Federal Court Decisions

Date: 20150513

Docket: T-1632-13

Citation: 2015 FC 631

Montreal, Quebec, May 13, 2015

PRESENT:    The Honourable Mr. Justice Martineau

JUDGMENT AND REASONS

[1]               The defendants, Canadian Human Rights Commission [CHRC] and Attorney General of Canada, are bringing a motion for a declaration that the plaintiff, Mr. Robert Lavigne, is a vexatious litigant and that the present action constitutes a vexatious proceeding. The defendants are also seeking orders: prohibiting the plaintiff from filing any further proceedings before the Court without having previously obtained the authorization of the Court; instructing the registry not to accept for filing any further proceedings by the plaintiff without having previously obtained the authorization of the Court; and dismissing the present action (file T-1632-13) in its entirety without possibility of amendment. The whole with costs.

[2]               The legislative basis of the defendants’ motion to declare the plaintiff a vexatious litigant is subsection 40(1) of the Federal Courts Act, RSC 1985, c F-7 [Act], which reads as follows:

[3]               In Olympia Interiors Ltd v Canada, 2004 FCA 195, the Federal Court of Appeal reaffirmed the extraordinary nature of the Court’s power under subsection 40(1) of the Act:

[6] The power conferred on the Court by subsection 40(1) of the Act is, of course, most extraordinary, so much so that it must be exercised sparingly and with the greatest of care. In a society such as ours, the subject is generally entitled to access the courts with a view of vindicating his or her rights. This concern was obviously in the mind of the legislators, seeing that some balance is built into section 40 by allowing proceedings to be instituted or continued with leave of the Court. As was stated in Law Society of Upper Canada v. Chavali (1998), 21 C.P.C. (4th) 20, at paragraph 20 with respect to parallel legislation of Ontario, "the order puts the Court in control of the process." The net effect is that a person who becomes the subject of a subsection 40(1) order is not totally foreclosed from instituting a fresh proceeding or of continuing an existing one. He or she must first obtain the Court's permission to do so.

[4]               In addition, Rules 221(1)(c) and (f) of the Federal Courts Rules, SOR/98-106 [Rules] provide that:

[5]               The defendants argue that the plaintiff has shown a long and persistent history of abuse of the judicial system by filing at least eighteen applications or actions before the Court over the last twenty years, many of which were attempts to relitigate the same issues, and by systematically appealing decisions that were unfavourable to him up to the Supreme Court of Canada without success. In this respect, the present action is a vexatious proceeding which attempts to relitigate the question of the jurisdiction of the CHRC and reproduces allegations already found by this Court to be without merit. Moreover, the plaintiff has made, in a number of files, unsubstantiated allegations of scandalous or improper behaviour against the opposing counsel or the Court. In addition, the plaintiff has failed to pursue litigation in a timely basis and has voluntarily failed to abide by the Rules and orders of the Court, while he has been ordered to pay the Crown a total of more than $22,000 in costs for several of his failed claims since 1996, but he has only paid $1,150 so far. Finally, the defendants ask the Court to award them a lump sum of $4,600 in lieu of any assessed costs.

[6]               According to the plaintiff, for the Court to find that he is a vexatious litigant, it must first find that the present case has no merit whatsoever and is scandalous, vexatious or frivolous. The plaintiff argues that the prima facie evidence filed in his affidavit (emails between CHRC employees) demonstrates that the CHRC did not have the jurisdiction to approve the out of court settlement reached in January 2008 (confidential Exhibit RL-4) in respect of his complaints against Canada Post Corporation [the 2008 settlement]. The plaintiff submits that the CHRC had the legal duty to divulge the fact that it was without jurisdiction to approve said settlement that included complaint #20070118. Consequently, since the CHRC did not have jurisdiction, the present action has some merit and the plaintiff ought not to be declared a vexatious litigant in consequence.

