Docket: A-201-16
Citation: 2016 FCA 287
Present: STRATAS
J.A.
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BETWEEN:
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ADE OLUMIDE
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Appellant
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and
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HER MAJESTY
THE QUEEN IN RIGHT OF CANADA, ATTORNEY GENERAL OF CANADA, COMMISSIONER OF
CANADA ELECTIONS, ALLIANCE OF THE NORTH, ANIMAL ALLIANCE ENVIRONMENT VOTERS
PARTY OF CANADA, BLOC QUÉBÉCOIS, CANADA PARTY, CANADIAN ACTION PARTY,
CHRISTIAN HERITAGE PARTY OF CANADA, COMMUNIST PARTY OF CANADA, CONSERVATIVE
PARTY OF CANADA, DEMOCRATIC ADVANCEMENT PARTY OF CANADA, FORCES ET
DÉMOCRATIE, GREEN PARTY OF CANADA, LIBERAL PARTY OF CANADA, LIBERTARIAN PARTY
OF CANADA, MARIJUANA PARTY, MARXIST-LENINIST PARTY OF CANADA, NEW DEMOCRATIC
PARTY, PARTY FOR ACCOUNTABILITY, COMPETENCY AND TRANSPARENCY, PIRATE PARTY OF
CANADA, PROGRESSIVE CANADIAN PARTY, RHINOCEROS PARTY, SENIORS PARTY OF
CANADA, THE BRIDGE PARTY OF CANADA, UNITED PARTY OF CANADA, FIRST PEOPLES
NATIONAL PARTY OF CANADA, NATURAL LAW PARTY OF CANADA, NEWFOUNDLAND AND
LABRADOR FIRST PARTY, PEOPLE’S POLITICAL POWER PARTY OF CANADA, WORK LESS
PARTY, WESTERN BLOCK PARTY
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Respondents
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REASONS FOR ORDER
STRATAS J.A.
[1]
In this appeal, certain respondents have moved
for an order declaring the appellant a vexatious litigant. Then the appellant
purported to discontinue his appeal by filing an unconventional document.
[2]
Three questions arise. Does the unconventional
document discontinue the appeal? If it does, is the motion declaring the
appellant a vexatious litigant still alive? In the circumstances of this case,
can the Court answer these questions in a motion for directions under Rule 54?
[3]
For the reasons below, I answer the three questions
in the affirmative. Certain consequential matters follow and an order shall
issue to give effect to those matters.
A.
General background
[4]
This is an appeal from the order dated June 9,
2016 of the Federal Court (per Bell J.) in file T-892-16. The Federal
Court ordered that the application before it proceed as a specially-managed
proceeding.
[5]
Roughly three months into this appeal, the
respondents, Her Majesty the Queen in Right of Canada and the Attorney General
of Canada brought a motion under section 40 of the Federal Courts Act,
R.S.C. 1985, c. F-7 for an order declaring the appellant, Mr. Olumide, a
vexatious litigant. If granted, Mr. Olumide will be barred from instituting or
continuing proceedings in this Court. Presently, there are five other proceedings
launched by Mr. Olumide in this Court.
[6]
Roughly a month-and-a-half later, this Court
issued an order that, among other things, prevented the Registry from filing
anything Mr. Olumide presents to it until he supplies proof that he has paid
previous cost orders, totalling $800.
[7]
Mr. Olumide presented that proof to the
Registry, submitted a “Notice of Abandonment” of
his appeal to the Registry, and the Registry filed the Notice.
B.
The letter giving rise to this matter
[8]
The respondents, Her Majesty the Queen in Right
of Canada, the Attorney General of Canada and the Minister of National Revenue
(collectively “Canada”) have now written the Court a letter.
[9]
One part of the letter is a report about the
$800 costs payment Mr. Olumide made. He made the payment to the wrong entity.
Now it appears that this mistake has been rectified. Thus, in my view, no
objection can now be made to the Registry’s filing of the “Notice of Abandonment.” The filing does not offend
the terms of the earlier court order.
