Date: 20100121
Docket: A-570-08
Citation: 2010 FCA 20
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
EMILE
MARGUERITA MARCUS MENNES
Appellant
and
HER
MAJESTY THE QUEEN
Respondent
Heard by videoconference
between Ottawa, Toronto and Campbellford, on January
19, 2010.
Judgment delivered at Ottawa,
Ontario, on January
21, 2010.
REASONS FOR JUDGMENT BY:
LÉTOURNEAU J.A.
CONCURRED
IN BY:
NOËL J.A.
PELLETIER J.A.
Date: 20100121
Docket: A-570-08
Citation: 2010 FCA 20
CORAM: LÉTOURNEAU
J.A.
NOËL
J.A.
PELLETIER
J.A.
BETWEEN:
EMILE MARGUERITA MARCUS MENNES
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
Issues on appeal
[1]
The
appellant who is self-represented seeks the reversal of the decision of
Layden-Stevenson J. of the Federal Court (judge) as she then was. By that
decision, the judge dismissed the appellant’s motion to rescind her decision
dated December 10, 2004 (Canada v. Mennes, 2008 FC 1182)
which declared the appellant to be a vexatious litigant under subsection 40(1)
of the Federal Courts Act, R.S.C. 1985, c. F-7.
[2]
On appeal,
the appellant submits that the vexatious litigant order was obtained by fraud,
predicated on misrepresentations made at the hearing on October 5, 2004 by
Crown counsel. He also complains that the learned judge was biased, the
evidence of which being that she completely ignored his uncontradicted
evidence.
Analysis of the decision and grounds of
appeal
[3]
I agree
with the judge that there is no merit in the appellant’s allegation of fraud.
The allegation rests solely on a twelve-line comment, taken out of context,
made by Crown counsel in the course of a two-day hearing. As the judge said at
paragraph 13 of her reasons for judgment, “when the comments are placed in
context, they refer to the failure of Mr. Mennes to adhere to appropriate and
prescribed procedure”. They do not and cannot support an allegation of fraud.
[4]
A review
of the transcript and the judge’s reasons for judgment shows that the
appellant’s allegedly uncontradicted evidence was discussed at the hearing and
subsequently analysed by the judge. She did not ignore that evidence. The
weight that ought to be attributed to it was for her to decide and this Court
has no authority to second-guess her assessment in this regard. It is obvious
that the appellant does not agree with the decision that she rendered. However,
a decision adverse to a party does not in and of itself lead to a conclusion of
bias on the part of the decision-maker against that party. Nor does a disappointment
with the result.
[5]
The
appellant’s position now taken in this respect is at odds with the favourable
comments he made, and the satisfaction he expressed to the judge, at the end of
the hearing. At page 789 of volume V of the appeal book, the appellant said:
I thank the Court for
the opportunity to be heard in a real way for the first time. I won’t spend
another second.
[6]
Paragraphs
18 and 19 of the 2004 decision of the judge gives a telling history of the
appellant’s vexatious litigation:
[18] The affidavit
evidence discloses 64 separate proceedings dating from February 1987 to August
2002. Most of these files are concentrated in two periods, the first from 1987
to 1992, and the second from 1998 to the present. Mr. Mennes commenced only
three proceedings between 1993 and 1997. Of the 64 files, 34 belong to the
Federal Court, 26 are files from the provincial courts of British Columbia, two
are from the provincial courts of Ontario and two are leave
applications to the Supreme Court of Canada.
[19] Of the 34 files
(detailed in the affidavits) in the Federal Court, 15 were applications, 11
were actions and eight were appeals. Nine were struck out at a preliminary
stage, six were dismissed by the Court after some form of hearing, three were
dismissed by the Court for delay, five were discontinued by Mr. Mennes, ten
reflect a lack of prosecution at some stage in the proceeding without final
disposition. One appeal was found in favour of Mr. Mennes. Additionally, since
August 2002, when the Rodgers affidavit was sworn, Mr. Mennes has initiated
another ten proceedings in the Federal Court. These include five new actions
and five new applications.
[7]
It was
certainly not unreasonable for the judge to conclude that “to characterize the
proceedings that I have reviewed as ‘nothing more than ordinary litigation with
its attendant errors in judgment’ is inconceivable. The evidence demonstrates,
without doubt, that Mr. Mennes has persistently instituted vexatious
proceedings or has conducted proceedings in a vexatious manner”.
Costs
[8]
In order
to save time and additional costs, the parties at the hearing requested that
costs be fixed by this Court in issuing its judgment. After consideration of
the parties’ submissions, I would fix the costs at $1,200.
Conclusion
[9]
For these
reasons, I would dismiss the appeal with costs in favour of the respondent in the
amount of $1,200.
“Gilles
Létourneau”
“I agree
Marc
Noël J.A.”
“I agree
J.D.
Denis Pelletier J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-570-08
STYLE OF CAUSE: EMILE
MARGUERITA MARCUS MENNES
v. HER MAJESTY THE QUEEN
PLACE OF HEARING: By videoconference between Ottawa, Toronto
and Campbellford
DATE OF HEARING: January 19, 2010
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: NOËL J.A.
PELLETIER J.A.
DATED: January 21, 2010
APPEARANCES:
|
Emile Marguerita Marcus Mennes
|
ON HIS OWN BEHALF
|
|
Shain Widdifield
Matthew
Sullivan
|
FOR
THE RESPONDENT
|
SOLICITORS OF RECORD:
|
|
|
|
John H. Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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