Docket: A-387-18
Citation: 2019 FCA 198
Present: STRATAS J.A.
| BETWEEN:
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| ATTORNEY GENERAL OF CANADA
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| Applicant
|
| and
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| DR. V.I. FABRIKANT
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| Respondent
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REASONS FOR JUDGMENT
STRATAS J.A.
[1]
The Attorney General applies for a declaration that the respondent is a vexatious litigant, an order that all his litigation in this Court be discontinued, and other ancillary relief.
A.
The jurisdiction of this Court
[2]
This relief is available under section 40 of the Federal Courts Act, R.S.C. 1985, c. F-7 and this Court’s plenary jurisdiction to regulate litigants and their matters to address abuses of its processes.
[3]
The consent of the Attorney General is a prerequisite to an application under section 40. In this case, the consent has been filed.
B.
The respondent’s recusal request: allegations of bias and incapacity
[4]
For the third time in the last month, the respondent alleges that I am “intellectually incapable”
of determining this application and, in substance, biased. He requests me to recuse myself.
[5]
Aside from the three recent instances, at other times the respondent has sought my recusal and the recusal of other justices of the Court.
[6]
The Chief Justice has the exclusive power to assign judges to cases: Courts Administration Service Act, S.C. 2002, c. 8, ss. 8(1) and 8(2); Federal Courts Act, ss. 15 and 16(2). The Chief Justice has assigned me to hear and determine this application. I am obligated to carry it out unless there is a legal reason to recuse myself. Here, I have considered this most carefully—not because this is a close call, but because of the foundational nature of the rights involved.
[7]
Every litigant has an actual right to a capable and impartial judge. The appearance of this to a reasonable, objective, and informed observer is equally important: Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369. As well, “justice should not only be done, but should manifestly and undoubtedly be seen to be done”
: R. v Sussex Justices, ex parte McCarthy, [1924] 1 K.B. 256 at p. 259. These principles rest at the very root of the trust that Canadians are entitled to have in their justice system: Canada (Attorney General) v. Yodjeu, 2019 FCA 178 at para. 12.
[8]
I conclude I have no legal reason to recuse. This is a clear case.
[9]
I repeat, rely upon and reconfirm the statements and explanations I previously gave in Fabrikant v. Canada, 2018 FCA 224 at paras. 12-16 (Fabrikant No. 1) and Canada (Attorney General) v. Fabrikant, 2019 FCA 174 at paras. 5-10 (Fabrikant No. 2). Nothing has changed.
[10]
I am satisfied that I have approached this case with an open and objective mind. My reasons in all of the respondent’s matters would lead any reasonable, objective, and informed individual to conclude that I have decided all his matters—and this one as well—impartially and fairly.
[11]
The respondent points to some of my reasons in previous matters where I have described some of his behaviour as “vexatious”
. Indeed, I have. But instances of vexatious behaviour by a party in a particular episode of litigation do not mean that a vexatious litigant order is likely down the road: conduct sometimes springs from the heat of the moment owing to an overabundance of passion and emotion. In this case, at all times I have been open to receiving evidence, hearing explanations and assessing them on their merits.
[12]
The respondent complains that I have been adjudicating his matters recently. He submits that another judge who has not heard any of his matters should hear this application. Thus, in substance, he alleges that I am predisposed to grant a vexatious litigant order in his case.
[13]
The respondent overstates the situation. It is true that the respondent has drawn me a great deal recently—but not exclusively so. Predisposition on my part against the respondent cannot be inferred from this. I also cannot help but note that the respondent has met with success on some points before me over the years: see Fabrikant No. 2 at para. 2 and the associated directions thereto; see also Fabrikant No. 1 at para. 15.
[14]
The Chief Justice’s decision to assign me as the judge for many of the respondent’s matters is not evidence of bias or unfairness. The primary effect of his decision is to prevent inconsistent results, something the respondent has often tried to exploit.
[15]
Assigning many of a party’s matters to one judge—where there are many matters—is a sensible and wise practice. It is a form of case management. It furthers consistency, uniformity and efficiency. In furthering these objectives, this practice implements the new litigation culture the Supreme Court has urged all courts and litigants to adopt: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.
[16]
As I am otherwise satisfied that I can hear and decide this matter fairly and impartially and can be seen to do so, the motion for recusal will be dismissed.
C.
The motion for production
[17]
The respondent moves for an order alleging production from the Attorney General of all documents relating to the consent given by the Attorney General to these vexatious litigant proceedings. He alleges fraud. He has not a sliver of evidence to make that allegation. The motion will be dismissed.
D.
Is a vexatious litigant order warranted in this case?
[18]
The purposes underlying the vexatious litigant legislation and the principles guiding the availability of a vexatious litigant order have been set out in many recent cases: see, e.g., Canada v. Olumide, 2017 FCA 42, [2018] 2 F.C.R. 328, as supplemented by Simon v. Canada (Attorney General), 2019 FCA 28.
[19]
We must focus on certain general questions: Olumide, paras. 17-24, 27 and 31; Simon at paras. 9-10 and 26; Bernard v. Canada (Attorney General), 2019 FCA 144 at para. 16. Is the additional layer of regulation supplied by a vexatious litigant order necessary? Is the imposition of this regulation consistent with the purposes of the vexatious litigant legislation? Does the litigant’s ungovernability or harmfulness to the court system and its participants justify a leave-granting process for any new proceedings?
[20]
In considering these general questions, the Court has kept front of mind the respondent’s legitimate right of access to the Court. The Court also been careful not to confuse the needy, persistent self-represented litigant with those that are vexatious: Simon at paras. 13-16. As the jurisprudence shows, the two are quite different.
[21]
The Court must answer these general questions on the basis of the evidentiary record before it. In a vexatious litigant application, the evidentiary record is usually broader than that filed by an applicant because the Court can take judicial notice of its own judgments, orders, reasons and directions involving the respondent: Olumide at para. 11; Alexion Pharmaceuticals Inc. v. Canada (Attorney General), 2017 FCA 241 at para. 29; Craven v. Smith (1869), L.R. 4 Ex. 146. The respondent has all of these documents.
[22]
In this case, the general questions must be answered in the affirmative: the additional layer of regulation supplied by a vexatious litigant order is necessary, the imposition of this regulation is consistent with the purposes of the vexatious litigant legislation, and the litigant’s lack of governability or harmfulness to the court system and its participants justifies a leave-granting process for any new proceedings. Therefore, the Court will make a vexatious litigant order against the respondent.
[23]
The starting point is the fact that two other courts have found the respondent to be vexatious: the Federal Court on November 1, 1999 and the Superior Court of Quebec on May 30, 2000. These findings are admissible here. Their effect is to place a tactical or evidentiary burden (not a persuasive burden) on the respondent to show that he has conducted himself differently in this Court: Olumide at paras. 37-38. The respondent has not shown this.
[24]
Overall, the respondent’s litigation conduct unduly squanders the resources of litigants and the Court: Olumide at para. 22.
[25]
Litigants who need the regulation supplied by a vexatious litigant order often display certain badges of vexatiousness: see Olumide at paras. 30-36 and cases cited therein. A useful list of badges appears in Yves-Marie Morissette, “Abuse of Rights, Querulence and Unrepresented Parties”
, (2003) 49 McGill L.J. 23; see the discussion of these and other badges in Antoun v. Montréal (City), 2016 QCCA 1731 at para. 39 and Mazhero v. CBC Radio-Canada, 2013 QCCS 4682 at para. 46.
[26]
The respondent displays, in a pronounced way, many badges of vexatiousness:
The commencement of proceedings with dubious or non-existent merit.
Repeated attempts to appeal the dismissals of Federal Court matters for which he was not given leave to start, contrary to the statutory bar in subsection 40(5) of the Federal Courts Act: 18-A-38, A-274-13, A-367-14.
Unfounded and intemperate allegations of bias, illegality, incapacity and fraud against members of the Court and assertions and reassertions of these after they have been rejected: A-338-13, A-387-18, A-229-17.
The attempted filing of documents not in accordance with the Federal Courts Rules.
Appeals of refusals in the Federal Court to waive the filing fee and often no assertion of tenable grounds in support of the appeals: A-229-17, 18-A-38, A-367-14, A-458-16.
The filing of many motions and other irregular filings, with instances of relitigation.
The sending of inappropriate emails directly to Court officials and sometimes judges.
The failure to pay any amounts under costs awards.
