Date: 20030311
Docket: A-88-02
Neutral citation: 2003 FCA 127
CORAM: ROTHSTEIN J.A.
NOËL J.A.
BETWEEN:
THE HONORABLE ROBERT H. NELSON
FOUNDER PRESIDENT OF PUBLIC DEFENDERS FOR
HIMSELF AND AS REPRESENTATIVE OF ALL THOSE
ALSO IMPROPERLY DENIED BENEFITS
Appellant
and
HER MAJESTY THE QUEEN
AS REPRESENTED BY THE HON. MARTIN CAUCHON MINISTER
OF CANADA CUSTOMS AND REVENUE AGENCY
Respondent
Heard at Ottawa, Ontario, February 18, 2003
Judgment delivered at Ottawa, Ontario, March 11, 2003
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
NOËL J.A.
Date: 20030224
Docket: A-88-02
Neutral citation: 2003 FCA 127
NOËL J.A.
BETWEEN:
THE HONORABLE ROBERT H. NELSON
FOUNDER PRESIDENT OF PUBLIC DEFENDERS FOR
HIMSELF AND AS REPRESENTATIVE OF ALL THOSE
ALSO IMPROPERLY DENIED BENEFITS
Appellant
and
HER MAJESTY THE QUEEN
AS REPRESENTED BY THE HON. MARTIN CAUCHON MINISTER
OF CANADA CUSTOMS AND REVENUE AGENCY
Respondent
REASONS FOR JUDGMENT
[1] This is an appeal from the order of Justice Blais made on January 23, 2002 pursuant to section 40 of the Federal Court Act, R.S.C. 1985, c. F-7 on the application of the Crown. The order requires Mr. Nelson to obtain leave to institute any proceedings in this Court or to continue any of the appeals now outstanding. The Crown was awarded costs of $800 on the motion, payable forthwith. The decision is reported as Nelson v. Canada (Minister of Customs and Revenue Agency), [2002] 2 C.T.C. 79 (F.C.T.D.).
[2] Section 40 reads as follows:
| 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. |
| (2) An application under subsection (1) may be made only with the consent of the Attorney General of Canada, who shall be entitled to be heard on the application and on any application made under subsection (3). |
(2) La présentation de la requête nécessite le consentement du procureur général du Canada, lequel a le droit d'être entendu à cette occasion de même que lors de toute contestation portant sur l'objet de la requête. |
| (3) A person against whom an order under subsection (1) has been made may apply to the Court for rescission of the order or for leave to institute or continue a proceeding |
(3) Toute personne visée par une ordonnance rendue aux termes du paragraphe (1) peut, par requête à la Cour, demander soit la levée de l'interdiction qui la frappe, soit l'autorisation d'engager ou de continuer une instance devant la Cour. |
| (4) Where an application is made under subsection (3) for leave to institute or continue a proceeding, the Court may grant leave if it is satisfied that the proceeding is not an abuse of process and that there are reasonable grounds for the proceeding. |
(4) Sur présentation de la requête prévue au paragraphe (3), la Cour peut, si elle est convaincue que l'instance que l'on cherche à engager ou à continuer ne constitue pas un abus de procédure et est fondée sur des motifs valables, autoriser son introduction ou sa continuation. |
| (5) A decision of the Court under subsection (4) is final and is not subject to appeal. |
(5) La décision rendue par la Cour aux termes du paragraphe (4) est définitive et sans appel. |
[3] I summarize as follows the history of these proceedings and other proceedings in this Court to which Mr. Nelson is a party. This summary is derived from the documents appended to the affidavit of Donnaree Nygard dated November 2, 2001.
[4] Mr. Nelson appealed his 1984 income tax assessment to the Tax Court. His appeal was dismissed on July 16, 1988. On January 22, 1996, Mr. Nelson commenced an action in the Trial Division (Action 96-T-5) to seek an extension of time to appeal the Tax Court decision. The affidavit filed in support of his motion alleged corruption on the part of the Crown, an official of Revenue Canada, and Crown counsel. This was apparently based on the fact that Mr. Nelson was unable to obtain access to certain documents at the offices of Revenue Canada, and was unable to persuade the Crown to settle his claims.
[5] The hearing of the motion was adjourned by Prothonotary Hargrave to permit Mr. Nelson to file a supplemental affidavit. He filed an amended notice of motion and a new affidavit, this time alleging prejudice on the part of Prothonotary Hargrave. He sought, in addition to the extension of time, an order permitting him to examine two individuals for discovery on a specified date, a settlement conference and an order for a court reporter. He also wished to have his motion heard by someone other than Prothonotary Hargrave.
