Docket: T-892-16
Citation:
2016 FC 1048
Ottawa, Ontario, September 15, 2016
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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ADE OLUMIDE
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Plaintiff
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and
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HER MAJESTY THE
QUEEN IN RIGHT OF CANADA AND ATTORNEY GENERAL OF CANADA
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Defendants
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ORDER AND REASONS
[1]
At the close of hearing of an appeal by Mr.
Olumide of three decisions of Prothonotary Tabib, I said I would be dismissing
the appeal, with costs in favour of the defendants in the amount of $700.00,
the whole with reasons to follow. These are those reasons.
[2]
As far as I can make out from the
Statement of Claim, section 67(4) (c) of the Canada Elections Act is
alleged to be unconstitutional, and, as a result, action lies against the
Attorney General for failure to remedy, or repeal, that legislation. Section
67(4)(c) provides that if running in an election for a political party, the
nomination papers to be filed with the returning officer include “an instrument in writing signed by the person or persons
authorized by the political party to endorse prospective candidates that states
that the prospective candidate is endorsed by the party”.
[3]
Mr.Olumide wished to run for the Conservative
Party but was not endorsed by it.
[4]
This action was placed under special case
management and Prothonotary Tabib was appointed as case manager.
[5]
At issue is an order she issued August 16, 2016,
not August 17th as alleged by Mr. Olumide, a Direction on August 18,
2016, and a further Order on September 6, 2016.
[6]
Counsel for the respondents/defendants submitted
that I should not hear the appeal as they had just filed a motion under section
40 of the Federal Courts Act to have Mr. Olumide declared a vexatious
litigator and for an order than no further proceedings be instituted or
continued by him in this Court, except by leave. Nevertheless, I decided to
hear the appeal. The motion to have Mr. Olumide declared a vexatious litigator
was made in writing pursuant to Federal Courts Rule 369. Mr. Olumide’s
delays to respond have not expired.
[7]
I told Mr. Olumide at the outset that I would
waive any procedural irregularities, any failure to file within time and would
treat the Direction as an Order, as he was of the view that Prothonotary Tabib
had issued a Direction instead of an Order so as to shield her decision from
the appeal process.
[8]
In my opinion, all three decisions were well
within the purview of the Case Management Judge. They were in essence
scheduling Orders, and not vital to the outcome of the case. The decisions were
not based on a wrong principle or upon a misapprehension of the facts (Merck
& Co v Apotex Inc, [2004] 2 FCR 459).
[9]
Furthermore, even if the decisions were vital to
the outcome of the case, which they are not, the standard of review now to be
exercised by the Federal Court on appeals from Orders of Prothonotaries is the
same standard applied by Courts of Appeal in review of decisions of courts of
first instance, i.e. the standard on pure questions of law is one of
correctness and on findings of fact is that there can be no reversal unless the
trial judge has made a “palpable and overriding error”,
as stated in Housen v Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (Hospira
Healthcare Corporation v Kennedy Institute of Rheumatology, 2016 FCA 215.).
[10]
In her Order of August 16th,
Prothonotary Tabib noted that the defendants had announced they might be
bringing a motion pursuant to section 40 of the Federal Courts Act.
Nevertheless, Mr. Olumide insisted that he should be allowed to proceed with a
pending motion for default judgment under Rule 210 and for admissions of fact
under Rule 256.
[11]
She said:
The present order strictly governs the
schedule by which the parties’ respective motions are to be brought and heard.
This schedule is not intended to govern or restrict any other proceeding
between the parties before this Court or any other Court.
[12]
In her August 18, 2016 Direction, the learned
Prothonotary instructed the Registry not to accept a document proffered for filing
by Mr. Olumide as it did not conform with the Order of August 16th.
[13]
The Order of September 6th deals with
the stated intention of Mr. Olumide to forego his motion for default judgment
under Rule 210 but rather to proceed on a motion for a determination of a point
of law, i.e. the validity of section 67(4)(c) of the Canada Elections Act,
pursuant to Rule 220. She then set out the history of the case pointing out
that once the case is under case management, the deadlines applicable to the
Statement of Defence are to be determined by the Case Management Judge. In the
circumstances the pleadings were not closed because of a failure to file a
Statement of Defence and that therefore a Notice to Admit pursuant to Rule 255
was premature so that the failure to respond does not trigger a deemed
admission pursuant to Rule 256.
[14]
The learned Prothonotary’s reasoning is
faultless.
[15]
Mr. Olumide was self-represented, as was his
right. The fact that he represented himself does not condone, or justify, his
outrageous, unsubstantiated, allegations against all and sundry. He continued
to allege that the Conservative Party was racist, notwithstanding that he was
severely taken to task for that allegation by Madam Justice Trudel of the
Federal Court of Appeal in Olumide v Conservative Party of Canada, 2015
FCA 218.
[16]
He accused Prothonotary Tabib and other members
of the Court of acting in a fraudulent and biased manner. According to him,
Prothonotary Tabib has committed some twenty-seven acts of fraud.
[17]
He threatened (or was it promised) to take me to
the Canadian Judicial Council in the event I ruled against him. At the close of
his submissions I informed counsel for the defendants that I did not need to
hear him except on the question of costs. He made the very modest suggestion
that costs should be awarded in the amount of $700.00. When invited to respond
Mr. Olumide said I should not be awarding any costs to a bunch of crooks.
[18]
I informed him that if he were a lawyer I would
report him to the Law Society. He invited me to issue a show-cause order why he
should not be found in contempt of court. I did not, but in retrospect, perhaps
I should have.
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