Docket: A-147-11
A-186-11
Citation: 2014 FCA 219
Present: STRATAS
J.A.
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BETWEEN:
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FRANCIS MAZHERO
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Appellant
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and
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ANDREW FOX, JACQUES ROBERGE AND NEIL SHARKEY
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Respondents
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REASONS
FOR ORDER
STRATAS J.A.
[1]
On September 11, 2014, this Court ordered that
these consolidated appeals may continue as a specially managed proceeding and
designated me to act as the case management judge: Mazhero
v. Fox et al., 2014 FCA 200.
[2]
I have very broad powers to progress
these consolidated appeals from their currently chaotic state to a prompt
hearing on the merits. In particular, Rule 385(1) of the Federal Courts
Rules, SOR/98-106, gives me two sets of powers
useful for this case. First, I may make any directions and orders “that are necessary for the just, most expeditious and least
expensive determination of the proceeding on its merits.” Second, I may “fix the period for completion of subsequent steps in the
proceeding.”
[3]
Rule 385(1) sits alongside
Rules 53 and 55. Under those Rules, I can vary any Rules in the Federal
Courts Rules, dispense with compliance with them, make additional orders
that are just, and attach terms to any orders.
[4]
Rule 385(1) also sits alongside this Court’s
plenary jurisdiction to regulate its proceedings and restrain any abuses of its
procedures: Canada (National
Revenue) v. RBC Life Insurance Company, 2013 FCA 50 at paragraphs 33-36.
[5]
At all times, these powers are to be exercised
in accordance with procedural fairness. Procedural fairness is not what the
parties think is fair, nor is it in the eye of the beholder. It is a
well-defined concept rooted in the case law. In this case, the requirements of
procedural fairness will not obstruct my task of bringing order to chaos.
[6]
In exercising these powers, I am not restricted
to dealing with matters passively, i.e., deciding motions and other
matters raised by the parties. Rather, I can take a more active posture, using
my broad powers, sometimes on my own initiative, to regulate the parties’
conduct fairly with a view to progressing this file to a prompt hearing on the
merits. A brief description of these appeals and their current status shows
that I must be very active.
[7]
Before me are two consolidated appeals:
•
File A-147-11. An
appeal from the Order of the Federal Court (per Justice Tremblay-Lamer)
dated March 30, 2011 declaring the appellant to be a vexatious litigant under
subsection 40(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, and
related matters. The appellant launched this appeal on March 31, 2011.
•
File A-186-11. An
appeal from the Order of the Federal Court (per Justice Noël) dated
April 28, 2011 in which the Federal Court refused the appellant leave to
commence a proceeding. The appellant launched this appeal on May 5, 2011.
[8]
The appeals have not progressed beyond the
filing of the notice of appeal. In particular, the appellant has not pursued
the next step in the appeals – the filing of the appeal books under Rule 343.
[9]
Normally, that step takes no more than 60 days
from the filing of the notice of appeal. But here we are – 1,279 days and 1,244
days respectively into the appeals – and that step remains to be done. The
appeals have been frozen by numerous motions and letters requesting relief of
various sorts, and also by some earlier orders of the Court.
[10]
Using my broad powers of case management, I now set
some mandatory rules to regulate these consolidated appeals until their
completion. My aim is to progress them quickly to a hearing on their merits.
[11]
First, I shall regulate how the parties
are to communicate with the Court. Justice Sharlow has correctly observed that the
appellant has been submitting letters and documents to the Court faster than
the Court can deal with them: Mazhero, supra at
paragraph 14. A number of these letters and
documents do not have any legal merit and a few contain attacks on the bona fides and motivations of the Court.
Yet, when filed, the Court must still deal with them, a task that fritters the
Court’s scarce resources away without moving the matter any closer to hearing.
[12]
In this situation, the words of the Subcommittee
on Global Review of the Federal Courts Rules, unanimously approved by
the Federal Courts’ Rules Committee, are apposite:
The Federal Courts
system can no longer be seen just as a tool for parties to litigation to
advance their ends with few restraints. We can no longer see the rules only in
terms of accommodating and regulating the interests of particular litigants in
a case. They must be seen as regulating the rights of litigants across the
system. Overuse of scarce judicial resources in one case can potentially
deprive other cases of these resources and inflict damage on the public purse.
