Docket: A-392-13
Citation: 2014 FCA 272
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CORAM:
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NADON J.A.
PELLETIER J.A.
SCOTT J.A.
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BETWEEN:
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PAUL ABI-MANSOUR
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Appellant
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and
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DEPARTMENT OF ABORIGINAL AFFAIRS
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Respondent
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REASONS FOR
JUDGMENT
PELLETIER J.A.
[1]
The appellant, Mr. Abi-Mansour, appeals from a
decision of Mr. Justice Roy (the motions judge). While styled an order, and
therefore not reported, the decision contains the reasons for decision in
narrative form as well as the order disposing of Mr. Abi-Mansour’s motion for
an extension of time to file his applicant’s record. Mr. Abi-Mansour’s first
attempt to file his record was refused by the Registry because it did not
contain his memorandum of fact and law. Mr. Abi-Mansour then sought an
extension of time pursuant to Rule 369 of the Federal Courts Rules,
SOR/1998-106 (the Rules) to file his memorandum of fact and law. While
expressing reservations about the merits of the motion, the motions judge
granted an extension but for a shorter period of time than that sought by Mr.
Abi-Mansour. Relying on Rule 410(2), the motions judge ordered costs against
Mr. Mansour in the amount of $250, payable forthwith. Rule 410(2) provides that
unless otherwise ordered, the costs of a motion for an extension of time shall
be borne by the party bringing the motion.
[2]
Following the making of this order, Mr.
Abi-Mansour filed a memorandum of fact and law in the time provided in the
order. However, he alleges that this memorandum is incomplete and that he filed
it solely to preserve his rights. He continues to seek an extension of time to
file a memorandum of fact and law which more accurately reflects his position
in the litigation. The matter is currently scheduled to be heard by the Federal
Court on November 25, 2014.
[3]
Mr. Abi-Mansour raised as a preliminary matter
the fact that he wished some direction as to how to proceed with a somewhat
different problem, namely his desire to appeal or have reviewed 4 interlocutory
orders rendered by a judge of this Court in connection with this appeal and one
other. His attempts to seize the Supreme Court of these matters failed when he
was advised that he had other remedies in this Court.
[4]
It is not this Court’s function to provide
litigants with advice as to procedural issues. As a general proposition, this
Court does not sit in appeal of decisions made by a single judge of the Court
sitting as a motions judge. A party may seek reconsideration of a decision
under Rule 397 but the conditions of its application are relatively narrow: 1344746
Ontario Inc. v. Canada (Minister of National Revenue - M.N.R.), 2008 FCA 314,
[2008] F.C.J. No. 1483, at paragraphs 7-10. Otherwise, the judge’s order is
final and not subject to review except in the exercise of the Court’s inherent
jurisdiction to prevent a miscarriage of justice. Since interlocutory motions
deal almost exclusively with procedural matters, such cases are exceedingly
rare.
[5]
Counsel for respondent also raised a preliminary
matter. In her memorandum of fact and law, she requested that the style of
cause in this matter be amended to substitute the Attorney General for Canada as respondent in place of the Department of Aboriginal Affairs. While the request
has merit, it should be pursued by way of motion returnable before the judge of
the Federal Court who is to hear Mr. Abi-Mansour’s application on November 25,
2014.
[6]
I turn now to the merits of the appeal. Given
that Mr. Abi-Mansour has filed a memorandum of fact and law as authorized by
the order under appeal, this appeal is moot. One cannot get an extension of
time to do that which one has already done. It may be that the memorandum does
not fully address the questions which Mr. Abi-Mansour wishes to raise (a matter
which was entirely within his control) but the fact remains that he was given
an extension of time to file his memorandum of fact and law and he filed it. Furthermore,
since Mr. Abi-Mansour’s application will be heard on the merits on November 25,
2014, an extension of time to file a better memorandum of fact and law would
result in an adjournment of the scheduled hearing and would further delay the
resolution of this dispute on its merits. Such a delay is not in the interests
of justice.
[7]
Mr. Abi-Mansour argues that if his appeal is
dismissed, this Court should make an order allowing him to make any argument
that advances his position, whether or not it appears in his memorandum of fact
and law. The purpose of a memorandum of fact and law is to allow the Court and
the opposing party to prepare for the hearing in the knowledge of the arguments
that will be made. The order sought by Mr. Abi-Mansour defeats this objective.
No such order will be made.
[8]
The decision shows that the motions judge was
not impressed by some of Mr. Abi-Mansour’s representations. Notwithstanding
this, he granted the application for an extension of time even though he gave
the latter less time than he wished. In the face of this result, Mr.
Abi-Mansour alleges that the motions judge was biased.
[9]
Mr. Abi-Mansour infers that the motions judge’s personal
characteristics would predispose him to a certain result, given the nature of
Mr. Abi-Mansour’s application. He seeks to support this by reference to some of
the observations made or conclusions drawn by the judge in his reasons, none of
which support the conclusion which Mr. Abi-Mansour seeks to draw from them.
None of this would persuade a reasonable person, viewing the matter
objectively, and with knowledge of all the relevant facts, that the motions
judge approached the motion with a disposition to favour one party rather than
the other. This does not preclude the judge from finding that one party’s
arguments are more persuasive than the other’s, which is what happened here.
[10]
This is not the first time that Mr. Abi-Mansour
has alleged bias in support of a challenge to a judge’s decision. In Abi-Mansour
v. Public Service Commission, 2013 FCA 116, Mr. Abi-Mansour alleged bias on
the part of a member of this Court. That allegation was based on the fact that
the judge had decided an interlocutory matter against Mr. Abi-Mansour. At that
time, the latter was cautioned against making unfounded allegations of bias:
see Abi-Mansour v. Public Service Commission, supra, at paragraph
6.
[11]
A further instance of this behaviour is Mr.
Abi-Mansour’s allegation that the judge whose interlocutory orders were the
subject of his prelimary request is biased against him.
[12]
Allegations of judicial bias cannot be allowed
to go unchallenged as they attack one of the pillars of the judicial system,
namely the principle that judges are impartial as between the parties who
appear before them. The failure to challenge and denounce such allegations may
be seen in certain circles as an implicit admission of their truth. This in
turn encourages others to make them until they become common currency among
those who have a limited perspective on the judicial system. The result is a
loss of confidence in the judicial system in some quarters, an issue which must
be taken seriously in a society committed to the rule of law.
[13]
In Coombs v. Canada (Attorney General),
2014 FCA 222 at paragraph 14, this Court characterized repeated allegations of bias
as attacks on the “integrity of the entire administration of justice.” In McMeekin
v. Minister of Human Resources and Skills Development, 2011 FCA 165, at
para. 32, Sharlow J.A. stated that unsupported allegations of improper conduct
constituted an abuse of process. Such conduct comes within the ambit of the
doctrine of abuse of process which, as the Supreme Court of Canada observed in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at paragraph 43 focuses on
“the integrity of the adjudicative functions of courts.”
[14]
I am therefore of the view that Mr.
Abi-Mansour’s repeated unsupported allegations of bias are an abuse of process.
Persons who invoke the court’s assistance in its capacity as an independent
arbiter of disputes and who then repeatedly allege bias when the court’s
decisions do not meet their expectations are not using the judicial system in
good faith. The Court is entitled to decline to lend its assistance to such
litigants.
[15]
Going forward, Mr. Abi-Mansour should know that
unsubstantiated allegations of bias expose him to the dismissal of his
proceedings as an abuse of process, either at the request of the opposing party
or on the Court’s own motion. He should govern himself accordingly.
[16]
Mr. Abi-Mansour’s last ground of appeal is that
the motions judge erred in ordering costs against him in spite of the fact that
he was the successful party. The motions judge relied on Rule 410(2) which
provides that, unless otherwise ordered, the costs of a motion for an extension
of time shall be borne by the party seeking the extension. Mr.Abi-Mansour
points to a number of cases where no such order was made. This does not assist
Mr. Abi-Mansour as each case represents an exercise of judicial discretion
based on the circumstances of the particular case. Mr. Abi-Mansour was the
party seeking the extension of time and was therefore, prima facie,
within the scope of Rule 410(2). The motions judge saw no reason to depart from
the award of costs contemplated by the Rule. I have not been persuaded that he
erred in principle in failing to do so.
[17]
Mr. Abi-Mansour argues that the effect of the
combination of Rule 400 and Rule 410(2) is that a successful applicant for an
extension of time, who would normally be awarded his costs, following the usual
practice that costs follow the event, is deprived of his costs by Rule 410(2).
The result is that the parties bear their own costs.
[18]
This is contrary to the plain meaning of Rule
410(2) which specifically provides that the costs of a motion for an extension
of time “shall be borne by the party bringing the motion”. The intention of the
Rule is to see that respondents who are put to the trouble of responding to a
motion for an extension of time because the applicant has missed a filing
deadline are not subject to an order of costs if the applicant, whose own
conduct made the motion necessary, is successful. Prima facie, the
person who seeks the extension bears the burden of costs. Rule 410(2) allows
the judge to make a different order as to costs, but it does not require him to
make no order as to costs if the applicant is successful.
[19]
Mr. Abi-Mansour objects to the fact that the
motions judge ordered that the costs were payable forthwith. He relies on Rule
401(2) which allows the Court to order costs be payable forthwith if it is satisfied
that a motion should not have been brought. The motions judge’s comments on
this issue are as follows:
In my view, an amount of two hundred and
fifty dollars ($250.00), payable forthwith, will make it clear that timelines
provided for by the Rules are significant and that persuasive reasons, not
merely comments that may be perceived as flippant are needed to justify
departing from them.
[20]
It is clear from this passage that the motions
judge was not satisfied with Mr. Abi-Mansour’s reasons for his failure to
comply with the Prothonotary Tabib’s order extending the time to file his
application record. If follows that he was of the view that Mr. Abi-Mansour
should have met the deadline and that, if he had, the motion for an extension
would not have been necessary. I can see no error in principle in the motions
judge’s exercise of his discretion.
[21]
I would however qualify the motions judge’s
order to the following extent. This matter is set to be heard on the merits on
November 25, 2014. I would stay the execution of the motions judge’s order
until after the hearing of the application as it is not in the interests of
justice that an unpaid order for costs should prevent this matter from being
heard on the merits at this late date.
[22]
I would therefore allow the appeal in part and
stay the execution of the order for costs payable forthwith until after the
hearing of Mr. Abi-Mansour’s application on its merits on November 25, 2014. In
all other respects, I would dismiss the appeal.
[23]
Since the respondent has been successful on
substantially all issues, it is entitled to its costs. While I find that the
appeal is without merit, Mr. Abi-Mansour’s conduct, as regards the respondent,
is not so egregious as to warrant solicitor-client costs which the respondent
seeks. Mr. Abi-Mansour’s unwarranted allegations of bias are not an attack upon
the respondent’s position but an attack on the Court itself. An award of
enhanced costs to the respondent, in these circumstances, would simply be a
windfall. The costs of the appeal are set at $500 payable by Mr. Abi-Mansour in
any event of the cause.
"J.D. Denis Pelletier"
«I agree
M. Nadon, J.A.»
«I agree
A.F. Scott, J.A.»
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