Dockets:
A-147-11
A-186-11
Citation:
2014 FCA 238
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CORAM:
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NOËL C.J.
DAWSON J.A.
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 JUDGMENT
STRATAS J.A.
[1]
Mr. Mazhero has brought five new motions within
these consolidated appeals.
[2]
As will be seen, this Court has repeatedly expressed
its concern that Mr. Mazhero has been pursuing the consolidated appeals for
collateral purposes. He has been repeatedly warned that failure to stick to the
task at hand – the perfection of his consolidated appeals – would result in their
dismissal: see Mazhero v. Fox, 2014 FCA 200, Mazhero
v. Fox, 2014 FCA 219, Mazhero v. Fox, 2014 FCA 226. He has been given
every opportunity to advance his appeals to a hearing on the merits.
[3]
These five new motions – all abusive and
irrelevant to the appeals – and Mr. Mazhero’s persistent and continued defiance
of orders of this Court show that he will not deviate from a pattern of abusive
litigation behaviour and is ungovernable. For these reasons, I would dismiss
the consolidated appeals with costs.
A. Background facts
[4]
In the consolidated appeals, Mr. Mazhero sought
to quash Judgments of the Federal Court declaring him to be a vexatious
litigant. He started his appeals on March 30, 2011 and April 28, 2011.
[5]
On September 11, 2014 this Court issued an order
allowing the consolidated appeals to continue: Mazhero
v. Fox, 2014 FCA 200. It did so despite their multi-year, tortured history
and Mr. Mazhero’s tendency to flood the Court with motions.
[6]
This Court’s reasons in support of its October
1, 2014 Order, described below, describe this history and tendency on the part
of Mr. Mazhero. This forms an essential part of the backdrop against which the
five new motions must be assessed.
[7]
On September 11, 2014, this Court ordered that
these consolidated appeals be case managed so that the consolidated appeals could
be made ready for hearing as quickly as possible. Although the Federal Court
had declared Mr. Mazhero a vexatious litigant, he had the right to appeal that finding
to this Court as long as he prosecuted his appeals diligently and showed
himself to be governable. This approach guided this Court in its Orders dated
October 1, 2014 and October 9, 2014.
C. The October 1, 2014 Order and Reasons: Mazhero v. Fox, 2014 FCA 219
[8]
The October 1, 2014 Order dismissed several
irrelevant and meritless motions brought by Mr. Mazhero and set a strict
timetable for the remaining procedural steps in the consolidated appeals to be
completed.
[9]
In its reasons, the Court advised Mr. Mazhero
about what to include in the appeal books (at paragraph 28). It was explained
to him that orders, once rendered by the Court, are final and must be obeyed. The
Order made it clear that the Court’s ability to revisit orders – set out in
Rules 397 and 399 – is very narrow indeed. In the course of this, several
motions in which Mr. Mazhero improperly sought to revisit earlier orders were
dismissed.
[10]
In dismissing those motions, the Court observed (at
paragraph 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.
[11]
The reasons went on to warn Mr. Mazhero as
follows (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.
[12]
Mr. Mazhero was urged to devote his energies to
getting his appeal ready for hearing (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.
[13]
Informed, educated and warned in the clearest
possible terms, Mr. Mazhero now had a clear opportunity to prosecute the
consolidated appeals in an orderly and efficient way so that the Court could
hear them soon on their merits. Mr. Mazhero squandered that opportunity.
D. The
October 9, 2014 Order and Reasons: Mazhero v. Fox, 2014 FCA 226
[14]
Just two days after the October 1, 2014 Order,
Mr. Mazhero brought two new motions. By Order of October 9, 2014, these were
dismissed, each on multiple grounds, including abuse of process (at paragraph
20). On one of the motions, the Court observed (at paragraph 16):
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.
[15]
The warnings in paragraphs 11 and 12 above were
repeated “one last time” using very direct
language (at paragraph 18). In even more direct language, Mr. Mazhero
received a last warning: “[i]f Mr. Mazhero brings a
motion or makes any submissions at any time for purposes” other than “to protect his rights concerning these consolidated appeals
or to assist him in advancing these consolidated appeals to a hearing on the
merits,” the consolidated appeals “shall be immediately and summarily dismissed with costs” (at paragraphs 19 and 21). For good measure, these words were
reproduced in paragraph 2 of the October 9, 2014 Order.
[16]
In short, despite Mr.
Mazhero’s defiance of the October 1, 2014 Order, he was permitted one last
opportunity to proceed to the merits of his appeals. Now he has squandered that
opportunity too.
E. The
five new motions
[17]
Before the Court are five
new motions. These motions violate paragraph 2 of the October 9, 2014 Order (described
in paragraph 19, above), ignore all warnings previously given, and constitute
an abuse of process. The motions are as follows:
•
A motion to set aside this Court’s October 9,
2014 Order that dismissed Mr. Mazhero’s motion to set aside the Court’s July 9,
2014 Order. Among other things, the motion is an attempt to relitigate a matter
already rejected for relitigation and other fatal flaws.
•
A motion asking that this Court hear certain earlier
motions dating back to 2010 and 2011 seeking to quash certain Federal Court and
Prothonotary orders. These orders are not the subject of a notice of appeal to
this Court. They are now final and unappealable. They are also irrelevant to
the issues in the consolidated appeals.
•
A motion to set aside a direction the Court made
on October 1, 2014. That direction concerns a filing irregularity in one of the
motions dismissed on October 1, 2014. It has nothing to do with the issues in
the consolidated appeals. Mr. Mazhero further alleges that the direction was
obtained by fraud. Nothing before the Court supports that allegation. Finally, directions
that concern minor administrative matters – here an explanation about a filing
irregularity that caused no harm – cannot be appealed: see, e.g., Tajdin v. His Highness Prince Karim Aga Khan, 2012
FCA 238.
•
A motion that Justice Sharlow should hear Mr.
Mazhero’s motion dated August 13, 2014 seeking to reverse this Court’s July 9,
2014 Order. This is yet another instance of relitigation: on October 1, 2014,
this Court dismissed the August 13, 2014 motion, among other things rejecting
Mr. Mazhero’s contention that Justice Sharlow must hear the motion.
•
A second motion identical to the last, except
that it concerns a duplicative motion brought on August 14, 2014. To the extent
that the August 14, 2014 motion was not dealt with in the Court’s October 1,
2014 Order, it is entirely duplicative of the August 13, 2014 motion that was
dismissed.
F. Proposed disposition
[18]
Access to courts is important – hence the
repeated guidance, warnings, and opportunities this Court has given to Mr.
Mazhero. But there comes a point when enough is enough.
[19]
Here, we are past that point. Despite repeated
opportunities to show himself to be governable and to progress his appeals to a
hearing on the merits, Mr. Mazhero has not wavered: he intends to pursue his
own path, one that cannot be tolerated.
[20]
For the foregoing reasons and in accordance with
paragraph 2 of this Court’s October 9, 2014 Order, I would dismiss the
consolidated appeals with costs.
"David Stratas"
“I agree
Marc Noël C.J.”
“I agree
Eleanor R. Dawson J.A.”
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