While the Federal
Courts system exists for the benefit of parties to litigation, something
broader must not be forgotten: the Federal Courts system belongs to the
community, is financed by the community, and must serve the community.
(Subcommittee on Global Review of the Federal
Courts Rules, Report (2012), at page 24.)
[13]
The Federal Courts Rules require the
Court to be addressed by motion and by no other means – and in these
circumstances, no relaxation of that requirement shall be permitted. Therefore,
I shall order that no party may address the Court by letter or document. The
Court may only be addressed by formal motion under Rule 369. Any such motion
must explicitly state a specific rule under the Federal Courts Rules as
the basis for relief, otherwise the Registry shall reject it.
[14]
To be clear, the Registry is not to accept any
letter or other document sent to it by any party by any means, unless it is a
compliant motion record, appeal book, memorandum of fact and law, or written
submissions ordered by the Court. Under no circumstances will the Court address
or react to any letter or other document.
[15]
Next, I shall regulate how the Registry and the
Court will act when a party files a compliant motion record. Upon the filing of
a compliant motion record, the Registry shall immediately send the motion
record to me. I shall promptly determine whether the motion has any merit on
the basis of the evidence and written submissions in the moving party’s motion
record. If the motion has no merit, I shall dismiss it immediately.
[16]
This is in accordance with this Court’s normal
hearing practice. When a party seeks relief, whether that be in a motion,
application or appeal, and that party fails to show that relief is possible,
the matter ends there – the motion, application, or appeal is dismissed without
calling for submissions from the responding party.
[17]
If a motion has potential merit or calls for
response, I shall direct the respondent(s) to the motion to file a responding
motion record. The time for filing that record under Rule 365 shall run from
the date of the direction.
[18]
Next, I wish to correct what may be a misunderstanding
on the part of the appellant. Currently before the Court are a number of
motions brought by the appellant to set aside earlier Orders of the Court. But what
the appellant may not realize is that the Rules do not allow him an unqualified
right to do that. Far from it.
[19]
The general rule is that an order, once made, is
final and binding. It can only be changed or set aside by appealing it. To that
general rule are exceptions – narrow and specific ones – to the general rule.
One is where an order does not accord with the reasons given for it, there is a
typographical error, or a matter has been accidentally omitted from the order:
Rule 397. Another is where the order was fraudulently obtained or a new matter
has arisen: Rule 399. The requirement of a new matter is difficult to satisfy: UHA Research Society v. Canada (Attorney General), 2014 FCA
134 at paragraph 9.
[20]
In her reasons in Mazhero, supra at paragraphs
13(a) and 14, Justice Sharlow helpfully set out the motions filed by the
appellant that are currently before the Court. Some of these have been asserted
in letters. On this one last occasion, in the interests of efficiency, I shall
regard the letters as asserting formal motions.
[21]
The appellant’s letters dated July 18, 2014 and
September 4, 2014 and the motion record dated August 13, 2014, broadly
challenge the validity of all or part of the Court’s Order dated July 9, 2014.
They do not raise valid grounds under Rules 397 or 399. The appellant’s motions
suggest that he is dissatisfied with the Order dated July 9, 2014. His recourse
is to try to appeal it, not to bring the motions he has brought. Accordingly, all
of these motions shall be dismissed.
[22]
The appellant’s motion to set aside the Orders
of this Court dated August 19, 2011 is also dismissed. Contrary to the
appellant’s submission, the Court had the jurisdiction to make those Orders. As
well, there are no grounds to revisit these Orders under Rules 397 and 399. If
the appellant is dissatisfied with the Orders, he may try to appeal them. But
no recourse exists under Rules 397 and 399.
[23]
By letter dated September 9, 2014, the appellant
seeks an order requiring the Federal Court to produce electronic copies of
certain documents in T-1067-10. This Court does not have the jurisdiction to
make such an order concerning Federal Court documents. This motion shall be
dismissed.
