Docket: T-1570-20
Citation: 2021 FC 1466
Ottawa, Ontario, December 23, 2021
PRESENT: Madam Justice Pallotta
| BETWEEN:
|
| THE ATTORNEY GENERAL OF CANADA
|
| Applicant
|
| and
|
| CHINEDU G. UBAH
|
| Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, the Attorney General of Canada (AGC), brings this application under section 40 of the Federal Courts Act, RSC 1985, c F-7 [Act] for an order declaring the respondent Mr. Ubah to be a vexatious litigant. The AGC asks for terms that would prohibit Mr. Ubah from instituting or continuing litigation in the Federal Court without leave, among other terms.
[2]
The AGC submits that Mr. Ubah has instituted meritless and repetitive proceedings before this Court and the Alberta Courts. He was declared a vexatious litigant by the Alberta Court of Queen’s Bench (ABQB) and prohibited from bringing or continuing proceedings before the Alberta Courts without leave. Since then, the AGC asserts that Mr. Ubah’s activity in this Court has increased.
[3]
The AGC alleges that Mr. Ubah’s vexatious behaviour includes making unsubstantiated allegations of impropriety, mischaracterizing Court findings, routinely seeking reconsideration, making unnecessary motions, ignoring the Federal Courts Rules, SOR/98-106 [Rules], and incoherently framing pleadings. The AGC submits that Mr. Ubah, who is not a lawyer, drafts documents for other litigants before this Court, contrary to Rule 119 of the Rules regarding representation.
[4]
Mr. Ubah opposes the AGC’s application. He argues that his involvement in other applicants’ files is consistent with the Rules. Mr. Ubah submits that the proceedings that he and others have commenced in the Federal Court have merit, and he contends that the litigation history underlying this application by the AGC to have him declared a vexatious litigant reveals bias, and a conspiracy against him.
[5]
For the reasons set out below, I find that Mr. Ubah has conducted proceedings in a vexatious manner. I find that Mr. Ubah should be prohibited from instituting or continuing litigation in this Court except with leave, and that Mr. Ubah’s conduct warrants other restrictions. Most importantly, Mr. Ubah’s involvement in the proceedings of other litigants must be restricted.
II.
Facts
[6]
The AGC filed its consent to this application on December 23, 2020, which is a condition of seeking relief under section 40 of the Act.
[7]
Mr. Ubah was declared a vexatious litigant based on a history of activity in the Alberta Courts, and he is subject to court access restrictions in those Courts: Ubah v Canadian Natural Resources Limited, 2019 ABQB 692 at para 183 [Ubah ABQB]. Mr. Ubah’s litigation history in the Alberta Courts is summarized in Ubah ABQB.
[8]
Mr. Ubah appealed the order in Ubah ABQB, and the Alberta Court of Appeal deleted two court access restrictions from the order: (i) commencing, attempting to commence, or continuing any appeal, action, application or proceeding in courts outside of Alberta (including in the Federal Court), and (ii) conducting or continuing any proceeding before any Canadian administrative tribunal: Ubah v Canadian Natural Resources Limited, 2021 ABCA 5 [Ubah ABCA].
[9]
Mr. Ubah alleges that the Alberta Court of Appeal misunderstood his argument, assuming that he was only interested in varying the order in Ubah ABQB. On June 25, 2021 Mr. Ubah filed an application for leave to appeal the decision to the Supreme Court of Canada (file no. 39757).
[10]
Turning to Mr. Ubah’s litigation history before this Court, according to two affidavits of Charlotte Harper, a Paralegal at the Edmonton Regional Office of the Department of Justice Canada, her office has responded to 18 Federal Court proceedings that involve or appear to involve Mr. Ubah.
[11]
Mr. Ubah was a named plaintiff or applicant in 7 proceedings. In the other 11 proceedings, Mr. Ubah was not a named party, but his address is the initiating parties’ address for service in Canada and Mr. Ubah has sworn supporting affidavits in the proceedings. The initiating parties are members of Mr. Ubah’s extended family and the proceedings relate to the family members’ applications for Canadian visas. In 4 of the 11 proceedings, Mr. Ubah sought leave to represent the applicants, which was denied.
[12]
Mr. Ubah states that he has extended job offers to three of his family members and he has sponsored other family members to study in Canada or to visit Canada. He has also acted as the authorized Immigration, Refugees and Citizenship Canada (IRCC) representative for his family members. Mr. Ubah alleges that almost all of the applicants who have appointed him as their IRCC representative “have had their visas delayed unreasonably [so] that they have to seek recourse in the court and within days IRCC will decide their application”
, that “[m]ost of [the applicants] have had their application refused”
except his mother and mother-in-law, and that six applicants “chose to exercise their rights to ask the Federal Court of Canada to review immigration decisions made against them”
through applications for leave and judicial review.
[13]
Most of the 18 proceedings referred to in Ms. Harper’s affidavits are no longer active, as they were discontinued after Mr. Ubah’s family members obtained authorization to enter Canada or the proceedings were otherwise resolved. The remaining 6 proceedings that were not discontinued or otherwise resolved have been stayed pending the determination of the present application. These are:
IMM-6798-19,Kelechi B. Agbai v Minister of Citizenship and Immigration: This is an application filed by Mr. Ubah’s sister, seeking judicial review of a November 11, 2019 decision that refused her second application to become a permanent resident (PR) of Canada as a skilled worker, and finding Ms. Agbai inadmissible to Canada for a period of 5 years due to a misrepresentation about her work experience.Ms. Agbai’s PR application was based on an offer of employment from Mr. Ubah’s company, Gideon Energy Services Inc.In a prior judicial review proceeding, Ms. Agbai challenged a visa officer’s September 6, 2018 decision that refused her first PR application. The application for judicial review was dismissed on July 3, 2019 (IMM-4636-18, Agbai v Canada (Minister of Citizenship and Immigration), 2019 FC 886).Ms. Agbai sought an extension of time to file a motion for reconsideration of the decision in IMM-4636-18, which was also dismissed.Prior to that proceeding, Mr. Ubah and Ms. Agbai had filed an application for a writ of mandamus to compel the Minister to render an immediate decision on Ms. Agbai’s PR application (IMM-4275-18).
IMM-1996-20, Kelechi Agbai v Minister of Citizenship and Immigration: This application, filed on March 18, 2020, seeks an order of mandamus to compel the Minister to render a decision on Ms. Agbai’s request for reconsideration of the September 6, 2018 decision that refused her first PR application (which was the subject of judicial review in IMM-4636-18).Since the request for reconsideration was refused on July 30, 2020, the Minister’s position in IMM-1996-20 is that the mandamus application is moot and an abuse of the Court’s process.The Minister argues this was Ms. Agbai’s third request for reconsideration of the September 6, 2018 decision—two previous requests were refused on September 13, 2018 and November 30, 2018—and she made the third request after this Court had dismissed her application for judicial review in IMM-4636-18.
T-1538-20, Kelechi Agbai v Her Majesty the Queen: Ms. Agbai filed a statement of claim against the Crown, seeking damages and an injunction for defamation, conspiracy, negligence and other causes of action related to the refusal of her PR applications.