[6] By order dated April 18, 1996, Prothonotary Hargrave denied the motion for an extension of time on the basis that the delay was not explained and the material filed by Mr. Nelson disclosed no basis for appealing the Tax Court decision: Nelson v. Canada (1996), 111 F.T.R. 214, 96 D.T.C. 6302. Mr. Nelson appealed that order. His appeal was dismissed by Justice Campbell on July 9, 1996. That disposed of action 96-T-5.
[7] Mr. Nelson was also reassessed for income tax for the years 1985 to 1987. He appealed to the Tax Court. By order dated February 28, 1995, his appeals were dismissed. Mr. Nelson then commenced Action T-1285-95 to appeal the decision of the Tax Court for those years. The appeal as originally framed was based solely on allegations of corruption against an official of Revenue Canada and counsel for the Department of Justice.
[8] The Crown moved to have the pleadings struck as disclosing no reasonable cause of action, or alternatively as being scandalous, frivolous, vexatious or otherwise an abuse of the process of the Court. The motion resulted in the order of Prothonotary Hargrave dated August 21, 1995 striking all but the first paragraph, with leave to amend within 30 days. An amended statement of claim was filed on September 11, 1995.
[9] On October 20, 1995, Mr. Nelson filed a notice of motion in T-1285-95 seeking a settlement conference, an order for an examination for discovery of Crown counsel, and an appointment of different Crown counsel. He repeated his allegations of corruption against the same Revenue Canada official and Crown counsel. In an order dated November 20, 1995, Prothonotary Hargrave dismissed all of the motions, noting among other things that the request for a settlement conference was premature and that there was no basis for removing Crown counsel.
[10] On January 2, 1996, Mr. Nelson filed a notice of motion in T-1285-95 seeking a stay of collection action in relation to his tax debts, the release of certain information, an order for examination for discovery of the Revenue Canada official who was the subject of his allegations of corruption, and an order for a settlement conference. He again repeated his allegations of corruption. He also indicated his intention to subpoena the then Minister of National Revenue, Crown counsel and certain Revenue Canada officials. By order dated January 26, 1996, Prothonotary Hargrave dismissed his motions. He noted that the parties had agreed to the conduct of an examination for discovery of the Revenue Canada official.
[11] On February 16, 1996, Mr. Nelson applied for an extension of time to appeal the January 26, 1996 order of Prothonotary Hargrave. The affidavit filed in support of that application repeats the allegations of corruption he had made many times before. Mr. Nelson also expanded the list of intended recipients of subpoenas to include a long list of Ministers, Members of Parliament, and Revenue Canada officials. The motion was adjourned. Mr. Nelson filed an amended notice of motion requesting the same relief, asking for the motion to be heard by someone other than Prothonotary Hargrave, and asking for a court reporter. By order dated April 18, 1996, Prothonotary Hargrave denied all motions, except the motion for a court reporter, who was to be present at Mr. Nelson's cost. The Crown was awarded costs in any event of the cause. Prothonotary Hargrave said that some of the motions were completely unnecessary, and that some of his presentation and material were unnecessarily abusive toward Crown counsel. The reasons for that order are reported as Nelson v. Canada (1996), 112 F.T.R. 241. Mr. Nelson appealed the order. His appeal was dismissed on July 8, 1996 by Justice Campbell. On October 21, 1996, Mr. Nelson's action in T-1285-95 was dismissed upon Mr. Nelson's motion.
[12] On February 1, 2000, the Appellant commenced an action (T-174-00) against the Canada Customs and Revenue Agency declaring himself to be "Chief Judge of the International Court of Truth", and claiming damages and various declarations. It appears that the basis of the claims were steps taken by the Crown to collect tax debts.
[13] On May 29, 2000, Mr. Nelson commenced an action (T-942-00) against the Crown, styling himself "Founder President of Public Defenders for himself and as representative of all those improperly denied benefits". This is the action in respect of which Justice Blais made the order now under appeal. The statement of claim alleges forgery and other criminal acts by Crown officials in relation to the collection of tax debts.