[7]               In support of his claim against the defendants, the plaintiff argues that the staff of the CHRC has committed the tort of fraudulent concealment or that of abuse of public office by failing, in 2008, to disclose that the CHRC did not have the jurisdiction to approve the 2008 settlement. According to the plaintiff, the defendants have brought the present motion to “obstruct [his] right to have [his] day in court.” The plaintiff further asks the Court to render a summary judgment declaring that “the Plaintiff is not vexatious on the grounds that the CHRC committed fraudulent concealment on the Plaintiff and the Court by not disclosing that it did not have jurisdiction to approve the [settlement].” In addition, the plaintiff notes that the actions in files T-105-10 and T-107-10 were dismissed for delay. Therefore, the merit of those cases is not res judicata since there has not been a final determination of the concealment issue.

[8]               The plaintiff also argues that the affidavit of Mr. Tony Aquino referring to prior proceedings filed in support of the present motion should be discarded, or that a negative inference should otherwise be drawn since Mr. Aquino does not have firsthand knowledge of the particular facts alleged by the parties in these proceedings. According to the plaintiff, the Court must also consider the fairness of these prior proceedings before concluding that he is a vexatious litigant. While it is apparent from the documentary evidence filed by the defendants with their motion that five of the plaintiff’s proceedings have been dismissed for delay following his failure to respect orders of security for costs (T-2200-07, T‑2201-07, T-108-08, T-105-10 and T-107-10), the plaintiff nevertheless states that the reason why he did not pay costs or respect previous orders of security for costs is simply because he is impecunious. The plaintiff also admits that he has failed to respect certain Rules and deadlines but should be excused of doing so by the Court because he is self-represented and has acted incompetently. Since the present action is not vexatious or frivolous on its face, the present motion by the defendant ought to be dismissed forthwith and the defendants should be condemned to pay him a lump sum of $8,600 in lieu of any assessed costs (see Lavigne v Canada (Human Resources Development) (1998), 229 NR 205; 1998 CanLII 7959 (FCA); British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 at para 24; Air Canada v Thibodeau, 2007 FCA 115 at paras 23-24).

[9]               I dismiss for total lack of merit all the arguments made above by the plaintiff or otherwise raised in his written and oral submissions. For the reasons mentioned in the following paragraphs, the present motion for judgment is well founded and should be allowed. I find that in all respect the allegations of abuse and vexatious conduct made by the defendants are abundantly supported by the material filed with their motion. Moreover, the arguments made by the plaintiff with respect to the allegation of “fraudulent concealment” in 2008 have already been found to have “little merit” and there is no reason why the present proceeding should not be dismissed in its entirety without possibility of amendment, as it appears on its face to be a relitigation of the action in file T-105-10, properly dismissed for delay. The evidence of abuse is overwhelming. Since the documentary evidence produced with the affidavit of Mr. Tony Aquino speaks by itself, there is no need, for the purpose of this motion, that the affiant be personally aware of the particular facts alleged by the parties in the numerous Court proceedings alluded to by the defendants. Accordingly, I will only highlight a number of salient facts.

[10]           The plaintiff has been a recurring figure both at the Federal Court and at the Superior Court of Quebec for now more than twenty years. During the period of 1994 to 2006, the plaintiff instituted a series of proceedings related to an infringement of his language rights while he was employed at Human Resources Development and he also sought to obtain a declaration that the Official Languages Act, RSC 1985, c 31 (4th Supp) applied to the Labour Market Agreement [LMA] between the federal government and the province of Quebec:

•         T-293-94 (Lavigne v Office of the Commissioner of Official Languages and the Queen): the plaintiff wanted an order declaring that the Office of the Commissioner of Official Languages had to complete an investigation. The file was discontinued and the motion for an order to declare null and void the discontinuance was denied.

•         T-1977-94 (Lavigne v Canada (Human Resources Development), [1997] 1 FC 305): the plaintiff applied for damages under subsections 77(1) and (4) of the Official Languages Act. He obtained $3,000 for inconvenience and loss of enjoyment of life as well as costs. He appealed to the Federal Court of Appeal (A-913-96, 1998 CanLII 7820) where his appeal was dismissed and applied for leave at the Supreme Court where his application for leave was dismissed. In July 2003, the plaintiff made a motion for reconsideration at the Supreme Court but that motion was denied. The plaintiff also appealed the decision denying him counsel fees in the Bill of costs to the Federal Court of Appeal (A-104-97, 1998 CanLII 7959) where his appeal was dismissed. He applied for leave to appeal before the Supreme Court to the Federal Court of Appeal where his application for leave to appeal was denied, and then he also applied for leave at the Supreme Court but his application for leave was dismissed.

•         T-2644-96 (Lavigne v Office of the Commissioner of Official Languages, Privacy Commissioner of Canada and the Queen): the plaintiff presented a notice of motion for an order to access personal information against the Office of the Commissioner of Official Languages [OCOL] which was discontinued.

•         T-909-97 (Lavigne v Canada (Commissioner for Official Languages), 1998 CanLII 8632): the plaintiff applied for judicial review of the OCOL’s refusal to disclose certain interview notes related to the complaints that led to T-1977-94. The application was granted with costs to the plaintiff. The appeal and cross appeal were denied without costs by the Federal Court of Appeal (A-678-98, 2000 CanLII 16113) and by the Supreme Court ([2002] 2 SCR 773).

•         T-2152-99 (Lavigne v Canada (Human Resources Development), 2001 FCT 1365): the plaintiff applied for a declaration that the Official Languages Act applied to the LMA and for a declaration that parts of the LMA were unconstitutional. The application was dismissed and the plaintiff’s appeal to the Federal Court of Appeal was also dismissed (A-10-02, 2003 FCA 203).

•         Before the Superior Court of Quebec (file 500-05-056434-002), the plaintiff made a motion for judicial review and declaratory judgment seeking the recognition of his right to have the government of Quebec plead in English before the Federal Court, which was dismissed. On appeal to the Quebec Court of Appeal (file 500-09-010505-014), the Attorney General of Canada’s motion to strike the appeal was granted. The plaintiff’s application for leave to the Supreme Court was dismissed.

•         T-2291-03 (Lavigne v Canada (Commissioner of Official Languages): the plaintiff sought to argue once again the case presented in T-1977-94. The defendants’ (OCOL and the Queen) motions to strike were granted by a Prothonotary (2004 FC 787) and the plaintiff’s appeal to the Federal Court was dismissed (2004 FC 1359). The plaintiff appealed to the Federal Court of Appeal where his appeal was dismissed (A‑577-04, 2005 FCA 210) and to the Supreme Court where his application for leave was dismissed.

[11]           Starting in 2002, the plaintiff also initiated a series of proceedings related to his employment at Canada Post:

•         T-872-02 (Lavigne v Canada Post Corp): the plaintiff initiated an action against Canada Post for damages based on an alleged violation of the Privacy Act, RSC 1985, c P-21. Canada Post’s motion to strike was granted by a Prothonotary (2002 FCT 863) and a judge of this Court dismissed the plaintiff’s appeal. The plaintiff appealed to the Federal Court of Appeal where his appeal was dismissed and his application for leave to appeal before the Supreme Court was dismissed (A-596-02) and to the Supreme Court where his application for leave was dismissed.

•         T-500-03 (Lavigne v Canadian Union of Postal Workers): the plaintiff made an application for a declaration that the CUPW had misused the plaintiff’s personal information. The defendant’s motion to dismiss was granted.

•         T-831-06 (Lavigne v Pepin): the plaintiff initiated an action for damages for negligence and malfeasance in respect of the termination of the plaintiff’s employment at Canada Post and alleged harassment by a manager at Canada Post. The defendants’ motion to strike was granted (2007 FC 747). The plaintiff appealed to the Federal Court of Appeal where his appeal was dismissed (2007 FCA 123) and to the Supreme Court, where his application for leave was dismissed.

•         T-206-07 (Lavigne v Canada Post Corporation): the plaintiff filed a notice of application with regard to his suspension from his work. The defendant made a motion to strike and the plaintiff made a motion for an expedited hearing. In April 2007, the Court dismissed the plaintiff’s motion and suspended the judicial review proceedings until all proceedings contemplated by the collective agreement and the Canadian Labour Code were exhausted. In December 2007, the plaintiff discontinued the application.

•         T-1507-07 (Lavigne v Canada Post Corporation): the plaintiff filed a notice of application for judicial review of a decision of the Canadian Human Rights Commission not to deal with a complaint. In November 2007, a Prothonotary ordered a stay of the application sine die. In December 2007, the plaintiff discontinued the application.

•         Before the Superior Court of Quebec (file 500-17-038022-078), on August 2, 2007, the plaintiff filed a motion for injunctive relief against Canada Post and CUPW, but he discontinued his motion on August 21, 2007.

•         T-2200-07, T-2201-07, T-108-08 (Lavigne v Canada Post Corporation): the plaintiff filed three notices of application for judicial review of three decisions of the OCOL. The plaintiff made a motion to compel the OCOL to disclose files regarding linguistic complaints made by other employees against Canada Post. That motion was denied by a Prothonotary and the plaintiff’s appeal was dismissed by the Federal Court on July 24, 2009 (2009 FC 756). The Court also dismissed the plaintiff’s motion seeking an order for costs in advance of litigation and granted in part the respondent’s motion for an order requiring the applicant to give security for costs. In October 2009, the applications were stayed by a Prothonotary pending the appeal of the July 24, 2009 order. In February 2012, the plaintiff was required to show cause why his consolidated applications should not be dismissed for delay. In May 2012, a Prothonotary dismissed the plaintiff’s consolidated applications for delay. In June 2012, the plaintiff’s motion for an extension of time to file an appeal of the Prothonotary’s order was dismissed by the Court. The plaintiff appealed to the Federal Court of Appeal which dismissed his appeal (A-379-12, 2013 FCA 206) as well as his application for leave to appeal to the Supreme Court (A-429-12, A-428-12 and A-379-12).

•         Before the Superior Court of Quebec (file 500-17-043720-088), in June 2008, the plaintiff instituted an action against Canada Post employees and executives seeking damages and an injunctive relief. The Court granted the defendants’ motion, dismissed the action and declared the plaintiff a “vexatious and quarrelsome litigant”. The plaintiff appealed to the Quebec Court of Appeal and the defendants presented a motion to dismiss the appeal. The defendants’ motion was granted in part and the QCCA confirmed the Superior Court’s decision to declare the plaintiff to be a vexatious and quarrelsome litigant (2009 QCCA 776). The Supreme Court dismissed the plaintiff’s application for leave.

•         T-105-10, T-107-10 (Lavigne v Canada (Human Rights Commission); Lavigne v Canada Post Corporation): the plaintiff initiated two actions to obtain, inter alia, the annulment of the 2008 settlement and damages. The defendants’ motion for the security for costs were granted in both actions and the plaintiff’s motion to lift confidentiality of the out-of-court settlement was denied by a Prothonotary (2010 FC 1038). The plaintiff appealed the Prothonotary’s order to the Federal Court, which dismissed his appeal, to the Federal Court of Appeal, which dismissed his appeal and his application for leave to appeal to the Supreme Court (A-469-10/A-470-10, 2011 FCA 333), and finally, to the Supreme Court, which dismissed his application for leave. In January 2011, the plaintiff made a motion for an order requiring the defendant CHRC to serve and file a motion to strike. That motion was dismissed by a Prothonotary and the plaintiff’s appeal was dismissed by the Federal Court. On July 4, 2012, a Prothonotary dismissed the plaintiff’s actions for delay after the plaintiff failed to show cause for delay and failed to post the ordered amount as security for costs. The plaintiff appealed the July 4, 2012 order to a judge of the Federal Court, which dismissed his appeal; to the Federal Court of Appeal, which dismissed his appeal and his application for leave to appeal to the Supreme Court (A-428-12/A-429-12, 2013 FCA 207); and finally, to the Supreme Court, which dismissed his application for leave (2014 CanLII 46946). On January 7, 2015, the plaintiff attempted to file a new motion but the registry refused to accept the motion for filing.

•         11-T-7 (Lavigne v Canada (Human Rights Commission): the plaintiff filed a motion for an extension of time to commence an application. The plaintiff’s motion was dismissed by the Court (2011 FC 290). On April 13, 2011, the plaintiff filed an appeal, but he discontinued the appeal on May 16, 2011.

