Docket: T-758-17
Citation:
2017 FC 817
Ottawa, Ontario, September 11, 2017
PRESENT: The Honourable Mr. Justice Diner
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BETWEEN:
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GRANT R WILSON
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Applicant
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and
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CANADA REVENUE
AGENCY
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Respondent
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JUDGMENT AND REASONS
I.
Background
[1]
In 1991, Canada Revenue Agency [CRA], reversed
and seized a tax refund of approximately $500,000 [Seizure] previously paid to the
Applicant, Grant Wilson.
[2]
Mr. Wilson sought relief in connection with the
Seizure through a variety of proceedings over the subsequent years, beginning
with an action against CRA in 1999 [the 1999 Action]. The 1999 Action was
dismissed, as were ultimately a series of other legal challenges in the form of
various unsuccessful appeals, reconsiderations, and related proceedings at this
Court and the Federal Court of Appeal, as well as the Ontario Superior Court of
Justice, the Tax Court of Canada, and the Supreme Court of Canada, which are
summarized below.
[3]
Mr. Wilson began a second action against CRA in
2005 [the 2005 Action], again seeking recovery in connection with the Seizure.
That action was also dismissed. When Mr. Wilson sought an order granting him an
extension of time within which to appeal the dismissal of the 2005 Action, CRA
moved for an order under s. 40(1) of the Federal Courts Act, RSC 1985, c
F-7 [the Act] barring Mr. Wilson from continuing the 2005 Action or
instituting any further proceeding without leave of the Court.
[4]
Mr. Wilson was then found by Justice Barnes to
be a vexatious litigant under s. 40(1). He is thus prohibited from instituting
or continuing any other proceeding in this Court without leave, which now
brings Mr. Wilson to this Court once again, this time in an application under s.
40(3) of the Act, which allows a vexatious litigant to apply to the
Court for the rescission of that order, or for leave to institute or continue a
proceeding.
[5]
I note as a preliminary matter that although
this proceeding was commenced by Mr. Wilson’s originating Notice of
Application, it appears to have been treated at times as a motion for scheduling
and filing purposes—including having been set down in General Sittings and
heard by way of a motion on July 18, 2017. The procedural irregularity is
without consequence. The matter was heard on the basis of a full record and my
decision finally disposes of the proceeding commenced by Mr. Wilson’s Notice of
Application and includes future guidance should Mr. Wilson decide to continue
to pursue litigation before this Court.
[6]
Mr. Wilson’s present application materials seek
relief under s. 40(3) of the Act (although in submissions he erroneously
requested relief under s. 40(c) of the Act). His written materials are
unclear as to the proceedings he ultimately wishes to commence or continue.
[7]
During Mr. Wilson’s oral submissions, he raised the
following as desired outcomes of this application:
1.
a review of the September 2016 costs assessment
of Officer Bruce Preston, which relates to the 1999 Action; and
2.
a challenge to the Seizure by way of a “counterclaim” to the 1999 Action.
[8]
As will be discussed below, there are three
significant procedural obstacles that Mr. Wilson must overcome to have any redress
of these issues today.
[9]
First, before Mr. Wilson may pursue either of
his two desired outcomes, he must, under s. 40(3) of the Act, secure
either a rescission of Justice Barnes’ order or obtain leave of the Court to
commence or continue his proposed proceedings. For the reasons provided below,
he has not persuaded me to provide such relief.
[10]
Second, with respect to the costs assessment,
Mr. Wilson has missed the deadline within which to file his motion materials
and therefore first requires an extension of time under Rule 8 of the Federal
Courts Rules, SOR/98-106 [the Rules].
[11]
Third, the 1999 Action ran its course and ended
some fifteen years ago. That aside, Mr. Wilson was the plaintiff to that
1999 Action. There is and was nothing and no one for him to “counterclaim” against, because he brought the action.
[12]
As Mr. Wilson continues to attempt to relitigate
settled matters, the following provides a high-level overview of Mr. Wilson’s history
in seeking legal redress for the Seizure.
II.
Litigation History
[13]
For context, I will begin with an overview of
Mr. Wilson’s dispute with CRA and the circumstances leading to Justice Barnes’ order
in Wilson v Canada (Revenue Agency), 2006 FC 1535 [Wilson
2006]. In Wilson 2006, Justice Barnes provided a thorough history of Mr.
Wilson’s disputes with CRA to that date, the facts of which I have relied upon—at
least with respect to those early years of his litigation.
[14]
CRA’s position was and remains that the Seizure
resulted from a refund payment made in error because Mr. Wilson owed more than
that amount in tax arrears. Mr. Wilson brought the 1999 Action against CRA seeking
recovery of the said refund—and over $60 million in damages.
[15]
The 1999 Action was dismissed in 2003 by Justice
Hugessen based on Mr. Wilson’s failure to properly answer questions and fulfil
undertakings on discovery. Justice Hugessen’s order stated that orders of the
Court appeared to have “no effect” on Mr.
Wilson, who also failed to appear for the hearing before Justice Hugessen
although he had been properly served with the motion materials.
[16]
Fourteen months later, in 2004, Mr. Wilson moved
before Justice Mactavish for a reconsideration of Justice Hugessen’s order. Justice
Mactavish found that Mr. Wilson had failed to establish a prima facie
case for setting aside Justice Hugessen’s order and had demonstrated a history
of delay, obstruction, and non-compliance.
[17]
In 2005, Mr. Wilson moved for a reconsideration
of Justice Mactavish’s order on the basis of purported “new
evidence”. Justice Mactavish again found against Mr. Wilson, holding
that the “new evidence” would not have changed
the outcome of her 2004 reconsideration decision.
[18]
Mr. Wilson then moved for an extension of time
to appeal the 1999 Action. This motion was denied with costs by Justice Létourneau
of the Federal Court of Appeal [the FCA] in December 2005, who found Mr.
Wilson’s conduct to be an abuse of process that ought not to be condoned.
[19]
Mr. Wilson then brought the 2005 Action against
CRA again seeking recovery of the seized funds. CRA responded with a motion to
strike out the 2005 Statement of Claim as being frivolous, vexatious, an abuse
of process, and raising issues that had been previously determined.
Prothonotary Milczynski granted CRA’s motion and dismissed the 2005 Action,
finding that the substance of the 1999 Action had been reproduced in the 2005
Statement of Claim, and that the relief sought—an order of mandamus for payment
of a tax refund—could only have been sought by judicial review.
[20]
Mr. Wilson then sought to appeal Prothonotary
Milczynski’s decision but did not file his appeal in time. As such, he moved
before Justice Barnes for an order extending the time to file his appeal
materials. CRA opposed Mr. Wilson’s motion and moved for an order under s. 40(1)
of the Act barring him from continuing the 2005 Action or commencing any
other proceeding.
[21]
In Wilson 2006, the resulting decision, after
reviewing the law pertaining to s. 40(1) of the Act, including the
hallmarks of the designation of vexatious litigant, Justice Barnes concluded:
[32] In varying degrees, Mr. Wilson’s
conduct in this Court has fulfilled every one of the above-noted
characteristics of vexatiousness. He is also extremely litigious and I have no
doubt that, absent an Order barring further actions against the Crown in this
Court, he will continue to advance his unmeritorious cause in this Court. In
the result, Mr. Wilson will be barred from bringing any further proceedings in
this Court except with leave of the Court. The Crown will have its costs on
both motions in the total amount of $1,000.00 payable forthwith.
[22]
In 2007, Mr. Wilson attempted to appeal Justice
Barnes’ s. 40(1) finding to the FCA but again missed the requisite deadline. His
motion for an extension of time was dismissed, along with his subsequent
request for a reconsideration of that dismissal (Orders of Sharlow J.A., dated
July 27, 2007 and November 20, 2007 in File 07-A-25, Respondent’s Book of
Authorities [RBA] at Tabs 5 and 6).
[23]
In 2008, Mr. Wilson sought leave to appeal both
FCA orders to the Supreme Court of Canada [SCC], which dismissed his
application for leave.
[24]
Mr. Wilson then, unsuccessfully, sought a
reconsideration of the SCC’s dismissal (Order of the SCC, dated May 1, 2008 in
File 32437 and Letter from the SCC, dated December 15, 2008 in File 32437, RBA
at Tab 7).
