Docket:
T-674-05
Citation:
2016 FC 455
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 25, 2016
PRESENT: The Honourable Madam Justice Tremblay-Lamer
|
BETWEEN:
|
|
ALBERT DUTERVILLE
|
|
Applicant
|
|
and
|
|
D. IAN GLEN
PIERRE BERNIER
YVES FAFARD
THE ATTORNEY
GENERAL OF CANADA
|
|
Respondents
|
JUDGMENT AND REASONS
[1]
The applicant is applying for the rescission of
the order issued against him in 2005 prohibiting him from instituting or
continuing proceedings in the Federal Court, except by leave of the chief judge
or a judge designated by the chief judge.
[2]
Mr. Duterville was convicted of
second-degree murder in 1990. He received a life sentence with the
possibility of parole after 15 years.
[3]
In 2005, Mr. Duterville filed an
application for judicial review of a decision rendered by D. Ian Glen,
then Chairperson of the Parole Board of Canada (formerly the National Parole
Board), to deny him parole. Mr. Duterville also applied for a writ of habeas
corpus, and all other applicable remedies under subsection 24(1) of
the Canadian Charter of Rights and Freedoms. The applicant made seven
other requests to the Court within a short space of time.
[4]
On May 10, 2005, I declared him a
vexatious litigant. My order prohibited him from continuing with proceedings he
had previously instituted, except by leave of the Court, in accordance with
section 40 of the Act.
[5]
Section 40 of the Federal Courts Act
reads as follows:
|
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.
|
[6]
Under subsection 40(3) of the Act, the
applicant can apply for a rescission of the order against him or for leave to
institute specific proceedings before the Court.
[7]
The Court must examine the grounds identified by
the applicant for rescission of the order prohibiting him from instituting
proceedings, and not the merit of the underlying application. Such a motion is
essentially challenging the validity of the order (Chavali v. Law Society of
Upper Canada, [2003] OJ No. 5818 (Ont Sup Ct J), at paragraph 8).
[8]
The applicant can therefore argue that the order
was obtained on grounds of fraud or should be changed based on facts discovered
after the order was made (Riad v. Aziz, 2014 ONSC 5223, at
paragraph 16). The Court can take the applicant’s conduct into account,
and specifically, whether or not it has improved (Mohammed v. Goodship,
2013 ONSC 4942, at paragraph 31).
[9]
The applicant’s written arguments relate to his
discontent with Maître Victorin’s work, and his allegation that Maître Victorin
and Correctional Service Canada plotted to make a mockery of his rights. His
allegations are vague and unclear and are not related to the notice of motion.
[10]
Mr. Duterville’s motion contains no grounds
to question the validity of the order issued against him on May 10, 2005.
[11]
The facts therein are not supported by evidence.
It simply recounts events that occurred prior to his last transfer, over which
the Court had no control. It reveals no valid action. The applicant’s tendency
to make unfounded allegations against the adverse party, and his claims that
counsel in this case are plotting against him clearly demonstrate that he has
not changed and remains a vexatious litigant. Therefore, he has failed to
convince the Court that he would not abuse his right to institute proceedings
without having to obtain prior leave. I conclude that the order should be
maintained.
[12]
For these reasons, the applicant’s motion is
dismissed.
Email this Content