•         T-1632-13 (Lavigne v Paré and al): the current case, in which the plaintiff filed a new action against the CHRC, the Acting Chief Commissioner, some of the CHRC employees and the Attorney General of Canada. The defendants are now asking the Court that the present proceeding – which is the only active file before the Court – be dismissed as it is clearly vexatious and an abuse of process.

[12]           There is clear evidence on record of the propensity of the plaintiff to litigate matters already determined, as well as the initiation of frivolous actions or motions. At the risk of repeating myself, for example, one grievance, three complaints before the CHRC, six actions in the Federal Court (T-831-06, T-206-07, T-1507-07, T-105-10, T-107-10 and T-1632-13) and two actions in the Superior Court all deal with the same allegations of discrimination, harassment, discriminatory suspension or discriminatory termination of the plaintiff. As a matter of fact, various orders or decisions have already found that the plaintiff was trying to relitigate the same issues, such as Prothonotary Morneau’s orders in T-2291-03 (2004 FC 787 at para 47) and T-105-10 and T-107-10, and at the Superior Court, Justice Casgrain’s decision in file 500-17-043720-088. On four different occasions, the plaintiff applied for leave to appeal before the Supreme Court, after leave to appeal to the Supreme Court was denied by the Quebec Court of Appeal or the Federal Court of Appeal. Finally, the plaintiff also made unsubstantiated allegations of scandalous or improper behaviour against the opposing party, counsel or the Court. The plaintiff has made allegations of bad faith, bias, fraud, dishonesty, conspiracy, abuse of power or malfeasance of public office against the Queen, Canada Post, the OCOL, CUPW, the CHRC and against Prothonotary Morneau. It is also apparent that in contravention of the express terms of the security for costs order and Rule 416(3), the plaintiff continued to file frivolous or vexatious proceedings, including a motion seeking to compel the CHRC to bring a motion to strike his claim and which was held to be an improper attempt to cleave judicial proceedings in order to proceed against some of the defendants in spite of the security for costs order. Several years after his appeals of the dismissal of T-105-10 and T-107-10 for delay have been exhausted, the present action is instituted. It should be dismissed as it is abusive and constitutes just another attempt by the plaintiff to circumvent the effects of the order for security for costs as well as the order dismissing his action for delay in file T-105-10.

[13]           Therefore, I am satisfied that, even though the plaintiff has had some success in his earliest Official Languages cases, his subsequent proceedings, particularly those related to his employment at Canada Post, have become increasingly characterized by the hallmarks of a vexatious litigant as set out in Wilson v Canada, 2006 FC 1535 [Wilson]:

[29] For a section 40 Order to be issued I must be satisfied that Mr. Wilson has persistently brought vexatious proceedings in this Court or has conducted this matter and its related proceedings in a vexatious manner.  I have concluded that this is an appropriate case for making such an Order because Mr. Wilson’s litigation conduct has been persistently vexatious and repeatedly found to be an abuse of the Court process.

[30] The authorities have interpreted “vexatious” as being broadly synonymous with the concept of abuse of process:  see Foy v. Foy (1979), 102 D.L.R. (3d) 342 (Ont. C.A.).  It is, therefore, not surprising that one of the notable characteristics of a vexatious litigant is the propensity to relitigate matters that have already been determined against him:  see Vojic v. Canada (Minister of National Revenue), [1992] F.C.J. No. 902 (T.D.).

[31] Other indicia of vexatious behaviour include the initiation of frivolous actions or motions, the making of unsubstantiated allegations of impropriety against the opposite party, legal counsel or the Court, the refusal or failure to abide by rules or orders of the Court, the use of scandalous language in pleadings or before the Court, the failure or refusal to pay costs in earlier proceedings and the failure to pursue the litigation on a timely basis:  see Vojic, above; Canada v. Warriner (1993), 70 F.T.R. 8, [1993] F.C.J. No. 1007; Canada v. Olympia Interiors Ltd., [2001] F.C.J. No. 1224, 2001 FCT 859 (CanLII), 2001 FCT 859; Mascan Corp. v. French (1988), 49 D.L.R. (4th) 434, 64 O.R. (2d) 1 (C.A.); Foy, above; Canada Post Corp. v. Varma (2000), 2000 CanLII 15754 (FC), 192 F.T.R. 278, [2000] F.C.J. No. 851; and Nelson v. Canada (Minister of Customs and Revenue Agency), [2002] F.C.J. No. 97, 2002 FCT 77.

