Docket:
A-228-13
Citation:
2013 FCA 246
Present: STRATAS J.A.
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BETWEEN:
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ANTHONY COOTE
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Appellant
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and
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LAWPRO PROFESSIONAL INDEMNITY COMPANY
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Respondent
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REASONS FOR ORDER
STRATAS J.A.
[1]
The appellant applies for a stay of the Order of
the Federal Court (per Hughes J.) dated June 13, 2013: see reasons at 2013
FC 643. In that Order, the appellant was declared a vexatious litigant under
section 40 of the Federal Courts Act, R.S.C. 1985, c. F-7.
[2]
Among other things, the Order purports to
prohibit the appellant “from directly or indirectly, instituting or continuing
any proceedings in the…Federal Court of Appeal, except with leave of a judge of
the Federal Court of Canada.”
[3]
On its strict terms, this prohibits the
appellant from appealing the Order to this Court.
[4]
Pending the appellant’s stay motion, this Court
has accepted his revised notice of appeal dated August 28, 2013.
[5]
Among other things, the revised notice of appeal
alleges that the Federal Court failed to “apply facts and authorities in an
even-handed manner.”
[6]
To stay the order of the Federal Court, the
appellant must satisfy the Court that there is a serious issue to be
determined, the appellant will suffer irreparable harm if the stay is denied,
and the balance of convenience favours granting the stay: RJR-MacDonald Inc v. Canada
(Attorney General), [1994] 1 S.C.R. 311 at page 334.
[7]
I cannot say that the above-mentioned ground in
the notice of appeal is devoid of any possibility of success. The test for
determining whether a “serious issue” is present is very low, and is equivalent
to whether the issue is frivolous or vexatious.
[8]
As for irreparable harm, if the Order is not
stayed, the appellant will not have a right to appeal this Order. It takes away
a fundamental civil right – the right to launch and maintain civil proceedings.
In saying this, I pass no comment on the propriety of the Order. Sometimes
vexatious litigant orders, as serious as they are, are justified by the
evidence before the Court. For present purposes, the denial of a right to
appeal to the appellant causes him irreparable harm.
[9]
In my view, the balance of convenience lies in the
appellant’s favour. As mentioned above, the consequences to him of an
inability to appeal the Order are significant. As the judge who has handled
many of the matters already raised by the appellant in this matter, I do not at
all minimize the bother and expense suffered by the respondent to date.
However, at the conclusion of this proceeding, if it is successful, it may ask
for a significant costs award. While there is no assurance that such an award
will indemnify it completely, if granted it will lower the harm suffered by it.
[10]
There is no basis for staying the Order beyond
permitting this appeal to proceed.
[11]
Therefore, I shall stay the Order to the extent
necessary to allow this appeal to proceed.
[12]
I am permitted under Rule 53 to attach terms to
my Order. In light of the appellant’s conduct to date, described in paragraph
9, above, and in order to minimize inconvenience that may be caused to the
respondent, the stay is granted on condition that in this appeal the appellant
abide by all time limits under the Federal Courts Rules, SOR/98-106. Any
failure to do so may result in the dismissal of this appeal without further
notice to him.
[13]
The appellant is warned that the remainder of
the Federal Court’s Order remains in effect. This means that, without leave of
the Court, he may not institute new proceedings or continue any proceedings
other than this appeal.
[14]
There shall be no costs on this motion.
“David Stratas”
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