Date: 20130530
Docket: A-150-13
Citation: 2013 FCA 143
Present: STRATAS
J.A.
BETWEEN:
ANTHONY COOTE
Appellant
and
LAWYERS' PROFESSIONAL
INDEMNITY COMPANY
Respondent
REASONS FOR ORDER
STRATAS J.A.
[1]
Currently
before the Federal Court is an application (file T-312-13) to declare the
appellant a vexatious litigant under section 40 of the Federal Courts Act,
R.S.C. 1985, c. F-7. The application is to be heard on June 10, 2013.
[2]
Before
this Court are two appeals from interlocutory orders of the Federal Court made
within the vexatious litigant application:
a. An appeal (A-104-13)
from an interlocutory order made by the Federal Court on March 18, 2013 (per
Manson J.);
b. An appeal (A-150-13)
from an interlocutory order made by the Federal Court on April 11, 2013 (per
Boivin J.).
[3]
Recently,
the Registry, acting under Rule 72, referred the notice of appeal in A-150-13
to me for direction as to whether it should be filed. I directed that it be
filed. The Registry also alerted me to the existence of the appeal in A-104-13.
[4]
In
the course of preparing my direction, I reviewed the two appeal files, A-150-13
and A-104-13. From that review, I decided to invite submissions from the
parties on two matters: whether the two appeals should be consolidated and
whether the appeals should be stayed pending the Federal Court’s determination
of the vexatious litigant application.
[5]
I
have received and considered those submissions. In my view, the two appeals
should be consolidated. Further, in my view, the consolidated appeals should be
stayed pending the Federal Court’s determination of the vexatious litigant
application.
A. Consolidation
[6]
In
my invitation to the parties to provide submissions, I shared certain
observations with them. I observed that this Court has the jurisdiction to
consolidate separate appeals on its own motion: Montana Band v. Canada
(1989), 182 F.T.R. 161 (C.A.). I also observed that, subject to submissions
received from the parties, the two appeals are quite related, raised quite
similar issues, and related to procedural matters leading up to the vexatious
litigant application.
[7]
In
their submissions, the parties did not take serious issue with these observations.
Given the factual and legal similarity of the two appeals, the lack of
prejudice to anyone, and the obvious advantages of efficiency and minimization
of costs, consolidation is appropriate. Accordingly, under Rule 105, I shall
order that the two appeals be consolidated.
B. Staying the consolidated
appeals
[8]
This
Court has jurisdiction to stay the consolidated appeals. That jurisdiction is
founded upon section 50 of the Federal Courts Act, supra, and
this Court’s plenary jurisdiction to manage and regulate its own proceedings: Canada
(National Revenue) v. RBC Life Insurance Company, 2013 FCA 5; Association
des Compagnies de Téléphone du Québec Inc. v. Canada (Attorney General),
2012 FCA 20. As explained in RBC Life Insurance Company, this Court’s
plenary jurisdiction is indistinguishable from the inherent power of provincial
superior courts to manage and regulate their own proceedings.
[9]
The
appellant submitted that this Court could stay the consolidated appeals only upon
satisfaction of the three-fold test in RJR-MacDonald Inc v. Canada
(Attorney General),
[1994] 1 S.C.R. 311.
[10]
I
disagree. In these circumstances the Court need only determine whether a stay
is in the interests of justice: Mylan Pharmaceuticals ULC v. AstraZeneca
Canada, Inc., 2011 FCA 312 at paragraphs 3-14; Federal Courts Act, supra,
paragraph 50(1)(b).
[11]
As
explained in Mylan, there is a difference between this Court issuing a
stay to enjoin another body from exercising its jurisdiction and this Court
issuing a stay to refrain from exercising its own jurisdiction in a pending appeal.
The RJR-MacDonald test, a test suitable for injunctive relief, applies
to the former. With respect to the latter,
…we are exercising a
jurisdiction that is not unlike scheduling or adjourning a matter. Broad
discretionary considerations come to bear in decisions such as these. There is
a public interest consideration – the need for proceedings to move fairly and with due dispatch – but this is qualitatively
different from the public interest considerations that apply when we forbid
another body from doing what Parliament says it can do. As a result, the
demanding tests prescribed in RJR-MacDonald do not apply here.
(Mylan, supra
at paragraph 5.)
[12]
Whether this Court will issue a stay to refrain from exercising
its own jurisdiction over a pending appeal – i.e., to suspend or delay
it – depends on the factual circumstances presented to the Court, guided by
certain principles. These principles include securing “the just, most
expeditious and least expensive determination of every proceeding on its
merits”: Federal Courts Rules, SOR/98-106, Rule 3.
[13]
Additional principles guide this Court in the exercise of its
plenary jurisdiction to
manage and regulate proceedings. As long as no party is unfairly prejudiced and it is in the
interests of justice – vital considerations always to be kept front of mind – this Court should
exercise its discretion against the wasteful use of judicial resources. The
public purse and the taxpayers who fund it deserve respect. As well, cases are
interconnected: one case sits alongside hundreds of other needy cases. Devoting
resources to one case for no good reason deprives the others for no good
reason.
[14]
Applying these principles, I find that staying the consolidated
appeals pending the Federal Court’s determination of the vexatious litigant
application does not prejudice the appellant in any way and is in the interests
of justice:
a.
To the extent the appellant succeeds in defending the vexatious
litigant application in the Federal Court, the consolidated appeals, related as
they are to the vexatious litigation application, might seen as moot (subject
to the receipt of submissions on the point) and, therefore, unnecessary to
prosecute.
b.
To the extent the appellant fails, the vexatious litigant
application is granted, and the appellant is declared a vexatious litigant, he
can appeal to this Court. That appeal can then be consolidated with the
consolidated appeals, or heard alongside of them. If he prevails in the
consolidated appeals in this Court, this Court can consider whether the designation
of the appellant as a vexatious litigant can still survive. And, of course, on
appeal of that designation to this Court, the appellant can raise any other
admissible grounds of appeal.
c.
I am not satisfied that it would be unfair or would work a prejudice
to the appellant to allow the vexatious litigant application to proceed in the
Federal Court as scheduled. Indeed, had a motion been brought in this Court to
stay the vexatious litigant application in the Federal Court pending this
Court’s determination of the consolidated appeals, the RJR-Macdonald
test would have to be satisfied (see paragraph 11, above). There is nothing
before me to suggest any sort of harm or inconvenience to the appellant, let
alone the sort of harm or inconvenience necessary for the granting of such a
stay.
[15]
In his material, the appellant signals that at the hearing of the
vexatious litigant application in the Federal Court he will submit that the
consolidated appeals in this Court must be heard and determined first. If the
appellant advances that submission, the Federal Court should consider it based
on the material before it, unencumbered by any of the observations I have made
in these reasons. It may be that the Federal Court will be aware of considerations
not present in the material before me.
[16]
Therefore, I shall issue an order staying the consolidated appeals.
[17]
Further, upon the filing of a notice of appeal in this Court from
the judgment of the Federal Court in the vexatious litigant application or the
expiry of the time for doing so, whichever is earlier, I direct the Registry to
return the consolidated appeals files to me so that I may invite the parties to
make submissions as to the status of the consolidated appeals. I also direct
that, in any event, four months from now, the Registry should return the
consolidated appeals files to me for examination and, if necessary, further
direction.
C. Other
matters
[18]
The appellant has brought a motion to determine the contents of
the appeal book and for related relief in the consolidated appeals. Since the
consolidated appeals will be stayed, the motion need not be determined at this
time.
[19]
The appellant is also an appellant in this Court in the
consolidated appeals in files A-409-12,
A-410-12 and A-411-12. In those consolidated appeals, due to the past conduct
of the appellants, I found it necessary to order that the Registry not accept
for filing any motions brought by the appellants for reconsideration or
variation of orders made by this Court unless the notice of motion states grounds
that are expressly listed in Rules 397 and 399. Given the past conduct, I will
make the same order here. This is nothing more than an insistence that the
appellant comply strictly with the Rules. This helps to prevent motions for
reconsideration or variation that have no merit and that undercut the principles
set out in paragraphs 12 and 13, above.
[20]
I direct the Registry to place a copy of these reasons in both
this file and file A-104-13.
"David
Stratas"
Email this Content