[14]           In conclusion, this is one of those cases where an order under subsection 40(1) of the Act is a necessary remedy in order to maintain the integrity of the judicial process and to protect the Court and potential defendants from frivolous litigation (Canada v Olympia Interiors Ltd, 2001 FCT 859 at para 50 [Olympia Interiors]). There does not need to be bad faith or vindictiveness on the part of the plaintiff for an order under subsection 40(1) to be made (Olympia Interiors, above). The lengthy judicial history above clearly demonstrates that the plaintiff shows many characteristics of a vexatious litigant, including a propensity to relitigate matters that have already been determined, the initiation of frivolous proceedings (including more than twenty appeals or applications for leave to appeal), unsubstantiated allegations of impropriety against the opposite parties and the Court, the failure to pay costs and the failure to pursue the litigation on a timely basis (Wilson, above at paras 30-31).

[15]           In the exercise of the inherent power of the Court to control its process and considering the discretion vested to the Court by Rules 47, 53 and 221, I also find that the present action should be dismissed without any possibility of amendment, as it is vexatious and otherwise constitutes an abuse of process. It is apparent that it is another attempt by the plaintiff to relitigate the issue of the alleged lack of jurisdiction of the CHRC to approve the 2008 settlement (confidential Exhibit RL-4) following the mediation session that took place on January 18, 2008 as appears from my close examination of the proceedings, orders and decisions made in files T-105-10 and T-107-10 (see Amended Statement of Claim (T-105-10), Exhibit 79 pp 926 and following in particular paras 32-38; Lavigne v Canada (Human Rights Commission), 2010 FC 1038 at paras 21-22; Motion record on appeal of the order dismissing for delay (T-105-10), Exhibit 92 at paras 33-41; Order dismissing the motion, Exhibit 94 at pp 1046-1047; Memorandum of Fact and Law (A-428-12, A-429-12), Exhibit 95; Lavigne v Canada (Human Rights Commission), 2013 FCA 207).

[16]           In view of the result, having considered all relevant factors mentioned in Rule 400, including the particular circumstances of this case, the assessable fees under Tariff B, the conduct of the plaintiff, the important amount of work and research needed by the defendants to prepare the motion for judgment, the draft bill of costs submitted by the defendants, I find that a lump sum of $4600, inclusive of all fees and disbursements, is reasonable, and shall be awarded to the defendants in lieu of any assessed costs.

JUDGMENT

UPON motion for judgment by the defendants, Canadian Human Rights Commission and the Attorney General of Canada, seeking to declare the plaintiff, Mr. Robert Lavigne, a vexatious litigant pursuant to section 40(1) of the Federal Courts Act, and seeking various remedies as a result;

UPON CONSIDERING the evidence on record and the representations of the defendants and the plaintiff;

UPON FINDING, for the reasons accompanying this judgment, that the motion for judgment is well-founded and judgment should be rendered accordingly;

THIS COURT HEREBY ADJUDGES, DECLARES AND ORDERS:

1.                  The defendant’s motion is allowed with costs;

2.                  The plaintiff is a vexatious litigant;

3.                  The present action is a vexatious proceeding and otherwise constitutes an abuse of process;

4.                  No further proceedings of any kind may be instituted by the plaintiff acting for himself or having his interests represented by someone else before the Federal Court without having previously obtained the authorization of this Court;

5.                  No further proceeding of any kind may be accepted by the registry of the Federal Court for filing by the plaintiff acting for himself or having his interests represented by someone else without having previously obtained the authorization of this Court;

6.                  The present action is dismissed in its entirety without possibility of amendment;

7.                  The plaintiff is condemned to pay to the defendants the lump sum amount of $4600 in lieu of any assessed costs.

"Luc Martineau"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: