Docket: A-147-11
A-186-11
Citation: 2014 FCA 226
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 October 1, 2014, I ruled
that all new motions filed in these consolidated appeals must be sent to me to
be assessed in my capacity as case management judge: Mazhero v. Fox, 2014 FCA 219 at paragraph 15.
[2]
The Registry has sent to me
two new motions filed by Mr. Mazhero on October 3, 2014.
[3]
In the first motion, Mr.
Mazhero moves for an order “from
Justice Sharlow” setting
aside or rescinding her July 9, 2014 Order. In that Order, among other things,
Justice Sharlow required Mr. Mazhero to show cause why these consolidated
appeals should not be dismissed for delay.
[4]
The motion will not be
determined by Justice Sharlow. She has retired from the Court. Also, all
motions are to be heard by the case management judge. As case management judge,
I am to determine this motion.
[5]
In this motion, Mr. Mazhero
purports to challenge the July 9, 2014 Order under Rule 399(1) on the ground
that it was made ex parte.
[6]
Justice Sharlow made her
July 9, 2014 Order on her own motion. In my view, this is not an ex parte order within the meaning of Rule 399(1). The Rule targets
situations where one party moved to the Court without the other party present
and, later, the party affected by the order moves to set it aside on the basis
that it was obtained without full and frank disclosure of all relevant
information or is otherwise subject to a fatal flaw: see, e.g., TMR Energy Ltd. v. State Property Fund of
Ukraine, 2005 FCA 28, [2005] 3 F.C.R. 111.
[7]
Even if the July 9, 2014
Order were reviewable, I would dismiss the motion on the ground that it is an
abuse of process. It is barred by the doctrine against re-litigation. Mr.
Mazhero has previously brought motions to revisit the July 9, 2014 Order and
these have been dismissed: Mazhero
v. Fox, 2014 FCA 219 at paragraph 21. One cannot bring later motions
raising issues that could have been raised in earlier motions: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460; Toronto (City) v.
C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77. There are no considerations in favour of
relaxing the bar against re-litigation in this case.
[8]
The motion is also moot.
Justice Sharlow determined the show cause hearing. She allowed the consolidated
appeals to proceed. See Mazhero v.
Fox, 2014 FCA 200 at paragraph 16.
[9]
In any event, Mr. Mazhero’s
motion fails on its merits. The main thrust of Mr. Mazhero’s motion is that
Justice Sharlow had no power to act on her own motion to require him to show
cause why the consolidated appeals should not be dismissed for delay. She did
have that power on the basis of a previously-issued notice of status review
that has never been dealt with. She also had that power as part of her plenary
power to regulate Court proceedings: Canada
(National Revenue) v. RBC Life Insurance Company,
2013 FCA 50 at paragraphs
33-36.
[10]
Mr. Mazhero’s second motion
has been brought ex parte. He seeks an order requiring two of the three
respondents and a Registry Officer of this Court to be brought before a judge
of the Federal Court to show cause why they should not be held in contempt.
[11]
The motion should not have
been filed ex parte. For that reason, I dismiss the motion.
[12]
Even if the affected parties
were served, the motion would fail on its merits. The two respondents’ contempt
is said to arise from their alleged failure to file submissions by the deadline
set by Justice Sharlow in her July 9, 2014 Order. They did not breach the
Order. Paragraph 3 of the Order provided that the respondents “may” serve and file responding submissions. They were under no
obligation to do so. As I explained in a recent direction, the two respondents in
fact tried to file submissions, but their filing was unsuccessful, in part due
to an error by the Registry.
[13]
As for the Registry Officer,
the complaint seems to be that on July 22, 2014 she refused to allow a written
submission and affidavit of Mr. Mazhero to be filed. Rather than asking the
Registry Officer to get a ruling of a judge under Rule 72, Mr. Mazhero
couriered a copy of the written submission directly to Justice Sharlow. That
was improper – judges may be addressed only through the Registry or the
Judicial Administrator. Having examined the July 22, 2014 material, I see
nothing in the Registry Officer’s conduct that warrants any criticism
whatsoever, let alone a show cause hearing for contempt.
[14]
Quite aside from the failure
of Mr. Mazhero to serve affected parties and the motion’s lack of merit, I also
dismiss it as an abuse of process. It is abusive in two respects:
•
The two respondents’ alleged failure to file
submissions in opposition to Mr. Mazhero did not prejudice him in any way. In
fact, it made it more likely that Mr. Mazhero would succeed. And he did
succeed: in its September 11, 2014 Order, this Court allowed the consolidated
appeals to proceed rather than dismissing them for delay. In these
circumstances, Mr. Mazhero has nothing to complain about.
● Even
though the July 22, 2014 written submission was improperly sent to Justice
Sharlow, she accepted it and placed it in the Court file: Mazhero
v. Fox, 2014 FCA 200 at paragraph 14. Except for the couriering cost
– a cost that Mr. Mazhero could have avoided by asserting his rights under Rule
72 – he was not prejudiced in any way.
[15]
In my October 1, 2014
ruling, I asked the following questions (2014 FCA 219 at paragraph 25):
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?
[16]
I conclude that Mr. Mazhero brought the ex parte contempt motion only for the
collateral purpose of harming two of the respondents and a Registry Officer. He
did not bring it to protect his rights concerning these consolidated appeals or
to assist him in advancing them to a hearing on the merits.
[17]
In my October 1, 2014
ruling, I set out the steps necessary to be completed so that Mr. Mazhero’s consolidated
appeals will be soon heard on their merits. In particular, I gave him concrete and
clear advice on how to determine what should be included in the appeal book. I
encouraged him to direct himself to the task of getting the appeals ready for
hearing, and that task alone (2014 FCA 219 at paragraph 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.
[18]
In that ruling, I also
warned Mr. Mazhero as follows (2014 FCA 219 at paragraphs 34‑35):
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.
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.
I deliver these warnings one last time.
[19]
Just like any other
litigant, Mr. Mazhero is free to bring motions – if he has an arguable basis to
do so – to protect his rights concerning these consolidated appeals or to
assist him in advancing these consolidated appeals to a hearing on the merits.
[20]
However, in light of the
circumstances described in my October 1, 2014 ruling and in light of these two
motions – both of which smack of abuse of process – it is now necessary to make
additional orders to prevent further abuse. I have the authority to make such
orders: Mazhero v. Fox, 2014 FCA 219 at paragraphs 2-6.
[21]
If Mr. Mazhero brings a motion
or makes any submissions at any time for purposes other than those described in
the preceding paragraph, the consolidated appeals shall be immediately and
summarily dismissed with costs. To be completely clear, in his written
submissions concerning the contents of the appeal book, due soon, Mr. Mazhero
shall not make submissions at any time of any sort on any subjects other than
the contents of the appeal book.
[22]
My Order of October 1, 2014
remains in full force. If Mr. Mazhero fails to obey it in any way whatsoever,
these consolidated appeals shall be immediately and summarily dismissed with
costs.
[23]
These motions shall be dismissed.
"David Stratas"
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