[25]
This did not end Mr. Wilson’s attempts to
litigate his grievance relating back to the Seizure. He pursued relief at the
Tax Court of Canada within the context of an income tax assessment appeal,
which was dismissed in 2010 (Order of Hershfield J., dated August 23, 2010 in
File 2009-3157 (IT)I, RBA at Tab 8).
[26]
Mr. Wilson also commenced a new action in the
Ontario Superior Court of Justice [the Ontario Action]. In Grant R Wilson v
Revenue Canada Agency, 2011 ONSC 5253, Justice Carey dismissed Mr. Wilson’s
action and declared him to be a vexatious litigant under s. 140 of the Ontario
Courts of Justice Act, RSO 1990, c C43, explaining that:
[2] Mr. Wilson has amassed more court time
than many litigation lawyers over the last two decades. The CRA alone has seen
three actions and appeals up to the Supreme Court of the Canada. None have been
successful and the Federal Court has previously declared him a vexatious
litigant. The Department of Justice argues that undeterred he has simply
changed courts to re argue matters that have had final disposition.
…
[5] There is little more than I can add to
Barnes and Little J.J.’s comments. I agree with both. In addition to the
behaviour continued in this litigation, Mr. Wilson has not paid any of the
outstanding costs orders and has continued to take every appeal so far as
humanly possible.
[27]
Mr. Wilson’s appeal of Justice Carey’s order was
dismissed by the Ontario Court of Appeal [ONCA] in Wilson v Canada Revenue
Agency, 2013 ONCA 31, in which the Court noted that:
[1] …The record fully supports the finding
that Mr. Wilson is a vexatious litigant. The Federal Court came to the same
conclusion in 2006. The claim was, in our view, properly struck given the
vexatious litigant finding.
[28]
Mr. Wilson next attempted to file for leave to
appeal the ONCA’s judgment to the SCC but again missed the prescribed deadline
for doing so. The SCC dismissed Mr. Wilson’s motion for an extension of time, noting
that “had such a motion been granted, the application
for leave to appeal would have been dismissed with costs” (Grant R
Wilson v Canada Revenue Agency, 2015 CanLII 1296 (SCC)).
[29]
Mr. Wilson has also previously tried in this
Court to overcome the s. 40(1) constraints placed on him, and recommence old
litigation related to the 1999 Action. For instance, in 2012, Mr. Wilson
brought a motion before this Court for “an extension of
time to file an ‘amended’ appellant’s application for leave” to seek permission
to commence or continue proceedings, a requirement flowing from Justice Barnes’
order. Mr. Wilson’s motion was dismissed by Justice Bédard (Wilson v Canada
Revenue Agency, 2013 FC 39 [Wilson 2013]).
[30]
Mr. Wilson then attempted to appeal Wilson
2013 to the FCA, which refused to entertain it (Direction of Gauthier J., dated
February 21, 2013, RBA at Tab 12). Justice Bédard also refused to entertain a
subsequent reconsideration request as Mr. Wilson had failed to serve and file
his materials within ten days of her order (Direction of Bédard J., dated March
14, 2013 in File 12-T-81, RBA at Tab 13).
[31]
Mr. Wilson then attempted to file another motion
for an extension of time before this Court, which Justice Harrington rejected (Direction
in File 12-T-81 dated April 4, 2013, RBA at Tab 14).
[32]
Mr. Wilson also brought a motion for a review of
the certificate of assessment issued on the above-noted files. His motion was
dismissed by Justice Hughes (Order dated April 22, 2013, in File T-1677-79, RBA
at Tab 16).
[33]
Mr. Wilson then tried to appeal Justice Hughes’
decision to the FCA but again missed the prescribed filing deadline. His motion
for an extension of time was dismissed by Justice Sharlow, whose order stated
that there was “no possible merit to the appeal”
(Order dated June 14, 2013, in File 13-A-20, RBA at Tab 17).
[34]
Mr. Wilson’s application for leave to appeal Justice
Sharlow’s decision to the SCC was dismissed with costs (Order of the SCC dated
February 26, 2015 in File 36139, RBA at Tab 18).
[35]
Later, in 2016, at the request of the SCC
Registrar, Justice Karakatsanis issued an order under Rule 67 of the Rules of
the Supreme Court of Canada, SOR/2002-156, finding that the filing of further
documents would be vexatious and thereby prohibiting Mr. Wilson from filing
documents relating to either the Ontario Action or File No.: T-1677-79 (Order
of Karakatsanis J., dated August 18, 2016 in Files 36065 and 36139, RBA at Tab
20).
