Docket: A-252-16
Citation: 2017 FCA 115
Present: STRATAS
J.A.
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BETWEEN:
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THE ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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LARRY PETER
KLIPPENSTEIN
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Respondent
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REASONS
FOR JUDGMENT
STRATAS J.A.
[1]
The Attorney General applies for an order
declaring the respondent a vexatious litigant under section 40 of the Federal
Courts Act, R.S.C. 1985, c. F-7.
[2]
The principles governing this application are
set out in Canada v. Olumide, 2017 FCA 42. Bearing in mind the guidance
given in Olumide at paras. 39-40, these reasons are brief.
[3]
The respondent has prosecuted tens of
proceedings in various courts, including thirty files in the Manitoba Court of Queen’s
Bench and the Manitoba Court of Appeal and ten applications for leave to appeal
to the Supreme Court of Canada. In these proceedings, the respondent often
relitigates matters that have already been determined, frequently not
satisfying costs awards made against him. As well, the respondent has started
more than seventy-five private prosecutions, all of which have been dismissed
or delayed. These proceedings exhibit many of the hallmarks or badges of
vexatious behaviour discussed at paragraph 34 of Olumide.
[4]
A litigant’s behaviour in just a single proceeding
in this Court can result in section 40 remedies: Olumide at para. 25.
However, in multiple appeals, motions and other proceedings in this Court the
respondent has manifested the hallmarks or indicia of vexatious behaviour. This
Court is satisfied that unless section 40 relief is granted in this
application, the respondent’s behaviour will “likely…recur
in multiple proceedings” in this Court. See Olumide at para. 24.
[5]
The first appeal to this Court concerned the
Federal Court’s decision to strike a proceeding brought by the respondent. In
the Federal Court, the respondent sought a contempt order against the Registry
for failing to provide a means of oath that does not offend his conscience. The
respondent refuses to affirm rather than swear an oath. The Federal Court
struck out the proceeding. This Court dismissed the respondent’s appeal (file
A-135-14): 2014 FCA 216. This Court rejected the respondent’s submissions
concerning the oath.
[6]
The respondent attempted to reopen the issue
concerning the oath in the Federal Court by trying to convert a direction dealing
with the oath issue into an order. He also brought fresh proceedings upon it.
The Federal Court rebuffed these instances of relitigation. On appeal, after
three meritless motions, this Court dismissed the appeal (A-503-14), calling it
“vexatious and a waste of judicial resources”:
Order of February 27, 2015. The respondent applied for leave to appeal to the Supreme
Court. After the Supreme Court dismissed his application for leave to appeal,
the respondent brought two motions in this Court concerning this same matter,
long since closed.
[7]
In the course of one of the respondent’s
appeals, the respondent sought an order from this Court appointing a litigation
guardian. This was dismissed: see direction dated April 14, 2014 in file
A-135-14. He then brought five separate motions, all unmeritorious, within that
file. Among other things, this Court rejected an argument concerning the need
to appoint a litigation guardian. Two further unsuccessful motions followed. He
relitigated this issue again in another appeal without offering new facts.
[8]
The respondent continues to litigate the issues
of the oath and the need for a litigation guardian even though both have been
decided against him. In this section 40 application, rather than defending the
application on the merits, the respondent again raises these issues. During
oral argument on this application, in response to the Court’s questioning, the
respondent confirmed that the claim he wishes to assert concerns only the
previously decided issues of the oath and litigation guardian. There is no
other claim.
[9]
On the factual record before the Court, the
Court is satisfied that unless this application is granted the respondent will
continue to relitigate these previously decided issues. To prevent the sort of
deleterious consequences discussed in Olumide and in accordance with the
purposes of section 40 described in Olumide, the respondent must be
restrained from continuing or commencing proceedings in this Court without
leave.
[10]
Such a restraining order does not take away the
respondent’s right to assert an issue in an application or appeal in this
Court, should the need arise. Instead, it adds a measure of regulation in the
exercise of that right. Bearing in mind the purposes underlying section 40 that
were discussed in Olumide, regulation is warranted here.
[11]
Therefore, the Court will grant the section 40
application.
[12]
If an issue arises that requires the respondent
to start an appeal or application in this Court, the respondent must seek leave
from this Court. Leave will be granted if the issue is bona fide and not
doomed to fail. If the Court decides to grant leave, the Court can impose terms
providing for court supervision or management to ensure the proceeding progresses
properly.
[13]
Therefore, this Court shall issue an order declaring
the respondent a vexatious litigant and forbidding him from starting any new
proceedings in this Court unless the Court grants leave. The Registry shall refuse
to file any originating documents not accompanied by a motion in writing under
Rule 369 of the Federal Courts Rules, SOR/98-106 seeking leave. The
applicant does not seek her costs and so none shall be awarded.
“David Stratas”
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