[24]
The appellant’s motion dated July 22, 2014 seeking
an order that the respondent Sharkey be charged with a criminal offence, and
related relief, is dismissed. This Court lacks the jurisdiction to grant the relief
sought. Further, this motion is entirely without legal merit. This motion echoes
an earlier motion the appellant brought unsuccessfully in this Court. In that
motion, the appellant sought leave to start a private prosecution against a
Prothonotary and a lawyer.
[25]
These particular motions cause concern. Is the
appellant truly interested in appealing the merits of the Federal Court’s
judgments declaring him a vexatious litigant? Or, instead, is he interested in
using the consolidated appeals as a forum to pursue improper collateral
purposes? I address this concern below.
[26]
I now turn to the remainder of the procedural
steps in the consolidated appeals.
[27]
Originally, there were two appeals: A-147-11 and
A-186-11. On May 26, 2011, this Court set out the contents of the appeal book
in A-147-11. On August 19, 2011, this Court ordered that the appeals be
consolidated. Now it falls to the appellant to prepare one appeal book for the
consolidated appeals (i.e., both A-147-11 and A-186-11) that complies
with Rule 344.
[28]
In preparing his appeal book, the appellant
should start with the May 26, 2011 Order that sets out the documents to be
included in the A-147-11 appeal. He should consider whether there are
additional documents relevant to A-186-11 that were before the Courts below and
are necessary for the hearing of the consolidated appeals. Those should be
included in the appeal book for the consolidated appeals. At a minimum, the
reasons and judgment of the Federal Court under appeal in A-186-11 must be
included.
[29]
The contents of the appeal book for the
consolidated appeals will be set by a later order of the Court. To this end,
the Court needs submissions from the parties.
[30]
The appellant shall file written submissions
with this Court no later than October 21, 2014 setting out a proposed detailed
index for the appeal book in the consolidated appeals. He shall list in the
index each document with particularity. The respondents may respond by November
4, 2014, objecting (with reasons) to the appellant’s index. If necessary, the
respondents may offer their own index, with submissions as to why their index
should be adopted. The appellant shall reply by November 12, 2014. The parties
will have my decision on the contents of the appeal book by no later than
November 24, 2014.
[31]
Given the delay to date, the remaining
procedural steps – the filing of the appeal book, the parties’ memoranda and
the hearing – must be scheduled by court order. The regrettable history of this
matter and the public interest in prompt disposition of appeals require no
less.
[32]
By no later than October 21, 2014, the appellant
shall file a three page written submission suggesting a timetable for remaining
steps in the consolidated appeals, including availability for possible hearing
dates in the February to April 2015 period and the preferred location for the
hearing. By November 4, 2014, the respondents may respond in a three page
written submission. By November 12, 2014, the appellant may reply in a two page
written submission.
[33]
The parties are on notice that the schedule ultimately
set by the Court will be set out in a binding Court order. Absent truly
exceptional circumstances, the schedule will be unchangeable. Any later motions
will not affect the schedule.
[34]
Lastly, if the orders I am making today are not
obeyed, if a party brings multiple motions seeking relief this Court has no
jurisdiction to give, if a party persists in moving to set aside every order
without any basis, or if a party brings motions that are frivolous and
vexatious, I will take decisive action in accordance with this Court’s plenary
power to redress an abuse of its processes.
[35]
For example, if the appellant engages in that
sort of conduct, I shall conclude that the consolidated appeals are nothing
more than a tool to pursue improper purposes and I shall dismiss the
consolidated appeals summarily as an abuse of process. As mentioned above, I do
have concerns in this regard, but I hope I am wrong.
[36]
If the appellant believes his appeals to be well-founded,
he must now work in an orderly, diligent and single-minded way to get them
ready for hearing soon so that this Court can consider them fairly on their
merits.
[37]
On a number of occasions, the respondents have been
awarded costs. To quantify and collect these, the respondents will have to
follow the procedures under the Rules. Until the costs are quantified and the
appellant has had a reasonable time to pay and has defaulted, I have no basis
for staying the consolidated appeals.
[38]
An Order shall go in accordance with these
reasons.
"David Stratas"
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