Docket:
A-258-13
Citation: 2014 FCA 119
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CORAM:
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NOËL J.A.
STRATAS J.A.
WEBB J.A.
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BETWEEN:
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RACHEL EXETER
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Appellant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT
STRATAS J.A.
[1]
This is an appeal from an order dated July 11,
2013 of the Federal Court in file T-943-12 upholding Prothonotary Tabib’s
interlocutory order dated May 30, 2013.
[2]
In issue before the Prothonotary was an email
sent by the adjudicator of the Public Service Labour Relations Board. The email
states “that a mediated [settlement] agreement was reached.” The time recorded
on the mail suggests it was sent just a couple of hours before the appellant states
she agreed to the settlement. The appellant has since maintained that the
settlement is the product of duress. She seeks production of the email header,
which, in her view, will confirm exactly what time zone the time on the email
reflects. She believes that if the email was sent before the settlement, this will
tend to support her allegation of duress.
[3]
The Prothonotary denied the appellant’s request
for production, finding it irrelevant. The Federal Court dismissed the
appellant’s appeal from the Prothonotary under Rule 51. In the Federal Court’s view,
the appellant failed to show that the Prothonotary relied on an improper
principle or fundamentally misapprehended the facts within the meaning of Z.I.
Pompey Industrie v. ECU‑Line N.V., [2003]
1 S.C.R. 450, 2003 SCC 27 at paragraph 18 and Canada v. Aqua-Gem
Investments Ltd., [1993] 2 F.C. 425 at pages 462-63 (C.A.). The Federal
Court added that the appellant’s representations consisted of “statements
unsupported by evidence” and do not “even establish an articulation of the
alleged importance of the material sought,” with the result that “it is
impossible to understand how the material sought by the appellant can be relevant.”
[4]
In this Court, the appellant has not persuaded
us that the Federal Court erred in any way. Indeed, even if we examined the
matter on a de novo basis, we would find no merit whatsoever in the
appellant’s submission. The timing of an email stating that a settlement has
been reached has no logical connection to the alleged existence of duress.
[5]
Before this Court, the appellant alleged that
the Prothonotary was biased based on certain statements she made in her reasons
in this matter, and in certain words spoken in a hearing before her which
resulted in a separate order dated May 22, 2013.
[6]
In her written reasons in this matter, the
Prothonotary noted that the appellant is prone to “fixate and elevate to
extreme significance any perceived or real contradiction or inaccuracy in the
respondent’s arguments or affidavits” and advised the respondent to try to
prevent inaccuracies in the future. This is an observation the appellant does
not like, but it is no evidence of bias.
[7]
I turn now to the appellant’s submission that
the Prothonotary was biased because of her comments in the earlier hearing
resulting in the May 22, 2013 order. To make her submission, the appellant
asked for leave to file the audio recording of that hearing. Out of generosity
to the appellant, a self-represented litigant, and in the heat of the moment, we
agreed to receive the recording to see if it had any bearing on the issues in
this appeal. In fact, this is not what we should have done. Those seeking to
raise matters of what was said during a hearing should order a transcript of
the recording and file only necessary portions of the transcript as part of the
appeal book under Rule 344(1)(e): see the direction dated January 21,
2014 of the Court in Rahman v. AGC in file A-365-13.
[8]
I note that an appeal from the May 22, 2013
order has made its way to this Court and is pending. In these reasons, I have
restricted my comments to the audio recording insofar as it sheds any light on
the appellant’s allegation of bias. I express no views on the merits of the
pending appeal.
[9]
The audio recording demonstrates that far from
showing bias, the Prothonotary acted with great courtesy, patience and
professionalism in challenging circumstances. The appellant alleged perjury and
other dishonourable conduct on the part of governmental officials, offering absolutely
no evidence in support. She raised matters well beyond the scope of the notice
of motion, even going so far as to request the Prothonotary to prefer charges
against certain governmental officials. After hearing these submissions, the
Prothonotary engaged in polite discourse with the appellant for over an hour to
investigate whether she had even the tiniest bit of evidence in support of her
serious allegations. In submissions before us, the appellant suggested that the
Prothonotary used harsh words such as “you’re holding me in bondage.” The audio
recording reveals no such thing.
[10]
Overall, the appellant submitted that the
Prothonotary’s bias led her to make an adverse costs award against her. But the
Prothonotary ordered only the usual level of costs against the appellant,
consistent with the principle that the unsuccessful party pays. Given the
absence of any merit in the matter and the appellant’s behaviour before her,
the Prothonotary could have awarded enhanced costs, indeed solicitor and client
costs, against the appellant. But the Prothonotary did not.
[11]
Alleging bias is “a serious step that should
not be undertaken lightly”: R. v. S. (R.D.), [1997] 3 S.C.R. 484
at paragraph 113; Es-Sayyid v. Canada (Public Safety and Emergency Preparedness), 2012 FCA 59 at
paragraphs 38 and 50. Here, the appellant alleged bias with absolutely nothing
in support.
[12]
Alleging fraud is similarly most serious: Bank
of Nova Scotia v. Fraser, 2001 FCA 267. Here, the appellant frequently
alleged fraud and forgery against the officials involved in the matter giving
rise to the appellant’s application for judicial review, allegations unsupported
on the record before us and unnecessary to the issue before us: whether the email
header was relevant to the issue of duress.
[13]
The appellant even went so far as to allege,
without any evidence, that the audio recording of the proceedings before the
Prothonotary, made by the Federal Court and held securely by it, was doctored,
ostensibly by the Federal Court’s staff.
[14]
The audio recording reveals that the
Prothonotary firmly but politely warned the appellant against the making of
extreme allegations with nothing in support. Her reasons in that matter also
warned her. In this Court, the appellant ignored the warning.
[15]
For the foregoing reasons, the appeal has no
merit and I would dismiss it. The appellant’s conduct before us is vexatious
and an abuse of process. A costs sanction is warranted. However, the Crown
asked for fixed costs only in the amount of $1,500 and I do not consider it
open to us to boost that quantum. Accordingly, I would fix costs against the
appellant in the amount of $1,500, but payable forthwith.
[16]
I encourage the appellant to focus on bringing
her application for judicial review quickly and efficiently to a hearing on the
merits instead of advancing serious allegations unsupported by evidence.
“David Stratas”
“I agree
Marc Noël J.A.”
“I agree
Wyman W. Webb J.A.”
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