Ottawa, Ontario, Monday the 11th day of July 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
(MEMBER OF THE SAULTEAUX TRIBE)
and
THE QUEEN IN THE RIGHT OF CANADA,
THE QUEEN IN THE RIGHT OF ONTARIO,
MICHAEL BRYANT, C.O.B. AS MINISTER
OF INDIAN AFFAIRS, ROMAN BOTIUK,
TRUSTEE, C.O.B. AS QUEEN'S COUNSEL,
SAARA CHETNER, TRUSTEE, C.O.B. AS
COUNSEL FOR THE PUBLIC GUARDIAN AND TRUSTEE,
MICHAEL MCLEAN, TRUSTEE, C.O.B. AS
SHERIFF, FRANCIS SUTTON, TRUSTEE, SUSAN FURMAN,
TRUSTEE, CONNIE SPENCE, TRUSTEE, AND FRANCIS ELLIS,
MARION CAMERON AND BRYAN MCKINNON, SUBJECTS
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Upon the issuance of the plaintiff's statement of claim in this action, the defendants moved for an order striking out the statement of claim on the grounds that: the Court lacks jurisdiction; the statement of claim fails to disclose a cause of action; and the claim is frivolous and vexatious. Additionally, the defendants Marion Cameron, Francis Ellis and Bryan McKinnon ("applicants") moved, pursuant to section 40 of the Federal Courts Act, R.S.C. 1985, c. F-7 ("Act") and Rule 369 of the Federal Courts Rules, SOR/2004-283 ("Rules"), for an order declaring the plaintiff to be a vexatious litigant.
[2] Prothonotary LafreniPre ordered the statement of claim to be struck out, without leave to amend, and referred the vexatious litigant application to a judge. These reasons deal with the application to have Mr. Ellis declared to be a vexatious litigant.
PROCEDURAL MATTERS
[3] Before turning to the merits of the application, two procedural matters should be noted. First, as required by subsection 40(2) of the Act, the Attorney General of Canada consented to the bringing of this application and wrote to the Court supporting the application (although the Attorney General did not ask to be heard on the application). Second, in Nelson v. Canada (Minister of Customs and Revenue Agency) (2003), 301 N.R. 359 the Federal Court of Appeal confirmed, at paragraphs 22 and 23, that applications under section 40 of the Act may be brought on an interlocutory motion, and may be dealt with in writing under Rule 369.
APPLICABLE PRINCIPLES
[4] Subsection 40(1) of the Act allows the Court, where satisfied that a person has persistently instituted vexatious proceedings or has conducted a proceeding in a vexatious manner, to order that, except with leave of the Court, no further proceedings be instituted by the person or that a pending proceeding instituted by the person not be continued.
[5] This is an extraordinary power which must be "exercised sparingly and with the greatest of care". See: Canadav. Olympia Interiors Ltd. (2004), 323 N.R. 191 (F.C.A.) at paragraph 6.
[6] As for the factors to be considered in the exercise of the Court's discretion, in Vojic v. Canada(Minister of National Revenue), [1992] F.C.J. No. 902 (T.D.), Madam Justice McGillis wrote as follows:
Since this section is similar in wording to subsection 150(1) of the Courts of Justice Act, 1984, S.O. 1984 c. 11, guidance may be obtained in determining the law applicable to vexatious proceedings by referring to judgments rendered in Ontario.
A review of the Ontario authorities reveals that the categories for vexation are never closed and the history of the proceedings must be examined carefully to determine if the conduct of the litigant is vexatious in nature. Proceedings have been held to be vexatious in circumstances where there were no reasonable grounds to institute the action, the issue had already been determined by the court and unsuccessful appeals were pursued. [See Foy v. Foy (1979), 102 D.L.R. (3d) 342 (Ont. C.A.); Re Mascan Corp. and French (1988), 49 D.L.R. (4th) 434 (Ont. C.A.); Lang Michener et al. and Fabian et al. (1987), 37 D.L.R. (4th) 685 (Ont. H.C.J.)]. In Lang Michener et al. and Fabian et al., supra, the court observed that it is "... a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented...". [underlining added]
[7] A respondent's behaviour both in and out of the Court has been held to be relevant. In Canada(Attorney General) v. Mishra, [1998] F.C.J. No. 562 (T.D.), aff'd [2000] F.C.J. No. 1734 (C.A.). Mr. Justice Nadon (as he then was) placed emphasis on the fact that a similar order had been made declaring the respondent to be a vexatious litigant in Ontario.
[8] In making its determination, the Court is entitled to take notice of its own records. See: Canada Post Corp. v. Varma (2000), 192 F.T.R. 278 (T.D.).
APPLICATION OF PRINCIPLES TO THE EVIDENCE
[9] The applicants point to the following as establishing that the plaintiff is a vexatious litigant:
1. They cannot make "heads or tails" of the statement of claim;
2. The plaintiff commenced an action in the Ontario Superior Court of Justice against Francis Ellis that was dismissed. That Court ordered, in February of 2004, that the plaintiff be forbidden from commencing litigation in that Court against two of the applicants in this action (and others) without leave;
3. The plaintiff sent Francis Ellis a note that said "[c]urrently you now have, [...] Statement of Claim. Others to follow; [...] As many court applications needed to correct your errors";
4. The plaintiff sent Francis Ellis a letter that said "[n]eedless to say, there will be appeals in my suit against Frank and who ever is funding him ought to be prepared for a $10,000.00-40,000.00 bill for the Appeal";
5. On November 21, 2003, the plaintiff wrote to a judge of the Ontario Superior Court of Justice, which letter threatened legal action against the judge if she failed to honour the plaintiff's demands for documents and particulars;
6. In 2001, the Saskatchewan Court of Queen's Bench struck out a statement of claim issued by the plaintiff against the then Prime Minister and his office, on terms that the plaintiff could not institute further proceedings in that Court against those defendants without leave of the Court;
7. In 1998 and 1999 actions commenced by the plaintiff were struck out and dismissed, respectively in the Federal Court Trial Division and the Ontario Superior Court of Justice.
[10] The applicants argue that this evidence, together with the text of the statement of claim, show that:
• the plaintiff's action cannot succeed, and so is vexatious and was brought for an improper purpose.
• the plaintiff has a history of commencing litigation that discloses no cause of action.
• in this case lawyers have been sued which is a hallmark of vexatious proceedings.
• the plaintiff has threatened to sue a judge and has threatened further proceedings.
• in the past, an order for costs made against the plaintiff was not paid.
[11] Without doubt, the plaintiff's statement of claim filed in this Court was improper. It was struck, without leave to amend, by Prothonotary LafreniPre on grounds that:
• no reasonable cause of action was alleged against the Federal Crown; and
• with respect to the remaining defendants, the claim was outside of the jurisdiction of this Court, failed to disclose a cause of action, and "in light of mirror proceedings in the Ontario Court, constitutes an abuse of the Court's process".
[12] However, the institution of a single, vexatious proceeding in this Court does not necessarily make one a vexatious litigant, even taking into account proceedings in other courts. Here, I consider it significant that:
• No appeal was taken by the plaintiff from the order striking his claim, nor did he seek leave to bring such an appeal;
• There is no evidence of other proceedings being taken by the plaintiff in this Court since 1998 when the claim was struck for disclosing no cause of action;
• There is no evidence that the threat of litigation against the judge of the Ontario Superior Court of Justice was acted upon;
• Four years have elapsed since the order was issued against the plaintiff in Saskatchewan in respect of suits against the Prime Minister;
• The applicants can only point to the institution of a total of three vexatious proceedings (including the present one).
[13] On balance, I conclude that the applicants have failed to establish that Mr. Ellis has persistently instituted vexatious proceedings, or conducted a proceeding in a vexatious manner as required by the Act. Orders under section 40 of the Act are not readily granted, and the institution of three law suits, and the plaintiff's to date unacted upon threats of more to follow, do not satisfy me of the required persistent institution of vexatious proceedings. The application will, therefore, be dismissed.
[14] Before parting with this application, I do express concern that some of the defendants named in this action are defendants whom Mr. Ellis is precluded from suing, without leave, in the Ontario Superior Court of Justice. Mr. Ellis should understand that the fact that this application is being dismissed does not preclude a further application from being brought to declare Mr. Ellis to be a vexatious litigant if further proceedings are brought in this Court.
COSTS
[15] Prothonotary LafreniPre adjourned the issue of the costs of this action to be dealt with by him. The parties should file their submissions as required by his order of March 16, 2005. It is wholly appropriate that the learned Prothonotary deal with the costs of this action, except those costs relating solely to the application to declare the plaintiff to be a vexatious litigant.
[16] While Mr. Ellis was successful in resisting the application, in view of the concern I expressed above, I consider it appropriate that each side bear their own costs in respect of the vexatious litigant application.
ORDER
[17] THIS COURT ORDERS THAT:
1. The application to have Mr. Ellis declared to be a vexatious litigant is dismissed.
2. No costs are awarded to any party in respect of the application to declare Mr. Ellis to be a vexatious litigant.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1697-04
STYLE OF CAUSE: PATRICK ELLIS (MEMBER OF THE SAULTEAUX TRIBE) v. THE QUEEN IN THE RIGHT OF CANADA ET AL.
MOTION IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER AND DAWSON J.
ORDER
WRITTEN SUBMISSIONS BY:
PATRICK ELLIS FOR THE PLAINTIFF/RESPONDENT
(Respondent on this motion)
ROMAN BOTIUK FOR THE DEFENDANTS/MOVING PARTIES:
(Her Majesty the Queen in right of Ontario, the Honourable Michael Bryant, Saara Chetner, Susan Furman, Michael MacLean and Connie Spence)
SOLICITORS OF RECORD:
PATRICK ELLIS FOR THE PLAINTIFF
REGINA, SASKATCHEWAN
Y.R. BOTICK, Q.C.
TORONTO, ONTARIO FOR THE DEFENDANTS/MOVING PARTIES:
(Her Majesty the Queen in right of Ontario, the Honourable Michael Bryant, Saara Chetner, Susan Furman, Michael MacLean and Connie Spence)