[14] Mr. Nelson has filed numerous interlocutory motions in these two actions. Many were obviously premature when filed. Many are duplicative and thus pointless. Substantially all of them have been found to be without merit (there are eight outstanding interlocutory appeals). The following table summarizes the history of the two actions:
|
|
Step taken in proceeding |
Resulting order |
|
|
T-174-00 |
|
| 1 |
February 24 and March 2, 2000: Motions by Mr. Nelson for an expedited trial date. |
May 3, 2000 (Hargrave P.): Motions dismissed as premature, with costs in the cause. |
| 2 |
March 15, 2000: Motions by Mr. Nelson for case management and for a dispute resolution conference. |
July 26, 2000 (Hargrave P.): Motions dismissed, with costs of $300 payable forthwith. |
| 3 |
Discontinued November 16, 2000 (see item 8 below) |
|
| T-942-00 |
||
| 4 |
May 29, 2000 (on the same day as the statement of claim was filed): Motions by Mr. Nelson for case management, for a dispute resolution conference, and consolidation of T-174-00 and T-942-00. |
July 26, 2000 (Hargrave P.): Motions dismissed, with costs of $300 payable forthwith. |
| 5 |
September 28, 2000: Pre-trial conference. Motions by Mr. Nelson to amend the statement of claim and for interlocutory injunctions in relation to tax collection action |
September 28, 2000 (Lafrenière P.). Motion adjourned sine die with leave to file amended motion, subject to withdrawal of T -174-00 |
| 6 |
September 28, 2000: Motions by Mr. Nelson to discontinue T-174-00, to amend the statement of claim in T-942-00, and for interlocutory injunctions. |
(Amended October 10, 2000; see below) |
| 7 |
October 5, 2000: Motion by Mr. Nelson for an order requiring the Crown to provide information requested under the Privacy Act. |
|
| 8 |
October 10, 2000 (amendment of the motion of September 28, 2000). Motions by Mr. Nelson to amend statement of claim, subject to withdrawal of T-174-00, for completion of examinations for discovery by October 26, 2000, and for interlocutory injunctions. |
November 16, 2000 (Nadon J.). Motion to amend statement of claim in T-942-000 allowed. Other motions dismissed. Registry ordered to file notice of discontinuance in T-174-00. |
| 9 |
October 17, 2000. Motion by Mr. Nelson for a dispute resolution conference. |
November 16, 2000 (Nadon J.). Motion dismissed. |
| 10 |
November 24, 2000: Mr. Nelson files amended statement of claim. |
|
| 11 |
November 24, 2000: Motions by Mr. Nelson for an order that $600 paid for pre-trial settlement conferences be applied to subsequent conference, for an order that the Crown was guilty of contempt of the September 28, 2000 order, and an order requiring the Minister of National Revenue to attend a pre-trial settlement conference. |
January 3, 2001 (Hargrave P.). Payments stated to continue to apply for future settlement conferences; remainder of motion dismissed with taxable costs payable to the Crown. |
| 12 |
December 14, 2000: Motions by Mr. Nelson for an order that the Respondent had committed forgery and was in contempt of the Federal Court Rules, 1998. |
April 26, 2001 (Campbell J.). Motions dismissed without costs (appeal pending: A-283-01 filed May 2, 2001). |
| 13 |
December 15, 2000 |
Direction to the Registry by Pinard J. not to accept any further documents from Mr. Nelson that were not in compliance with the Federal Court Rules, 1998 |
| 14 |
January 4, 2001: appeal by Mr. Nelson of January 3, 2001 order of Hargrave P. (see item 11 above), with motions for an order for continuation of the pre-trial conference, an order that the Crown had disobeyed the September 28, 2000 order and was in contempt, and an order requiring the Minister of National Revenue to attend a pre-trial settlement conference. |
April 26, 2001 (Campbell J.). Pre-trial conference ordered to continue on May 15, 2001. All other motions dismissed without costs. |
| 15 |
March 15, 2001: motion by Mr. Nelson for an order that the pre-trial conference be held on April 16, 2001 and an order that the Minister of National Revenue be required to attend. |
April 26, 2001 (Campbell J.). Motions dismissed without costs (appeal pending: A-284-01 filed May 2, 2001). |
| 16 |
May 17, 2001: Pre-trial conference held |
May 17, 2001 (Hargrave P.). Trial scheduled for 3 days commencing October 16, 2001; deadlines set for completion of discoveries. |
| 17 |
May 17, 2001: appeal by Mr. Nelson of the May 17, 2001 order of Hargrave P. (see item 16 above), with motions for an order for a dispute resolution conference on June 15, 2001, an order that the trial to be set down for July 17, 2001 in Ottawa, and an order for a subpoena to be issued to the Minister of National Revenue to attend the trial. |
