Date: 20001024
Docket: A-311-98
CORAM: ISAAC J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
RAMESH MISHRA
Appellant
(Plaintiff)
- and -
ATTORNEY GENERAL OF CANADA
Respondent
(Defendant)
Heard at Ottawa, Ontario, Tuesday, the 10th day of October 2000
JUDGMENT delivered at Ottawa, Tuesday, the 24th day of October 2000
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: ISAAC J.A.
SEXTON J.A.
Date: 20001024
Docket: A-311-98
CORAM: ISAAC J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
RAMESH MISHRA
Appellant
(Plaintiff)
- and -
ATTORNEY GENERAL OF CANADA
Respondent
(Defendant)
REASONS FOR JUDGMENT
SHARLOW J.A.
This is an appeal of a discretionary order made on May 1, 1998 by Nadon J. under subsection 40(1) of the Federal Court Act, R.S.C. 1985, c. F-7, requiring Mr. Ramesh Mishra to obtain leave of the Court before commencing any proceedings in the Court or continuing proceedings previously instituted in this Court under Court File Numbers T-54-98, T-291-98 and A-21-98. The decision is reported at [1998] F.C.J. No. 562 (F.C.T.D.)(QL).
Subsection 40(1) of the Federal Court Act reads as follows:
| Where the Court is satisfied, on application, that a person has persistently instituted vexatious proceedings or has conducted a proceeding in a vexatious manner, the Court may order that no further proceedings be instituted by the person in the Court or that a proceeding previously instituted by the person in the Court not be continued, except by leave of the Court.
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La Cour peut, si elle est convaincue par suite d'une requête qu'une personne a de façon persistante introduit des instances vexatoires devant elle ou y a agi de façon vexatoire au cours d'une instance, lui interdire d'engager d'autres instances devant elle ou de continuer devant elle une instance déjà engagée, sauf avec son autorisation.
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The order of the Motions Judge was made without an oral hearing pursuant to former Rule 324 of the Federal Court Rules, the predecessor to Rule 369 of the Federal Court Rules, 1998. Former Rule 324 reads as follows:
| (1) A motion on behalf of any party may, if the party, by letter addressed to the Registry, so requests, and if the Court or a prothonotary, as the case may be, considers it expedient, be disposed of without personal appearance of that party or an attorney or solicitor on his behalf and upon consideration of such representations as are submitted in writing on his behalf or of a consent executed by each other party.
(2) A copy of the request to have the motion considered without personal appearance and a copy of the written representations shall be served on each opposing party with the copy of the notice of motion that is served on him.
(3) A party who opposes a motion under paragraph (1) may send representations in writing to the Registry and to each other party or he may file an application in writing for an oral hearing and send a copy thereof to the other side.
(4) No motion under paragraph (1) shall be disposed of until the Court is satisfied that all interested parties have had a reasonable opportunity to make representations either in writing or orally.
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| (1) La décision relative à une requête pour le compte d'une partie peut, si la partie le demande par lettre adressée au greffe, et si la Cour ou un protonotaire, selon le cas, l'estime opportun, être prise sans comparution en personne de cette partie ni d'un procureur ou solicitor pour son compte et sur la base des observations qui sont soumises par écrit pour son compte ou d'un consentement signé par chaque autre partie.
(2) Une copie de la demande de prise en considération d'une requête sans comparution personnelle et une copie des observations écrites doivent être signifiées à chaque partie opposante en même temps que lui est signifiée la copie de l'avis de requête.
(3) Une partie qui s'oppose à une requête présentée en vertu de l'alinéa (1) peut adresser des observations par écrit au greffe et à chaque autre partie ou elle peut déposer une demande écrite d'audition orale et en adresser une copie à la partie adverse.
(4) La Cour ne doit rendre aucune décision au sujet d'une requête présentée en vertu de l'alinéa (1) avant d'être convaincue que toutes les parties intéressées ont eu une possibilité raisonnable de présenter des observations écrites ou orales, à leur choix.
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On April 6, 1998, the Attorney General of Canada filed an originating notice of motion seeking an order under subsection 40(1) of the Federal Court Act against Mr. Mishra. In support of that application, the Crown filed the affidavit of Josephine A.L. Palumbo sworn on April 3, 1998. To that affidavit were appended copies of a number of documents, including a memorandum dated October 29, 1997 describing an order made against Mr. Mishra on October 27, 1997 by Sedgwick J. of the Ontario Court (General Division) under subsection 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C-43, with a copy of the reasons for that order.
Subsection 140(1) of the Courts of Justice Act is similar to subsection 40(1) of the Federal Court Act. The reasons for the order of Sedgewick J., reported at [1997] O.J. No. 4352 (QL), indicate that he relied on the characteristics of vexatious litigation as well summarized by Henry J. in Lang Michener v. Fabian (1987), 59 O.R. (2d) 353.
The Motions Judge also had before him a number of other documents, including a request by the Crown that the motion be dealt with under Rule 324, an affidavit of service indicating that Mr. Mishra had been served with the Crown's notice of motion and supporting material on April 8, 1998, and the court files in Mr. Mishra's three actions in the Trial Division and the appeal in this Court that are referred to in the affidavit of Ms. Palumbo.
