Date: 20031117
Docket: T-768-03
Citation: 2003 FC 1350
Toronto, Ontario, November 17th, 2003
Present: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
KEYVAN NOURHAGHIGHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, Keyvan Nourhaghighi, has brought two motions seeking various relief, including an order expediting the hearing of his application for judicial review, a show cause order for contempt of court against various individuals, and an order under section 40 of the Federal Court Act declaring one of the Respondent's solicitors a "vexatious counsel".
[2] The Applicant's motions, dated August 27, 2003 and October 6, 2003 respectively, were heard at the General Sittings in Toronto on October 20, 2003. After hearing brief submissions from the Applicant and counsel for the Respondent, the Chief Justice directed that the motions be referred to me for disposition.
[3] At the conclusion of the Applicant's oral submissions with respect to relief for a show cause order for contempt, the hearing was adjourned, on consent, pending further written submissions from the parties. The Applicant also agreed to withdraw his motion for an expedited hearing date upon the Respondent consenting to adjourn his outstanding motion to dismiss the proceeding for mootness to the hearing of the application, and upon being informed by the Court that his application would be scheduled for hearing on the earliest available date in Toronto.
[4] In order to understand what prompted the Applicant's motions, it is necessary to review the grounds for the application and the actions taken by the parties after the application was instituted.
Background
[5] The application for judicial review and the Applicant's supporting affidavit evidence were served and filed on May 13, 2003. The relief requested in the notice of application is an order for mandamus to compel the Respondent to comply with his statutory duty under sections 5 and 14 of the Citizenship Act. The Applicant alleges that the Respondent has abused his public office in the processing of his application for citizenship "with the intent to obstruct and mislead the justice (sic) in such a way as to interfere with the orderly administration of justice, disobeying (sic) the process, and impair the authority of the Court". Essentially, the Applicant claims that the Respondent has unreasonably delayed in granting him citizenship, notwithstanding that he has met all the statutory requirements.
[6] The Respondent filed a Notice of Appearance on May 22, 2003 indicating that he was opposing the application. On June 10, 2003, the Respondent served the Applicant with the affidavit of Roger Payette, that outlines the steps for the processing of the Applicant's Canadian citizenship application. By letter dated June 11, 2003, the Applicant requested that Mr. Payette be produced from cross-examination.
[7] On June 17, 2003, the Applicant attended an interview with a Citizenship Judge. Immediately following the interview, the Applicant's application for citizenship was approved. On July 3, 2003, Citizenship and Immigration Canada issued a Notice to Appear requiring the Applicant to attend the Toronto Citizenship Office on August 20, 2003 to take the oath of citizenship. On July 4, 2003, counsel for the Respondent wrote to the Applicant to confirm the recent developments regarding his application for citizenship and to respond to his earlier request to cross-examine Mr. Payette. Her letter concludes as follows:
Given the circumstances, there is no need for the cross-examination of Roger Payette as you have effectively been granted the remedy you have sought in this application for mandamus. I would therefore request that, once you have taken the oath of citizenship, you file a Notice of Discontinuance with the Federal Court.
[8] There followed a flurry of letters from the Applicant to the Respondent. Copies of the letters were placed on the Court file at the insistence of the Applicant. The Applicant complained that he was being denied his right to cross-examine and that the Respondent's position was obstructive and tantamount to contempt of court.
[9] By letter to the Court dated July 15, 2003, the Applicant sought directions regarding the computation of time for filing his Application Record. On July 22, 2003, Prothonotary Tabib issued a Written Direction confirming that the time for filing the Applicant's Record had expired. She granted leave to the Applicant to bring a motion for an order compelling the cross-examination of Roger Payette and for an extension of time to file his record. The Direction also indicated that the Respondent could apply to stay the proceedings.
[10] On August 5, 2003 the Respondent brought a motion in writing to stay the proceedings pending the outcome of the Applicant's oath of citizenship ceremony scheduled for August 20, 2003. As noted above, this motion has been adjourned to be heard by the hearings judge.
[11] The Applicant proceeded to file a Requisition for Hearing pursuant to Rule 314 of the Federal Court Rules, 1998 on August 12, 2003. The oath of citizenship ceremony was unfortunately cancelled on August 20, 2003 due to a province-wide power blackout, but was rescheduled on a priority basis to proceed on September 2, 2003. The Applicant is now a Canadian citizen.
The Applicant's motions
[12] On August 27, 2003, the Applicant brought the first of his two motions seeking the following relief:
(a) An Order that either expeditiously a date be set for the hearing of this perfected Judicial Review Application, or the Trial Division be changed to the Court of Appeal;
(b) An Order that Roger Payette, Eric Snowdon and Emeline Layne stand for the cross-examinations of their own affidavits before a Judge who will hear this perfected Judicial Review Application or a motions Judge in Montreal by extension of time;
(c) An Order that the Respondent's Solicitor Sally Thomas file an Affidavit containing her letter dated July 16, 2003 as an exhibit to it and say clearly that the exact copy of the same letter was before to the Prothonotary Tabib, and the Applicant get a chance of reply;
(d) An Order that the Direction dated August 25th, 2003 be set aside, and the Direction dated July 22, 2003 be set aside in part referring to stay, and no more interlocutory vexatious motions be allowed to be filed by the Respondent;
[13] Notwithstanding that he resides in the Toronto area, the Applicant made his motion returnable at the General Sittings in Montreal on September 8, 2003 because of what the Applicant claimed to be a conspiracy of obstruction by the staff in the Toronto Local Registry. The Court directed that the motion proceed in Toronto.
[14] In the interim, by Order dated September 9, 2003, Prothonotary Lafrenière granted leave to the Respondent to file an additional affidavit in support of his motion to stay the proceedings. The affidavit in question simply updates the status of the Applicant's citizenship application and confirms that the Applicant was to appear on September 2, 2003 to take his Citizenship Oath. The Applicant appealed the order granting leave to the Respondent.
[15] On October 6, 2003, the Applicant brought his second motion seeking the following relief:
(a) An Order that Sally Thomas, Roger Payette, Eve Buday, Angela Patrianakos show cause for contempt;
(b) An Order that Sally Thomas be declared as the Vexatious Counsel and be required to seek a leave before the commencement of any proceeding and all previous proceedings commenced by the Contemnor Thomas be stayed, including Motion scheduled to be heard on November 10th 2003 in which the Contemnor Thomas obtained Gauthier Order by fraud;
(c) A determination that this Court has jurisdiction over the Attorneys General of Ontario, and Quebec the Caber Management Services Inc., Ruben Perez, and Leas Blair for show cause Order.
Analysis
[16] The Applicant relies on all the affidavits he has filed in this proceeding in support of his motions. His affidavit evidence difficult to follow, and sometimes incoherent. In his oral submissions before me, the Applicant went on to describe in some detail a web of conspiracies involving certain Respondent's agents, the Toronto Police, his landlord, and even a Walmart employee. Suffice it to say that I consider the conspiracy allegations to be completed unfounded.
[17] In light of the number of heads of relief set out the Applicant's motion, I will deal with each one separately and in turn.
(1) An Order that either expeditiously a date be set for the hearing of this perfected Judicial Review Application, or the Trial Division be changed to the Court of Appeal;
[18] As stated earlier, the Applicant agreed to withdraw his motion for an expedited hearing date. Following the hearing on October 20, 2003, the Court offered to fix the hearing of the application on February 17, 2004, which is the earliest available date in Toronto. The relief has been granted.
(2) An Order that Roger Payette, Eric Snowdon and Emeline Layne stand for the cross-examinations of their own affidavits before a Judge who will hear this perfected Judicial Review Application or a motions Judge in Montreal by extension of time;
[19] Although Rule 83 of the Federal Court Rules, 1998 provides for cross-examination as of right on affidavits filed in a motion or application, on a motion to compel cross-examination of a deponent, the moving party must establish that the deponent either failed to attend an oral examination or refused to answer a proper question. The Applicant has not established that the Respondent's deponents failed to comply with a Direction to Attend. Moreover, he has not demonstrated that he has any relevant questions to put to the Respondent's deponents or that cross-examination is otherwise required. In any event, the Applicant has taken procedural steps that would suggest that he has waived his right to cross-examination. First, he filed the Applicant's Record on July 21, 2003 following the expiration of the deadline for cross-examinations. Second, he filed a Requisition for Hearing on August 12, 2003 confirming that the requirements of Rule 309(1) had been complied with. In the circumstances, the relief requested is denied.
(3) An Order that the Respondent's Solicitor Sally Thomas file an Affidavit containing her letter dated July 16, 2003 as an exhibit to it and say clearly that the exact copy of the same letter was before to the Prothonotary Tabib, and the Applicant get a chance of reply;
[20] A party cannot compel another party to file an affidavit. In any event, the Applicant could have adduced his own affidavit to establish the alleged irregularity. The relief requested is denied.
(4) An Order that the Direction dated August 25th, 2003 be set aside, and the Direction dated July 22, 2003 be set aside in part referring to stay, and no more interlocutory vexatious motions be allowed to be filed by the Respondent;
[21] The Applicant seeks to set aside a Direction of Prothonotary Lafrenière dated August 25, 2003 that granted the Respondent an extension of time to serve and file reply submissions in support of his motion to dismiss the application for mootness. The Applicant has failed to establish a prima facie case why the Direction should be set aside, or that he was somehow prejudiced by the short extension being granted. As for his request that the Respondent be prevented from bringing further motions, the Applicant has not established that the Respondent has acted in a vexatious or abusive manner. The relief requested is denied.
(5) An Order that Sally Thomas, Roger Payette, Eve Buday, Angela Patrianakos show cause for contempt;
[22] Rule 467 of the Federal Court Rules, 1998 sets out a two-step procedure to establish contempt of court. The Applicant must first obtain an order requiring the person alleged to be in contempt to appear to answer the allegations. The Applicant has the onus of establishing a prima facie case that contempt of court has been committed before such an order will issue. The Court must therefore determine whether the affidavit evidence filed by the Applicant for a show cause order establishes that the persons alleged have committed contempt as set out in Rule 466.
[23] The Applicant relies on the affidavits filed in support of his motions and the main proceeding to show that contempt was committed by various employees or agents of the Respondent. The Applicant has provided no evidence, however, that the alleged contemnors, who have been processing the Applicant's application for citizenship and addressing the mandamus application, have disobeyed an order or a process of the Court, acted in a way as to interfere with the orderly administration of justice, impaired the authority or dignity of the Court, or otherwise acted in contempt of Court.
[24] First, there has been no Court order that Mr. Payette be produced for cross-examination. Therefore, there is no evidence of a breach of an order in this regard. Second, concerning the cross-examination of Emeline Layne, the Respondent did in fact respond to the written cross-examination. The Respondent objected to the questions on the grounds that the questions did not cover matters relevant to the determination of the issues in the application. In responding as he did to the cross-examination of Emeline Layne, the Respondent cannot be said to have acted with contempt. Moreover, it is not mandatory that a person objecting to a question in a written examination bring a motion to have the question struck. The procedure set out in Rule 99(2) is permissive. Further, Rule 95, which allows a party to object to a question and to state the grounds of the objection, applies equally to written examinations. The Respondent therefore did not disobey an order or a process of the Court.
[25] With respect to the other allegations concerning one of the Respondent's solicitors, the allegations are preposterous and wholly unfounded. First, the letter from the solicitor dated July 16, 2003 in response to the Applicant's request for directions was entirely appropriate. Second, the allegation that the solicitor engaged in "improper influences with Registry (sic)" is based on conjecture and wholly unsubstantiated. Third, the assertions at paragraphs 10 and 11 of the Applicant's affidavit, affirmed October 7, 2003, that the solicitor intercepted the Applicant's communications and was somehow involved in a conspiracy with criminals to attack the Applicant are outlandish and outrageous. The same can be said of the allegation that the "Respondent and its parties sabotaged my car". The Applicant's assertions against the Respondent's solicitor are simply spurious.