III.
Analysis
[36]
I will start with Mr. Wilson’s apparent desire
to rescind Justice Barnes’ order; if rescinded, Mr. Wilson will no longer
require leave to commence or continue any proceeding under s. 40(3) of the Act.
(Of course, Mr. Wilson’s other two requests for relief in the current
application would still be subject to the requisite tests.) While Mr. Wilson
did not expressly seek rescission of Justice Barnes’ order in his written
materials, there was some discussion of rescission during Mr. Wilson’s oral
submissions.
[37]
An application for rescission of an order made
under s. 40(3) of the Act is a challenge to the validity of the order.
Such an application is distinct from (a) an appeal or (b) a motion for
reconsideration—both of which, as described above, Mr. Wilson has attempted in
the past on more than one occasion. Rather, an applicant may argue that rescission
is justified because the vexatious litigant order was obtained, for instance, on
fraudulent grounds, or that it should be changed based on newly-discovered
facts (see Duterville v Glen, 2016 FC 455 [Duterville] at paras
6-9). Improvements in the applicant’s conduct, or any lack thereof, are also
relevant (Duterville, at para 8).
[38]
Mr. Wilson’s present complaint appears to be
that Justice Barnes’ order was improperly granted because it was sought on a
motion and not on an application. While s. 40(1) of the Act does state
that a Court may grant an order under that section “on
application”, “application” has been held
to be broad enough to include both originating applications and motions (Nelson
v Canada (Minister of Customs and Revenue Agency), 2003 FCA 127 at para 22;
Mazhero v Fox, 2011 FC 392 at para 6). A party may therefore seek an order
under s. 40(1) by either an application or a motion within an existing
proceeding (Olumide v Canada, 2016 FCA 287 at para 34).
[39]
I am mindful of the orders and directions
stating that Mr. Wilson cannot challenge any final decision, including that of
Justice Barnes (see for instance the Direction of Gauthier J.A., dated February
21, 2013, RBA at Tab 12). Furthermore, I agree that Mr. Wilson has indeed exhausted
all avenues of appeal and reconsideration of Justice Barnes’ order and the Seizure
litigation that it related back to.
[40]
To the extent that Mr. Wilson now seeks the
rescission of Justice Barnes’ order in this application, I find that he has not
provided sufficient evidence upon which to found such a challenge.
[41]
I therefore turn to whether leave should be
granted to Mr. Wilson under s. 40(3) of the Act. First, pursuant
to s. 40(4), the Court may only grant leave if satisfied that:
a)
the proceeding sought to be instituted or
continued is not an abuse of process; and
b)
there are reasonable grounds for the proposed
proceeding.
[42]
Mr. Wilson has the onus of demonstrating that
the requirements for an order granting leave are met (Hainsworth v Attorney
General of Canada, 2011 ONSC 2642 at para 11; see also, in the Federal
Court context, Duterville at para 11).
[43]
As discussed above, while Mr. Wilson’s written
materials in support of this application are not clear, in his oral arguments Mr.
Wilson appears to be seeking leave under s. 40(3) to have Officer Preston’s assessment
reviewed by this Court, as well as to revive his litigation against CRA by way
of a “counterclaim” in the 1999 Action. For the
following reasons, the Court will not grant Mr. Wilson leave under s. 40(3) to
pursue either of these two proceedings.
A.
Mr. Wilson’s Challenge to Officer Preston’s
Assessment
[44]
Although the 1999 Action was dismissed with
costs in 2003, it was not until 2016 that CRA filed a Bill of Costs to be
assessed. The assessment was conducted by Officer Preston, who allowed CRA’s
Bill of Costs at $39,512.78. In his Reasons, Officer Preston reviewed and dealt
with the “extensive submissions” filed by Mr. Wilson
in response to the assessment (Certificate of Assessment of Costs and Reasons
for Assessment of Costs, dated September 28, 2016 in File T-745-99, RBA at Tab
21, para 4).
[45]
Mr. Wilson then sought to have this Court
review Officer Preston’s 2016 assessment. On January 6, 2017, Prothonotary
Milczynski issued a direction that Mr. Wilson’s materials not be accepted for
filing on the basis that the “[r]elief sought appears
to go beyond leave for review of assessment officer’s assessment of costs and
is unclear as to what remedy is sought or the manner in which the motion is to
be determined” (File T-745-99, RBA at Tab 22).
[46]
Mr. Wilson then sought reconsideration of
Prothonotary Milczynski’s direction, and on February 7, 2017, Justice Gleeson
of this Court issued a direction that Mr. Wilson’s materials not be accepted
for filing (File T-745-99, RBA at Tab 23).
[47]
On March 8, 2017, Justice Mosley granted CRA’s
motion for an order pursuant to Rule 150 of the Rules that the $3,000
paid into Court by Mr. Wilson as security for costs in the 1999 Action, be paid
out of Court to CRA (File T-745-99, RBA at Tab 24). Specifically, Justice
Mosley wrote at pages 2 and 3 of his order:
AND UPON
being satisfied that the Plaintiff Paid $3000.00 into Court as security for the
Defendants’ costs in this action, that the action was dismissed with costs in
favour of the Defendants in 2003, that the Defendants were awarded costs in
other motions in addition to this action which were to be assessed and that the
assessment of these costs Orders was completed on September 28, 2016;
AND UPON
considering that the Defendants have been awarded costs against the Plaintiff
totaling $41,262.78 and being satisfied that the Plaintiff has not paid any of
the outstanding costs in Court file T-745-99;
…
2. No costs are awarded on this motion,
however the balance of the costs awarded against the plaintiff remain
outstanding and payable to the Defendants.
[48]
Mr. Wilson now, once again, seeks to have Officer
Preston’s assessment reviewed by this Court. He was required by Rule 414 of the
Rules to serve and file his notice of motion within ten days of the
assessment. Because Mr. Wilson failed to do so, he requires an order under Rule
8(1) extending the period within which to file his motion materials.
[49]
In seeking a discretionary grant of an extension
of time, and pursuant to the test set out in Canada (AG) v Hennelly
(1999), 244 NR 399 (FCA) [Hennelly] and affirmed in Marshall v
Canada, 2002 FCA 172 at para 1, Mr. Wilson must demonstrate that the following
criteria are satisfied:
a)
a continuing intention to pursue his
application;
b)
that the application has some merit;
c)
that no prejudice to the respondent arises from
the delay; and
d)
that a reasonable explanation for the delay
exists.
[50]
The FCA has also held that the interests of
justice can override an applicant’s failure to meet the above-noted test (Canada
(Minister of Human Resources Development) v Hogervorst, 2007 FCA 41 at para
33; see also Canada (Attorney General) v Larkman, 2012 FCA 204 at para
62 [Larkman]).
[51]
Having reviewed the written evidence presented
to the Court and listened to Mr. Wilson’s oral submissions, I find that he does
not meet the Hennelly test and that the overriding interests of justice
between the parties do not favour him. Indeed, as discussed, Mr. Wilson has
already attempted to challenge Officer Preston’s assessment. His motions were
dismissed, first by Prothonotary Milczynski, and then by Justice Gleeson. While
Mr. Wilson has shown, at best, a continuing intention to pursue his motion,
there is no evidence that it has merit. There is no explanation as to why the
same challenge is again being launched, nearly a year after Officer Preston’s
assessment. I am satisfied that CRA would be prejudiced if Mr. Wilson were
permitted to proceed after such a delay.
[52]
During oral submissions, Mr. Wilson also
mentioned Justice Mosley’s order, which assigned the $3,000 security for costs
paid at the time of the 1999 Action that had lain dormant in the Court in the
years since, to offset the costs that Officer Preston assessed against him, and
which were not being paid to CRA.
[53]
To the extent that Mr. Wilson is now also
seeking leave to challenge Justice Mosley’s order, I see no merit in that proceeding
for all the reasons Justice Mosley sets out in his order. Furthermore, Mr.
Wilson has provided no explanation as to why he has waited almost six months to
seek leave to challenge Justice Mosley’s order, if it is indeed being
challenged.
[54]
Whichever aspect of either costs decision is being
disputed (i.e. whether that of Officer Preston or Justice Mosley), Mr. Wilson
has offered no justification for the lateness of this application. As the FCA
observes in paragraph 87 of Larkman, in considering the interests of
justice, finality and certainty must form part of the Court’s assessment.
B.
Relitigation of the 1999 Action
[55]
Mr. Wilson also seeks leave to pursue the 1999
Action by way of “counterclaim”. In light of the
obvious procedural issues with this request—i.e., Mr. Wilson was himself the
plaintiff to the 1999 Action, for which the pleadings have long since closed—I
take Mr. Wilson’s request to mean that he wishes to revive his longstanding
complaint against CRA, however that might be accomplished.
[56]
This Court has been clear that it is not open to
Mr. Wilson to continue to challenge the dismissal of the 1999 Action or relitigate
issues relating to the Seizure. At paragraph 22 of Wilson 2006, Justice
Barnes upheld Prothonotary Milczynski’s dismissal of the 2005 Action as an
attempt by Mr. Wilson to “relitigate matters which were
finally determined upon the dismissal of his 1999 action”. I make
reference also to three further orders of this Court, all pointing back to this
aspect of Justice Barnes’ order in Wilson 2006.
[57]
First, Justice Bédard held in Wilson 2013
at page 7 that:
Justice Barnes’ order cannot be disturbed as
it is final and binding. The applicant has exhausted all avenues to challenge
Justice Barnes’ order.
[58]
In Mr. Wilson’s subsequent motion for an
extension of time to seek Justice Bédard’s reconsideration of Wilson
2013, Justice Harrington ordered that:
… any and all proceedings purported to be
filed by Mr. Wilson subsequent to the said order of Mr. Justice Barnes be
returned to him, and otherwise be not acted upon, save and except a Notice of
Motion for Review of Assessment of Costs Awarded in court dockets T-1677-79,
T-3488-82, T-2518-89, T-2521-89 and T-2522-89.
The only proceedings which may be accepted
for filing is a motion, in proper form, for rescission of the Order of Mr.
Justice Barnes, or for leave to institute or continue a proceeding, as set out
in section 40 of the Federal Courts Act.
(Direction of Harrington J. in File 12-T-81,
dated April 4, 2013, RBA at Tab 14)
[59]
Finally, in Mr. Wilson’s failed attempt to
appeal Wilson 2013 to the FCA, Justice Gauthier wrote as part of her
Direction:
It is worth mentioning that in the future,
even if Mr. Wilson is granted leave to commence new proceedings in the Federal
Court, it will not be open to Mr. Wilson to challenge any final decision
including particularly that of Barnes J. referred to above.
(Direction of Gauthier J.A., dated February
21, 2013, RBA at Tab 12)
[60]
Mr. Wilson has no reasonable grounds for today’s
request—his most recent in a long line of procedures to attempt to revive the issues
disposed of by the dismissal of the 1999 Action.
[61]
In short, Mr. Wilson has not demonstrated that
he meets the requirements for an order granting him leave to commence or
continue a proceeding under s. 40(3) of the Act under any of the
arguments raised in his written and oral submissions.
IV.
Relief Sought by CRA
[62]
CRA sought the following relief in its Written
Representations:
a)
An Order directing that the within
motion/application be dismissed;
b)
An Order prohibiting Mr. Wilson from commencing
any application under s. 40(3) of the Federal Courts Act until such time
as he has:
i)
paid in full all outstanding costs awards in any
and all existing and prior proceedings; or
ii)
obtained an order from the Federal Court giving
him permission to bring an application under s. 40(3) of the Federal Courts Act
for rescission or leave to proceed;
c)
Costs of this motion/application; and
d)
Such further and other relief as counsel may
request and this Honourable Court may permit.
A.
Analysis of CRA’s Request for Relief
[63]
Earlier this year, Justice Stratas of the FCA
observed in Canada v. Olumide, 2017 FCA 42 [Olumide 2017] at paragraph
16, that s. 40 is similar to the vexatious litigant provisions found in statutes
governing courts in other jurisdictions.
[64]
In considering CRA’s requested relief, which
requires me to construct and interpret the Act, I indeed find it useful
to look at remedies that have been ordered elsewhere. As Mr. Wilson was also found
to be a vexatious litigant by the Ontario Superior Court of Justice, it makes
sense to look at Ontario’s Courts of Justice Act, which contains a very
similar provision to s. 40 of the Act, as follows:
|
Vexatious
proceedings
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Poursuites vexatoires
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|
140 (1) Where a
judge of the Superior Court of Justice is satisfied, on application, that a
person has persistently and without reasonable grounds,
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140 (1) Si un juge de la Cour supérieure de justice est convaincu,
sur requête, qu’une personne, de façon persistante et sans motif raisonnable:
|
|
(a) instituted vexatious proceedings in any court; or
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a) soit a
introduit des instances vexatoires devant un tribunal;
|
|
(b) conducted a proceeding in any court in a vexatious manner,
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b) soit a agi
d’une manière vexatoire au cours d’une instance devant un tribunal,
|
|
the judge may
order that,
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il peut lui interdire, sauf avec l’autorisation d’un juge de la
Cour supérieure de justice:
|
|
(c) no further proceeding be instituted by the
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c) d’introduire
d’autres instances devant un tribunal;
|
|
(d) a proceeding previously instituted by the person in any court
not be continued,
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d) de
poursuivre devant un tribunal une instance déjà introduite.
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except by leave of a judge of the Superior Court of Justice.
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[EN BLANC]
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|
R.S.O. 1990, c.
C.43, s. 140 (1); 1996, c. 25, s. 9 (17).
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L.R.O. 1990, chap. C.43, par. 140 (1); 1996, chap. 25, par. 9 (17).
|
[65]
Ontario Courts have made orders prohibiting a
vexatious litigant from commencing an application for rescission or leave to
proceed until the applicant has met certain conditions, including paying all
outstanding costs orders or obtaining an order allowing the applicant to apply
for rescission or leave to proceed (see Deep v Canada Revenue Agency (Canada
Customs and Revenue Agency), 2011 ONSC 5660 [Deep] at paras 19-21; Chavali
v Law Society of Upper Canada, 2006 CarswellOnt 3122 (ON SC) [Chavali]).
[66]
There is no outstanding action or appeal in this
Court to which Mr. Wilson is a party, for which there are live or extant issues.
Furthermore, with respect to his compliance with Court directions, and as noted
in Justice Mosley’s March 8, 2017 order—the most recent decision of this Court
relating to Mr. Wilson—he has not complied with past costs orders.
[67]
Furthermore, the same or similar issues raised
today have been the subject of numerous proceedings in this Court, the Ontario
Superior Court of Justice, the Tax Court of Canada, as well as in appeals to
the ONCA, FCA, and SCC. I find there is nothing in Mr. Wilson’s application
record to demonstrate any reasonable grounds justifying an order to commence or
continue a proceeding under s. 40(3) of the Act.
[68]
As CRA points out in its Written Submissions,
the Ontario Superior Court of Justice directed over a decade ago that Mr.
Wilson’s future proceedings be “carefully scrutinized”
at the outset:
…[Mr. Wilson’s]
refusal to accept prior court rulings in other cases, his insistence on
re-litigating already decided issues; and his willful blindness to the truth –
all combine to make him a true nuisance to the court.
…
Any further or
existing court proceedings in which Mr. Wilson is involved should be carefully
scrutinized before they are allowed to proceed.
(Reasons for
Judgment of Little J., Ontario Superior Court File 59238-OT dated July 18,
2007, at paras 6 and 79, RBA at Tab 9)
[69]
I am guided also by the FCA’s comments in Olumide
2017, which describe the strain that vexatious litigants place on courts’
finite resources:
[17] Section 40 reflects the fact that
the Federal Courts are community property that exists to serve everyone, not a
private resource that can commandeered in damaging ways to advance the
interests of one.
[18] As community property, courts
allow unrestricted access by default: anyone with standing can start a
proceeding. But those who misuse unrestricted access in a damaging way must be
restrained. In this way, courts are no different from other community
properties like public parks, libraries, community halls and museums.
[19] The Federal Courts have finite
resources that cannot be squandered. Every moment devoted to a vexatious
litigant is a moment unavailable to a deserving litigant. The unrestricted
access to courts by those whose access should be restricted affects the access
of others who need and deserve it. Inaction on the former damages the latter.
[20] This isn’t just a zero-sum game
where a single vexatious litigant injures a single innocent litigant. A single
vexatious litigant gobbles up scarce judicial and registry resources, injuring
tens or more innocent litigants. The injury shows itself in many ways: to name
a few, a reduced ability on the part of the registry to assist well-intentioned
but needy self-represented litigants, a reduced ability of the court to manage
proceedings needing management, and delays for all litigants in getting
hearings, directions, orders, judgments and reasons.
[70]
The FCA further wrote at paragraph 27 of Olumide
2017 that orders made under s. 40 of the Act do not bar access to
the courts, but rather serve to regulate such access. I find that Mr. Wilson’s
conduct justifies tighter regulation than has been the case up until now, even
with the s. 40 vexatious litigant declaration, and am thus satisfied that in
light of Mr. Wilson’s continued attempts to challenge a wide range of final
decisions in the decade since Justice Barnes’ s. 40 order, he should be subject
to the additional constraints requested by CRA, which have been ordered by
Ontario courts in Deep and Chavali.
[71]
In terms of the scope of that tighter
regulation, I agree with CRA that Mr. Wilson should be required to file a preliminary
motion with limits on the materials filed, as has been imposed by the Ontario
courts in Deep and Chavali. This is an appropriate control
mechanism that still permits Mr. Wilson access to the courts—a hallmark of the rationale
underlying s. 40 (Olumide 2017 at para 27).
[72]
Going forward, before Mr. Wilson may apply under
s. 40(3), he must first make a preliminary motion to this Court in writing,
accompanied by an affidavit not exceeding five pages in length outlining the
merits of his proposed proceeding or step in a proceeding, along with a copy of
this Judgment and Reasons. (Recall that Mr. Wilson is prohibited by Justice
Barnes’ vexatious litigant order, from commencing or continuing any proceeding
before this Court without obtaining leave under s. 40(3) of the Act—whether
by way of application, action, motion, or any other proceeding.)
[73]
Mr. Wilson’s preliminary motion materials must
be in accordance with the formatting requirements of the Rules (and
particularly Rules 65-70). If those materials are not in compliance, or if they
exceed the five-page limit imposed by my order, they will not be accepted for
filing. If this Court is satisfied on the preliminary motion that Mr. Wilson’s
proposed proceeding or step in a proceeding has merit, he will be directed to
serve and file a full application under s. 40(3) of the Act.
[74]
This added preliminary step of requiring concise
materials to first seek the Court’s permission for leave under s. 40(3) will,
in my view, assist the concerned parties. First, the length requirement will
focus Mr. Wilson in any future request made. Second, it will assist the
Respondent in addressing the narrow issue of whether Mr. Wilson has raised any
new matters, or is once again attempting to challenge finally decided matters.
[75]
More focus has become necessary because, as is
clear from the materials filed for this application, Mr. Wilson continues to bring
repetitive proceedings before this Court, revisiting issues that have been
previously decided, attempting to revive matters for which final orders have
been issued, and appealing matters already exhausted. In doing so, materials can
be voluminous and unclear, as has been observed in these Reasons. What results
is the inevitable and unfortunate reality observed in Olumide 2017: a
strain on the Court system to the detriment of other deserving users. On a
tightly-framed preliminary motion, the Court can efficiently determine whether Mr.
Wilson’s rationale for seeking leave under s. 40(3) appears to have merit, or whether
he is merely attempting to reopen settled matters.
[76]
Finally, I note that in oral submissions to the
Court, CRA also requested that Mr. Wilson be required to obtain this Court’s
leave to apply under s. 40(3) on an ex parte basis, as ordered by
Justice Nordheimer in Chavali. While that may be an approach considered
by this Court in the future, CRA is receiving all relief sought in its Written
Representations, which I feel is sufficient at this time. This relief includes
costs in the amount of $500, payable forthwith by Mr. Wilson to CRA.
V.
Conclusion
[77]
Mr. Wilson’s application is dismissed as he has
not met the requirements of s. 40(4) of the Act. Given Mr. Wilson’s
continued attempts to relitigate the same issues that he has since the 1999
Action, Mr. Wilson may not commence any further applications under s. 40(3) of
the Act until he has paid all outstanding costs awards in all prior
proceedings or obtained an order from this Court giving him permission to bring
an application under s. 40(3) in accordance with the procedure set out in these
Reasons.
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