On May 1, 1998, the Motions Judge granted the Crown's application and made the order the Crown sought. Mr. Mishra appealed that order. He made a number of submissions at the hearing of his appeal, which I will deal with below. First, however, I will deal with preliminary motions dated September 8 and October 5, 2000 that were filed by Mr. Mishra before the hearing of the appeal.
In both motions, Mr. Mishra seeks leave to adduce evidence that was not before the Motions Judge relating to the allegations made in one or more of Mr. Mishra's actions in the Trial Division. None of the evidence sought to be adduced as new evidence meets the well-known tri-partite test for the admission of new evidence on appeal, as set out in Brunckhorst (Frank) Co. et al. v. Gainers Inc. et al, [1993] F.C.J. No. 875 (C.A.)(QL). In particular, it is unhelpful in determining whether the motions judge properly exercised the discretion given to him in section 40(1) of the Federal Court Act, which is the issue to be determined in this appeal. For that reason, the motions to adduce evidence on appeal should be dismissed.
The second motion also asks for a number of orders relating to the steps to be taken in the claims Mr. Mishra is asserting in the actions referred to above. None of the requested orders has any bearing on the determination of this appeal. Those motions must also be dismissed.
I turn now to the submissions made by Mr. Mishra in support of his appeal of the order of the Motions Judge. He raised a number of procedural issues that he submitted should justify reversal of the order, and also argued that subsection 40(1) of the Federal Court Act is unconstitutional. I will deal with the procedural points first.
Notice of the Crown's application
Mr. Mishra was permitted to make oral submissions on the issue of notice even though it was not referred to in Mr. Mishra's notice of appeal or his written argument. He argued that he was not served with the Crown's originating notice of motion or the application record containing the affidavit of Ms. Palumbo on which the Motions Judge relied, and that the order was made without giving him a fair opportunity to cross-examine Ms. Palumbo or to file submissions in response to the Crown's motion. I do not accept that argument. The material before the Motions Judge included an affidavit sworn April 9, 1998 stating that Mr. Mishra was served with the Crown's material on April 8, 1998. Although Mr. Mishra submitted in argument that the affidavit of service was false, he did not cross examine the deponent of the affidavit of service. There was no affidavit before the Motions Judge (and there is no affidavit before this Court), that contradicts the affidavit of service. In these circumstances, I cannot conclude that the Motions Judge erred in dealing with the Crown's motion on the basis of the affidavit of Ms. Palumbo.
References to the decision of Sedgewick J. of the Ontario Court (General Division)
The Motions Judge, in his reasons for decision, referred to the order and reasons of Sedgwick J., referred to above. Mr. Mishra argued that the Motions Judge should not have referred to that decision because there were defects in the proceedings in the Ontario court that resulted in the order being invalid or nonexistent. He asserted that the party that applied for the Ontario order did not exist, and that the order had never been entered.
I am not persuaded that there were any procedural defects as alleged by Mr. Mishra, but in any event such defects, if they existed, could not affect the correctness of the decision of the Motions Judge to make an order under subsection 40(1) of the Federal Court Act. The Motions Judge merely noted that Sedgewick J. made the order, a fact that was established beyond doubt on the record before him, and indicated his agreement with Sedgewick J.'s analysis of the law. That legal analysis is sound whether or not the order of Sedgewick J. was or could have been challenged on procedural grounds.
References to a proceeding to which Mr. Mishra was not a party
Mr. Mishra pointed out that some material in the record refers to Action No. T-617-97, and argued that these references indicated an error by the Motions Judge because Mr. Mishra is not a party to any proceeding in the Trial Division with that number. The Action Number assigned to the Crown's originating notice of motion in this matter was T-617-98. It is obvious that the references in the record to T-617-97 were simply typographical or clerical errors. They provide no basis for concluding that the Motions Judge erred in making his order.
Constitutional challenge to subsection 40(1) of the Federal Court Act
Mr. Mishra argues that subsection 40(1) of the Federal Court Act is unconstitutional because it deprives Canadians of access to the courts, thus violating a guaranteed constitutional, civil, political and human right.
There is no merit to this argument. An order under subsection 40(1) does not put an end to a legal claim or the right to pursue a legal claim. Subsection 40(1) applies only to litigants who have used unrestricted access to the courts in a manner that is vexatious (as that term is understood in law), and the only legal effect of an order under subsection 40(1) is to ensure that the claims of such litigants are pursued in an orderly fashion, under a greater degree of Court supervision than applies to other litigants.
In the case of Mr. Mishra, for example, the order of the Motions Judge does not dispose of the claims he has made in the second and third of his actions in the Trial Division, which remain outstanding. The order simply provides that those actions are not to be continued without leave of the Court.
Conclusion
I am not persuaded that the Motions Judge, in exercising his discretion as to whether he should make the order under subsection 40(1) of the Federal Court Act, failed to consider all the evidence before him or failed to take into account all relevant considerations: see Friends of the Old Man River v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at 76-77. Accordingly, the appeal should be dismissed with costs and the motions dated September 8 and October 5, 2000 should also be dismissed.
Karen R. Sharlow
J.A.
"I agree
Isaac J.A."
"I agree
Sexton J.A."
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