[10]
The other part of the letter asserts that the
appeal is still alive. It also asserts that regardless of whether the appeal is
alive, the motion to declare Mr. Olumide a vexatious litigant remains alive.
[11]
Mr. Olumide responded to Canada’s letter by
confirming that he has rectified the error by directing the payment of the
outstanding costs award to the proper entity. He also sent a copy of his bank
draft to counsel for the respondent, copying the Court, and advised counsel
that the draft would be “an exhibit in a criminal
prosecution against you.”
[12]
Mr. Olumide did not respond to the assertions in
the letter that the appeal and the vexatious litigant motion remain alive. He
did not take the position that the Court should not deal with the letter. While
he opposes the vexatious litigant motion, he has not ever taken the position
that Canada cannot bring the motion.
[13]
I construe Canada’s letter as a motion seeking
directions under Rule 54. It asks for directions as to the status of the appeal
and the vexatious litigant motion.
C.
Should the Court give directions?
[14]
There are limits to the Court’s power to give
directions under Rule 54. Some of the limits are set out in Bernard v.
Canada (Revenue Agency), 2015 FCA 263, 479 N.R. 189 at paras. 37-47. On
occasion, parties—even parties represented by counsel—seek directions on such
matters as whether the right parties have been named as respondents, whether
the Court has jurisdiction over a particular matter, whether a rule exists that
will allow them to do something, how a party should proceed against a document
it considers improper, and so on.
[15]
These things must be seen for what they truly
are: requests by one party for free legal advice from the Court.
[16]
We are not in that line of business. We are
independent of the parties, completely impartial and neutral.
[17]
The parties are to ascertain their own legal
positions. Should there be a dispute, the parties can approach the Court by
motion. The Court will then decide the motion.
[18]
In Bernard, this Court put it this way
(at paras. 39-41):
…[I]t is not for
this Court to give legal, tactical or practical advice to any party. Rule 54 is
no substitute for reading the Rules and assessing on one’s own how to use them.
Gratuitously and informally, helpful
Registry staff may try to assist with queries about the Rules, particularly
queries from self-represented litigants. But it remains the responsibility of
all parties, particularly represented parties, to work out procedural matters
for themselves.
The Rules provide answers to just about all
the practical questions that arise in proceedings in the Federal Courts.
Indeed, for those questions not directly addressed by the Rules, the so-called
gap rule, Rule 4, may assist. Rule 55 even allows the Court on motion to vary
or dispense with compliance with a Rule. Given these rules and many others,
rare are the situations where a party must resort to Rule 54 rather than
bringing a motion under one or more other rules.
[19]
The proper use of Rule 54 is as follows:
Rule 54 allows a party to move for
directions concerning “the procedure to be followed under [the] Rules.” Those
words, the existence of other rules and procedural case law, and the role of
this Court as an independent, impartial and neutral decision-maker inform us as
to when directions may be sought and granted under Rule 54.
A party should use Rule 54 as a last resort.
In moving for directions under Rule 54, a party should identify with precision
the ambiguity or uncertainty arising under the Rules and the facts of the case,
the practical consequence and importance of the ambiguity or uncertainty, and
why this Court’s assistance is required by way of a Rule 54 motion rather than
bringing a motion under another rule or working the matter out for itself.
In the case of filings—an area where parties
frequently seek directions—resort to Rule 54 is always unnecessary. Where
ambiguity or uncertainty exists about a filing, a party should attempt to file
and if the Registry refuses to allow the filing, the party can ask the Registry
under Rule 72 to place the matter before a judge for a ruling.
(Bernard, above, at paras. 42-44.)
[20]
Here, Canada did not follow the exact letter of
the guidance given in Bernard. It did not identify with precision the
ambiguity or uncertainty arising under the Rules and the facts of the case, the
practical consequence and importance of the ambiguity or uncertainty, and why
this Court’s assistance is required by way of a Rule 54 motion.
[21]
However, it did follow the spirit of the
guidance given in Bernard. It presented enough information to set up two
questions of a practical and important kind: is the appeal discontinued and
what is the status of the vexatious litigant motion?
[22]
In this Rule 54 motion, Canada is not asking the
Court to do something inconsistent with its role as an independent, impartial
and neutral arbiter. Determining whether proceedings still exist is something
that this Court must decide and it has a plenary power to decide it: Apotex
Inc. v. Allergan, Inc., 2016 FCA 155 at para. 14. And as a practical
matter, in these unusual circumstances, Canada does not know whether it is
obligated to take further steps in the appeal or in the vexatious litigant
motion.
[23]
For these reasons, the Rule 54 motion is
properly before the Court and the Court will give the directions sought.
D.
The “Notice of Abandonment”
[24]
Mr. Olumide’s “Notice of
Abandonment” is irregular: the Rules do not provide for such a document.
The document does not comply with the Rules.
[25]
However, Rule 56 provides that non-compliance
with the Rules “does not render…a step in a proceeding
void, but instead constitutes an irregularity” which can be cured.
[26]
What exactly is the “Notice
of Abandonment”? Our task is to construe it in order to gain “a realistic
appreciation” of its “essential character”
by “reading it holistically and practically
without fastening onto matters of form”:
Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc.,
2013 FCA 250, [2014] 2 F.C.R. 557 at para. 50. The essential character of this
document is that it asserts that Mr. Olumide will no longer prosecute the proceeding
but he does not admit the proceeding had no merit. In substance, it is a notice
of discontinuance under Rule 166.
[27]
The filing of a discontinuance is a unilateral act. One does not need
the consent of opposing parties or leave from the Court to discontinue a
proceeding, nor does one have to explain it: Philipos v. Canada (Attorney
General), 2016 FCA 79 at para. 8; Mayne Pharma (Canada) Inc. v. Pfizer
Canada Inc., 2007 FCA 1, 54 C.P.R. (4th) 353. When a discontinuance is
filed, the proceeding ends and the court file is closed: Philipos,
above.
[28]
As mentioned above, the Registry properly filed
the discontinuance. Therefore, the appeal in the case at bar has ended and the
court file should be closed.
E.
The status of motions within a discontinued
proceeding
[29]
A discontinuance ends the proceeding, but what
of any pending motions in the proceeding? There are no authorities on point to
answer this question. However, logic assists us.
[30]
Once a proceeding has been ended by
discontinuance, any motions aimed at settling disputes within the proceeding or
advancing the proceeding serve no further purpose. At a minimum they are moot.
I would go further and hold that such motions, so closely tied to the
proceeding, necessarily end when the proceeding ends.
F.
Has the vexatious litigant motion in this appeal
ended?
[31]
As in the case of Mr. Olumide’s “Notice of Abandonment,” this Court must construe the
vexatious litigant motion that has been brought in order to gain a realistic appreciation of its essential
character by reading it holistically and practically without fastening onto
matters of form.
[32]
The vexatious litigant motion is not aimed at
settling disputes within the appeal or advancing the appeal. It is not the sort
of motion that is so intimately tied to the appeal that it ends when the appeal
ends.
[33]
Further, the vexatious litigant motion is
broader than the appeal. It goes beyond preventing Mr. Olumide from continuing
this particular appeal. It also aims to prevent Mr. Olumide from continuing any
other existing proceedings or starting any new proceedings in this Court
without leave of the Court.
[34]
This Court has ruled that vexatious litigant
motions can be brought in the Federal Courts system either by way of motion
within a proceeding or by application, as an independent proceeding in itself: Coote
v. Lawyers’ Professional Indemnity Company, 2014 FCA 98 at para. 12. Here
it was brought as a motion. But in reality, it is indistinguishable from a
stand-alone application.
[35]
Indeed, section 40 of the Federal Courts Act
confirms this. It provides that the relief is to be brought by application, not
a motion. Such an application—neither an application for judicial review nor an
application for leave to appeal within the meaning of section 16 of the Federal
Courts Act—and, thus, one that can be heard by a single judge, is an
application within the meaning of Rule 300 that can be prosecuted as an
independent, stand-alone proceeding under Part 5 of the Rules: Canadian
National Railway Company v. BNSF Railway Company et al., 2016 FCA 284.
[36]
For these reasons, I conclude that the vexatious
litigant motion—a matter that has the characteristics of an application
concerning matters beyond the parameters of the discontinued litigation—still
exists in some way even though the action has come to an end.
G.
So what can and should be done?
[37]
A matter still in existence cannot just sit out
there, floating in the Court’s Registry, without a court file. This Court is a
superior court of record under section 4 of the Federal Courts Act. A
file must be set up and the motion placed in it.
[38]
The motion was started by notice of motion. But
a notice of motion is not an originating document. A notice of application is.
[39]
The present situation is irregular. What can and
should be done to address the irregularity?
[40]
Rule 57 provides that a matter does not end just
because it turns out that it started with the wrong document: this is an
irregularity that can be cured. This can be done by the Court on its own
motion: Rule 47.
[41]
Were it necessary to do so, I could also invoke
Rules 4 and 55 and the plenary jurisdiction of the Court to regulate its own
proceedings: Canada (National Revenue) v. RBC Life Insurance Company,
2013 FCA 50, [2013] 3 C.T.C. 126 at paras. 33-36; Mazhero v. Fox, 2014
FCA 219 at para. 4.
[42]
In this case, it is appropriate to treat the
notice of motion as a notice of application, cause the Registry to open a new
file for the application, and allow materials previously filed on the motion to
be filed in the new file. Doing this allows this matter, still existing, to
continue from where it left off: no old materials need to be recast, redone and
refiled. Doing this allows this Court, in the words of Rule 3, to bring this
matter to a “determination…on its merits” in a
way that is “just, most expeditious and least
expensive.” Doing this also implements the Supreme Court’s recent
commandment that courts should fashion practices and procedures and apply them
in a way that furthers fairness, expedition, efficiency, the conservation of
judicial resources, and the minimization of costs: Hryniak v. Mauldin,
2014 SCC 7, [2014] 1 S.C.R. 87.
H.
Consequential matters
[43]
Of necessity, certain administrative matters
must now be attended to. To this end, an order shall be made.
[44]
The Registry will treat the notice of motion
under section 40 of the Federal Courts Act as a notice of application.
It will open a new file for the application.
[45]
A copy of the notice of motion, now to be
treated as a notice of application, will be obtained from the motion record
previously filed in the appeal. The Registry will file it in the new file. Then
it will advise the parties of the new file number.
[46]
These reasons for order and the order will be
filed in the new file.
[47]
The style of cause for all future documents in
the application will be as follows. The applicant will be the moving parties in
the vexatious litigant motion, namely “Her Majesty the Queen in Right of Canada
and the Attorney General of Canada.” The respondent will be “Ade Olumide.”
[48]
The applicants in the new file shall pay the
filing fee for a notice of application under Item 1(d) of Tariff A.
[49]
The motion record, including the supporting
affidavit and written representations, will be filed in the new file. This will
be deemed to be the application record of the applicants under Rule 309 in the
new file.
[50]
In the appeal, Mr. Olumide did not respond to
the vexatious litigant motion and the time for doing so has expired. However,
given the fact that the vexatious litigant motion is now continued as a
separate application, out of fairness Mr. Olumide should be given another
opportunity to respond to the application record.
[51]
Within 20 days of this direction, Mr. Olumide
may serve any affidavits under Rule 307 and the parties may conduct
cross-examinations within twenty days thereafter under Rule 308. Mr. Olumide
will file his responding record under Rule 310 within twenty days after the day
in which the parties’ cross-examinations are completed or within twenty days
after the day on which the time for those cross-examinations is expired,
whichever day is earlier. Thereafter, the applicants in the new file will file
their requisition for hearing under Rule 314.
[52]
An order will issue in accordance with the
above.
“David Stratas”
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