Mazhero v. Fox et al., 2011 FC 392

• Judge: Tremblay-Lamer, J.
• Court: Federal Court (Canada)
• Case Date: March 22, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 392;(2011), 387 F.T.R. 244 (FC)

Mazhero v. Fox (2011), 387 F.T.R. 244 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. AP.015

Francis Mazhero (plaintiff/respondent) v. Andrew Fox, Jacques Benoit Roberge and Neil Sharkey (defendants/applicants)

(T-1067-10; 2011 FC 392)

Indexed As: Mazhero v. Fox et al.

Federal Court

Tremblay-Lamer, J.

March 30, 2011.

Summary:

Defendants moved for an order under s. 40(1) of the Federal Courts Act barring the plaintiff from continuing the underlying action and instituting any new proceedings in the Federal Court without first seeking and obtaining leave.

The Federal Court granted the motion.

Practice - Topic 9

General principles and definitions - Dispensing with compliance with rules - On September 17, 2010, Prothonotary Aronovitch ordered that the defendants had until October 20, 2010 to file and serve an application under s. 40(1) of the Federal Courts Act (vexatious proceedings) - The defendants requested an extension by way of letter dated October 21, 2010 - They indicated that the delay was due to the Attorney General not yet having provided the required written authorization - On October 25, 2010, Prothonotary Morneau granted the extension, giving the defendants until November 15, 2010 to file their motion - The defendants did not file their motion until November 16, 2010 - They requested an extension so that their submissions could be accepted for filing - On November 26, 2010, Prothonotary Morneau directed that despite being a day late, the defendants' motion record was to be accepted for filing - The plaintiff asserted that the motion was not properly before the court because it was not brought in time - The Federal Court stated that, given the special circumstances and upon reviewing rule 55 of the Federal Courts Rules (the court's discretion to dispense with strict compliance with the Rules), it could not find that the extensions of time for filing granted by Prothonotary Morneau were improper - No prejudice to the plaintiff resulted - Given the volume of material submitted by the plaintiff, allowing an application under s. 40(1) was in line with the objective of securing the "just, most expeditious and least expensive determination of every proceeding on its merits" as per rule 3 - See paragraphs 8 to 11.

Practice - Topic 46

Actions - Commencement of - General principles - Bars - Vexatious litigant - The Federal Court stated that relief under s. 40(1) of the Federal Court Act (vexatious proceedings) was exceptional and was only to be granted sparingly and with the greatest care - That was because the imposition of a requirement to seek leave before instituting a court proceeding acted as a limit on a person's access to the judicial system - See paragraph 38.

Practice - Topic 46

Actions - Commencement of - General principles - Bars - Vexatious litigant - Defendants moved for a vexatious proceedings order under s. 40(1) of the Federal Courts Act barring the plaintiff from continuing the underlying action and from instituting any new proceedings in the Federal Court without first seeking and obtaining leave - The Federal Court stated that in assessing whether a s. 40(1) order was warranted, in addition to having regard to the plaintiff's behaviour in this court, the court could consider the plaintiff's extensive history of litigation before the Yukon courts and the Nunavut courts - While it could be argued that virtually all of the indicia of vexatious behaviour identified in Wilson v. Revenue Canada (F.C.) were engaged, there were a few that stood out - First and foremost, it was clear that the plaintiff had a history of initiating frivolous proceedings and interlocutory applications - The Yukon Supreme Court indicated in May 2001 that all of the proceedings initiated by the plaintiff in that court had been without merit - The Nunavut Court of Justice noted that most, if not all, of the plaintiff's applications were destined for failure - The same could be said of the actions, applications and appeals initiated at the federal level - The sheer volume of unmeritorious interlocutory applications filed by the plaintiff over the past 10 years was also remarkable - Second, was the unmeritorious and unsubstantiated allegations of impropriety against judges, prothonotaries, Registry offices and legal counsel - Third, was the failure to pursue litigation on a timely basis - Numerous appeals and applications had been dismissed for delay - The court concluded that the plaintiff had persistently instituted vexatious proceedings and conducted the underlying proceeding in a vexatious manner within the meaning of s. 40(1) and granted the motion - See paragraphs 12 to 46.

Practice - Topic 59

Actions - Commencement of - Preliminary matters - Leave to commence action - Where litigant vexatious - [See both Practice - Topic 46 ].

Practice - Topic 3054

Applications and motions - General - Time for - [See Practice - Topic 9 ].

Practice - Topic 3139

Applications and motions - Motions - Dismissal of for noncompliance with rules - [See Practice - Topic 9 ].

Cases Noticed:

Nelson et al. v. Canada Customs and Revenue Agency (2003), 301 N.R. 359; 2003 FCA 127, refd to. [para. 6].

Nowoselsky v. Canada (Treasury Board) (2004), 329 N.R. 238; 2004 FCA 418, dist. [para. 9].

Apotex Inc. et al. v. Wellcome Foundation Ltd. (2004), 250 F.T.R. 315; 33 C.P.R.(4th) 166; 2004 FC 574, dist. [para. 10].

Savard et al. v. Canada (Attorney General), [2006] F.T.R. Uned. 15; 146 A.C.W.S.(3d) 470; 2006 FC 46, refd to. [para. 13].

Canada v. Warriner (1993), 70 F.T.R. 8; 44 A.C.W.S.(3d) 695 (T.D.), refd to. [para. 13].

Mazhero v. Ombudsman and Privacy Commissioner (Yuk.), 2001 YKSC 520, refd to. [para. 14].

Mazhero v. Human Rights Commission (Yuk.), 2002 YKCA 5, refd to. [para. 15].

Mazhero v. Federation of Nunavut Teachers et al., [2003] Nunavut Cases Uned. 2; 179 A.C.W.S.(3d) 743; 2003 NUCJ 2, refd to. [para. 16].

Mazhero v. Nunavut, 2010 NUCJ 11, refd to. [para. 19].

Mazhero v. Industrial Relations Board (Can.) et al. (2004), 320 N.R. 1; 2004 FCA 151, refd to. [para. 23].

Mazhero v. Industrial Relations Board (Can.) et al., [2005] N.R. Uned. 15; 2005 FCA 69, refd to. [para. 23].

Mazhero v. Nunavut (Court of Justice, Judge) - see Mazhero v. Richard et al.

Mazhero v. Richard et al., [2004] F.T.R. Uned. 991; 135 A.C.W.S.(3d) 415; 2004 FC 1659, refd to. [para. 30].

Mazhero v. Richard et al., [2010] F.T.R. Uned. 297; 2010 FC 281, refd to. [para. 32].

Wilson v. Revenue Canada (2006), 305 F.T.R. 250; 2006 FC 1535, refd to. [para. 38]; appld. [para. 40].

Minister of National Revenue v. Olympia Interiors Ltd. et al. (2004), 323 N.R. 191; 2004 FCA 195, refd to. [para. 38].

Counsel:

Francis Mazhero, on his own behalf, for the plaintiff/respondent;

Andrew Fox, for the defendants/applicants, Andrew Fox and Jacques Benoit Roberge;

Stéphanie Pearce, for the defendant/applicant, Neil Sharkey.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Montreal, Quebec, for the defendants/applicants, Andrew Fox and Jacques Benoit Roberge;

Gowlings, LLP, Ottawa, Ontario, for the defendant/applicant, Neil Sharkey.

This matter was heard at Montreal, Quebec, on March 22, 2011, by Tremblay-Lamer, J., of the Federal Court, who delivered the following decision on March 30, 2011.