Docket: A-180-15
Citation:
2016 FCA 5
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CORAM:
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TRUDEL J.A.
SCOTT J.A.
GLEASON J.A.
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BETWEEN:
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PAUL
ABI-MANSOUR
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Appellant
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and
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THE CHIEF EXECUTIVE OFFICER OF PASSPORT
CANADA, NICOLAS MEZHER,
KAHINA SID
IDRIS
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Respondents
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REASONS
FOR JUDGMENT
SCOTT J.A.
[1]
This is an appeal from an Order of LeBlanc J. of
the Federal Court (the Judge), 2015 FC 363 dated March 23, 2015 dismissing Mr.
Abi Mansour’s (the appellant) appeal pursuant to Rule 51 of the Federal
Court Rules, SOR/98-106 (the Rules) and upholding Prothonotary Tabib’s (the
Prothonotary) Order dated November 27, 2014.
[2]
The Prothonotary allowed in part the appellant’s
motion for an extension of time to file his affidavit in support of his
application for judicial review and dismissed his request to file only one copy
of his record or, in the alternative, that he be granted a further five months
to file three copies of his record pursuant to Rules 8 and 55 of the Rules.
[3]
The underlying facts are straightforward. On
August 20, 2014 the appellant filed a Notice of Application seeking judicial
review of a decision rendered by the Public Service Staffing Tribunal which
dismissed his complaint in relation to a staffing process conducted by Passport
Canada.
[4]
Pursuant to Rule 306 of the Rules, the appellant
was required to file his supporting affidavit and documentary exhibits within
thirty days. That deadline was extended to October 6, 2014 by consent of the
parties under Rule 7.
[5]
On October 14, 2014 the appellant served and
filed his affidavit along with a motion for an extension of time within which
to serve and file it. He also filed a motion seeking an extension of time to
serve and file his record under Rule 8 as well as relief pursuant to Rule 55
allowing him to file a single copy of his record, instead of three copies, as
required under Rule 309(1.1)b) or, in the alternative granting him a
delay of five months to do so in light of the cost of photocopies.
[6]
The Prothonotary allowed the appellant’s motion
in part. She extended the time within which the appellant was to serve and file
his affidavit in support of his application to October 14, 2014 and she
dismissed the remainder of the appellant’s motion. The Prothonotary specified
that in the event the appellant failed to serve and file his application record
within the deadlines set out in the Rules, the application would be dismissed unless
the deadlines were extended by consent of the parties under Rule 7 or by order
of the Federal Court on a further motion brought prior to the expiration of the
applicable time limit on grounds that might arise after her Order. The
Prothonotary also granted costs in favour of the respondent.
[7]
The Prothonotary explained that the appellant
had failed to show that he was impecunious and thus saw no basis for the relief
sought under Rule 55. She also found that the reasons advanced by the appellant
for an extension of time did not warrant the extension. She was also not
impressed by the appellant’s argument that if the extension of time sought to
file his record was not granted, he could let the application lapse its way to
status review and obtain the extension sought. In her view, this would
constitute an undoubted abuse of the Court’s process. Consequently, she turned
to Rule 168 and provided for dismissal of the underlying application if the appellant
failed to comply with the filing deadlines set out in the Rules or if he failed
to obtain an order to extend the deadlines.
[8]
In a thorough and detailed Order, the Judge
dismissed the appellant’s appeal. Applying the appropriate standard, namely
whether the Prothonotary arrived at her order on a wrong basis or whether she
was plainly wrong, the Judge confirmed that the Prothonotary had applied the
proper test to extend procedural deadlines, which is set out in Canada (Attorney
General) v. Hennelly, 244 N.R. 399, [1999] F.C.J. No. 846 (QL) (C.A.) [Hennelly].
He also found that based on the evidence before her, the Prothonotary did not
err in determining that the appellant had failed to establish two requirements
under the Hennelly test: (i) that his judicial review application had
some merit, and (ii) that a reasonable explanation for the requested delay
existed.
[9]
The Judge came to the same conclusion as the
Prothonotary regarding the unacceptable nature of the appellant’s explanation
for the requested extension to file his application record.
[10]
The Judge reviewed the Prothonotary’s decision
with respect to the Rule 55 request and found that she did not err in finding
that the appellant had failed to establish that he was impecunious since he had
monthly net earnings of $2800.00.
[11]
With respect to the portion of the Order
providing for the dismissal of the underlying judicial review application, the
Judge rejected the appellant’s argument that the Prothonotary did not have
jurisdiction to make such an order. The Judge pointed to Rule 50 and endorsed
the respondent’s position that jurisdiction to provide for dismissal of the
appellant’s application if he failed to comply with the deadlines in the Rules
was a necessary corollary measure to both advance the underlying judicial
review application and to prevent an abuse of the Court’s processes. The Judge
added that even if he were to consider the matter de novo, he would come
to the same conclusion as the Prothonotary on this point.
