Date: 20040518
Docket: A-504-03
Citation: 2004 FCA 195
CORAM: STONE J.A.
NADON J.A.
BETWEEN:
OLYMPIA INTERIORS LTD. and MARY DAVID
Appellants
and
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, on May 11, 2004.
Judgment delivered at Ottawa, Ontario, on May 18, 2004.
REASONS FOR JUDGMENT BY: STONE J.A.
CONCURRED IN BY: NADON J.A.
SHARLOW J.A.
Date: 20040518
Docket: A-504-03
Citation: 2004 FCA 195
CORAM: STONE J.A.
NADON J.A.
SHARLOW J.A.
BETWEEN:
OLYMPIA INTERIORS LTD. and MARY DAVID
Appellants
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
[1] This is an appeal from an order of the Federal Court dated August 7, 2001 made pursuant to section 40 of the Federal Courts Act, R.S.C. 1985, c.F-7 (the "Act"). Dawson J.'s reasons for the order are fully reported at (2001), 209 F.T.R. 182, 2001 FCT 859.
[2] By that order, the Appellants are barred from instituting or continuing any proceedings in the Federal Court except with leave of that Court.
[3] Subsection 40(1) of the Act authorises the Court to make an order of that kind if it is "satisfied...that a person has persistently instituted vexatious proceedings or has conducted a proceeding in a vexatious manner".
[4] It is not necessary here to review the long list of proceedings which were instituted by the Appellants and upon which Dawson J. based her discretion in making the impugned order. They are comprehensively reviewed in the reasons for that order. In short, the Appellants have pursued proceedings in the former Trial Division for upwards of 13 years. The first proceeding was instituted in 1991 in which was asserted a claim for damages for alleged malicious prosecution, negligence and breach of Charter rights arising out of criminal charges that were either stayed or withdrawn by the Crown. This proceeding was dismissed on technical grounds. A fresh proceeding was commenced in 1992 seeking extraordinary relief including a declaratory judgment arising out of the defaulted criminal prosecution. The proceeding was dismissed by MacKay J. by judgment dated March 31, 1999 after a trial lasting 16 days. This Court dismissed an appeal from that judgment, and leave to appeal to the Supreme Court of Canada was dismissed as was a motion for reconsideration of the refusal to grant leave.
[5] A second and third proceeding was commenced by the Appellants in August and October 1995. In those proceedings, the Appellants sought to set aside two ministerial certificates which, on filing, became orders of the Court. Under one of these certificates, the Appellants were obliged to pay and remit to the Government of Canada amounts that had not been remitted by way of Goods and Services Tax under the Excise Tax Act (GST-41-92). Under the other certificate, the Appellants were required to remit income tax in respect of employees pursuant to the Income Tax Act (ITA-8447-92). In due course, those proceedings also failed despite an attempt in 1996 to revive them by way of fresh applications for judicial review. As Dawson J.'s reasons also demonstrate, within these two main sets of proceedings were numerous interlocutory proceedings that were instituted by the Appellants.
[6] The power conferred on the Court by subsection 40(1) of the Act is, of course, most extraordinary, so much so that it must be exercised sparingly and with the greatest of care. In a society such as ours, the subject is generally entitled to access the courts with a view of vindicating his or her rights. This concern was obviously in the mind of the legislators, seeing that some balance is built into section 40 by allowing proceedings to be instituted or continued with leave of the Court. As was stated in Law Society of Upper Canada v. Chavali (1998), 21 C.P.C. (4th) 20, at paragraph 20 with respect to parallel legislation of Ontario, "the order puts the Court in control of the process." The net effect is that a person who becomes the subject of a subsection 40(1) order is not totally foreclosed from instituting a fresh proceeding or of continuing an existing one. He or she must first obtain the Court's permission to do so.
[7] Neither in their Memorandum of Fact and Law nor in oral argument did the Appellants directly challenge the order under appeal on the basis of any alleged error. However, in their Notice of Appeal they asked that the order be "rescinded". By contrast, in their written argument the Appellants ask that this Court determine the constitutional validity of ministerial Certificate GST-41-92, that the Court allow the Appellants their costs in defending the criminal charges and that the Court determine whether the Respondent has forfeited their right to arbitrate the sales tax assessments and the debt owing under the Income Tax Act. Clearly, these are not issues that arise out of the order dated August 7, 2001; nor is a wholly new argument that attacks the constitutionality of section 40 of the Act. This latter argument is obviously beyond the Court's jurisdiction to address in that a notice of constitutional question was not given pursuant to section 57 of the Act. It must be added that the entire text of the Appellants' written argument would appear to constitute an attempt to re-litigate issues that have already been disposed of by the Court or are matters that ought to have been raised in earlier proceedings.
[8] This Court must yet be satisfied that the Federal Court properly exercised its section 40 discretionary power in making the order under appeal. On an appeal such as this from a discretionary order of a trial judge, the test for review as stated by the Supreme Court of Canada is whether "the judge at first instance has given sufficient weight to all relevant considerations": Reza v. Canada, [1994] 2 S.C.R. 394, at page 404. It would appear that Dawson J. did give sufficient weight to all relevant considerations in exercising the section 40 discretion.
[9] The order of Dawson J. should not be disturbed. She conducted a lengthy and careful review of the history of the litigation that had preceded the bringing of the section 40 application. Based on the record before her, she did not err in determining that a section 40 order should be made. In exercising that discretion, Dawson J. was guided by decisions of the courts in Ontario with respect to the power contained in subsection 140(1) of the Courts of Justice Act, R.S.O. 1990 c. C.43. The wording of that subsection closely resembles subsection 40(1) of the Act. Dawson J. therefore placed some reliance on Ontario case law: Foy v. Foy (No.2) (1979), 102 D.L.R. (3d) 342 (Ont.C.A.); Re Lang Michener et al. and Fabian et al. (1987), 59 O.R. (2d) 353 (H.C.J.); Mishra v. Ottawa (City), [1997] O.J. No. 4352 (Ont.Gen.Div.); Re Mascan Corp. and French (1988), 49 D.L.R. (4th) 434 (Ont.C.A.). She also had regard to the decision of Nadon J. (as he then was) in Canada (Attorney General) v. Mishra, [1998] F.C.J. No. 562 (T-617-98) (T.D.).
[10] Before parting with the appeal, it should also be noted that nothing in the record suggests that the Appellants have acted maliciously at any time in connection with the earlier proceedings or this appeal. Mrs. David freely conceded that she was confused with the legal process and this is quite understandable given that she is not a lawyer. It is true that the Appellants have engaged in a great deal of litigation in the Court over the past several years. As they saw it, however, this was done in pursuit of the justice that they felt they deserved and in attempting to vindicate their rights. Most of the litigation was conducted by the Appellants in person without the benefit of legal assistance. The conduct of litigation no doubt presents a challenge for even the skilled practitioner and much more so for unrepresented litigants. This became evident at the hearing of the present appeal, when the panel took time to explain the Court's concern with identifying any possible error that would warrant its intervention. The difficulty here is that the Appellants have established a consistent pattern of attempting to re-litigate issues that have been finally determined against them. In the circumstances of this case, that is sufficient to establish that the Appellants are vexatious litigants.
[11] For the foregoing reasons, the appeal should be dismissed. The Respondent was late in filing a Memorandum of Fact and Law and required an extension of time to do so. Indeed, it was only pursuant to this Court's order of May 6, 2004 granting a time extension that the Respondent was finally in a position to file and serve the Memorandum of Fact and Law. In the meantime, the Appellants were left in the dark with respect the precise grounds on which the appeal was being resisted. In the circumstances, there should be no order as to costs.
"A.J. STONE"
J.A.
"I agree
M. Nadon J.A."
"I agree
K. Sharlow J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-504-03
STYLE OF CAUSE: OLYMPIA INTERIORS LTD. and MARY DAVID
Appellants
and
HER MAJESTY THE QUEEN
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 11, 2004
REASONS FOR JUDGMENT: STONE J.A.
CONCURRED IN BY: NADON, SHARLOW JJ.A.
DATED: MAY 18, 2004
APPEARANCES:
Mary David FOR THE APPELLANTS, ON HER OWN BEHALF
Bryan C. McPhadden FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mary David
Orillia, Ontario FOR THE APPELLANTS, ON HER OWN BEHALF
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT