty the Queen et al, 2012
FCA 280).
[7]
Apart from the matter described in the
immediately preceding paragraph, Mr. Sauve was before me on one other occasion,
in early 2011. That hearing concerned a motion by the Defendant in Court file
T-996-09 to protect the confidentiality of certain information that had been
filed with this Court and to grant certain other relief. In granting that
motion, I ordered, among other things, that the non-confidential versions of
certain documents that Mr. Sauve had filed be redacted for the purposes of
removing (i) all references to a confidential RCMP informant, and (ii) all other
information that may enable the identity of that informant to be ascertained.
In the hearing on the present Motions, Mr. Sauve did not take issue with my
disposition of that matter.
[8]
I declined to recuse myself from the hearing on
these Motions on the basis that I do not believe that an informed and
reasonable person, viewing the matter realistically and practically, and having
thought the matter through, would reasonably apprehend that I may be biased
against Mr. Sauve (Committee for Justice and Liberty et al v
Canada (National Energy Board) et al, [1978] 1 SCR 369, at 394; Wewaykum
Indian Band v Canada, [2003] 2 S.C.R. 259, at para 74).
[9]
In addition, I do not consider myself to be
partial in matters involving Mr. Sauve. As reflected in the hearing transcript,
I informed him of those positions and invited him to appeal this decision to
the FCA should he feel otherwise, after reading these reasons.
III. Relevant
Rules
[10]
These Motions have been brought under Rules
416(1)(f) and, insofar as they concern Court files T-1325-13 and T-1603-13,
Rule 416(1)(g) as well, of the Federal Courts Rules, SOR/2004-283, s 2
[Rules].
[11]
Pursuant to Rule 416(1) of the Rules, the Court
may order a plaintiff to give security for the defendant’s costs where, among
other things:
(f) the defendant has an order against the plaintiff for costs
in the same or another proceeding that remain unpaid in whole or in part,
(g) there is reason to believe that the action is frivolous and
vexatious and the plaintiff would have insufficient assets in Canada available to pay the costs of the defendant, if ordered to do so, or . . .
[12]
Where the Court issues an order pursuant to Rule
416(1), the plaintiff may not take any further step in the action until the
security required has been given, unless the Court orders otherwise (Rule
416(3)).
[13]
Notwithstanding the foregoing, Rule 417 states
that the Court may refuse to order that security for costs be given under,
among other things, Rules 416(1)(f) and (g), if a plaintiff demonstrates
impecuniosity and the Court is of the opinion that the case has merit.
[14]
The foregoing Rules apply equally to applications
in this Court (Chaudhry v Canada (Attorney General), 2009 FCA 237, at
para 12; Rule 415).
[15]
Pursuant to Rule 400(1), the Court has full
discretion over the amount and allocation of costs and the determination of by
whom they are to be paid.
IV. Analysis
(a) The RCMP’s prima facie entitlement to
security for costs
[16]
A defendant is prima facie entitled to
security for costs upon demonstrating that the requirement set forth in Rule
416(1)(f) has been met, namely, that the defendant has an order against the
plaintiff for costs in the same or another proceeding that remain unpaid in
whole or in part (Sauve v Her Majesty the Queen, 2011 FC 1081, at para
14 [Sauve 2011 FC 1081]; aff’d 2012 FCA 287 [Sauve FCA], at para
6).
[17]
In the hearing on these Motions, Mr. Sauve
expressly declined to take issue with the RCMP’s evidence that $41,886.58 in
costs that he was ordered to pay in numerous proceedings dating back to June
2009 in this Court and in the FCA remain unpaid. Therefore, the Defendant is prima
facie entitled to security for costs.
(b) Mr.
Sauve’s alleged impecuniosity
[18]
To meet the requirements of Rule 417, and
thereby overcome the RCMP’s prima facie entitlement to security for
costs, Mr. Sauve must demonstrate (i) that he is impecunious, and (ii)
that the proceedings that are the subject of these Motions have merit.
