Canada v. Nourhaghighi, (2014) 450 F.T.R. 140 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: January 20, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 450 F.T.R. 140 (FC);2014 FC 254

Can. v. Nourhaghighi (2014), 450 F.T.R. 140 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. MR.048

Her Majesty the Queen (applicant) v. Major Keyvan Nourhaghighi (respondent)

(T-2285-12)

The Law Society of Upper Canada (applicant) v. Major Keyvan Nourhaghighi (respondent)

(T-6-13; 2014 FC 254; 2014 CF 254)

Indexed As: Canada v. Nourhaghighi

Federal Court

Russell, J.

March 14, 2014.

Summary:

Between May 1995 and August 1997, Nourhaghighi had initiated nine actions in the Federal Court, each of which were struck. The Crown applied to have him declared a vexatious litigant. Meanwhile, Nourhaghighi commenced another action.

The Federal Court of Canada, Trial Division, in a decision reported at [1999] F.T.R. Uned. 402, dismissed the Crown's application. Between 1999 and June 2007, Nourhaghighi brought three applications and two actions in the Federal Court, resulting in more than 20 motions and several appeals. Both actions were dismissed for disclosing no reasonable cause of action, one application was dismissed for delay and another was dismissed for mootness. The last application was conceded in part by the Crown based on a breach of procedural fairness, with the remainder being struck for non-conformance with the Federal Court Rules. Nourhaghighi also pursued an appeal of an interlocutory order regarding scheduling in the Crown's first application to have him declared a vexatious litigant, despite his success on the merits in that application. The appeal was eventually dismissed for mootness (see [2001] N.R. Uned. 65). The Crown again applied to have Nourhaghighi declared to be a vexatious litigant. Nourhaghighi moved to strike the application.

The Federal Court, in a decision reported at [2007] F.T.R. Uned. 765, allowed Nourhaghighi's motion where, inter alia, he had no matters before the court when the Crown filed its application and had met with some success in his litigation. Nourhaghighi commenced no more proceedings until March 2012, when he applied for judicial review of a decision of a visa officer at the Canadian Embassy in Iran denying a temporary resident visa to Nourhaghighi's nephew. In the course of challenging that decision Nourhaghighi moved for contempt orders against a wide range of individuals and organizations, including the Law Society of Upper Canada. The Crown moved to strike the application on the basis that leave was required to apply for judicial review of the visa officer's decision. Before the motions were heard, the Crown advised that certain documents relating to the visa officer's decision were missing and the Crown was unable to defend that decision. The Crown offered to send the matter back for redetermination by a different visa officer if Nourhaghighi discontinued his judicial review application. Alternatively, if he withdrew the application and applied for leave, the Crown would consent to the late filing, the granting of leave, and an order that the application be granted and the matter sent back for redetermination by a different officer. The motion to strike and the contempt motions were heard together and Nourhaghighi confirmed to the court that he was not accepting the Crown's offer.

The Federal Court, per Near, J., in a decision reported at [2012] F.T.R. Uned. 650, issued two orders: (1) dismissing the contempt motions on the basis that was there absolutely no merit to Nourhaghighi's position with respect to any of the named persons; and (2) granting the Crown's motions to strike on the basis that leave was required. The next day Nourhaghighi moved to set aside the orders and for the same relief that he had originally sought, except to adding Near, J. to the list of those against whom he was seeking contempt orders. Rennie, J., subsequently issued a direction that Nourhaghighi's motion record not be accepted for filing, noting that the remedy sought could not be granted since an order of a Federal Court judge could only be reviewed by the Court of Appeal. Rennie, J., invited counsel to consider whether a vexatious litigant application should be commenced. Nourhaghighi moved to set aside Near J.'s order, asserting that it had been obtained by fraud.

The Federal Court, per Kane, J., in a decision not reported in this series of reports, dismissed the motion to set aside Near, J.'s order. Nourhaghighi appealed Near, J.'s and Kane, J.'s orders. The Crown moved to dismiss the appeal.

The Federal Court of Appeal dismissed the appeal on the basis that it was not properly before the court as leave had been required to bring the underlying judicial review application and Near, J., had not certified a serious question of general importance. For the same reasons, the "collateral attack" on Kane, J.'s order was not properly before the court. The remaining portion of the appeal respecting Near J.'s refusal of the contempt motions was dismissed for delay. The Crown and the Law Society of Upper Canada each applied to have Nourhaghighi declared a vexatious litigant. Nourhaghighi moved to strike both applications and to have the Minister of Justice and Attorney General of Canada declared vexatious litigants.

The Federal Court, per Beaurdry, J., in an decision not reported in this series of reports,, dismissed the motion to strike the Crown's vexatious litigant application.

The Federal Court, per Aalto, J., in a decision reported at [2013] F.T.R. Uned. 141, dismissed the motion to strike the Law Society's vexatious litigant application. Nourhaghighi moved to set aside Aalto, J.'s order on the basis that Aalto, J., had been in a conflict of interest and had yelled at him during the hearing, injuring his dignity.

The Federal Court dismissed the motion. The Crown's and the Law Society's vexatious litigant applications were consolidated.

The Federal Court declared Nourhaghighi to be a vexatious litigant. He was not to commence any further proceedings in the Federal Court, except with leave of the court. Any proceedings commenced by him and underway in the Federal Court were stayed pending leave of the court to proceed.

Actions - Topic 2602

Duplicitous or vexatious actions - Vexatious litigant - What constitutes - Commencing in May 1995, Nourhaghighi commenced some 15 actions and applications in the Federal Court against the federal Crown, the Law Society of Upper Canada and others - Most were struck for lack of merit or dismissed for delay or mootness - One met with partial success - Some included multiple procedural motions, including motions to strike, motions for contempt, motions to set aside orders and attempts to reopen dismissed proceedings - Several resulted in appeals - In both 1999 and 2007, the Crown unsuccessfully sought to have Nourhaghighi declared a vexatious litigant - Nourhaghighi commenced no proceedings after 2007 until a judicial review application in 2012 - During that application, he moved for contempt orders against a wide range of individuals and organizations, including the Law Society - Near, J., dismissed the motions and struck the judicial review application as the requisite leave had not been obtained - Nourhaghighi moved to set aside the orders and for the same relief that he had originally sought, except to add Near, J., as a contemnor - The motion record was not accepted for filing on the basis that only the Court of Appeal could review the order - Nourhaghighi unsuccessfully moved to set aside Near J.'s order on the basis of fraud (Kane, J.'s order) - He unsuccessfully appealed Near, J.'s and Kane, J.'s orders - The Crown and the Law Society each applied to have Nourhaghighi declared a vexatious litigant - Nourhaghighi unsuccessfully moved to have the applications set aside and to have the Minister of Justice and Attorney General declared vexatious litigants - Nourhaghighi unsuccessfully moved to set aside one of the orders dismissing his motion on the basis of a conflict of interest - The Federal Court declared Nourhaghighi to be a vexatious litigant (Federal Courts Act, s. 40(1)) - Section 40 did not require active litigation between the parties at the time of the application - Nourhaghighi had a long history of abusing the Federal Court system and had conducted himself in a vexatious manner in other courts - Even if he believed the scandalous things that he was alleging in his contempt motions, that did not prevent him from being vexatious as there was little or nothing to support the allegations and they had no chance of success - If he was not controlled, he would bring the administration of justice into disrepute and cause harm to innocent individuals and institutions - See paragraphs 47 to 63.

Actions - Topic 2602

Duplicitous or vexatious actions - Vexatious litigant - What constitutes - The Federal Court, in declaring a litigant (Nourhaghighi) to be vexatious, stated that "I find particularly vexatious Mr. Nourhaghighi's practice of naming individuals and entities who have nothing to do with the matter in hand and driving them into litigation, and his attacking Court administration staff, opposing counsel - and now judges - with contempt and other proceedings without any evidentiary basis. This places an enormous stress and cost upon faultless individuals and organizations and adds a significant unnecessary burden to the Federal Court system." - See paragraph 52.

Practice - Topic 46

Actions - Commencement of - General principles - Bars - Vexatious litigant - [See both Actions - Topic 2602 ].

Cases Noticed:

Mazhero v. Fox et al. (2011), 387 F.T.R. 244; 2011 FC 392, refd to. [para. 17].

Wilson v. Revenue Canada (2006), 305 F.T.R. 250; 2006 FC 1535, refd to. [para. 17].

Adams v. Royal Canadian Mounted Police (Commissioner) et al. (1994), 174 N.R. 314 (F.C.A.), refd to. [para. 19].

Minister of National Revenue v. Olympic Interiors Ltd. et al. (2001), 209 F.T.R. 182 (T.D.), refd to. [para. 19].

Foy v. Foy (No. 2) (1979), 26 O.R.(2d) 220; 102 D.L.R.(3d) 342 (C.A.), refd to. [para. 19].

Canada Post Corp. v. Varma (2000), 192 F.T.R. 278 (T.D.), refd to. [para. 19].

Salem v. Canada, [2004] F.T.R. Uned. 93; 2004 FC 168, refd to. [para. 19].

Vojic v. Canada (Minister of National Revenue) (1992), 92 D.T.C. 6539 (F.C.T.D.), refd to. [para. 19].

Canada v. Warriner (1993), 70 F.T.R. 8 (T.D.), refd to. [para. 19].

Mascan Corp. v. French (1988), 26 O.A.C. 326; 64 O.R.(2d) 1; 49 D.L.R.(4th) 434 (C.A.), refd to. [para. 19].

Yorke et al. v. Canada (1995), 102 F.T.R. 189 (T.D.), refd to. [para. 19].

Mishra v. Ottawa (City), [1997] O.T.C. Uned. 722; 75 A.C.W.S.(3d) 266 (Gen. Div.), refd to. [para. 19].

Nelson et al. v. Canada Customs and Revenue Agency, [2002] F.T.R. Uned. 42; 2002 FCT 77, affd. (2003), 301 N.R. 359; 2003 FCA 127, refd to. [para. 19].

Ontario v. Coote, [2011] O.T.C. Uned. 858; 2011 ONSC 858, refd to. [para. 20].

Kallaba v. Bylykbashi (2006), 207 O.A.C. 60, 265 D.L.R. (4th) 320; 2006 CanLII 3953 (C.A.), refd to. [para. 20].

Burton v. Assaf, 2013 ONSC 1392, refd to. [para. 27].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321, refd to. [para. 40].

Yae v. Park, [2013] O.T.C. Uned. 1331; 2013 ONSC 1331, refd to. [para. 60].

Canada v. Mennes (2004), 264 F.T.R. 44; 2004 FC 1731, refd to. [para. 60].

Lukezic et al. v. Royal Bank of Canada, [2012] O.A.C. Uned. 298; 2012 ONCA 350, refd to. [para. 61].

Campbell v. Minister of National Revenue (2005), 330 N.R. 373; 2005 FCA 49, refd to. [para. 61].

Statutes Noticed:

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 40(1) [para. 16].

Counsel:

John Loncar, for the applicant, Her Majesty the Queen;

Sean L. Gosnell, for the applicant, The Law Society of Upper Canada;

Major Keyvan Nourhaghighi, on his own behalf, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant, Her Majesty the Queen;

Borden Ladner Gervais LLP, Toronto, Ontario, for the applicant, The Law Society of Upper Canada.

This application was heard at Toronto, Ontario, on January 20, 2014, by Russell, J., of the Federal Court, who delivered the following reasons for judgment on March 14, 2014.