Docket: T-2087-23
Citation: 2024 FC 1233
Toronto, Ontario, August 7, 2024
PRESENT: Madam Justice Go
BETWEEN: |
ATTORNEY GENERAL OF CANADA |
Applicant |
and |
Ekens AZUBUIKE |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Attorney General of Canada [AGC] brings this application seeking the Court to declare Mr. Ekens Azubuike [Respondent] a “vexatious litigant”
under section 40 of the Federal Courts Act (R.S.C., 1985, c. F-7) and to require Mr. Azubuike to obtain leave prior to filing any new proceedings before the Federal Court.
[2] Mr. Azubuike is a citizen of Nigeria who first entered Canada in 2007 and later obtained refugee status. In June 2014, the Refugee Protection Division [RPD] granted an application by the Minister of Public Safety and Emergency Preparedness [Minister of Public Safety] to vacate Mr. Azubuike’s refugee status on the basis that Mr. Azubuike obtained his refugee status through the use of false documents.
[3] Mr. Azubuike was deported back to Nigeria on October 6, 2015. Although inadmissible, Mr. Azubuike re-entered Canada on November 29, 2015 using his invalid Canadian passport, which he had claimed he lost when he was deported. Canada Border Services Agency [CBSA] detained Mr. Azubuike and released him after two months upon a judgement from this Court dismissing the Minister of Public Safety’s motion to stay Mr. Azubuike’s release from detention.
[4] Mr. Azubuike’s interactions with this Court started in 2011, when the Minister of Public Safety first initiated the proceeding to vacate Mr. Azubuike’s protected status. As of the date of this hearing, Mr. Azubuike has filed 15 applications and one action at the Federal Court and two appeals at the Federal Court of Appeal. Mr. Azubuike has also attempted to represent people facing removal from Canada at the Court, despite lacking the qualification to do so, and despite several warnings from the Court.
[5] Many of Mr. Azubuike’s proceedings before this Court stem from his disagreement with the RPD’s decision to vacate his refugee status and the related actions by CBSA. Regardless of what may have motivated Mr. Azubuike, I grant the AGC’s application as I find the AGC has demonstrated that Mr. Azubuike’s conduct in his litigation exemplifies the hallmarks of a vexatious litigant.
II. Analysis
[6] The only issue before me is whether I should declare Mr. Azubuike a “vexatious litigant”
under section 40 of the Federal Courts Act.
[7] Section 40 [Appendix A] of the Federal Courts Act empowers the Federal Court to declare a litigant vexatious to prevent them from wasting judicial resources through duplicative proceedings; frivolous litigation; the style and manner of their litigation; their motivations, intentions, attitudes, and capabilities while litigating; or a combination of these examples.
[8] The burden of proof rests on the party pursuing a section 40 order, who must do so on a balance of probabilities. The evidence presented can vary, and may include a litigant’s prior judicial behaviour as evidence of recurring behaviour: Canada (Attorney General) v Klippenstein, 2017 FCA 115 at para 4 and Simon v Canada (Attorney General), 2019 FCA 28 at para 20.
[9] The Court must also verify, in accordance with subsection 40(2), that the AGC has given formal consent to proceed with a vexatious litigant application. In the matter before me, the Acting Assistant Deputy Attorney General has provided their consent.
[10] The Federal Court of Appeal [FCA] confirmed the hallmarks of a vexatious litigant in Canada v Olumide, 2017 FCA 42 [Olumide], citing Olumide v Canada, 2016 FC 1106 at para 10 as someone who:
a)has been admonished by various courts for engaging in vexatious and abusive behaviour;
b)institutes frivolous proceedings (including motions, applications, actions and appeals);
c)makes scandalous and unsupported allegations against opposing parties or the Court;
d)relitigates issues which have been already been decided against them;
e)unsuccessfully appeals interlocutory and final decisions as a matter of course;
f)ignores court orders and court rules; and
g)refuses to pay outstanding costs awards against them.
[11] The FCA cautioned against using a precise definition for vexatious and noted that the hallmarks should be taken as non-binding indicia of vexatiousness: Olumide at paras 32, 34.
[12] With that caution in mind, I apply the FCA’s instructions in Olumide to assessing the evidence the AGC submits to the Court. It is worth noting that Mr. Azubuike has initiated more proceedings than the examples highlighted below.
A. Being admonished by the Court for engaging in vexatious and abusive behaviour
[13] On this issue, the AGC names two specific files.
[14] In Azubuike v Minister of Public Safety and Emergency Preparedness, 2014 FC 34, the Court dismissed for lack of jurisdiction Mr. Azubuike’s request for an order to restrain Canada from communicating with Nigerian authorities. The Court also dismissed his five interlocutory motions and ordered costs against him for three of them with respect to the same file: T-1307-12. In dismissing a motion to file “vital exhibits,”
Prothonotary Morneau, as he then was, added, “this additional motion by the applicant should not have been brought, is improper and vexatious.”
[15] In T-1198-19, the Court dismissed Mr. Azubuike’s judicial review of a decision of the Office of the Privacy Commissioner [OPC] to dismiss Mr. Azubuike’s complaint alleging that CBSA disclosed his personal information without his consent: Azubuike v Attorney General of Canada, 2020 FC 911 [Azubuike v AGC 2020]. Specifically, CBSA contacted the International Criminal Police Organization [Interpol] seeking verification of the authenticity of a court judgement that Mr. Azubuike had submitted in support of his application for refugee status. In dismissing Mr. Azubuike’s application, the Court noted at para 27:
The Applicant is a self-represented litigant. His memorandum of fact and law filed in support of his application for judicial review is lengthy, 198 single-spaced small font paragraphs. The majority of the Applicant’s submissions address his immigration history and take issue with prior immigration determinations, in particular his view that his refugee status was wrongly vacated. The submissions also set out the substance of his complaint as made to the OPC regarding CBSA’s disclosure of his personal information, the Applicant’s view that the disclosure of his personal information was a breach of s 8(2) of the Privacy Act and what he sees as the ramifications of that disclosure. The Applicants does not identify specific issues pertaining to the OPC Findings Report to be addressed on judicial review.
[16] While dismissing Mr. Azubuike’s application, the Court observed that “[c]lear procedures for information sharing would minimize potential risk of harm of refugee claimants and their families, in particular, by minimizing the risk that authorities in their country of origin will become aware of the individual’s status and location:”
Azubuike v AGC 2020 at para 71. The Court concluded that the general concern highlighted by Mr. Azubuike in his complaint to the OPC “was acknowledged by the OPC and addressed in tis Finding Report.”
The Court issued cost of $1000 against Mr. Azubuike, but did not provide specific reasons for the cost award.
[17] At the hearing before me, Mr. Azubuike repeated some of the same allegations about the collusion between CBSA and Interpol on the one hand, and between Interpol and the Nigerian government on the other. These issues have already been addressed by the Court in Mr. Azubuike’s judicial review application of the OPC decision.
[18] I find the comment by Prothonotary Morneau in T-1307-12 the AGC serves as an example of Mr. Azubuike being admonished by the Court for engaging in vexatious and abusive behaviour. However, I do not find there is sufficient evidence to suggest that the issuance of costs against Mr. Azubuike in Azubuike v AGC 2020 amounts to an admonishment by the Court.
B. Instituting frivolous proceedings
[19] The AGC submits that Mr. Azubuike has a long history of filing frivolous and meritless proceedings. The AGC names the following examples to illustrate what they present as Mr. Azubuike’s frivolous proceedings:
Mr. Azubuike filed an action in damages for $25,000,000 against his Majesty the King based on “wild allegations of corruption and plotting against him, including that the government of Canada would be ‘planning to kill [him];’”
Mr. Azubuike filed applications for leave with no intention to pursue them. He did not complete the procedural steps to move his case forward and did not file an application record, which led the Court to dismiss his applications in files IMM-492-12, IMM‑4389‑17 and IMM-1114-18;
Mr. Azubuike submitted frivolous and meritless arguments. In file T-1198-19, he filed a motion requesting an order to compel the OPC to deliver him a “clear readable Certified Copy of the contested report”
of his complaint against CBSA while including a copy of this report in his motion record. Despite the dismissal of his motion, he submitted this argument anew in his application record. The Court in Azubuike v AGC 2020 dismissed his application, stating that a “clear copy of the Findings Report is found in the Applicant’s Record”
and that there “is no legal basis for his request;”
Mr. Azubuike filed abusive amounts of documents in his proceedings. For example, in file IMM-5424-13, he filed a record of 731 pages and 114 exhibits; in file T-1198-19 he filed a record of over 400 pages and 70 exhibits; in file IMM-3347-20, he filed a record of 727 pages and 8 volumes; and in file IMM-1497-15, he filed a record of 665 pages and 41 exhibits; and
Mr. Azubuike filed unnecessary urgent motions, such as stay motions, and summoned the Court and counsels for the AGC on short notice for issues that were often moot or premature, such as in file T-601-11, in file IMM-5424-13 and in file IMM-1497-15.
[20] I note that Mr. Azubuike does not make any submission directly to respond to the AGC’s arguments on this issue, other than repeating his claim that the actions of the Court and other agents of the government cause him irreparable harm.
[21] I find the examples listed under categories a, b, c, and e meet the flexible definition of vexatious litigation. Without knowing more about the documents and exhibits filed, I am reluctant to find that filing a large volume of documents is per se a vexatious conduct.
C. Making scandalous and unsupported allegations against opposing parties or the Court
[22] The AGC submits that in his procedures and communications, Mr. Azubuike has attacked the integrity of the Court, the judges, the associate judges (formerly prothonotaries), and Registry clerks. He has also made, against CBSA and immigration authorities, gratuitous and unfounded allegations of corruption, lying, fabricating documents and plotting against him. The AGC further submits that Mr. Azubuike shows similar intemperate behaviour towards counsel for the AGC. Examples of these are:
In file T-1307-12, Mr. Azubuike had written to inform the Court that he would not be available for a hearing for several months due to medical reasons without submitting evidence in support. At that point, the filing of his application dated back eight months. The AGC filed a letter to the Court in response, to which Mr. Azubuike promptly responded in an intemperate and abusive manner, accusing, among other things that the AGC “[has] no moral conscience”
and “is playing prank with my live [sic];”
In file IMM-5158-14, Mr. Azubuike filed a motion to reconsider Justice St-Louis’ decision to confirm the vacation of his refugee status. He also filed a complaint against her at the Judicial Council of Canada and requested that a different judge hear his motion. In his written submissions, Mr. Azubuike scolded Justice St-Louis and made abusive and exaggerated accusations against her. He stated 25 times that she rendered a fraudulent judgment and he accused her of being discriminatory, partial and of abusing her discretion;
In file IMM-3347-20, Mr. Azubuike made wild and unfounded accusation against government officials of corruption and plotting against him;
In file T-425-22, Mr. Azubuike scolded the Court and Associate Judge [AJ] Duchesne for issuing a notice of status review, expressing among others, his “displeasure”
with AJ Duchesne’s “unnecessary threat to dismiss”
his proceedings. In his reply to the AGC’s written submissions, Mr. Azubuike blamed Registry clerks for the delay. He later filed a complaint against the Court Registry, stating that he had “been consistently and judicially bullied by the court registrar in conjunction with the judge on the bench.”
[23] Once again, rather than addressing the AGC’s submissions, Mr. Azubuike reiterates some of the same accusations in his written representation. At the hearing, I asked Mr. Azubuike for further submissions but he did not provide any directly on point.
[24] I find the materials provided by the AGC support their submission that Mr. Azubuike made scandalous and unsupported allegations against opposing parties or the Court, including judges, associate judges and Registry clerks. I am particularly disturbed by Mr. Azubuike’s baseless allegations against Registry clerks, who are merely doing their job to ensure the proper functioning of the judicial system.
[25] Mr. Azubuike’s strong disagreement with the actions of the Canadian government and the Court’s decisions does not give him justification to malign officials who work in these institutions. Amid the rising threat of the erosion of public trust, Mr. Azubuike’s unfounded allegations have the effect of further undermining the integrity of these important public institutions, to which, ironically, Mr. Azubuike continues to approach to air his personal grievances.
[26] The AGC submits that Mr. Azubuike regularly attempts to relitigate issues. The recurring theme in his proceedings is the vacation of his refugee status and/or allegations that he is the victim of a conspiracy orchestrated by the government of Canada.
[27] The AGC cites, as examples, the following matters filed by Mr. Azubuike: files T-601-11 and IMM-492-12; the latter was essentially the same as the former. In file IMM-5424-13, Mr. Azubuike made a similar attempt to thwart an inadmissibility proceeding launched against him. In IMM-5158-14, after the Court dismissed his application for judicial review of the vacation decision, Mr. Azubuike filed a motion to reconsider and requested a different judge to hear the matter. Finally, as noted above, in file T-1198-19, Mr. Azubuike raised the same issue with respect to the vacation of his refugee status.
[28] I agree with the AGC.
[29] In addition to the examples provided by the AGC, I also find that the herein proceeding further illustrates Mr. Azubuike’s penchant for relitigating the same matter. Mr. Azubuike attempted to file an affidavit to the Court with respect to this application. The affidavit was served on the AGC but was not at the time accepted for filing. At the hearing, I accepted Mr. Azubuike’s affidavit and have since reviewed it. By and large, Mr. Azubuike’s affidavit consists of documents that he believes would demonstrate the “decades of conspiracy”
instituted against him by the Canadian state. The affidavit and the attached exhibits reiterate Mr. Azubuike’s claim that his “legitimate refugee status was vacated by the Canadian state party in collaboration”
with his country of origin and their agents of persecution. Mr. Azubuike recited in his affidavit some of the same basis of his refugee claim and his reasons for fleeing Nigeria, as well as the “unfair”
treatment he received from CBSA.
[30] Regardless of his motive for doing so, Mr. Azubuike’s conduct of relitigating the same issue that has been decided against him over and over again, is precisely the type of conduct that section 40 of the Federal Courts Act aims at preventing.
E. Unsuccessfully appeals interlocutory and final decisions as a matter of course
[31] The AGC also submits that Mr. Azubuike filed unsuccessful appeals and motions for reconsideration in many of his files. It is not necessary for me to go into details for each of these matters, other than to say that Mr. Azubuike made unsuccessful appeals and motions in files IMM-492-12, IMM-5158-14, IMM-3347-20, IMM-6402-22, and T-425-22.
[32] I may not agree that the filing of an unsuccessful appeal or motion would necessarily make the litigation vexatious. However, taken together, the number of appeals and motions, and the nature of some of the motions filed by Mr. Azubuike, support the AGC’s position that Mr. Azubuike filed unsuccessful appeals and motions as a matter of course, regardless of their merits.
F. Ignoring court orders and court rules
[33] The AGC argues that Mr. Azubuike’s litigation history shows a pattern of disregard for this Court’s rules and orders. Examples are:
a.Mr. Azubuike failed to comply with the Court’s rules and filed motions for an extension of time in many files including IMM-492-12, IMM-6402-22 and T-425-22;
b.In file T-425-22, the Court issued a notice of status review and dismissed Mr. Azubuike’s application because he failed to ready his case in the prescribed time. He appealed this decision to the Federal Court of Appeal in file A-226-22. Mr. Azubuike once again failed to ready his case within the prescribed period and another notice of status of review was issued on appeal;
c.Mr. Azubuike filed legal documents at the Court Registry that did not comply with this Court’s rules or form, as in files IMM-5158-14, IMM-1497-15, T-1198-19 and T-425-22.
[34] Having reviewed the materials, I find the AGC’s argument that Mr. Azubuike has a pattern of ignoring court rules is well supported.
G. Filing proceedings on behalf of other litigants
[35] In addition to engaging in all of the above-mentioned conduct, Mr. Azubuike, who is not a lawyer, also attempted to file stay motions on behalf of people facing removal from Canada in several files. Mr. Azubuike appears to carry out such legal work in the name of an organization called Ekens Foundation International.
[36] In IMM-11811-23, a matter dealing with a stay motion filed by a Mr. Aluyi, Justice Gascon noted in his Direction dated September 27, 2023:
After the hearing was completed and after the Court had issued its Order, Mr. Aluyi sent a letter to the Court purporting to explain that he was hospitalized for mental health issues. This letter was a carbon copy of a letter previously received by the Court shortly before the scheduled hearing, coming from an individual named Ekens Azubuike [Mr. Azubuike]. Since, according to the Court’s records, Mr. Azubuike is not a lawyer and does not have the authorisation to represent Mr. Aluyi in this matter or in this Court, Mr. Azubuike’s letter was not accepted for filing and was returned to Mr. Azubuike.
[37] Later on in the Direction, Justice Gascon reminded Mr. Azubuike that as he is not a barrister, advocate, attorney or solicitor, he cannot represent parties before the Court.
[38] This however was not the end of file IMM-11811-23 nor Mr. Azubuike’s involvement in that file. About two months after Justice Gascon’s direction, Justice Pamel issued a further direction dated December 7, 2023 not to hear Mr. Aluyi’s motion on the basis that it was an abuse of process. Justice Pamel noted, among other things: “that the present motion material adds nothing new to the previous attempts by Mr. Aluyi to avoid enforcement of the removal order issued against him and, as determined as well by Justice Gascon, that Mr. Aluyi is seemingly being represented by an individual who is not qualified to represent him before this Court.”
[39] In addition, Mr. Azubuike appears to have prepared applications for others in files IMM‑13560-23, IMM-6381-24 and IMM-6789-24. Once again, he did so in the name of Ekens Foundation International.
[40] At the hearing, Mr. Azubuike described himself as a humanitarian person and Ekens Foundation International as a human rights organization that provides free services to those in need. Mr. Azubuike claimed, without providing any evidence, that he and Ekens Foundation International only involve themselves in legal matters where the individual has serious mental health issues. This is why, Mr. Azubuike claimed, that their submissions appear to be similar in these files.
[41] The AGC submits that Mr. Azubuike’s actions waste court resources and jeopardize the right of vulnerable people who are facing removal from Canada. Instead of being represented by qualified lawyers, these individuals are being ill advised by Mr. Azubuike who essentially is rehashing his own frivolous allegations in these proceedings, which were all dismissed. Had qualified counsel been retained, the AGC submits, the result may have been different.
[42] While I am unable to predict whether the outcome of these proceedings would have been different had the individuals involved been represented by counsel, I agree with the AGC that Mr. Azubuike’s decision to provide legal services, knowing that he is not qualified to do so, is yet another factor in support of the AGC’s application to declare him a vexatious litigation. If Mr. Azubuike and the foundation that he is associated with really wish to assist individuals who are in need, they must find ways that will advance these individuals’ best interests. Giving them poor legal advice or preparing legal documents with questionable claims is inadvisable.
[43] In conclusion, I find the AGC has demonstrated the way Mr. Azubuike conducts his litigation bears the hallmarks of a vexatious litigant. It is in the interest of justice to restrict Mr. Azubuike’s access to the Court.
[44] Declaring Mr. Azubuike a vexatious litigation does not bar Mr. Azubuike’s access to the court, but it does require him to obtain leave before starting or continuing a proceeding.
[45] At the hearing, Mr. Azubuike advised the Court that he is under a deportation order and can be removed anytime soon. If his access to the Court were limited, he would stand to face irreparable harm.
[46] I note that the AGC previously submitted to the Court a copy of the decision of Justice Brunton of the Quebec Superior Court dated May 29, 2024 sentencing Mr. Azubuike to a conditional sentence of imprisonment of two years less a day. Mr. Azubuike was found guilty by a jury of one count of fraud exceeding $5,000. The crime was committed between December 1, 2019 and January 30, 2020 and it involved the fraudulent online purchase of vehicles, which were write-offs for insurance purposes.
[47] I need not go into details the evidence presented before Justice Brunton and the reasons for his decision. Suffice to say that Mr. Azubuike would need to complete his criminal sentence before he can be removed. In other words, Mr. Azubuike may not be removed until about 22 months from now. Many things could happen in that period. I acknowledge Mr. Azubuike’s concern about having access to the court at the time of his removal. I also note that in deciding whether to hear a stay motion and to grant a stay motion, the Court shall always take into consideration public interests, as well as the interests of the private litigant: Manitoba (Attorney General) v Metropolitan Stores (MTS) Ltd, [1987] 1 S.C.R. 110. I am confident that when the time comes, the Court will duly take into consideration Mr. Azubuike’s interests when deciding whether to grant his request to access the Court.
[48] Finally, since Mr. Azubuike appears to be providing legal services in the name of Ekens Foundation International, any restrictions that the Court may impose on Mr. Azubuike’s access to the Court shall be extended to the organization that he is associated with.
[49] I therefore grant the AGC’s application and issue the order as requested.
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