|
Federal Court - Vexatious (2). Public Service Alliance of Canada v. Abi-Mansour
In Public Service Alliance of Canada v. Abi-Mansour (Fed CA, 2025) the Federal Court of Appeal grants a vexatious litigant application [under FCA s.40], here where one issue was whether the applicant could file a 'stand-alone' application (ie. one not within another pre-existing proceeding):[1] The Public Service Alliance of Canada applies for an order declaring the respondent, Paul Abi-Mansour, a vexatious litigant pursuant to section 40 of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Act). As required by subsection 40(2) of the Act, this application has been made with the consent of the Attorney General of Canada.
....
[4] The applicant seeks an order barring Mr. Abi-Mansour from commencing or continuing any proceedings in this Court except with leave of the Court. It further seeks that any such leave only be granted if Mr. Abi-Mansour demonstrate that all outstanding costs awarded against him in this Court have been paid in full.
[5] According to subsection 40(1) of the Act, the applicant, to succeed, must satisfy the Court that Mr. Abi-Mansour "“has persistently instituted vexatious proceedings or has conducted a proceeding in a vexatious manner”".
[6] In Feeney v. Canada, 2022 FCA 190 (Feeney), a panel of this Court reminded that vexatiousness "“comes in all shapes and sizes”" and is best to not be precisely defined (Feeney at para. 24, quoting from Canada v. Olumide, 2017 FCA 42 at para. 32 (Olumide)). As stated in Olumide, vexatiousness draws its meaning "“mainly from the purposes of section 40”", which "“reflects the fact that the Federal Courts are community property that exists to serve everyone, not a private resource that can commandeered in damaging ways to advance the interests of one”" (Olumide at paras. 17 and 31-32).
[7] As community property, courts and judges must ensure that their finite resources and limited capacity to deal with all sorts of litigants, who come before them, are not squandered. As stated in Olumide at paragraph 19 (see also for e.g., Coady v. Canada (Attorney General), 2020 FCA 154 at para. 22 (Coady)):[19] […]. Every moment devoted to a vexatious litigant is a moment unavailable to a deserving litigant. The unrestricted access to courts by those whose access should be restricted affects the access of others who need and deserve it. Inaction on the former damages the latter. [8] A non-exhaustive list of vexatiousness indicia can be gleaned from this Court’s case law: (a) being admonished by various courts for engaging in vexatious and abusive behaviour; (b) instituting frivolous proceedings; (c) making scandalous and unsupported allegations against opposing parties or the Court; (d) re-litigating issues which have already been decided against the vexatious litigant; (e) bringing unsuccessful appeals of interlocutory and final decisions; (f) ignoring court orders and court rules; and (g) refusing to pay outstanding costs awards (Feeney at para. 20; Turmel v. Canada (Attorney General), 2023 FCA 197 at para. 2).
[9] The express wording of section 40 makes it clear that vexatious behaviour in a single matter may provide sufficient basis to issue a vexatious litigant order (Olumide at para. 25). Further, evidence of vexatious conduct in other judicial or quasi-judicial fora is relevant in determining whether such an order is warranted (Lessard-Gauvin v. Canada (Attorney General), 2021 FCA 94 at para. 12; Coady at paras. 27-29).
[10] Vexatious behaviour can be proven by an affidavit providing "“only the most relevant information, court decisions that describe the litigant’s intentions and conduct, and selected pleadings and documents that demonstrate vexatiousness”" (Olumide at para. 36).
....
[12] Mr. Abi-Mansour opposes the present application on several grounds. First, he claims that this Court has no jurisdiction to deal with a stand-alone application under section 40 of the Act. He says that a vexatious litigant order can only be obtained by way of motion within an existing proceeding. This issue has been settled in Bernard v. Canada (Attorney General), 2019 FCA 144 (Bernard), a decision issued by a three-judge panel of this Court. In that case, the alleged vexatious litigant was arguing that a vexatious litigant order could only be obtained by way of an application. Our Court concluded that in the context of section 40 of the Act, proceeding by way of motion within an existing proceeding or by way of a stand-alone application "“ha[d] been seen as identical and interchangeable”", both offering the same level of protection in all meaningful procedural respects (Bernard at paras. 8-10, citing Olumide at paras. 34 and 42). In addition, contrary to Mr. Abi-Mansour’s argument, this Court’s authority to consider an application for a vexatious litigant does not have to be set out in sections 27 and 28 of the Act as that authority is spelled out in no equivocal terms in section 40.
[13] Mr. Abi-Mansour’s submissions based on the doctrines of functus officio, issue estoppel and abuse of process, the so-called "“doctrine of election”" and Rule 74, must fail as well because they are all premised on the argument that the applicant could only seek a vexatious litigant order by way of a motion within an existing proceeding, namely, here, the Federal Court of Appeal segment of the Complaint Proceedings (file no. A-173-22).
[14] Mr. Abi-Mansour further contends that a vexatious litigant order would annihilate his access to justice. This is not so. This Court has stated on numerous occasions that an order under subsection 40(1) of the Act only regulates the litigant’s access to the courts; it does not deny that access. In that sense, section 40 is "“a gate-keeping mechanism whereby the litigant is required to get leave before starting or continuing a proceeding”" (Coady at para. 23; Feeney at para. 26). Whether leave will be granted in any given case will depend on each case’s particular circumstances.
....
[17] Mr. Abi-Mansour submits as well that any vexatious litigant order issued pursuant to section 40 of the Act can only benefit one specific party. This submission is without merit. As indicated previously, section 40 is aimed at regulating access to this Court or the Federal Court in instances where the alleged vexatious litigant’s behaviour puts at risk the Court’s finite resources and limited capacity to deal with all sorts of litigants who come before them. As stated at paragraph 20 of Olumide:[20] This isn’t just a zero-sum game where a single vexatious litigant injures a single innocent litigant. A single vexatious litigant gobbles up scarce judicial and registry resources, injuring tens or more innocent litigants. The injury shows itself in many ways: to name a few, a reduced ability on the part of the registry to assist well-intentioned but needy self-represented litigants, a reduced ability of the court to manage proceedings needing management, and delays for all litigants in getting hearings, directions, orders, judgments and reasons. [18] On the issue of the costs orders issued against him, Mr. Abi-Mansour essentially contends that these orders trigger a creditor-debtor relationship governed by the provincial laws on garnishment and that, as a result, he is "“well within his rights to require the [a]pplicant bring the proper enforcing procedure to collect its costs award according to law, as opposed to giving all his salary to the [a]pplicant and renouncing all the protections he enjoys as a judgment debtor”" (Respondent’s Memorandum of Fact and Law at para. 145). In other words, Mr. Abi-Mansour has chosen to deliberately disregard these orders to let the rules on garnishment play out.
[19] I agree with the applicant that that position further underscores the need for a vexatious litigant order, because it confirms that traditional costs orders are insufficient to regulate Mr. Abi-Mansour’s behaviour.
[20] Mr. Abi-Mansour submits that the present application should be dismissed because he never had the intention of bringing vexatious or abusive proceedings. However, this argument misses the mark and is of no assistance to him. As stated in Feeney, at paragraph 25, citing Olumide:[25] [...] section 40 of the Act is not only aimed at litigants who pursue unacceptable purposes and litigate to cause harm. It is also aimed at those who have good intentions but “litigate in a way that implicates section 40’s purposes” (Olumide at para. 33).
|