[12]
The Judge also turned to the retaliation
argument raised by the appellant who claimed that the Prothonotary was biased
because tensions had arisen in another file. The Judge dismissed this argument
and reiterated the warning given by this Court to the appellant with respect to
his continued practice of making unsupported allegations of bias against members
of the courts.
[13]
Finally the Judge dealt with the appellant’s
arguments with respect to costs and concluded that the appellant had failed to
establish that the Prothonotary’s Order was based on a wrong principle or upon
a misapprehension of facts.
[14]
Before turning to the arguments advanced by the
appellant, I would note that at the outset of the hearing of this appeal, the
appellant questioned whether his appeal would receive a fair hearing because
two judges on the panel had heard some of his prior applications in other files
before this Court. The presiding judge offered to recess to allow the appellant
time to decide whether he wanted to make a motion for recusal or not. The
appellant refused the recess and decided to proceed with the hearing on the merits
without making a motion for recusal. Had he made such a request, there would
have been no basis for recusal as the mere fact that a judge has decided a case
against a party does not prevent the judge from fairly deciding a subsequent
case involving the same party.
[15]
Turning now to the appellant’s arguments, it is
settled law that this Court will only interfere with the decision of a judge
reviewing an order of a Prothonotary if it was arrived at on a wrong basis or
was plainly wrong (see Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC
27, [2003] 1 S.C.R. 450, and Merck & Co. Inc. v. Apotex Inc., 2003
FCA 488, [2004] 2 F.C.R. 459). I am of the view that the Judge identified the
appropriate standard and applied it correctly in this case.
[16]
The appellant first claims that the Prothonotary
used the wrong test to assess his request for an extension of time to file his
application record. Alternatively, if the Hennelly test which the
Prothonotary applied is the correct test, then it is the appellant’s position
that the Prothonotary erred in requiring the he meet the four criteria in the
test. He also claims that the Prothonotary unduly applied a high threshold to
the two criteria that she found the appellant had failed to meet. The appellant
also argues that the Judge failed to address these issues.
[17]
The appellant pointed to the decision in Canada
(Attorney General) v. Pentney, 2008 FC 96, 322 F.T.R. 81, at paragraph 37,
in support of his proposition that even if the Hennelly test applied, an
extension of time could still be granted if one criterion was not met.
[18]
The appellant asserts that the test on status
review set out in Baroud v. Canada, 1998 CanLII 8819 (FC), 160 F.T.R. 91
(T.D.) should have been applied in this instance as there is no reason for
higher requirements when the procedural step at issue is the filing of records.
[19]
Since his right to judicial review is a
constitutional right, it follows according to the appellant that the judiciary
should not interfere with the exercise of that right by requiring compliance
with the Rules.
[20]
On the issue of the relief sought pursuant to
Rule 55, the appellant contends that it was an error on the part of the
Prothonotary to rely on Rule 168 because there was no underlying order of the Court
and since it is an interim Order, the doctrine of abuse of process could not be
engaged. He adds that the abuse of process doctrine has to be construed
restrictively and applied only in the clearest cases. The appellant suggests
that this doctrine cannot be used to control the timeline of a proceeding.
[21]
The appellant also claims that the Judge erred
by failing to conduct a proper analysis of the allegation of retaliation that
he brought forward against the Prothonotary. Since the Prothonotary knew the
appellant was going to be out of the country from December 28, 2014 until
January 17, 2015, he maintains that her Order was crafted to maximize the
chances that his application would be dismissed.
[22]
Finally, the appellant argues that the Judge
erred in relying on the decision of this Court in Abi-Mansour v. Canada
(Aboriginal Affairs), 2014 FCA 272 to decide on costs since the facts are
completely different in the present instance. It is his position that he should
have been awarded costs as he was successful in his motion for an extension of
delay to file his affidavit.
[23]
I am of the view that none of these grounds
discloses that the Judge made a reviewable error in declining to disturb the
Prothonotary’s Order of November 24.
[24]
As the Hennelly test was the correct test
to be applied in this instance, the appellant’s first argument must be
rejected. Under that test, the Prothonotary was required to assess whether the
appellant had a continuing intention to pursue his application, whether the
said application had any merit, whether the delay sought would cause prejudice
to the other party and finally, whether there existed a reasonable explanation
for the delay sought.
[25]
I agree with the Judge’s assessment of the
Prothonotary’s decision on this point as it is evident that the appellant
failed to address the merits of his judicial application in his motion record.
He also failed to provide a sound justification for the extension he sought.
Having failed to meet two of the criteria the decision to deny the request was
well founded.
[26]
I further find no merit in the allegation that
an unduly high threshold was applied in considering the criterion of merit. As
the appellant did not address the matter, the Judge rightly concluded that the
Prothonotary cannot be faulted, especially since the appellant did not file his
affidavit in support of his judicial review application. Contrary to the appellant’s
contention, the Judge addressed those two issues in paragraphs 25 to 28 of his
Order.
[27]
The appellant’s argument with respect to the
assessment of his request pursuant to Rule 55 must also be rejected. It was
open to the Prothonotary to enforce Rule 168 to prevent a circumvention of the
Court’s rules. The Judge found that this decision was not made to pre-empt the
final decision on the judicial application and I agree.
[28]
The reasons brought forward by the appellant to
seek an extension of time to file his record and to be relieved from filing
three copies are not convincing. With a net income of $2800.00 a month, the
appellant is not impecunious, and his argument based on his personal priorities
is unreasonable. In these circumstances, the Prothonotary was justified in
ensuring that the appellant complied with the Rules.
[29]
The appellant’s argument that Rule 168 is only
applicable if there is an underlying order of the Court is misplaced. Rule 50
specifies that prothonotaries have broad jurisdiction to deal with any motion
under the Rules except for motions specifically excluded from their
jurisdiction by Rule 50. The reference to the Court in Rule 168 includes
prothonotaries as per Rule 2. Consequently, the Prothonotary could rely on Rule
168, and the portions of her Order, refusing the requested extension,
constituted an Order of the Court within the meaning of Rule 168.
[30]
In addition, the appellant’s argument with
respect to the doctrine of abuse of process is without merit. Recently, this
Court in Mancuso v. Canada (National Health and Welfare), 2015 FCA 227,
at paragraph 40, reiterated that the abuse of process doctrine is a residual
and discretionary doctrine that bars the re-litigation of issues where doing so
would undermine the finality of a judgment and bring the administration of
justice in disrepute (see Toronto (City) v. C.U.P.E., Local 79, 2003 SCC
63, [2003] 3 S.C.R. 77, at paragraph 37). In the present situation, the appellant
was explicit about his intention of using status review to obtain the extension
of time sought. I believe that the Prothonotary rightfully used the inherent
power of the Court to prevent the misuse of the Rules to circumvent the Order
to deny the time extension. What the appellant proposed to do to obtain a de
facto extension, after his request for an extension was denied, would
constitute an abuse of process.
[31]
I must also point out that the appellant had a
month in which to seek an extension of time to file his motion record through a
motion or through consent of the respondent pursuant to Rule 7, as provided for
in the Prothonotary’s Order. He left for the Middle East on December 28, 2014
and the Prothonotary’s Order was issued on November 27, 2014. The Appellant
chose to let his application lapse by his inaction and his disregard for the
timelines set by the Rules. As explained by the Judge in paragraph 30 of his
Order, the Rules have force of law and they must be applied.
[32]
I also see no merit to the appellant’s
contention that the Judge failed to address the issue of retaliation. The Judge,
in paragraphs 47 to 50 of his reasons, dealt with the issue and determined that
“[t]hose are very serious allegations which the
Applicant has failed to establish to any appreciable degree” (Judge’s
Order at paragraph 48).
[33]
Finally, the appellant’s argument with respect
to costs is unfounded. The Judge correctly applied the principle reaffirmed by
this Court with respect to costs in paragraphs 53 and 54 of his Order.
[34]
The appellant has therefore failed to show any
reviewable error made by the Judge in this case.
[35]
Consequently, I would propose that this appeal
be dismissed with costs, inclusive of disbursements and taxes, fixed at $2,000.00,
payable forthwith.
[36]
As a result, the underlying application for
judicial review, filed on August 20, 2014, is dismissed by virtue of the
Prothonotary’s Order. As the issue of costs in respect of the judicial review
application has not been addressed, this issue should be remitted to the
Federal Court for determination.
[37]
Before concluding, I note that the appellant is
still making disrespectful and unfounded allegations against members of the
Federal Courts despite having been cautioned on several occasions to cease this
unacceptable practice (see Abi-Mansour v. Canada (Aboriginal Affairs),
2014 FCA 272; Abi-Mansour v. Canada (Attorney General), 2015 FC 882; Abi-Mansour
v Public Service Commission, 2013 FCA 116; Abi-Mansour v. Canada
(Foreign Affairs and International Trade Canada), 2015 FCA 135). I propose
that this Court warn him for the last time to cease and desist from making such
abusive and vexatious statements whenever he fails to get his way. Otherwise,
Mr. Abi-Mansour’s proceedings could be adjourned under instruction to serve and
file amended material that does not contain this type of allegations. The
appellant could also face significant costs awards and stays if the costs are
not paid.
"A.F. Scott"
“I agree.
Johanne Trudel J.A.”
“I agree.
Mary J.L. Gleason
J.A.”
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