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Presentation - Politics. Turmel v. Canada (Attorney General)
In Turmel v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed) an appeal from a frivolous litigant declaration order [under s.40 FCA], here with supplementary terms regarding outstanding cost orders and "aiding or abetting others to initiate proceedings before that Court":[1] This is an appeal of a decision of the Federal Court, per Fothergill J. (the Application Judge), made pursuant to section 40 of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Act). In his decision (the Decision), the Application Judge declared the appellant to be a vexatious litigant and, as contemplated by paragraph 40(1) of the Act, prohibited the appellant from instituting new proceedings in that Court, or continuing previously instituted proceedings, except with leave of the Court. The Application Judge also saw fit to impose on the appellant additional measures to regulate his conduct before the Federal Court, such as requiring that any application for leave the appellant may bring to institute or continue a proceeding demonstrate that all outstanding costs awards made against him in the Federal Court have been paid in full, or prohibiting the appellant from aiding or abetting others to initiate proceedings before that Court.
[2] As pointed out by the Application Judge, the concept of vexatiousness within the context of section 40 of the Act does not have a precise meaning but as this Court stated, “it is best not to be precise” (Canada v. Olumide, 2017 FCA 42, at para. 32 (Olumide)). However, there is ample jurisprudential guidance – or hallmarks – as to what this concept entails. These “hallmarks”, which come in “many shapes and sizes”, include the following:a) being admonished by various courts for engaging in vexatious and abusive behaviour;
b) instituting frivolous proceedings (including motions, applications, actions and appeals);
c) making scandalous and unsupported allegations against opposing parties of the Court;
d) re-litigating issues which have already been decided against the vexatious litigant;
e) bringing unsuccessful appeals of interlocutory and final decisions as a matter of course;
f) ignoring court orders and court rules; and
g) refusing to pay outstanding costs awards against the vexatious litigant.
(Olumide v. Canada, 2016 FC 1106 at paras. 9–10, cited in Olumide, at para. 34) [3] Here, the Application Judge was satisfied that the appellant has exhibited all these hallmarks (Decision at para. 38). More particularly, he noted that the appellant “has instituted numerous meritless and repetitive proceedings before [the Federal Court], the Federal Court of Appeal, the Ontario Courts, and the Supreme Court of Canada”, “brought proceedings for improper purposes, frequently sought to re-litigate matters decided previously, made scandalous allegations against members of the courts and other parties, refused to follow the Federal Courts Rules, and failed to pay costs orders” (Decision at paras. 3, 5) [reference omitted].
[4] The Application Judge further noted that the appellant has instituted, since 1980, at least 67 court proceedings, that he did so on a wide range of issues (banking, elections, gaming, libel, cannabis and COVID-19), and that virtually all of them “have been dismissed as failing to disclose reasonable causes of action, as wholly unsupported by evidence, as attempts to re-litigate matters previously decided, or as otherwise frivolous and vexatious and abuses of process” (Decision at paras. 8–9).
[5] The Application Judge also pointed to the fact that since 2014, the appellant has prepared and distributed “litigation kits” comprising templates for initiating legal claims, that these kits were used by other litigants to file roughly 770 substantially identical claims challenging various aspects of Canada’s medical cannabis regulatory regime, that the appellant encouraged the use of his litigation kits to “flood the courts”, and that nearly all of them “have been dismissed or are in the process of being dismissed as failing to disclose reasonable causes of action, or as otherwise frivolous, vexatious or abuses of process” (Decision at paras. 25–28).
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[12] Respecting the additional measures imposed on the appellant, the Application Judge correctly pointed out that the Federal Court has “plenary jurisdiction to impose additional requirements as may be necessary to prevent abuses of process” and that some litigants may require different measures and restrictions, including safeguards to “discourage them from finding other ways to continue their vexatious conduct” (Decision at paras. 49–50).
[13] There is again ample evidence on record supporting the Application Judge’s conclusion that additional restrictions were appropriate in the case at bar, be it the number of meritless claims advanced by the appellant, his tendency to re-litigate these matters, his failure to pay costs orders, his recruitment of others to “flood the courts” with his “litigation kits”, or his derogatory statements on members of the judiciary on social media.
[14] It is useful at this point, in order to put the Decision in its proper perspective, to remind what this Court said, in Olumide, about what section 40 of the Act strives to achieve:[17] Section 40 reflects the fact that the Federal Courts are community property that exists to serve everyone, not a private resource that can commandeered in damaging ways to advance the interests of one.
[18] As community property, courts allow unrestricted access by default: anyone with standing can start a proceeding. But those who misuse unrestricted access in a damaging way must be restrained. In this way, courts are no different from other community properties like public parks, libraries, community halls and museums.
[19] The Federal Courts have finite resources that cannot be squandered. Every moment devoted to a vexatious litigant is a moment unavailable to a deserving litigant. The unrestricted access to courts by those whose access should be restricted affects the access of others who need and deserve it. Inaction on the former damages the latter.
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