Date: 20110208
Docket: A-343-10
Citation: 2011 FCA
48
Present: LAYDEN-STEVENSON J.A.
BETWEEN:
JOHN
FREDERICK CARTEN
and
KAREN AUDREY
GIBBS
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA, JEAN CHRÉTIEN,
EDDIE GOLDENBERG, SERGIO MARCHI, LLOYD
AXWORTHY, PIERRE PETTIGREW, JOHN MANLEY, BILL GRAHAM, JIM PETERSON, PAUL
MARTIN, DAVID EMERSON, TIM MURPHY, HER MAJESTY THE QUEEN IN RIGHT
OF BRITISH COLUMBIA, MICHAEL HARCOURT,
GLEN CLARK, UJJAL DOSANJH, GORDON CAMPBELL, ATTORNEY GENERAL OF CANADA, ALLAN
ROCK, ANNE McLELLAN, MARTIN CAUCHON, IRWIN COTLER, ATTORNEY GENERAL OF BRITISH
COLUMBIA, COLIN GABLEMAN, GEOFF PLANT, WALLY OPPAL, CANADIAN JUDICIAL COUNCIL,
JEANNIE THOMAS, NORMAN SABOURIN, ANTONIO LAMER (deceased), BEVERLEY McLACHLIN,
ALLAN McEACHERN, PATRICK DOHM, DONALD BRENNER, BRYAN WILLIAMS, JEFFERY
OLIPHANT, JOHN MORDEN, JOSEPH DAIGLE, THEMIS PROGRAM MANAGEMENT AND
CONSULTING LTD., THE LAW SOCIETY OF
BRITISH COLUMBIA, THE LAW SOCIETY OF ALBERTA, DAVID VICKERS (deceased), ROBERT
EDWARDS (deceased, JOHN BOUCK (deceased), JAMES SHABBITS, HOWARD SKIPP, CYRIL
ROSS LANDER, RALPH HUTCHINSON (deceased), MICHAEL HALFYARD, HARRY BOYLE, SID
CLARK (deceased), ALLAN GOULD, ROBERT METZGER, BRIAN KLAVER, JOHN MAJOR, JOHN
HORN, BARBARA ROMAINE, ADELE KENT, SAL LOVECCHIO, DONALD WILKINS, ROY VICTOR
DEYELL, TIMOTHY LEADEM, WILLIAM PEARCE, LISA SHENDROFF, ANN WILSON, RICHARD
MEYERS, GILLIAN WALLACE, MAUREEN MALONEY, BRENDA EDWARDS, STEPHEN OWEN, DON
CHIASSON, CRAIG JONES, JAMES MATTISON, McCARTHY TETRAULT L.L.P., HERMAN VAN
OMMEN, STEVE KLINE, LANG MICHENER L.L.P., THE CORPORATION OF THE CITY OF
VICTORIA, JOHN DOE AND JANE DOE
Respondents
Dealt with in writing without appearance
of parties.
Order delivered at Ottawa, Ontario,
on February 08, 2011.
REASONS
FOR ORDER BY: LAYDEN-STEVENSON
J.A.
Date: 20110208
Docket: A-343-10
Citation: 2011 FCA 48
Present: LAYDEN-STEVENSON
J.A.
BETWEEN:
JOHN
FREDERICK CARTEN
and
KAREN AUDREY
GIBBS
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, JEAN CHRÉTIEN,
EDDIE GOLDENBERG, SERGIO MARCHI, LLOYD
AXWORTHY, PIERRE PETTIGREW, JOHN MANLEY, BILL GRAHAM, JIM PETERSON, PAUL
MARTIN, DAVID EMERSON, TIM MURPHY, HER MAJESTY THE QUEEN IN RIGHT
OF BRITISH COLUMBIA, MICHAEL HARCOURT,
GLEN CLARK, UJJAL DOSANJH, GORDON CAMPBELL, ATTORNEY GENERAL OF CANADA, ALLAN
ROCK, ANNE McLELLAN, MARTIN CAUCHON, IRWIN COTLER, ATTORNEY GENERAL OF BRITISH
COLUMBIA, COLIN GABLEMAN, GEOFF PLANT, WALLY OPPAL, CANADIAN JUDICIAL COUNCIL,
JEANNIE THOMAS, NORMAN SABOURIN, ANTONIO LAMER (deceased), BEVERLEY McLACHLIN,
ALLAN McEACHERN, PATRICK DOHM, DONALD BRENNER, BRYAN WILLIAMS, JEFFERY
OLIPHANT, JOHN MORDEN, JOSEPH DAIGLE, THEMIS PROGRAM MANAGEMENT AND
CONSULTING LTD., THE LAW SOCIETY OF
BRITISH COLUMBIA, THE LAW SOCIETY OF ALBERTA, DAVID VICKERS (deceased), ROBERT
EDWARDS (deceased, JOHN BOUCK (deceased), JAMES SHABBITS, HOWARD SKIPP, CYRIL
ROSS LANDER, RALPH HUTCHINSON (deceased), MICHAEL HALFYARD, HARRY BOYLE, SID
CLARK (deceased), ALLAN GOULD, ROBERT METZGER, BRIAN KLAVER, JOHN MAJOR, JOHN
HORN, BARBARA ROMAINE, ADELE KENT, SAL LOVECCHIO, DONALD WILKINS, ROY VICTOR
DEYELL, TIMOTHY LEADEM, WILLIAM PEARCE, LISA SHENDROFF, ANN WILSON, RICHARD
MEYERS, GILLIAN WALLACE, MAUREEN MALONEY, BRENDA EDWARDS, STEPHEN OWEN, DON
CHIASSON, CRAIG JONES, JAMES MATTISON, McCARTHY TETRAULT L.L.P., HERMAN VAN
OMMEN, STEVE KLINE, LANG MICHENER L.L.P., THE CORPORATION OF THE CITY OF
VICTORIA, JOHN DOE AND JANE DOE
Respondents
REASONS FOR ORDER
LAYDEN-STEVENSON J.A.
[1] These reasons address five motions pursuant to Rule 416(1)
of the Federal Courts Rules, SOR/98-106 (the Rules). Various, but
not all, respondents on the appeal (defendants in the underlying action) have
moved for orders for security for costs. I will refer to them as respondents or
defendants, interchangeably.
[2] The appeal is
from the judgment of Gauthier J. of the Federal Court (the judge) dismissing an
appeal from an order of Prothonotary Lafrenière (the prothonotary) with costs
to each defendant in the lump sum amount of $750 (all inclusive): 2010 FC 857.
The prothonotary struck out the appellants’ statement of claim, without leave
to amend, with costs payable to the defendants other than the defendant Themis
Program Management and Consulting Ltd. (Themis): 2009 FC 1233.
[3] The
appellants issued a statement of claim on January 21, 2008 naming Her Majesty
the Queen in Right of Canada (the Federal Crown) as the primary defendant in
relation to various alleged acts and omissions concerning the bulk water export
policies of Canada and the Province of British
Columbia. The statement of claim names a host of defendants alleged to be
either officers, employees, agents or sub-agents of the Federal Crown. As the
prothonotary put it, the statement of claim alleges “widespread conspiracy and
collusion among those in power, including past, present and deceased members of
both the British
Columbia
and federal governments and the judiciary, to personally injure the appellants.”
[4] The
motions before me are those of the respondent Themis, the respondent Lang
Michener LLP (Lang Michener), the respondents Law Society of British Columbia,
McCarthy Tetrault LLP (McCarthy Tetrault) and Herman Van Ommen, the respondent
comprising what the prothonotary characterized as the British Columbia Crown
(the BC Crown), that is, those individuals alleged to be acting for the BC
Crown and the respondent comprising the Federal Crown defendants, that is those
individuals alleged to be acting for the Federal Crown.
[5] Although the
respondent judicial defendants and the respondent Law Society of Alberta have
not moved for orders for security for costs, they applied to the Federal Court
(along with the above-noted respondents except Themis) for orders striking the
portions of the statements of claim relating to each of them, without leave to
amend.
[6] The
prothonotary ordered that: the statement of claim be struck out, without leave
to amend; the action be dismissed with costs payable by the appellants to the
defendants (other than Themis); the appellants’ motion for default judgment
against the defendant Themis be dismissed; the motion of Themis for an
extension of time to serve and file a statement of defence be dismissed. In
cogent and comprehensive reasons, the prothonotary concluded that: the
statement of claim discloses no reasonable cause of action; the Court does not
have jurisdiction over the defendants, except for the Federal Crown defendants;
the allegations made by the appellants are scandalous, frivolous and vexatious;
and the proceeding constitutes an abuse of the process of the Court.
[7] As stated
earlier, the judge dismissed the appellants’ appeal of the prothonotary’s order
with lump sum costs of $750 to each defendant. In equally cogent and
comprehensive reasons, the judge reviewed the applicable principles of law. She
then applied those principles to the matter before her and concluded it is
clear and obvious that the appellants’ claim fails against all non-Federal
Crown defendants for want of jurisdiction. She also concluded that the claims
against all defendants other than the Federal and BC Crown should also be
dismissed as scandalous, frivolous or vexatious. With respect to the Federal
Crown defendants, the judge concluded that the allegations linking the actions
of those defendants to the Federal Crown on the basis of a de facto
agency are not supported. Having carefully considered the very few allegations
left to support the claim against the Federal Crown defendants, the judge
concluded that the claim is purely speculative and hypothetical and ought to be
dismissed without leave to amend.
[8] Further
references in these reasons to the “defendants” or the “respondents” should be
taken to refer to the moving parties. The respondents have established that the
costs awarded by the judge remain unpaid, the appellants reside in British
Columbia
and have no assets. The respondents also maintain there is reason to believe
that the action is frivolous and vexatious. Consequently, the prerequisites of
Rule 416(1)(g) are met and the requested order should follow.
[9] The
appellants “accept and do not dispute the allegation of impecuniosity.” Rather,
they contend that they have been denied a full and fair hearing on the merits of
their case and that it is an inappropriate exercise of this Court’s discretion
to order them to pay security for costs. Moreover, Rule 3 provides that the
Rules are to be interpreted and applied so as to secure the just, most
expeditious and least expensive determination of every proceeding on its
merits. According to the appellants, granting the requested order would run
afoul of this mandatory direction. The appellants urge the Court to deny the
equitable relief sought by the respondents.
[10] Having reviewed
the statement of claim, the notice of appeal and the appellants’ submissions,
and having carefully evaluated the positions of all concerned, I am of the view
that the respondents’ request ought to be granted. They have established a prima
facie right to security for their costs. Although I have taken into account
the respondents’ right to indemnity, I have also considered that any security
imposed should not be so oppressive as to prevent the continuation of a meritorious
law suit.
[11] There is an
obligation on the appellants to provide frank and full disclosure regarding
impecuniosity. Bare assertions are insufficient; particularity is required: Chaudry
v. Canada (AG), 2009 FCA 237, 393 N.R. 67. There is no specificity here,
but I attach little significance to this omission. In my view, the appellants’ appeal
is devoid of merit.
[12] The notice of appeal comprises some 16 pages. It contains allegations of
error that are vague, imprecise, redundant and constitute mere opinion. I am
satisfied that, distilled, the contents of the notice of appeal give rise to
the “allegations of error” discussed in the paragraphs that follow.
[13] The notice of
appeal is replete with allegations that the judge’s decision should be
overturned because the judge was biased against the appellants. The assertions
go so far as to state that the judge did not write the reasons for judgment.
This is an extremely serious allegation. There is a presumption of judicial
impartiality which can be rebutted only by clear evidence that would convince a
reasonable and informed person that the judge was unlikely to decide the matter
fairly: R. v. R.D.S., [1997] 3 S.C.R. 484. There is no basis in the
notice of appeal to support such an allegation. Rather, the appellants attack
the quality and content of the reasons for judgment. This, in turn, gives rise
to another problem, that is, appeals are taken from judgments, not from the
reasons for judgment: Froom v. Canada (Minister of Justice),
[2005] 2 F.C.R. 195 (C.A.); Devinat v. Canada (Immigration and Refugee
Board), [2000] 2 F.C.R. 212 (C.A.). Moreover, as stated previously, the
judge reviewed the applicable legal principles and provided comprehensive and
detailed reasons.
[14] The
appellants quarrel with the judge’s failure to admit new evidence. The judge
considered the appellants’ request and determined that the interests of justice
did not merit the admission of the proposed evidence, which she held was
comprised of nothing more than scandalous and gratuitous allegations that could
have no impact whatsoever on the merits of the appeal before her. The
appellants’ contention does not disclose any error. The appellants also claim
that the judge erred in law by relying on a “hearsay” statement to conclude
that Mr. Carten has devoted himself almost entirely to the dispute underlying
the matter since 1996. Again, no error is disclosed by this allegation. The
judge merely concluded, in the circumstances, that the appellants had ample
time to formulate a theory of the case and put their best case forward. The
judge’s comment was immaterial to the result.
[15] The
appellants assert that the judge impermissibly required them to prove the
allegations in the statement of claim when such allegations should be presumed
to be true. That is not correct. The judge required the appellants to plead a
theory of their case supported by underlying facts to sustain the assertions of
government control over elected officials and law firms.
[16] The
appellants contend that the judge inappropriately considered the jurisdiction
of the Federal Court as if each defendant had been sued independently of the
Federal Crown when conspiracy was alleged. However, the judge did consider the
alleged relationships between the individual non-Federal Crown defendants and
the Federal Crown defendants to ascertain whether they could support a basis
for Federal Court jurisdiction over the action. As for the assertion that the
judge erred in finding that de jure federal control is required to found
Federal Court jurisdiction, the judge noted that, in any event, the appellants
had not pleaded facts upon which de facto control could be found and
that the pleading failed on either test. Last, the appellants state, without
more, that the judge incorrectly awarded costs against them. It is trite law
that costs normally follow the event. The appellants offer no basis to justify
any departure from the general rule.
[17] In my view,
for these reasons, this appeal has no reasonable prospect of success and it is
therefore frivolous and vexatious. This finding, coupled with the lack of
sufficient assets to pay the costs of the respondent, if ordered to do so, dictates
that the requested order be granted.
[18] Each of the
respondents has provided a draft bill of costs based on Column III of Tariff B
of the Rules. The bills of costs are similar in range. I have averaged the
units, recognizing that this is not an exact science, and have reduced the
disbursements for which particularity was not provided. In the end, I have
concluded that each of the respondents should be entitled to $2,000. The order
for security for costs therefore should specify the total amount of $10,000,
including disbursements.
[19] The
appellants have requested, if the respondents’ request is granted, that they be
given five years within which to comply with the order. Although some time is
appropriate, five years is simply not practicable. The appellants should have
six months to comply with the order for security for costs.
[20] None of the
respondents requested costs of this motion, therefore, I would not award costs.
"Carolyn
Layden-Stevenson"
Email this Content