Date: 20020123
Docket: T-942-00
Neutral citation: 2002 FCT 77
BETWEEN:
THE HONOURABLE ROBERT H. NELSON
FOUNDER PRESIDENT OF PUBLIC DEFENDERS
FOR HIMSELF AND AS REPRESENTATIVE OF
ALL THOSE IMPROPERLY DENIED BENEFITS
Plaintiff
and
HER MAJESTY THE QUEEN
AS REPRESENTED BY THE HONOURABLE MARTIN CAUCHON
MINISTER OF CANADA CUSTOMS AND REVENUE AGENCY
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion in accordance with section 40 of the Federal Court Act, dated the 4th day of December, 2001, on behalf of the Defendant, for an Order that:
1) no further proceedings may be instituted by the Plaintiff in this Court except by leave of the Court;
2) the within action T-942-00 be dismissed or not continued except by leave of the Court; and
3) the following appeals instituted by the Plaintiff in the Court of Appeal, all of which are appeals of interlocutory orders arising out of action T-942-00, be dismissed or not be continued except by leave of the Court:
A-283-01 A-503-01 A-634-01
A-284-01 A-504-01
A-379-01 A-505-01
A-380-01 A-570-01
[2] The Defendant submits that "the Plaintiff has persistently instituted vexatious proceedings and has conducted proceedings in a vexatious manner."
[3] The Defendant has provided an affidavit of Donnaree Nygard, barrister and solicitor, employed by the Department of Justice Canada, sworn on November 2, 2001.
[4] The Attorney General of Canada consents to this Application being made.
[5] Section 40 of the Federal Court Act provides:
|
40. (1) Where the Court is satisfied, on application, that a person has persistently instituted vexatious proceedings or has conducted a proceeding in a vexatious manner, the Court may order that no further proceedings be instituted by the person in the Court or that a proceeding previously instituted by the person in the Court not be continued, except by leave of the Court. ... |
40. (1) La Cour peut, si elle est convaincue par suite d'une requête qu'une personne a de façon persistante introduit des instances vexatoires devant elle ou y a agi de façon vexatoire au cours d'une instance, lui interdire d'engager d'autres instances devant elle ou de continuer devant elle une instance déjà engagée, sauf avec son autorisation. ... |
[6] Pursuant to the affidavit of Donnaree Nygard, I am informed that the Plaintiff has previously been declared a vexatious litigant in the Supreme Court of British Columbia by Order dated October 8, 1981, and was prevented from instituting any proceedings in any Court in British Columbia without leave of the Court.
[7] I also note that in his Order dated October 18, 2001, Justice Rouleau had reviewed all the proceedings in cases involving the Plaintiff and, in light of the number of motions and appeal, has suggested that this motion pursuant to section 40 of the Federal Court Act be filed.
[8] I have also examined decisions by our Court and by the Court of Appeal. Canada (Attorney General) v. Mishra [1998] F.C.J. No. 562 affirmed by Court of Appeal, Mishra v. Attorney General of Canada [2000] Docket A-311-98 dated October 24, 2000 by Sharlow J.A.; Canada Post Corporation v. Varma (Dawson J.) [2000] F.C.J. No. 851 dated June 9, 2000.
[9] The Plaintiff has nine (9) outstanding appeals to the Federal Court of Appeal, all of which are appeals of interlocutory orders of the Federal Court in action T-942-00. Five (5) of these were second level appeals in that the initial dismissal of the motion by the Prothonotary was appealed to a Judge who dismissed the appeal. Six (6) Orders whereby the Plaintiff was ordered to pay costs forthwith have been appealed and the Appellant did nothing to move any of the nine (9) appeals along.
[10] Pursuant to the file, in action T-1285-95, the Plaintiff brought four (4) motions requesting various reliefs. Only one, for a Court Reporter, was granted. In action T-942-00, the Plaintiff filed 22 motions in a 16-month period. Numerous of these motions were found by the Court to be frivolous, vexatious and an attempt to harass or abuse the Crown.
[11] I have carefully reviewed the affidavit of Donnaree Nygard and the exhibits, and I have no hesitation in concluding that the Plaintiff has persistently instituted vexatious proceedings and has conducted proceedings in a vexatious manner.
[12] I also conclude that the Order requested is totally justified.
Order
[13] Therefore, this Court orders that:
1) this Motion is granted;
2) the Plaintiff Robert H. Nelson will not be allowed to institute further proceedings in this Court except by leave of the Court;
3) the following appeals instituted by the Plaintiff in the Court of Appeal, all of which are appeals of interlocutory orders arising out of action T-942-00 shall not be continued except by leave of the Court:
A-283-01 A-503-01 A-634-01
A-284-01 A-504-01
A-379-01 A-505-01
A-380-01 A-570-01
4) the Defendant is entitled to its costs fixed in the amount of $800.00 payable forthwith.
(Sgd.) "Pierre Blais" Judge
Vancouver, British Columbia
January 23, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-942-00
STYLE OF CAUSE: Robert H. Nelson v. Her Majesty the Queen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: -
REASONS FOR ORDER OF THE COURT BY: Blais J.
DATED: January 23, 2002
APPEARANCES:
- FOR PLAINTIFF
- FOR DEFENDANT
SOLICITORS OF RECORD:
- FOR PLAINTIFF
Deputy Attorney General of Canada FOR DEFENDANT
Vancouver, British Columbia