A hostility to the idea that he could be wrong and disparagement of all who disagree with him; this narcissistic attitude contributes to his ungovernability.
[27]
The respondent has a propensity to try to take control of legal proceedings by filing multiple motions that are filled with insult and invective, creating confusion and attempting to manipulate and intimidate fair-minded decision-makers in an illegitimate way: Fabrikant No. 2 at para. 19.
[28]
Another manipulative tactic the respondent frequently uses is to move for an order waiving filing fees for a new proceeding of dubious merit and then, after a sympathetic judge looks only at the motion in isolation and grants it, to assert that the judge must have found the new proceeding to be of merit; then, after a later judge quashes the proceeding for lack of merit, he accuses the judge of illegality, often in a unmeritorious motion for reconsideration.
[29]
Recently, this Court tried to regulate the respondent’s conduct by issuing an order restricting his litigation activities: Fabrikant No. 1; see also Fabrikant v. Canada (Attorney General), 2009 QCCA 1006, which was a similar attempt to restrict the respondent’s litigation activities. While this Court’s regulatory order does not appear to have been breached, the respondent has not reacted constructively to it—the overall flow of motions and counterproductive communications with the Registry has increased. A vexatious litigant order will provide added regulation. The order is both necessary and justified.
E.
The Court’s mistakes in dealing with the respondent
[30]
The respondent attempts to justify his litigation against the bar in subsection 40(5) of the Federal Courts Act by pointing out that some judges of this Court nevertheless have mistakenly allowed such litigation. And he points out that many judges have dealt with his motions for a waiver of filing fees. He adds that some have granted his motions, even in cases where the underlying proceeding is barred.
[31]
If the respondent is suggesting that this Court has somehow condoned his behaviour, he could not be further wide of the mark.
[32]
The respondent is correct in noting that some judges of this Court have occasionally made mistakes. But the mistakes do not assist the respondent; in fact, in many instances, the respondent’s vexatious behaviour has prompted them.
[33]
Sometimes mistakes are caused by the nature and frequency of the respondent’s filings. As well, when dealing for the first time with a litigant who has not been declared vexatious but who actually is, some judges are understandably slow to lift their guard. And some judges, faced with unconventional litigation behaviour, are understandably slow to devise, craft and adopt approaches to address it: see, e.g., Fabrikant v. Canada, 2018 FCA 206, where, after ruling on many motions for waivers of filing fees, this Court adopted the rule that it should first examine whether the underlying proceeding is doomed to fail.
[34]
Mistakes can happen for other reasons too. Some of these can be laid at the feet of the Attorney General. Sometimes the Attorney General has failed to respond to the respondent’s filings, thereby depriving the Court of much-needed assistance. As well, mistakes are inevitable in a court that is too busy and under-resourced: for almost twenty years, this Court’s legal complement of judges has not changed but the difficulty, size and complexity of this Court’s workload have skyrocketed. The workload might fall if the Attorney General sought vexatious litigant orders more often and more swiftly where they are warranted. But all too often, the Attorney General does not do so, arguably falling short of his legal duty to “[regulate]… all litigation for or against the Crown”
: Department of Justice Act, R.S.C. 1985, c. J-2, para. 5(d).
[35]
These observations take nothing away from the fact that the respondent is a vexatious litigant. A vexatious litigant order will be made against him.
F.
Continued access to the court by the respondent
[36]
As has been said in Olumide and many other cases, a vexatious litigant order does not bar access to the courts; it merely regulates access. A vexatious litigant with good cause to start a proceeding or to resurrect a discontinued proceeding can do so with the leave of the court, perhaps with conditions attached to ensure it is prosecuted appropriately.
[37]
The relevant test for leave to start a proceeding or resurrect a discontinued proceeding can be found in Olumide at para. 29, Simon at para. 12, Bernard at para. 26 and Canada (Attorney General) v. Klippenstein, 2017 FCA 115 at para. 12. To obtain leave to resurrect a discontinued proceeding, the vexatious litigant may also have to satisfy other criteria pertaining to the discontinuance itself: see, e.g., Philipos v. Canada (Attorney General), 2016 FCA 79, [2016] 4 F.C.R. 268; Holterman v. Fish, 2017 ONCA 769; Naboulsi v. Canada (Citizenship and Immigration), 2018 FC 916.
[38]
The respondent is an inmate in a federal penitentiary. To facilitate the respondent’s access to the Court (but only in permitted circumstances), the Court will allow him to serve and file by fax.
G.
Pending files in the Court
[39]
The Attorney General asks that all of the respondent’s proceedings pending in this Court be discontinued. Subsection 40(1) of the Federal Courts Act permits this.
[40]
Before the hearing, I specifically directed that both parties address the issue of discontinuance of any pending proceedings started by the respondent. They have done so.
[41]
At present, the only other file before the Court is the appeal in A-229-17. Applying the principles discussed in Coote v. Lawyers’ Professional Indemnity Company, 2013 FCA 143, this Court stayed the appeal in A-229-17 pending its determination of this vexatious litigant application: Order dated April 1, 2019.
[42]
The Court has reviewed the appeal in file A-229-17 and has considered the parties’ submissions. It concludes that the appeal should be discontinued and the file closed.
[43]
In reaching this conclusion, the Court considered a hypothetical situation: if the respondent, as a vexatious litigant, sought leave to start the appeal in file A-229-17, would the Court have granted leave? Given the nature of the relief sought and its merits and the purposes of the vexatious litigant legislation, the answer is no. As well, the Court sees nothing in the interests of justice that would support this proceeding continuing.
H.
Crafting the vexatious litigant order
[44]
Different types of vexatious litigant orders can be made. Care must be taken to craft the order carefully to preserve the vexatious litigant’s legitimate right to access the Court while protecting as much as possible the Court and litigants before it: see the purposes discussed in Olumide at paras. 17-34.
[45]
In cases such as this, a vexatious litigant order should try to do the following:
Bar vexatious litigants from litigating themselves, litigating through proxies, and assisting others with their litigation.
Rule on the issue whether the vexatious litigant’s pending cases should be discontinued; if so, describe the manner in which they may be resurrected and continued.
Prevent the Registry from spending time on unnecessary communications and worthless filings.
Permit access to the Court by leave, and only in the narrow circumstances permitted by law where access is necessary and the respondent has respected the procedural rules and previous court orders; in such cases, ensure that interested persons have the opportunity to make submissions.
Empower the Registry to take quick and administratively simple steps to protect itself, the Court and other litigants from vexatious behavior.
Preserve the Court’s powers to act further, when necessary, to adjust the vexatious litigant order, but only in accordance with procedural fairness.
Ensure that other judgments, orders and directions, to the extent not inconsistent with the vexatious litigant order, remain in effect and can be enforced.
[46]
Trying to accomplish these objectives in a single judgment or order can be challenging and time-consuming, especially if one is drafting from scratch. Experience shows that some vexatious litigants will do their best to get around vexatious litigant orders: see, e.g., Virgo v. Canada (Attorney General), 2019 FCA 167. In its vexatious litigant order, the Court must anticipate and address every illegitimate avenue. And the Court’s ability to strengthen its order when necessary and to punish non-compliance—always in accordance with procedural fairness rights—must be preserved.
[47]
As this is an application, a judgment rather than an order will be made. The legal text of the judgment is necessarily complicated. But for the respondent’s benefit, the judgment will accomplish all of the purposes in paragraph 45 of these reasons. The bottom line is that the respondent’s access to the Court and his communications with the Registry will be limited to the matters and proceedings described in paragraph 4(2) of the judgment.
[48]
Useful techniques for addressing the challenges posed by vexatious litigants must be shared. In this regard, the Court wants to acknowledge the assistance it has received from the ground-breaking work in this area by other courts, particularly the Alberta Court of Queen’s Bench: see, e.g., Unrau v. National Dental Examining Board, 2019 ABQB 283 (per Rooke A.C.J.).
I.
The respondent’s supplementary request
[49]
During the hearing of this application, the respondent requested that he receive the audio recording of this hearing. I shall issue a direction allowing the Registry to communicate with the respondent only for this purpose. To obtain the recording, the respondent will have to satisfy the requirements imposed by the Court’s Practice Direction.
J.
Disposition of this application
[50]
The Attorney General’s application will be granted. The text of the judgment that will be made appears as an appendix to these reasons. The Attorney General has not sought costs of the application and so none will be awarded.
“David Stratas”
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