Creighton v. Franko et al., (1998) 151 F.T.R. 21 (TD)

• Court: Federal Court (Canada)
• Case Date: June 26, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1998), 151 F.T.R. 21 (TD)

Creighton v. Franko (1998), 151 F.T.R. 21 (TD)

MLB headnote and full text

Temp. Cite: [1998] F.T.R. TBEd. AU.039

Daniel P. Creighton (applicant) v. Stefan Franko, David & Susan Grant, Canadian Imperial Bank of Commerce, Mary, Frederick and Kathleen Boychuck, Cambridge Western Leaseholds Limited, Edmund and Sylvia Moroshkyn (respondents)

(T-646-98)

Indexed As: Creighton v. Franko et al.

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

June 26, 1998.

Summary:

The applicant Creighton, through his company Creighton Holdings Ltd., formerly held land in Saskatchewan and British Columbia between 1974 and 1989. After financial difficulties, the land was sold by judicial sales in Saskatchewan and British Columbia. Creighton became the subject of vexatious litigant orders of the B.C. Supreme Court, the B.C. Court of Appeal and the Saskatchewan Court of Queen's Bench. Creighton commenced four actions in the Federal Court. He discontinued the first and third actions and the second one was dismissed for want of jurisdiction. In a fourth action he sought, by originating notice of motion, an order directing the registrars of the Saskatoon and Kamloops land title offices to cancel existing certificates of title over the land in Saskatchewan and British Columbia and to issue new certificates of title, free and clear of mortgages given by the present owners, in the name of Creighton Holdings Ltd. The respondents moved to strike out the originating notice of motion on the basis of want of jurisdiction and of res judicata.

A Prothonotary of the Federal Court of Canada, Trial Division, struck out the proceeding.

Editor's note: for related proceedings see (1994), 72 F.T.R. 78 and [1998] F.T.R. Uned. 284.

Courts - Topic 4019

Federal Court of Canada - Jurisdiction - Trial Division - Existing federal law or laws of Canada - [See Courts - Topic 4038 ].

Courts - Topic 4036

Federal Court of Canada - Jurisdiction - Trial Division - Affecting actions in other courts - Creighton sought an order directing the registrars of the Saskatoon and Kamloops land title offices to reinstate title to certain parcels of land back into his company's name - The issues on the application were previously adjudicated upon by Saskatchewan and British Columbia courts - A Prothonotary of the Federal Court of Canada, Trial Division, held that the relief sought by Creighton constituted a collateral attack on the orders or judgments of those courts - The Prothonotary stated that the Federal Court of Canada had no jurisdiction to declare an order or judgment of another superior court, acting within its jurisdiction, to be invalid - See paragraphs 22 and 41 to 44.

Courts - Topic 4038

Federal Court of Canada - Jurisdiction - Trial Division - Where no other Canadian court has jurisdiction - Creighton sought an order directing the registrars of the Saskatoon and Kamloops land title offices to reinstate title to certain parcels of land back into his company's name - Section 25 of the Federal Court Act gave the Federal Court jurisdiction if no other Canadian court had jurisdiction - A Prothonotary of the Federal Court of Canada, Trial Division, held that s. 25 could not provide the necessary statutory grant of jurisdiction - The subject matter of the application was land over which the Saskatchewan and British Columbia courts had jurisdiction - The fact that Creighton would have to seek his relief in two separate courts was of no consequence - Alternatively, there was no valid or subsisting federal law upon which he might make a claim or seek a remedy - See paragraphs 24 to 30.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Practice - Topic 2228 ].

Estoppel - Topic 387

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior proceedings - [See Practice - Topic 2228 ].

Practice - Topic 2228

Pleadings - Striking out pleadings - Grounds - Res judicata - Respondents moved to strike out Creighton's originating notice of motion on the basis of, inter alia, res judicata - A Prothonotary of the Federal Court of Canada, Trial Division, struck out the proceeding - The issues raised had already been adjudicated upon by Saskatchewan and British Columbia courts - Alternatively, Creighton and his company had an onus to raise every point which properly belonged to the subject matter of that litigation - The issues in the prior proceedings were final and binding on all parties claiming through or under the parties to the previous proceedings - The prior judgments were in rem judgments since they dealt with dispositions of land and could be invoked by any person against any other person including Creighton or his company - See paragraphs 22 and 36 to 40.

Practice - Topic 2229

Pleadings - Striking out pleadings - Grounds - Issues which could have been raised in prior action between same parties - [See Practice - Topic 2228 ].

Practice - Topic 2242

Pleadings - Striking out pleadings - Appeals, applications or originating motions - Respondents moved to strike out Creighton's originating notice of motion - A Prothonotary of the Federal Court of Canada, Trial Division, struck out the proceeding - The court stated that, in most instances, the correct procedure was to contest the matter at the eventual hearing, unless there were special circumstances - However, this proceeding was an exceptional instance - The proceeding was so clearly improper that it could not possibly succeed - See paragraphs 18 to 22.

Practice - Topic 2242

Pleadings - Striking out pleadings - Appeals, applications or originating motions - [See Practice - Topic 2228 ].

Practice - Topic 2494

Writ of summons, endorsements, originating summons and originating notices - Originating notices - Striking out - [See Practice - Topic 2228 and first Practice - Topic 2242 ].

Practice - Topic 3133

Applications and motions - Motions - Motion to strike a motion - [See first Practice - Topic 2242 ].

Practice - Topic 5443

Judgments and orders - Operation and effect of judgments and orders - Effect of judgment in rem - [See Practice - Topic 2228 ].

Cases Noticed:

Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al., [1995] 1 F.C. 588; 176 N.R. 48 (F.C.A.), refd to. [para. 19].

Pharmacia Inc. et al. v. Canada (Minister of National Health and Welfare) - see Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al.

Canadian Pasta Manufacturer's Association v. Aurora Importing & Distributing Ltd. et al. (1997), 208 N.R. 329 (F.C.A.), refd to. [para. 20].

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241, refd to. [para. 23].

Lower Similkameen Indian Band v. Allison et al., [1997] 1 F.C. 475; 122 F.T.R. 1 (T.D.), refd to. [para. 25].

Powderface et al. v. Baptiste et al. (1997), 118 F.T.R. 258 (T.D.), refd to. [para. 25].

Winmill v. Winmill, [1974] 1 F.C. 539 (T.D.), affd., [1974] 1 F.C. 686; 5 N.R. 159 (F.C.A.), refd to. [para. 25].

Creighton v. Saskatoon Credit Union Ltd. (1994), 72 F.T.R. 78 (T.D.), refd to. [para. 27].

Moyer v. Polsin (1992), 60 O.A.C. 281; 11 O.R.(3d) 216 (Div. Ct.), refd to. [para. 34].

Ontario Sugar Co., Re (1910), 22 O.L.R. 621 (H.C.), affd. 24 O.L.R. 332, leave to appeal refused (1911), 44 S.C.R. 659, refd to. [para. 37].

Henderson v. Henderson (1843), 3 Hare 100; 67 E.R. 313, refd to. [para. 38].

Yat Tung Investment Co. v. Dao Heng Bank Ltd., [1975] A.C. 581 (P.C.), refd to. [para. 38].

Borley v. Fraser River Harbour Commission et al. (1995), 92 F.T.R. 275 (T.D. Protho.), refd to. [para. 38].

McGovern v. State of Victoria, [1984] V.R. 570 (Vict. S.C.), refd to. [para. 40].

Ship Mecca, Re (1881), 6 P.D. 106, refd to. [para. 40].

Warehouse Security Finance Co. v. Oscar Niemi Ltd. (No. 2), [1944] 3 W.W.R. 567 (B.C.C.A.), refd to. [para. 41].

Earl of Bandon v. Becher (1835), 3 Cl. & F. 479; 6 E.R. 1517, refd to. [para. 41].

MacNeil v. Canada et al. (1988), 19 F.T.R. 147 (T.D.), refd to. [para. 42].

Statutes Noticed:

Farm Debt Review Act, S.C. 1986, c. 33, sect. 2 [para. 33, footnote 3]; sect. 22 [para. 32].

Federal Court Act, R.S.C, 1985, c. F-7, sect. 25 [para. 24].

Authors and Works Noticed:

Bower and Turner, The Doctrine of Res Judicata (1969), pp. 214, 229, paras. 247, 273 [para. 40].

Counsel:

Glen Morgan, for CIBC;

Gordon Phillips, for Cambridge Western Leaseholds Ltd.

Solicitors of Record:

Davis & Company, Vancouver, British Columbia, for CIBC;

Stikeman, Elliot, Vancouver, British Columbia, for Cambridge Western Leaseholds Ltd.

This motion was heard at Vancouver, British Columbia, before Hargrave, Prothonotary, of the Federal Court of Canada, Trial Division, who delivered the following judgment on June 26, 1998.