IMM-1925-19, Ngozi Joy Uba v Minister of Citizenship and Immigration: This is an application by Mr. Ubah’s sister-in-law, for leave and judicial review of a March 19, 2019 decision refusing her work permit application, based on an offer of employment to be a nanny for Mr. Ubah’s children, and a temporary resident visa application for Ms. Uba’s daughter as an accompanying minor (her sons were sponsored by Mr. Ubah and are studying in Canada).Although Ms. Uba had discontinued IMM-1925-19 after the Minister agreed to have the matter redetermined by a different officer (who refused the work permit application on November 21, 2019), she seeks to reopen IMM-1925-19.Ms. Uba filed a motion to set aside the notice of discontinuance, alleging that the Minister made a fraudulent agreement and breached its terms.She alleges that it was a term of the settlement agreement that the officer who refused the work permit application in March 2019 “will not touch my application again”
.Ms. Uba sought reconsideration of the November 21, 2019 redetermination decision, and the officer who refused the reconsideration request was the same officer who had refused Ms. Uba’s work permit application in March 2019.Ms. Uba has also commenced an application for leave and judicial review to challenge the refusal of reconsideration dated November 19, 2020 (see IMM-6148-20, below).
IMM-3944-20, Ngozi Uba v Minister of Citizenship and Immigration: This is an application seeking a writ of mandamus to compel the Minister to render a decision on Ms. Uba’s request for a reconsideration of the November 21, 2019 redetermination decision that refused her work permit application.This Court had already denied leave to challenge the November 21, 2019 redetermination decision (IMM-7263-19), and dismissed Ms. Uba’s motion seeking a reconsideration of the Court’s decision denying leave.
IMM-6148-20, Ngozi Uba v Minister of Citizenship and Immigration: This application seeks judicial review of the November 19, 2020 decision “that
refused Ms. Uba’s work permit application”
.More specifically, as noted above, the November 19, 2020 decision refused Ms. Uba’s October 15, 2020 request for reconsideration of the November 21, 2019 redetermination decision.Also as noted above, the officer who refused Ms. Uba’s reconsideration request is the same officer who refused Ms. Uba’s work permit application in March 2019.
[14]
A table that is appended as Schedule A to this Judgment and Reasons lists the above proceedings as well as the other proceedings that are referred to in Ms. Harper’s affidavits, and provides a summary of some of the steps in the proceedings. The table is not exhaustive and does not include many points that I have considered in making my findings, based on my review of the voluminous record of close to 5,000 pages in this application.
[15]
In addition to the 18 proceedings referred to in Ms. Harper’s affidavits, I have added 2 proceedings to the table appended as Schedule A: T-627-21, Chinedu Ubah v Royal Canadian Mounted Police and T-991-21, Chinedu G. Ubah v The Canadian Judicial Council. I added these proceedings because they were commenced after Ms. Harper swore her affidavits, and both have been stayed pending the determination of this application.
III.
Preliminary Issues
[16]
Mr. Ubah raises two preliminary issues. First, Mr. Ubah submits that I should not have regard to the ABQB’s decision in Ubah ABQB in deciding whether to impose court access restrictions because Justice Peter Annis has already ruled that the issue of whether the ABQB’s decision warrants similar access restrictions in this Court is moot, and the Court cannot “un-moot”
a moot issue. Second, Mr. Ubah submits that the affidavits of Charlotte Harper filed by the AGC to support this application are inadmissible, on the basis that she has committed perjury.
[17]
With respect to the first preliminary issue, on December 14, 2020, Justice Annis issued a direction in IMM-6798-19, Kelechi B. Agbai v Minister of Citizenship and Immigration, seeking the parties’ submissions on whether the decision in Ubah ABQB and the evidence from IMM-6798-19 warrant court access restrictions against Mr. Ubah in the Federal Court. Although not a named party, it appeared that Mr. Ubah was directing the litigation in IMM-6798-19.
[18]
On December 24, 2020, the AGC filed the notice of application that commenced this application under section 40 of the Act. As a result, Justice Annis declared his direction moot, and stayed the proceeding in IMM-6798-19 pending the determination of this application.
[19]
Justice Annis declared his direction was moot because the matter was being addressed in a different proceeding. Justice Annis did not rule the question posed by his direction—whether the ABQB’s determination warrants similar access restrictions in this Court—is moot.
[20]
In Canada v Olumide, 2017 FCA 42 at paragraphs 37-38 [Olumide] and Simon v Canada (Attorney General), 2019 FCA 28 at paragraphs 20 and 25 [Simon], the Federal Court of Appeal held that a vexatious litigant order from another court may be given significant weight in an application before this Court for a similar order. The weight to be given to the ABQB’s order is something that I must decide. Justice Annis’ ruling regarding his previous direction did not decide this issue or foreclose its consideration in this application.
[21]
Turning to the second preliminary issue, Mr. Ubah alleges that Ms. Harper submitted untruthful affidavits based on a statement in one of her affidavits on this application that he contends to be a “clear departure”
from her affidavit in the ABQB proceeding. In the ABQB affidavit, Ms. Harper stated that Mr. Ubah commenced 8 applications in the Federal Court on behalf of various family members, whereas in her affidavit filed in support of this application, she states that the Federal Court files “involve or appear to involve Mr. Ubah”
, suggesting she is uncertain about the extent of Mr. Ubah’s involvement. I disagree.
[22]
No evidence has been presented that Ms. Harper sought to embellish the record before the ABQB through the use of language which may not fit the facts. The statements are not inconsistent, Mr. Ubah did not cross-examine Ms. Harper, and he has not presented a valid reason to doubt the truthfulness of her affidavits.
IV.
Issues
[23]
The issues on this application are whether Mr. Ubah should be declared a vexatious litigant, and if so, what restrictions are appropriate.
V.
Analysis
A.
Is Mr. Ubah is a vexatious litigant?
[24]
The rationale underlying section 40 of the Act is that the Federal Courts are community property that exists to serve everyone, not a private resource that can be commandeered in damaging ways to advance the interests of one: Olumide at paras 17-19; Simon at para 9. Section 40 of the Act enables the Court to create an extra layer of regulation where necessary to prevent one litigant from squandering judicial resources by duplicative proceedings, pointless litigation, the style or manner of their litigation, their motivations, intentions, attitudes and capabilities while litigating, or any combination of these things: Simon at paras 15-16.
[25]
“Vexatiousness”
does not have a precise meaning (Olumide at paragraph 31):
Vexatiousness is a concept that draws its meaning mainly from the purposes of section 40. Where regulation of the litigant’s continued access to the courts under section 40 is supported by the purposes of section 40, relief should be granted. Put another way, where continued unrestricted access of a litigant to the courts undermines the purposes of section 40, relief should be granted. …
[26]
The indicia of a vexatious litigant include being admonished by other courts for vexatious behavior, instituting frivolous proceedings (motions, applications, actions, or appeals), making scandalous or unsupported allegations against opposing parties, relitigating settled issues, unsuccessfully appealing decisions, and ignoring rules, court orders, and/or cost awards: Olumide v Canada, 2016 FC 1106 at paras 9-10, aff’d Olumide (FCA). These indicia are not binding but can be helpful while keeping in mind the purposes of section 40 of the Act: Olumide at paras 32 and 34.
[27]
Mr. Ubah states the record demonstrates that the AGC’s application is an abuse of section 40 of the Act. With respect to the Alberta Courts, Mr. Ubah alleges that the AGC was working secretly with the Alberta judge who imposed court access restrictions in Ubah ABQB. He objects to the AGC’s reliance on what he sees as a questionable decision, in order to obtain a similar order in the Federal Court. Mr. Ubah submits that this Court should not rely on the vexatious litigant order made by the ABQB or the comments made by Justice Annis, as both reflect bias.
[28]
In my view, it is unnecessary to address Mr. Ubah’s allegations regarding the Alberta proceedings. There is no need to rely on the order in Ubah ABQB because the history of proceedings in this Court present sufficient indicia of vexatious conduct to warrant court access restrictions. For this reason, I have not placed any weight on Mr. Ubah’s conduct before the Alberta Courts or the order in Ubah ABQB.
[29]
Turning to Mr. Ubah’s litigation history in this Court, the AGC submits that Mr. Ubah’s conduct demonstrates the indicia of a vexatious litigant.
[30]
The AGC submits Mr. Ubah engages in litigation by proxy. Although he is not a lawyer, he attempts to represent litigants in proceedings where he is not a party. The AGC argues that Mr. Ubah’s involvement in his family member’s litigation overshadows the litigants’ rights, and the indicia of vexatious conduct in those proceedings can be attributed to him.
[31]
The AGC submits that the indicia of vexatious conduct include an inability to frame pleadings in a coherent manner, a tendency to advance the same grounds and issues from one proceeding to another, ignoring rules or directions of the Court, bringing motions that complicate matters unnecessarily, seeking to reverse settled decisions or have the Court reconsider unsuccessful applications, mischaracterizing the Court’s findings, and making sweeping, unsubstantiated allegations of conspiracy and impropriety against the respondents, counsel, and the courts.
[32]
Mr. Ubah argues that he cannot be a vexatious litigant as he was not the litigant who initiated proceedings in “14 out of the 15 Federal court files”
identified by Ms. Harper in her first affidavit. This is not accurate. In addition to the actions he has commenced in his own name (T-756-20, T-627-21, and T-991-21), Mr. Ubah was, at least for a period of time, named as an applicant or as a co-applicant in 6 proceedings involving his family member’s disputes. He was involved in resisting the respondents’ motions to have him removed as a party, and in bringing unsuccessful motions to add himself or his company as a party to proceedings (with leave to represent his company) and to represent his family members before this Court.
[33]
When Mr. Ubah was denied permission to represent them, some family members sought to have their judicial review proceeding determined on the basis of written representations only. This raises a concern about the extent of the litigants’ involvement in the files, and whether they fully understand the arguments that are being raised and the consequences of steps being taken. Ms. Agbai, for example, has been deemed inadmissible to Canada for a period of five years, and yet prefers to waive oral submissions and have her application to challenge that decision decided on the basis of written representations alone. She had brought an unsuccessful motion to have Mr. Ubah added as a party to the application, followed by an unsuccessful motion to have Mr. Ubah represent her before this Court.
[34]
Mr. Ubah argues that he is a Canadian citizen who has no active files with IRCC. He states that he is an engineer, not a lawyer, and that his involvement in his family members’ files was limited, and lawful: he only provided his address for service (because a Canadian address for service is required by paragraph 5(1)(k) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 [CIR Rules]), helped to pay court filing fees, ensured that documents were served on time, and provided affidavits where he was the person with first-hand knowledge. At the same time, Mr. Ubah argues that his family members have a right to representation, that this Court has permitted representation by a relative (Clement v Canada (Minister of Citizenship and Immigration), 2019 FC 703 at para 2) and that there is nothing to prevent an applicant from using “any tool in their disposal to perfect their ALJR”
.
[35]
Mr. Ubah is correct that applicants must use an address for service in Canada, and that they are entitled to rely on an affidavit from him if he is in a position to provide relevant evidence to support their applications. However, I find that Mr. Ubah understates his involvement in these files. I observe common patterns that are consistent with extensive involvement, and a conclusion that Mr. Ubah is providing advice and directing the proceedings—similar procedural steps are taken, similar arguments are raised, and similar language is used, including when compared to documents that Mr. Ubah has signed. General allegations from one proceeding are repeated in other proceedings, even when they involve different family members. There are allegations of impropriety that relate to the respondents’ conduct toward Mr. Ubah, rather than to the applicants themselves. In IMM-7486-19, IMM-7489-19 and IMM-1996-20, for example, the named applicants allege that the immigration authorities were engaged in bad faith conduct and deception in interactions with Mr. Ubah. Mr. Ubah appears to be involved for the duration of the proceedings.
[36]
Rule 119 of the Rules states that an individual may act in person or be represented by a solicitor in a proceeding. The Rules do not state that friends or family members may represent individuals. I find Mr. Ubah is directing litigation in proceedings involving his family members, where he is not a party. It is very likely that Mr. Ubah is drafting the correspondence filed with the Court, as well as the pleadings and arguments. As a result, Mr. Ubah is contravening the Rules on representation. Indeed, there is evidence that suggests Mr. Ubah has sent emails from his family’s email accounts. As the AGC points out, an email sent to the respondent’s counsel from Ms. Agbai’s Gmail account was signed “Regards, Mr. Ubah”
, and when counsel replied that she could not discuss the file with Mr. Ubah, the response was “Pardon the typo”
.
[37]
Beyond breaching rules of representation, Mr. Ubah appears to use the proceedings involving his family members’ visa applications in order to further his own cause, and to re-litigate allegations of impropriety against the government. Mr. Ubah’s affidavit filed in this application states that his family members’ visas were being refused and his family members “were intentionally been maltreated and oppressively treated by IRCC in an indirect attack of me for being related to them, for them using me as their IRCC representative which allows me to make inquiry on their behalf, for me having children that needed to be cared for, for me operating a business as some[one] who is…a Canadian, but according to IRCC, not a real one but a naturalized one etc, including working under the table with [the] Alberta Court to have me declared vexatious”
. He argues that the legal proceedings are necessary to challenge government actions and hold the government to account for what they did and are doing to him and “millions”
of other naturalized Canadian citizens and visa applicants.
[38]
Based on the evidence in the record, I find that Mr. Ubah is directing his family members’ litigation. Also, I find that the extent of Mr. Ubah’s involvement is significant, and the indicia of vexatious conduct in those proceedings can be attributed to him.
[39]
The AGC has established a number of indicia of vexatiousness, including that Mr. Ubah makes unsubstantiated allegations of impropriety and conspiracy, he wastes judicial resources by attempting to re-litigate matters even when they are settled, and he disregards the Rules for representing other litigants. Some examples include:
In file 18-T-21, Mr. Ubah sought to be relieved of paying filing fees to file an application for judicial review, on the basis that the respondent Minister’s agreement to have an immigration officer’s decision redetermined was a ploy and a delay tactic that was meant to frustrate the applicant’s efforts.Mr. Ubah made unsubstantiated allegations that the respondent Minister was ruthless, misled him, and purposefully delayed legal proceedings, in order to argue that he should be relieved of the obligation to pay filing fees to commence a second application for judicial review.These allegations did not flow from the alleged facts—that the reconsideration of a minor child’s temporary resident visa application was referred to the same office that had initially refused the application, resulting in the same error as before.The motion in 18-T-21 was dismissed in March 2018.
Mr. Ubah repeats his allegation that the government is engaged in a conspiracy against him or his family members throughout his litigation history.In his proceeding against the Crown, T-756-20, Mr. Ubah has claimed that the IRCC is defaming and oppressing him, making “secret deals”
with third parties, including a judge, “and to interfere/deter immigration processes to deny and oppress applicants and prevent them from working for [Mr. Ubah] and his company”
.
Mr. Ubah has been admonished for his conduct.Following the receipt of letters signed Maxwell Uba c/o Chinedu Ubah, a December 8, 2020 direction of Justice Shirzad Ahmed in IMM-5567-20 states: “It is inappropriate and unacceptable to accuse opposing counsel of lying or acting in bad faith.I find the Applicants’ claim that the Respondent is tampering with IRCC’s decision-making process and deceiving this Court to be troubling, as it is inappropriate for the Applicants to question the integrity of the Respondent on such grounds”
. A further letter with allegations of impropriety against the respondent Minister was filed following the direction, on the same day, and incorrectly stated that in IMM-7486-19 and IMM-7489-19, the Court had found evidence of oppressive conduct which it described as “repulsive”
.
Mr. Ubah has a history of unsuccessful requests for reconsideration.Such requests were made in IMM-1206-19, IMM-3282-18, IMM-4626-18, and IMM-7263-18.Mr. Ubah has even continued to litigate matters that were resolved in the applicant’s favour.After the application for leave and judicial review was granted on consent in IMM-7486-19, a letter signed Maxwell Uba c/o Chinedu Ubah was sent to the Court, alleging that the respondent had lied.The Court issued a direction that it was no longer seized of the matter and would not entertain further correspondence.A similar letter alleging impropriety was sent after the application for leave and judicial review in file IMM-7489-19 was granted on consent.
[40]
The proceedings involving Mr. Ubah or his family members demonstrate a pattern of making inaccurate and unsupported allegations, a pattern that Mr. Ubah repeats in response to this application. For example, Mr. Ubah argues that his family members have brought applications in this Court because the AGC has been illegally and oppressively influencing the decisions of visa officers abroad in a crusade to intimidate him, the AGC engages in questionable and criminal conduct to mislead the Court, there is “indisputable evidence”
that the settlement offers made by the respondents in proceedings before the Court “were disingenuous/fraudulent”
, that this Court has characterized the government’s conduct as oppressive or repulsive, that the IRCC hired “rogue police”
to falsely accuse Ms. Kelechi Agbai of fraud, that an immigration officer assigned to a family member’s file confessed that the AGC was amending and influencing her affidavit, and that the respondent Minister fraudulently provided different tribunal records to the Court and to Ms. Agbai in one of her proceedings, as the respondent was hoping the Court would think Ms. Agbai, who is self-represented, is delusional because the Court would not be seeing the same content as her.
[41]
Mr. Ubah’s repeated, unsubstantiated allegations and mischaracterization of the facts require opposing counsel and this Court to expend resources to respond. His unsubstantiated and inaccurate allegations made in response to this application added to the already significant amount of time that was required to review the record. Mr. Ubah makes unsupported allegations of impropriety, even after this Court’s warning that they are inappropriate.
[42]
The record demonstrates a pattern of repeating the same grounds and issues from one proceeding to another, bringing motions that complicate matters unnecessarily, and routinely seeking reconsideration or relitigation. In addition to a pattern of refusing to accept the finality of unfavourable decisions, there are examples in the record where Mr. Ubah has sought redress from the Court in proceedings where the outcome was favourable to the applicants. For example, in September 2020, when Mr. Ubah’s brother-in-law had already been in Canada for two years, Mr. Ubah sought to reopen IMM-3282-18 based on the respondents’ alleged “deception and misrepresentation”
. The respondents had filed a letter with the Court on July 31, 2018, stating that no decision had been made when in fact the brother-in-law’s PR application had been granted four days earlier, on July 27, 2018. Mr. Ubah asked the Court to address the deception, as the respondents “continue to engage in dubious ways to deceive this court because they keep getting away with it”
.
[43]
The threshold question for declaring a litigant vexatious is whether the litigant’s ungovernability or harmfulness to the court system and its participants justify a leave-granting process for any new proceedings: Simon at paras 14-18. Mr. Ubah’s conduct is both ungovernable and harmful, and justifies a leave-granting process for any new proceedings. Mr. Ubah’s allegations and arguments repeatedly appear before this Court, in proceedings where he or his family members are parties. I am satisfied restrictions are required to ensure that Mr. Ubah’s involvement in files is governable, and the Court can regulate his use of judicial resources. Moreover, a vexatious litigant order may assist the applicants, Mr. Ubah’s family members. They and Mr. Ubah do not seem to appreciate the negative consequences that could result from Mr. Ubah’s involvement in their litigation matters. In my view, the family members would benefit from retaining counsel to advise and represent them, but if they choose not to do so, they are entitled to represent themselves before this Court. Either way, one objective of this order is to avoid having these applicants bear the consequences of Mr. Ubah’s actions in this Court, rather than their own.
B.
What restrictions are appropriate?
[44]
The AGC submits that a typical restriction is to require leave from the Court to institute proceedings, under subsection 40(3) of the Act. The Court has the plenary jurisdiction to order additional requirements as necessary (Olumide at para 23) and the AGC submits further restrictions are necessary in this case.
[45]
In this regard, the AGC requests an order that Mr. Ubah must seek permission to commence an application under subsection 40(3) of the Act, by way of a preliminary motion in writing: Wilson v Canada (Revenue Agency), 2017 FC 817 at paras 64-65, 70-77 [Wilson].
[46]
Also, the AGC requests an order that prohibits Mr. Ubah from preparing documents intended to be filed in the Federal Court for any person other than himself, and from filing or otherwise communicating with the Court except on his own behalf. The AGC submits the Registry should be instructed via the vexatious litigant order to refuse to file any document received from Mr. Ubah (including an affidavit of service) or any document submitted “care of”
Mr. Ubah or that includes his mailing address unless it is for a proceeding initiated or continued on his own behalf (i.e. Mr. Ubah is a named party in the proceeding).
[47]
In Canada (Attorney General) v Fabrikant, 2019 FCA 198 [Fabrikant], Justice Stratas made the following observations about the types of restrictions that may be imposed in a 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.
[48]
I am satisfied that, in addition to the usual order to prohibit Mr. Ubah from instituting or continuing proceedings in this Court without leave, further restrictions are required.
[49]
In light of Mr. Ubah’s tendency to relitigate matters, I find that it is reasonable to impose a preliminary procedure of obtaining permission before he will be allowed to serve and file a full application for leave under subsection 40(3) of the Act, similar to the procedure set out in Wilson.
[50]
Also, I agree with the AGC that it is essential to implement restrictions to prevent Mr. Ubah from litigating by proxy—a key reason why Mr. Ubah’s conduct is harmful and ungovernable. Mr. Ubah is not a lawyer. He is not bound by rules of professional conduct or accountability. Yet his conduct in these matters resembles the conduct of a lawyer.
[51]
Preventing litigation by proxy is one of the aims of a vexatious litigant order, as set out in Fabrikant at paragraph 45. The consequence of restrictions on Mr. Ubah’s ability to litigate by proxy is that the proceedings where this appears to be the case should not continue except with leave of the Court. Also, Mr. Ubah should be required to clearly identify his involvement, and consistently use only his full name, Chinedu Gideon Ubah, in all communications with the Court.
[52]
In my view, the above restrictions should apply to all new and existing proceedings that involve Mr. Ubah, including all proceedings listed in Schedule A to this Judgment and Reasons, with the exception of file T-756-20. That proceeding is case-managed, and the AGC has already brought a motion to strike out the statement of claim. The motion was granted with leave to amend. Mr. Ubah has filed an amended statement of claim but there has been no further activity because the action was stayed. If Mr. Ubah’s amended statement of claim in T-756-20 is not struck out, and the proceeding is allowed to continue in whole or in part, then the Court can decide whether, in addition to case management, the proceeding should be subject to the terms of this order or other restrictions should be imposed, as the Court considers appropriate.
VI.
Conclusion
[53]
Mr. Ubah is a vexatious litigant. He has engaged in ungovernable and harmful conduct that may be observed in the record, including by engaging in litigation by proxy, mischaracterizing facts and making unsubstantiated allegations of impropriety, and re-litigating matters that have already been decided.
[54]
The AGC proposes suitable restrictions, which I accept are justified, and they are reflected in the order that follows.
[55]
The AGC requests an order of costs in the amount of $1500. Generally, costs are awarded to the successful party. Costs are in the full discretion of the Court, and governed by Rules 400-422 of the Rules. The amount requested is modest and eminently reasonable. I award costs to the AGC in the amount requested.
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