[26] With respect to Angela Patrianakos, the Applicant has not adduced any evidence that this agent of the Respondent is guilty of contemptuous conduct. The Applicant has made unsupported allegations that Ms. Patrianakos delayed in processing the Applicant's citizenship. Yet, her e-mail replicated at paragraph 5 of the Applicant's affidavit indicates that the Applicant's citizenship file would be processed on a priority basis.
[27] Finally, nothing in the material filed by the Applicant establishes any contemptuous conduct on the part of Roger Payette or Eve Buday.
[28] If there is a total absence of evidence in the affidavits submitted on the motion, the motion ought to be discharged at this preliminary stage: Canada Post Corporation & al. v. CUPW and A.G. Canada, [1987] 3 F.C. 654. On the evidence before me, the Applicant has failed to establish a prima facie case that any contempt has been committed by any agent of the Respondent.
(6) An Order that Sally Thomas be declared as the Vexatious Counsel and be required to seek a leave before the commencement of any proceeding and all previous proceedings commenced by the Contemnor Thomas be stayed, including Motion scheduled to be heard on November 10th 2003 in which the Contemnor Thomas obtained Gauthier Order by fraud;
[29] There is no basis in law for the Applicant's request to have Sally Thomas declared a "vexatious counsel". Section 40 of the Federal Court Act provides that the Court may order that a person who has instituted vexatious proceedings, or conducted a proceeding in a vexatious manner, not institute any more proceedings or continue a current proceeding without leave of the court. There is no basis for concluding that Sally Thomas has conducted the proceeding in a vexatious manner. Moreover, no basis has been provided by the Applicant to prohibit this particular counsel from acting for the Respondent in this proceeding. On the evidence before me, Ms. Thomas has acted both professionally and appropriately in representing her client's interests.
[30] In any event, the order sought by the Applicant can only be obtained by motion in accordance with section 40(1), with the written consent of the Attorney General of Canada, which the Applicant does not purport to have obtained. Consequently, the Applicant is not entitled to the Order sought under section 40 of the Federal Court Act.
(7) A determination that this Court has jurisdiction over the Attorneys General of Ontario, and Quebec the Caber Management Services Inc., Ruben Perez, and Leas Blair for show cause Order.
[31] The Applicant did not seriously pursue this relief. On the evidence before me, however, I have no hesitation in concluding that this Court is without jurisdiction to entertain a motion to show cause for contempt against the Attorneys General of Ontario and Quebec, the Caber Management Services Inc., Ruben Perez, or Leas Blair, none of whom are parties to the proceeding, or remotely involved in this proceeding.
ORDER
THIS COURT ORDERS that:
1. The Applicant's motions are dismissed, with costs to the Respondent in any event of the cause.
"Roger R. Lafrenière"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-768-03
STYLE OF CAUSE: KEYVAN NOURHAGHIGHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
MOTION HEARD ORALLY ON OCTOBER 20, 2003 AND ADJOURNED FOR FURTHER WRITTEN SUBMISSIONS FROM THE PARTIES
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 20, 2003
REASONS FOR ORDER
AND ORDER BY: LAFRENIÈRE P.
DATED: NOVEMBER 17, 2003
APPEARANCES:
|
|
FOR THE APPLICANT (on his own behalf) |
|
Mr. Lorne McClenaghan |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
|
FOR THE APPLICANT (on his own behalf) |
|
Deputy Attorney General of Canada Toronto, Ontario |
FOR THE RESPONDENT |
Date: 20031117
Docket: T-768-03
BETWEEN:
KEYVAN NOURHAGHIGHI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER