Black v. Creditors of The Estate Nsc Diesel Power Inc., docket T-610-99

Date: 20000529

Docket: T-610-99

BETWEEN:

     FREDERICK W.L. BLACK

     Applicant

     - and -

     THE CREDITORS OF THE ESTATE OF NsC DIESEL

     POWER INCORPORATED as represented by the TRUSTEE

     of the Estate

     - and -

     THE INSPECTORS OF THE ESTATE OF

     NsC DIESEL POWER INCORPORATED

     Respondents

     REASONS FOR ORDER

MacKAY J.

[1]      The applicant in this judicial review proceeding, Mr. Frederick W.L. Black, is the principal respondent to this motion, brought by the Superintendent of Bankruptcy (the "Superintendent") as a Statutory Intervenor pursuant to the Bankruptcy and Insolvency Act¹. The intervenor, in this Notice of Motion for Directions, seeks orders including the following relief:

(a)      to strike the proceeding on the grounds that it discloses no reasonable cause of action, is frivolous or vexatious;

(b)      to strike the proceeding on the grounds of res judicata, issue estoppel and abuse of the process of the Court;

(c)      to strike the proceeding on the grounds that the relief requested is too vague for any order of the Court to be issued or to found an application in mandamus;

(d)      to strike the proceeding on the grounds that the pleadings disclose no evidence that the named Respondents have a statutory public duty, or power, to act;

(e)      to strike the proceeding on the grounds that mandamus is not available where the Bankruptcy and Insolvency Act contains alternate and adequate remedies available to the Applicant;

(f)      to strike the proceeding pursuant to Rule 59 on the grounds that the relief requested by the Applicant is not adequately described in the Originating Notice of Motion, contrary to Rule 301;

(g)      restricting the Applicant, either as himself or in some other purported capacity, from commencing any further proceedings in this Honourable Court dealing with the Estate of NsC Diesel Power Incorporated without prior leave of the Court.

[2]      The applicant was a shareholder and an officer of NsC Diesel Power Incorporated ("NsC Diesel"), a company that is now bankrupt, and of its parent company. In his individual capacity and as a shareholder, creditor and officer of the corporation, Mr. Black has brought a number of proceedings before this Court, objecting to the conduct of the Superintendent regarding the administration of the bankruptcy of NsC Diesel. He has done so, representing himself and trying to represent his corporate interests even though he is not a lawyer, acting perhaps on permission granted by the Associate Senior Prothonotary in other proceedings, in an action begun in 1990 which was dismissed by me on status review in 1999.

[3]      The applicant filed a further application on April 6, 1999, that is, the application which gives rise to the motion for directions now before the Court, seeking a writ of mandamus against the Superintendent of Bankruptcy and the Official receiver,

directing that they comply with the Bankruptcy and Insolvency Act, R.S.C. 1985, c.B-3 [S.C.1992,c.1 and S.C. 1992,c.27] (BIA); the order, the particulars of which will be filed with the official submissions of the Applicant, directing the Superintendent of Bankruptcy and the Official Receiver to fulfil their statutory duties, as regulators, in the supervision of the Estate of NsC Diesel Power Inc. in bankruptcy, and in particular, to fulfil their duties pursuant to sections 5, 6, 10, 11, 12, 13.3, 13.4, and 13.5 and the Rules of the Bankruptcy and Insolvency Act.

[4]      I note that while the order requested by Mr. Black, in the application commencing this proceeding for judicial review, would provide relief against the Superintendent of Bankruptcy and the Official Receiver, neither were named as respondents in the notice of application. In addition, when the Superintendent intervened in the application, pursuant to paragraph 5(4)(a) of the Bankruptcy and Insolvency Act (the "Act"), by Notice filed with the Notice of Motion for Directions, Mr. Black objected in letters filed with the Court. I further note that the above-quoted portion of the notice of Mr. Black's application is remarkably similar to the application filed by the applicant in NsC Diesel Power Inc. (Officer of) v. Canada (Superintendent of Bankruptcy)²:

AND TAKE NOTICE THAT the motion is for a Writ of Mandamus, or in the alternative an Order in lieu of a Writ of Mandamus, against the Respondents, the Superintendent of Bankruptcy and the Official Receiver for failure to follow the Bankruptcy and Insolvency Act, R.S.C. 1985, c.B-3 [S.C.1992,c.1 and S.C. 1992,c.27] (BIA); and an order, the particulars of which will be filed with the final submissions of the Applicants, directing the Superintendent of Bankruptcy and the Official Receiver, to fulfil their statutory duties of a regulatory nature in the supervision of the administration of the bankruptcy of NsC Diesel Power Inc., and in particular, to fulfil their duties pursuant to Sections 2, 5, 6, 9, 10, 11, 12, 13, 13.3, 13.4, 13.5, 14.01, 14.02, 14.03, 14.06, 14.08, 14.09, 16, 17, 19, 20, 25, 26, 28, 30, 38, 41, 45.(2), 69, 80, 81, 94, 95, 109, 112, 113, 119, 121, 124, 125, 126, 127, 128, 132, 135, 158, 159, 163, 181, 186, 201, 202, 203, 204, 205, 206, 207, 208, 209 and the Rules of the Bankruptcy and Insolvency Act.

In that application, the Superintendent of Bankruptcy and the Official Receiver were both named as respondents. Mr. Black, as an officer of the bankrupt company, was seeking an order, inter alia, to have the Superintendent press charges under the Act. On an application for directions brought by the Superintendent, I struck the application in its entirety on the basis that the circumstances before the Court did not support the award of an order in the nature of mandamus. I understand that a Notice of Appeal in relation to that decision was initiated, but the appeal was recently dismissed by the Court of Appeal, for delay³.

[5]      It is my opinion that Mr. Black's renewed application for judicial review, filed on April 6, 1999, should be struck. I conclude that the application itself is vexatious and an abuse of process and, moreover, that the circumstances alleged in the notice of application are insufficient to support an order of mandamus.

A vexatious proceeding, abusing the Court's process

[6]      The history of Mr. Black's various proceedings in this Court is recorded, in part only, in decisions filed by me in 1995 and 1999. The earlier decision⁴ recorded reasons for dismissing the application brought in the name of "The Bankrupt, NsC Diesel Power Incorporated and the shareholder/a creditor, NsC Corporation Limited, by their Officer, applicants, and the Superintendent of Bankruptcy, and the Official Receiver, respondents". In that application the matter was heard only after Mr. Justice Richard, then a judge of this Court, had dismissed an application by Mr. Black to represent the applicants as an officer of the corporations and further ordered the proceedings be stayed until the applicants had a solicitor on the record, a qualification fulfilled by the naming by the applicants of Howard C. Funk, of Ottawa, as Interim Solicitor, whom the applicants advised had been engaged on a pro bono basis. That application, as earlier noted, sought mandamus against the Superintendent and the Official Receiver, and it was dismissed on its merits.

[7]      In the later proceedings⁵, on status review pursuant to the Court's Rules, I dismissed an action, initiated by the plaintiff in 1990, after considering written representations and oral submissions heard by telephone conference. In that matter Mr. Black represented the plaintiff on the basis of approval by Mr. Giles, granted in 1993, on a motion by Mr. Black for leave to represent his corporation⁶, NsC Corp. That approval, of course, related only to that action, as the subsequent order by Mr. Justice Richard on May 24, 1995 in Court file T-724-95 clearly implied.

[8]      In this proceeding, for judicial review, without any authorization or application for leave to represent anybody other than himself, but joining as applicants with himself, "The Creditors of the Estate of NsC Diesel Power Incorporated as represented by the Trustee of the Estate" Mr. Black has again initiated proceedings, and appeared to be heard before the Court, which I permitted, when the Superintendent's motion for directions came on for hearing. While he may represent himself in proceedings before the Court, he may not represent any other person or corporation without leave of the Court, as I believe he must know. To initiate new proceedings for relief which has previously been denied, joining others as named applicants, without authority or leave of the Court is, in my opinion, vexatious.

[9]      The Superintendent submits that this is the fourth application in this Court for mandamus brought by Mr. Black (in various capacities), all concerning various issues connected with the bankruptcy of NsC Diesel Power Incorporated and seeking essentially the same relief. The first proceeding, in Court file T-2700-94, was brought by the bankrupt company and Mr. Black, in his capacity as a "shareholder/creditor" against Her Majesty the Queen. The application was struck without objection because it was held that an application for mandamus does not lie against Her Majesty. The second proceeding (T-724-95), referred to above, named as respondents "The Superintendent of Bankruptcy and the Official Receiver, as Agents of the Crown". That proceeding was struck on its merits⁷ following a motion for directions by the Superintendent. Thereafter Mr. Black sought to file a third application for mandamus, but it was not accepted because of failure to comply with the Court's Rules.

[10]      The Superintendent argues that Mr. Black is again attempting to do what he was unable to do in a direct proceeding against the Superintendent of Bankruptcy as a named respondent. Each previous application for mandamus against the Superintendent arising from the same matter has been dismissed. It is said by the Superintendent that filing essentially similar applications seeking the same relief, after earlier applications have been rejected, is an abuse of the process of the Court.

[11]      I have already concluded this further application by Mr. Black is vexatious. I agree that the repeated attempts by the applicant to litigate essentially the same dispute, by naming slightly different parties, or applying in different capacities and relying on slightly different statutory provisions, when earlier attempts have failed, also constitute an abuse of the process of this Court. Under Rule 221(1)(f) of the Federal Court Rules, 1998, a pleading can be struck if it is an abuse of the process of the Court. While this rule only applies to actions, not to applications for judicial review, in my opinion the Court does have inherent jurisdiction to strike an originating document in an application, at least in a case where the proceedings initiated by the originating motion constitute an abuse of process. That is the situation in this case, and Mr. Black's originating application shall be ordered struck.

Requirements for an order of Mandamus

[12]      Even if the proceeding initiated by Mr. Black were not deemed to be an abuse of process, without considering fully the merits of the originating application, except to assess whether it presents an arguable case, it is my conclusion that an order in the nature of mandamus would not be issued in these circumstances.

[13]      Mr. Justice Robertson of Federal Court of Appeal, in Apotex Inc. v. Canada (Attorney General),⁸ summarized the principles governing the award of an order of mandamus:

Several principal requirements must be satisfied before mandamus will issue. The following general framework finds support in the extant jurisprudence of this Court.

1. There must be a public legal duty to act;

2. The duty must be owed to the applicant;

3. There is a clear right to performance of that duty, in particular:

(a) the applicant has satisfied all conditions precedent giving rise to the duty;

(b) there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay;

4. Where the duty sought to be enforced is discretionary, the following rules apply:

(a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as "unfair", "oppressive" or demonstrate "flagrant impropriety" or "bad faith";

(b) mandamus is unavailable if the decision-maker's discretion is characterized as being "unqualified", "absolute", "permissive" or "unfettered";

(c) in the exercise of a "fettered" discretion, the decision-maker must act upon "relevant", as opposed to "irrelevant", considerations;

(d) mandamus is unavailable to compel the exercise of a "fettered discretion" in a particular way; and

(e) mandamus is only available when the decision-maker's discretion is "spent"; i.e., the applicant has a vested right to the performance of the duty.

5. No other adequate remedy is available to the applicant;

6. The order sought will be of some practical value or effect;

7. The Court in the exercise of its discretion finds no equitable bar to the relief sought;

8. On a "balance of convenience" an order in the nature of mandamus should (or should not) issue.

[14]      I have carefully reviewed the sections of the Bankruptcy and Insolvency Act cited by the applicant in his notice of application, and nowhere in these sections does the Superintendent or the Receiver have an affirmative duty to act in a way demanded by the applicant. For example, paragraphs 5(3)(e) and (f) read:

(3) The Superintendent shall, without limiting the authority conferred by subsection (2),      ...      (e) from time to time make or cause to be made such inspection or investigation of estates or other matters to which this Act applies, including the conduct of a trustee or a trustee acting as a receiver or interim receiver, as the Superintendent may deem expedient and for the purpose of the inspection or investigation the Superintendent or any person appointed by the Superintendent for the purpose shall have access to and the right to examine and make copies of all books, records, data, including data in electronic form, documents and papers pertaining or relating to any estate or other matter to which this Act applies;      (f) receive and keep a record of all complaints from any creditor or other person interested in any estate and make such specific investigations with regard to such complaints as the Superintendent may determine; and ...      [emphasis by underlining is here added]

(3) Le surintendant, sans que soit limitée l'autorité que lui confère le paragraphe (2)_:      ...      e) effectue ou fait effectuer les investigations ou les enquêtes, au sujet des actifs et autres affaires régies par la présente loi, et notamment la conduite des syndics agissant à ce titre ou comme séquestres ou séquestres intérimaires, qu'il peut juger opportunes et, aux fins de celles-ci, lui-même ou la personne qu'il nomme à cet effet a accès, outre aux données sur support électronique ou autre, à tous livres, registres, documents ou papiers se rattachant ou se rapportant à un actif ou à toute autre affaire régie par la présente loi, et a droit de les examiner et d'en tirer des copies;      f) reçoit et note toutes les plaintes émanant d'un créancier ou d'une autre personne intéressée dans un actif, et effectue, au sujet de ces plaintes, les investigations précises qu'il peut déterminer;

The introductory language of s-s. 5(3) appears mandatory, but the investigations referred to in paragraphs (e) and (f) reflect a wide grant of discretion, vested in the Superintendent, as the Superintendent "may deem expedient" or "as the Superintendent may determine". No duty to act arises under these provisions. If the Superintendent is not of the opinion that an investigation is expedient, the Court would not order an investigation. Generally similar comments, that actions of the Superintendent are discretionary, are applicable in relation to the other sections of the Act, that is, the other paragraphs of s. 5, and ss. 6, 10, 11, 12, 13.3, 13.4 and 13.5, referred to by the applicant as the bases for the application.

[15]      In order for a writ of mandamus to issue, there must be a legal duty to act and the applicant for such an order must be one who is owed that legal duty. Mandamus is not available where statutory authority is permissive or discretionary. In this case, action by the Superintendent or the Official Receiver depends upon the discretion of the decision-maker in all the circumstances.

[16]      In the ordinary course, applications for judicial review are not struck, for such an application is generally considered to provide a process for expeditious review. In this case, however, I am of the opinion that the notice of application, even if it were not an abuse of the Court's process, does not disclose an arguable basis for an application for mandamus, the relief sought. This is a basis, in my opinion, that warrants striking the originating application in this case.

[17]      I add that the respondents named in the originating application are not shown to have any statutory duties owed to the applicant Mr. Black, and as framed the application seeks no relief against them. These aspects of the application are further grounds for striking the originating application, in my view.

Restricting access to the Court's process

[18]      I do not, at this stage, make an order of the kind contemplated by the Superintendent in clause (g) of the application for directions, as reproduced above. That relief would be analogous to an order under s. 40 of the Federal Court Act⁹ which by s-s. 40(2), requires the consent of the Attorney General.

[19]      Nevertheless, Mr. Black is not free to ignore the Court's Rules, in particular Rules 119 and 120 which permit him to represent himself, but not any other person, human or corporate, or any office or interest unless, in exceptional circumstances, he has prior leave of the Court. He may not file any future application except in his personal capacity to represent his own interests. While the matter has not been argued in this proceeding, it is doubtful that his personal interests would provide standing for an application for judicial review against the Superintendent of Bankruptcy or the Official Receiver in relation to the estate of the bankrupt NsC Diesel Power, at least where that course of action has already been dismissed on more than one occasion.

[20]      Any further attempt for similar relief as here sought, if unsuccessful, may well warrant an order restricting any application by Mr. Black for relief against the Superintendent to situations where he first has applied for and received leave of the Court to file an application.

Conclusion

[21]      For these reasons, an Order issues striking the originating application, filed on April 6, 1999, and directing that henceforth Mr. Black may not file an originating document, an application for judicial review or other relief, except where it is filed by him in his personal capacity. Any application presented which purports to be in the name of other interests he represents is not to be filed without prior leave of a judge or prothonotary of this Court.

                                     (signed) W. Andrew MacKay

    

                                         JUDGE

OTTAWA, Ontario

May 29, 2000.

__________________

     ¹      R.S.C. 1985, c. B-3, as amended.

     ²      [1995] F.C.J. No. 1229 (T.D.) at para. 35 (Court file no. T-724-95).

     ³      Court file no. A-613-95, dated March 29, 2000 (F.C.A.).

     ⁴      Supra, note 2.

     ⁵      See: NsC Corp .v. Krupp MaK Maschinenbau GmbH, [1993] F.C.J. No. 329 (T.D.), Court file T-1536-90, April 15, 1993.

     ⁶      "NsC Corporation Ltd. plaintiff and Krupp MaK Maschinenbau GmbH, Halifax-Dartmouth Industries Ltd. and Her Majesty the Queen, defendants" cited as NsC Corporation Ltd. v. The Queen , [1999] F.C.J. No. 271, (T.D.) Court file T-1536-90, February 26, 1999.

     ⁷      Supra, note 2.

     ⁸      [1994] 1 F.C. 742 (C.A.) at para. 45 (citations included in the original are here omitted).

     ⁹      R.S.C. 1985, c. F-7, as amended.