[19]
When a plaintiff is self-represented, the Court
should allow considerable latitude when assessing the plaintiff’s pleadings,
submissions and evidence. However, this latitude cannot give the plaintiff any
additional rights or special dispensation (Sauve 2011 FC 1081, at para
28).
[20]
To demonstrate impecuniosity, a high standard is
expected. Specifically, full and frank disclosure is required, and the
plaintiff’s onus must be discharged with “robust particularity,” so that there
are no unanswered material questions (Heli Tech Services (Canada) Ltd v Weyerhaeuser Company, 2006 FC 1169, at para 8 [Heli Tech]).
[21]
This has been underscored to Mr. Sauve on no
less than three separate occasions. Most recently, in Sauve FCA, above,
Justice Mainville stated the following:
[9] The only
evidence submitted by the appellant to support his claim of impecuniosity were
bald statements. A bald statement from a litigant that he does not have the
means to provide security for costs is clearly insufficient to trigger the
application of section 417 of the Rules: B-Filer Inc. v. Bank of Nova
Scotia, 2007 FCA 409; 371 N.R. 292 at paras. 9 to 11; Chaudhry v. Canada (Attorney General). 2009 FCA 237; 393 N.R. 67 at para. 10.
[10] Material evidence must be submitted in order to sustain a claim of
impecuniosity, including complete and clear financial information presented in
a comprehensible format. Tax returns, bank statements, lists of assets, and
(where possible) financial statements should be submitted. Evidence of the
impracticability of borrowing from a third party to satisfy the security order
should also be provided. The possibility of accessing family and community
resources should be considered. No material issue should be left unanswered.
[22]
After noting that Mr. Sauve had provided no such
evidence, Justice Mainville dismissed his appeal of the Order to provide
security for costs that had been granted by Prothonotary Aronovitch and upheld
by Justice Martineau, each of whom also clearly articulated the general
principles set forth above.
[23]
In the Motion Records that he filed on these
Motions, Mr. Sauve provided affidavit evidence which suggests, among other
things, that: he has not received any employment income, disability pay,
pension or other remuneration or compensation from the RCMP since his pay and
benefits were suspended in 2005; he was not permitted to work in another job
while he remained formally employed with the RCMP until 2010; he is
impecunious, disabled and homeless; he is forced to reside with different
friends on a temporary basis, or on the streets; he is totally dependent upon
the generosity of friends, family and food banks; he owes many people money; he
has no money, income, vehicle, property or other assets of any value; and that
therefore he is unable to pay for counsel or security for costs. Mr. Sauve also
included in one of his Motion Records a transcript of his sworn
Cross-examination on Affidavit, dated May 29, 2009, in which he made similar
statements.
[24]
In addition, Mr. Sauve provided the Court with a
copy of his Income Tax Return for the year 2012, in which he reported total
income of -$1,219.70, notwithstanding that he also reported rental income of
$6,600.
[25]
I have a sense that Mr. Sauve’s financial
circumstances are very strained. However, demonstrating strained financial
circumstances does not constitute a demonstration of impecuniousity for the
purposes of Rule 417. I am very troubled by the fact that Mr. Sauve continues
to ignore the guidance that he has been given by this Court and by the FCA
regarding the nature of the evidence that is required to demonstrate impecuniosity.
As noted by the RCMP, Mr. Sauve continues to resist providing any material
corroboration of his bald assertions regarding his financial situation. This
includes evidence of an inability to borrow from one or more of the individuals
he alleges have lent him money, including to fund the many proceedings that he
has initiated against the RCMP to date, evidence to demonstrate that he has no
funds in the bank or other financial assets, and evidence with respect to the
value and expenses on the property from which he derives rental income.
[26]
Accordingly, I have reluctantly concluded that
Mr. Sauve has not satisfied his onus of providing full and frank disclosure
regarding his impecuniosity. In brief, he continues to fail to provide the
level of robust particularity that is required to support his claims. As a
result, material questions regarding his ability to pay security for costs
remain (Heli Tech, above), and it is not clear that the effect of the
order for security for costs would preclude Mr. Sauve from advancing an
otherwise meritorious claim (Sauve FCA, above, at para 7).
[27]
In the event that I am found to have erred in
concluding that Mr. Sauve has not provided sufficient evidence of his
impecuniosity to overcome the RCMP’s prima facie entitlement to security
for costs, I will briefly address below the merits of the application and the
two actions that are the subject of these Motions.
(c) The merits of the proceedings
(i) T-1101-13
[28]
Court file T-1101-13 is an Application for
Judicial Review. The Notice of Application for Judicial Review that was filed
by Mr. Sauve on June 21, 2013 seeks, among other things, an order setting aside
two “decisions,” namely, (i) the decision of an RCMP Adjudication Board, dated
January 28, 2010, dismissing Mr. Sauve from the RCMP [Dismissal Decision], and
(ii) a decision that Mr. Sauve alleges was made by Mr. Craig MacMillan,
Assistant Commissioner and Professional Integrity Officer of the RCMP, in a
letter dated April 5, 2013 [Letter]. In the Letter, Mr. Sauve was informed,
among other things, that he could not grieve to the RCMP Commissioner an Order
issued in January 2005 [2005 Order] suspending his pay and benefits, because he
had failed to file a Level II Grievance of that Order within the prescribed
time limit.
[29]
The Affidavit filed by Mr. Sauve in support of
his Application in T-1101-13 also appears to seek judicial review in respect of
both the Dismissal Decision and the 2005 Order referenced in the Letter.
[30]
I have some doubt as to whether the contents of
the Letter constitute administrative action susceptible to judicial review
under section 18.1(1) of the Federal Courts Act, RSC 1985, c F-7, as
amended [Act]. This is because the Letter simply described the legal effect of
Mr. Sauve’s failure to present his grievance to Level II within the prescribed
time limit. It did not convey any position that affected Mr. Sauve’s legal
rights, imposed any legal obligations, or caused him prejudice (Air Canada v
Toronto Port Authority et al, 2011 FCA 347, at paras 21-42).
[31]
In addition, pursuant to Rule 302, judicial
review is only available with respect to a single order or decision.
[32]
Moreover, Mr. Sauve’s Application was filed well
beyond the applicable 30-day time limit set forth in s. 18.1(2) of the Act,
with respect to both the Letter and the Dismissal Decision.
[33]
Finally, Mr. Sauve has not yet exhausted his
available remedies in respect of the Dismissal Decision. In particular, he has
not requested an extension of time for filing his appeal pursuant to section
45.14 of the Royal Canadian Mounted Police Act, RSC 1985, c R-10.
[34]
Mr. Sauve was informed of the RCMP’s position on
the foregoing points in a letter dated July 15, 2013, yet he failed to address
them in his written and oral submissions on these Motions.
[35]
Contrary to Mr. Sauve’s position, there is
nothing in the Affidavit filed in support of his Application for Judicial
review in Court file T-1101-13, or in the extensive exhibits thereto, which
assists him with respect to the foregoing issues, including his alleged impecuniousity.
[36]
Considering all of the foregoing, I am not
satisfied that Mr. Sauve has adequately demonstrated, for the purposes of Rule
417, that his case in Court file T-1101-13 has merit.
(ii) T-1325-13
[37]
Court file T-1325-13 is an action commenced by
Mr. Sauve on August 6, 2013. In his Statement of Claim, Mr. Sauve claims
approximately $3 million in general, aggravated and punitive damages against
Her Majesty The Queen In Right of Canada and Moneco Sobeco, a party to the
action, for alleged breaches of the Charter, various physical and mental
injuries, loss of income and employment benefits and other alleged harms, all
arising from his deteriorating relationship with the RCMP, including the
alleged breaches of the RCMP’s internal grievance and disciplinary procedures.
[38]
The Statement of Claim filed by Mr. Sauve is
very long, convoluted and repetitive. In summary, he alleges that the RCMP:
threatened, intimidated and harassed him for several years following his
suspension in February 2005; improperly suspended his pay and certain benefits
at that time; failed to serve documents on his lawyer; removed his RCMP counsel
just before his disciplinary hearing; intentionally kept him “cash poor” and
unaware of applicable procedures over the course of various proceedings;
refused to provide him with the documentation he required to obtain OHIP
benefits; failed to pay interest or damages in respect of a payout of “banked
Annual Leave and LTO”; failed to follow appropriate internal grievance and
disciplinary procedures; failed to address his physical and mental injuries;
violated the principles of procedural fairness in various ways in conducting
those proceedings; failed to accommodate his physical and mental injuries
during those proceedings, thereby causing him prejudice; destroyed documents
after the expiration of the limitation period; terminated medical, dental and
certain other benefits on August 11, 2011; failed to continue to pay his
pension premiums and insurance premiums from February 2005 to August 11, 2011;
and failed to pay his severance pay from June 25, 1986 until August 11, 2011.
[39]
At paragraphs 4 to 85 of his Statement of Claim,
Mr. Sauve also reiterates, by way of background only, and “not to relitigate,”
a litany of claims that he has made in other proceedings that he has initiated
in this Court.
[40]
The RCMP submits that the action in T-1325-13 is
bereft of any success because the allegations contained therein have already
been or currently are the subject of other proceedings before this Court, or
have been struck. In support of this position, the RCMP provided a helpful
chart at Tab 3J of its Motion Record. The RCMP further submitted at the
hearing of these Motions that any new allegations raised by Mr. Sauve in this
action do not provide a basis for any cause of action.
[41]
The word “merit” in Rule 417 has been defined to
mean “deserving or worthy of consideration” (Lavigne v Canada (Human Rights Commission), 2010 FC 1038, at paras 19-20). In my view, this is another way
of saying that the case raises a serious issue to be tried. This is a higher
threshold than the threshold of “plain and obvious that the claim discloses no
reasonable cause of action,” which is applied in motions to strike. In my view,
a higher threshold is appropriate in considering whether a case has merit, as
contemplated by Rule 417, because of the purpose of that Rule, namely, to
provide the Court with the jurisdiction to refuse to order that security for
costs be given, in circumstances where such an order may otherwise have been
issued. It also bears underscoring that, unlike on a motion to strike where the
Defendant bears the burden of showing that the action is bereft of any merit,
the burden under Rule 417 falls on the Plaintiff, Mr. Sauve, to satisfy the
Court that the case has sufficient merit that he should be relieved from the
obligation to post security for costs. It follows that a determination that Mr.
Sauve has not met that burden is not a determination that the action should
otherwise be struck.
[42]
For the purposes of this Motion for security for
costs, I agree with the Respondent that Mr. Sauve has not demonstrated that his
Statement of Claim in T-1325-13 has merit or raises a serious issue to be
tried.
[43]
The claims that Mr. Sauve is making in T-1325-13
against the RCMP and Moneco Sobeco for alleged breaches of the Charter,
various physical and mental injuries, loss of income and employment benefits,
alleged breaches of the RCMP’s internal grievance and disciplinary procedures,
and other alleged harms, appear to be largely duplicative of claims made
against the RCMP and Moneco Sobeco in other actions that Mr. Sauve has filed in
this Court (Sauve T-447-10, above; Sauve v Canada (T-682-10,
January 16, 2013, per Prothonotary Tabib) [Sauve T-682-10]; Sauve
v Canada (T-682-10, February 3, 2011, per Prothonotary Aronovitch); Sauvé
v Canada, 2009 FC 1011 (T-996-09, October 6, 2009, per Mainville J.)
[Sauve T-996-09]; Sauve v Canada,
(T-1646-08, June 12, 2009, per Hansen J.) [Sauve, T-1648-08]).
[44]
The various specific claims that Mr. Sauve has
made in T-1325-13 are identified below, together with the other actions in
which essentially the same claims have been advanced:
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Claims
made in T-1325-13
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Files in
which essentially the same claim is or was made
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Threats,
intimidation, discrimination and harassment by representatives of the RCMP
following his suspension in 2005
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T-1-10;
T-996-09; T-447-10; T-682-10
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Improper
suspension of pay and certain benefits following his suspension
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T-996-09;
T-682-10; T-447-10; T-1-10
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Failing to
serve documents on his lawyer
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T-447-10,
T-996-09
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Removal of
internal RCMP counsel just before his disciplinary hearing
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T-1101-13;
T-447-10
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Intentionally
keeping him “cash poor” and unaware of applicable procedures over the course
of various proceedings
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T-682-10
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Failure to
follow appropriate internal grievance and disciplinary procedures
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T-682-10
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Violation of
the principles of procedural fairness in various ways in conducting the
internal grievance and disciplinary proceedings, including delay in holding the
disciplinary hearing and conducting that hearing without Mr. Sauve or his
representative being in attendance
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T-1101-13;
T-682-10 ; T-1646-08
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Failure to
continue to pay his pension premiums and insurance premiums from February
2005 to August 2011
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T-996-09 (life
insurance,), T-1646-08 (life insurance)
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Claimed
violation of sections 7, 12 and 15 of the Charter
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T-682-10;
T-996-09; T-1-10; T-1752-06; T-447-10
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Violation of
Mr. Sauve’s right to work and financially support his family
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T-682-10;
T-996-09; T-447-10
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Failure to
address his injuries after he was harassed, discriminated against and
prejudiced over the past 6 ½ years, during which he was beaten, tortured,
abused and threatened
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T-1-10;
T-996-09; T-447-10; T-682-10
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Failure to
pay interest or damages in respect of a payout of “banked Annual Leave and
LTO”
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T-996-09
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Refusing to
provide him with the documentation he required to obtain OHIP benefits
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Destruction
of documents after the expiration of the limitation period
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Termination
of medical, dental and certain other benefits on August 11, 2011
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Failure to
pay his severance pay corresponding his alleged period of employment (June
25, 1986 to August 11, 2011).
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[45]
It is an abuse of process for a plaintiff to
initiate multiple legal proceedings based on the same facts or circumstances,
even where prior litigation has been dismissed on procedural grounds (Sauvé
T-682-10, above; Sauve T-996-09, above, at paras 25-26). Given the
similarities noted above, Mr. Sauve has not satisfied the Court, as it was his
burden to do, that the claims are not duplicative and therefore not an abuse of
process.
[46]
Some of the losses claimed in this new action
appear to have been suffered after the period covered by the previous claims.
However, these new losses appear to be attributable to, or rooted in, the same
causes of action that were pleaded earlier. Asserting, in a new action, the
same causes of action as were litigated or asserted in earlier proceedings
remains, prima facie, an abuse of process, despite the fact that new or
different damages are claimed, including in respect of subsequent time periods (Grandview (Town) v Doering [1975]
S.C.J. No. 93; [1976] 2 S.C.R. 621 [Grandview]; Ahani v R (1999), 163 FTR 296, at paras
8-11 (FCTD) [Ahani]; Singh v R (1996), 123 FTR 241, at paras 8-13 (FCTD);
Oak Bay Marine Group v Jackson, [1994] 3 FC 177, 75 FTR 105, at para 13
(FCTD)).
[47]
With respect to the claims reflected in the
chart above that have not specifically been advanced in other proceedings
initiated by Mr. Sauve in this Court, Mr. Sauve has not demonstrated or even
alleged that “he could not by reasonable diligence, have put himself in a
position to advance” these claims, in one of the earlier proceedings that he
has initiated in this Court (Grandview, above, at p. 638; Ahani,
above). On their face, these claims appear to arise out of essentially the same
circumstances that form the bases for some of the claims made by Mr. Sauve in
one or more of those earlier proceedings.
[48]
In any event, those “new” claims are all, on
their face, employment-related matters that must follow the statutory grievance
process. Except in rare cases where it can be shown that the grievance process
is not an adequate alternative remedy, redress by way of an action for damages
does not lie for such claims, even where the plaintiff has failed to exercise
his administrative recourses and may now be precluded from accessing them. Mr.
Sauve’s action in T-682-10 was dismissed on these same grounds (Sauvé
T-682-10, above), and Mr. Sauve on this Motion has not satisfied me that
any circumstances exist that would justify a different result.
[49]
Considering all of the foregoing, I am not
satisfied that Mr. Sauve has adequately demonstrated, for the purposes of Rule
417, that his case in Court file T-1325-13 has merit.
[50]
Given my conclusion above, it is not necessary
to address the submissions that have been made by the Defendant with respect to
Rule 416(1)(g).
(iii)
T-1603-13
[51]
Court file T-1603-13 is an action commenced by
Mr. Sauve on September 30, 2013. In his Statement of Claim, Mr. Sauve claims
approximately $240,000 in general, aggravated and punitive damages against Her
Majesty The Queen In Right of Canada, for alleged breaches of the Charter
and a duty of care, various physical and mental injuries, loss of enjoyment of
life, loss of mobility, loss of reputation and other alleged harms, all arising
from a visit to his home on September 26, 2013 by Ottawa Police Services
Officer Anthony Costantini and Officer Stephen McDougall, who Mr. Sauve believes
was seconded to the RCMP at that time.
[52]
In addition, at paragraphs 46 to 52, the
Statement of Claim repeats certain allegations made by Mr. Sauve in
Court file T-1325-13, which I have addressed above and therefore do not need to
further discuss.
[53]
For the reasons that follow, I am not
satisfied that the new claims being made in Court file T-1603-13 are
meritorious.
[54]
As alleged in Mr. Sauve’s Statement of Claim,
Officers Costantini and McDougall visited Mr. Sauve at his “child’s residence”
the day after Mr. Sauve appeared before Justice Gagné on his motion for
advance costs to fund his counsel in Court file T-1101-13.
[55]
Officers Costantini and McDougall visited Mr.
Sauve on that occasion to interview him about his conduct before Justice Gagné.
[56]
The transcript of the hearing before Justice
Gagné reflects that, in support of his motion, Mr. Sauve stated that he
owes $50,000 to a person named “Joe,” who has been funding his litigation.
After he was unable to identify for Justice Gagné any evidence on this
point in his motion record, Justice Gagné explained that she could not accept
his statements as evidence. In response, Mr. Sauve stated that he didn’t think
the hearing was going to take too long because, “when you don’t
have a lawyer, you don’t have much hope, and you get – because you’re going up
against a lawyer, and I’m just self represented, so I’m going to get straight
to the point.”
[57]
Mr. Sauve then stated that “Joe” had asked him
to give the Court three lists, namely a 62‑page “list of the Ottawa judges
and Crowns and their addresses,” another list of “the contacts,” and a third
list of “30 informants, RCMP informants.” He gave the Court the first page of
the first list and the first page of the second list, which states “100 pages”
at the top. He stated that he shredded the remainder of those lists, as
well as the entire third list.
[58]
As further reflected in the transcript of that
hearing, Justice Gagné’s initial reaction to what had happened was to
“take it as a threat.” Indeed, in one of the recitals to the Order that she
issued dismissing the motion that Mr. Sauve had brought before her, she
observed that Mr. Sauve had “explicitly threaten[ed] this
Court” in an attempt to obtain one of the remedies that he had sought (Order
dated November 4, 2013, Court docket T-1101-13).
[59]
In my view, a reasonable person likely would
have difficulty interpreting the giving of the first pages of the
aforementioned documents by Mr. Sauve to Justice Gagné otherwise than as having had a threatening dimension.
[60]
Accordingly, it was entirely reasonable and
appropriate for Officers Costantini and McDougall to have visited Mr. Sauve at
the location where he was believed to be on September 26, 2013, for the purpose
of interviewing him about his conduct before Justice Gagné the preceding
day and about the role that he claims “Joe” played with respect to the
documents that Mr. Sauve gave to Justice Gagné. Indeed, the public would
reasonably expect that such a visit would be conducted, as part of the initial
steps in the investigation of what transpired before Justice Gagné the prior
day. In any event, Mr. Sauve has not persuaded me that there is any merit to
the claims he has made against Officers Costantini and McDougall for having so
visited him for that purpose.
[61]
As an aside, it is relevant to note that, after Mr. Sauve began
his oral submissions on the hearing of this Motion by stating that he felt “really bad about what happened on September 25th
and that he had not intended to threaten Justice Gagné, I asked him
several times to provide an explanation for his conduct, or an interpretation
of it, which was non-threatening in nature. He was unable to do so.
[62]
Given that a reasonable person likely would interpret what
transpired before Justice Gagné to have had a threatening dimension, and in the
absence of an alternative explanation from Mr. Sauve, I cannot conclude
that the other claims made by Mr. Sauve in T-1603-13 have merit. This includes
(i) the general claim that he has made with respect to the “words, gestures and
actions” of Officers Costantini and McDougall during their interview of him,
(ii) the allegation that the police took a photograph of him at the Federal
Court, without his knowledge or consent, and that the photograph was shared
with other officers, (iii) the way in which Officers Constantini described Mr.
Sauve’s conduct before Justice Gagné, namely, as having been “threatening,” and
(iv) the allegation that Officer McDougall stated to him that he had “made
threats against” Justice Gagné.
[63]
Likewise, I am satisfied that any causes of
action that Mr. Sauve is specifically asserting with respect to the RCMP’s
alleged characterization of the two pages that he provided to Justice Gagné
are without merit. Although Mr. Sauve baldly asserted, at paragraph 41 of his
Statement of Claim, that those two pages “are public documents
containing information that is accessible to every Canadian citizen,” he was
unable to identify, in the hearing of this Motion, where those documents are
located in the public domain or who publishes them. Indeed, as reflected at
page 58 of the transcript of the hearing, he stated that the two documents that
he alleges are in the public domain are directories, and not the documents from
which the two pages in question were excerpted.
[64]
In summary, for the reasons given above, I am
not satisfied that the various causes of action that Mr. Sauve has asserted in
Court file T-1603-13 have any merit.
[65]
Given the conclusion that I have reached on this
point, it is not strictly necessary for me to address the submissions that have
been made on behalf of the Defendant with respect to Rule 416(1)(g).
Nevertheless, in the circumstances, I feel compelled to state for the record
that I find that there is reason to believe that the action in Court file T-1603-13
is frivolous and vexatious, as contemplated by that Rule.
(d) Conclusion
and exercise of discretion
[66]
Based on all of the foregoing, I am satisfied
that it is appropriate to grant the Defendant’s Motions for security for costs
in relation to Court files T-1101-13, T-1325-13 and T-1603-13, with
modifications.
[67]
With respect to Court file T-1101-13, the
Defendant requested that Mr. Sauve be ordered to pay security
for costs in the amount of $14,880. However, given the available evidence
regarding Mr. Sauve’s financial circumstances, I am not prepared to grant an
order for that amount, which has been calculated on the basis of Column V of
Tariff B of the Rules.
[68]
I recognize that an award in accordance with
Column V ordinarily would be appropriate in cases where, as here, the plaintiff
has significant and longstanding unpaid orders for security for costs.
Nevertheless, on the very particular facts of this case, I am not satisfied
that it would be in the interests of justice to order that costs be paid in accordance
with Column V in respect of Court file T-1101-13. Instead, I will
exercise my discretion and order an amount for security for costs that roughly
corresponds with the mid-point of the range reflected in Column III of Tariff
B, namely $5,000.
[69]
With respect to Court file T-1325-13, the RCMP
requested that Mr. Sauve be ordered to pay security for
costs in the amount of $30,000. Once again, that amount was calculated on the
basis of Column V of Tariff B of the Rules.
[70]
For essentially the same reasons as set forth at
paragraph 68 above, I am not prepared to grant an order for payment of the
amount requested. Instead, I will order Mr. Sauve to pay an amount of security
for costs that roughly corresponds with the mid-point of the range reflected in
Column III of Tariff B, namely $12,000.
[71]
With respect to Court file T-1603-13, the RCMP
again requested that Mr. Sauve be ordered to pay security
for costs in the amount of $30,000, which was calculated on the basis of Column
V of Tariff B of the Rules. For this matter, I have concluded that it
would be entirely appropriate to grant the full amount of security for costs
requested by the Defendant.
[72]
I have reached this conclusion for three principal reasons.
First, I have found that there is reason to believe that the
action in Court file T-1603-13 is frivolous and vexatious. Second, the
circumstances suggest to me that Mr. Sauve intended to intimidate the
Defendant, or to “chill” the Defendant’s investigation of what transpired
before Justice Gagné on September 25, 2013. Third,
contrary to his statement during the hearing of this Motion that he intended to
be “frank” and “forward” with the Court (Transcript, p. 62), he was very much
the opposite. This is reflected in his numerous refusals to answer basic questions
that I posed to him during the hearing of this Motion regarding important facts
relating to the hearing that took place before Justice Gagné, which were described in Mr. Sauve’s written representations on this
Motion as well as in the Statement of Claim that he filed in Court file
T-1603-13.
[73]
For example, Mr. Sauve repeatedly refused to
explain how he thought his giving of the two pages with the names and addresses
of judges and “contacts” to Justice Gagné should have been interpreted
by her or by any reasonable person. He also repeatedly refused to provide an
alternative explanation for what he had done that was non-threatening in
nature. In addition, he refused to answer questions about those two pages,
whether he knew what was contained in them, how he contacts the
person he alleges asked him to provide the documents to the Court (“Joe”),
where on the public record those two pages or the information contained in them
could be found, and who told him of the existence of the documents that he
claims are on the public record. (Transcript, pp. 43 and 47 – 67).
Indeed, at one point, he stated that he was given “just two bare pages,”
whereas he later stated that the documents were originally given to him in an
envelope, and that he shredded all but the two pages that he gave to Justice
Gagné (Transcript, p. 45). Moreover, the explanation that he gave to me to the
effect that he gave Justice Gagné the two pages as an afterthought, “as he was walking out” of the courtroom, was belied by the
transcript of that hearing, which indicates that he wanted “to get straight to
the point” by giving those two documents to Justice Gagné (Transcript of
Hearing dated September 25, 2013, at p. 8, Court file T-1101-13).
[74]
In my view, it would not be appropriate for the
Court to exercise discretion in favour of someone who is being so
unforthcoming, evasive and indeed disingenuous. Parties who are not frank and
forthright with the Court cannot expect that the Court will exercise discretion
in their favour.
[75]
Accordingly, I am satisfied that it is
appropriate to grant the full amount of the security for costs sought by the
Defendant in respect of Court file T-1603-13, namely, $30,000.
[76]
I am also satisfied that it is appropriate to
grant the Defendant’s request that the security for costs for all three Court
files which are the subject of these Motions be paid into Court within 30 days,
in the case of T-1101-13, and within 90 days, in the case of T-1325-13 and
T-1603-13 . In addition, having regard to Rule 416(3), I am satisfied that it
is appropriate to prohibit Mr. Sauve from taking further steps,
including filing any further motions, in Court files T-1101-13, T‑1325-13
and T-1603-13 until security for costs is paid and notice of that fact has been
given to the Defendant.
[77]
With respect to the costs of these Motions, the
RCMP initially requested that costs be fixed at $1,540 for the Motion in
relation to Court file T-1101-13 and at $2,000 for the Motion with respect to
Court files T-1325-13 and T-1603-13. However, given that these Motions were
subsequently consolidated, counsel for the RCMP acknowledged that the costs of
preparing for and participating in these Motions were reduced because they had
been heard together. With this in mind, I will fix the costs of these Motions,
the hearing of which lasted in excess of two hours, at $500 for each of Court
files T-1101-13, T-1325-13 and T-1603-13, respectively, payable forthwith and
not to be deducted from the amount of security for costs to be paid.
“Paul S.
Crampton”
Chief
Justice
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