June 14, 2001 (MacKay J.). Motions dismissed with costs of $300 payable forthwith (appeal pending: A-379-01 filed June 22, 2001). |
| 18 |
May 24, 2001: motion by Mr. Nelson for an order for a subpoena to the Minister of National Revenue and for an order moving the trial to Ottawa |
June 14, 2001 (MacKay J.). Motions dismissed with costs of $300 payable forthwith (appeal pending: A-380-01 filed June 22, 2001). |
| 19 |
June 21, 2001: motion by Mr. Nelson for an order for subpoenas for numerous Ministers, the Prime Minister, numerous tax officials, and Crown counsel. |
July 31, 2001 (Hargrave P.). The motions were dismissed with costs of $900 payable forthwith. The costs were set at this amount because (1) little of the material filed in support of the motion was remotely relevant and none supported the motion for subpoenas, (2) the motion was an attempt to harass the Minister of National Revenue and was an abuse, (3) the conduct of Mr. Nelson in this matter has been abusive. |
| 20 |
July 6, 2001: Mr. Nelson requests a subpoena in blank and a subpoena naming 32 people |
July 6, 2001: Prothonotary Hargrave made a direction refusing his request, characterizing the request as an abuse of the process of the Court. He also directed that the Respondent be given notice of any motion for a subpoena. July 30, 2001: At Mr. Nelson's request, the direction was reconsidered. Prothonotary Hargrave issued an order confirming his direction and ordering costs in the amount of $700 payable forthwith. |
| 21 |
July 6, 2001: Ex parte Motion by Mr. Nelson for a subpoena to be issued to the Minister of National Revenue |
July 26, 2001 (Hargrave P.). Motion dismissed as res judicata. No costs awarded (Crown filed no material.) |
| 22 |
July 17, 2001: Motion by Mr. Nelson for an order that the Defendant was in contempt as a result of the former Minister of National Revenue (by then Minister of Justice) not appearing at an examination for discovery, an order that the Minister appear at an examination for discovery on July 31, 2001, an order permitting public television cameras at the examination, an order for costs of $1000, and an order that no judge "appointed by the Minister" be assigned to the trial. |
August 7, 2001 (Hargrave P.). Motion dismissed with costs of $900 payable forthwith. The motion was held to be vexatious, frivolous and abusive, given the existing orders precluding issuance of a subpoena to the Minister. Hargrave P. also ordered that Mr. Nelson would not be permitted to file any further documents (except in relation to appeals) until the costs of this motion were paid. |
| 23 |
July 19, 2001: Motion by Mr. Nelson for an order that the Crown pay punitive damages of $50,000 for refusing to provide access to certain documents requested under the Privacy Act and Access to Information Act. |
August 7, 2001 (Hargrave P.). Motions dismissed with costs of $700 payable forthwith. Parts of the motion were held to be frivolous, vexatious and abusive. Hargrave P. also ordered that Mr. Nelson would not be permitted to file any further documents (except in relation to appeals) until the costs of this motion were paid. |
| 24 |
July 25, 2001. Motion by Mr. Nelson for an order that the Crown pay punitive damages of $50,000. |
August 16, 2001 (Hargrave P.). Motions dismissed with costs of $800 payable forthwith. Hargrave P. found the motion abusive and vexatious. |
| 25 |
July 30, 2001: Appeal by Mr. Nelson of the order of Hargrave P. dated July 26, 2001 (item 21 above), and for an order for a subpoena to be issued to the Minister, for an examination for discovery and "international court of truth arbitration", and $50,000 punitive damages. |
August 27, 2001 (Dawson J.). Motions dismissed with costs of $700 payable forthwith (appeal pending: A-505-01 filed August 31, 2001). |
| 26 |
August 1, 2001: appeal by Mr. Nelson of the order of Hargrave P. dated July 30, 2001 (item 20 above) |
August 27, 2001 (Dawson J.). Motions dismissed without costs (Crown filed no material). |
| 27 |
August 1, 2001: second appeal by Mr. Nelson of the order of Hargrave P. dated July 30, 2001 (item 20 above) |
August 27, 2001 (Dawson J.). Motions dismissed without costs (Crown filed no material. |
| 28 |
August 13, 2001: appeal by Mr. Nelson of the order of Hargrave P. dated August 7, 2001 (item 22 above). |
August 27, 2001 (Dawson J.). Motions dismissed with costs of $700 payable forthwith (appeal pending: A-503-01 filed August 31, 2001). |
| 29 |
August 13, 2001: appeal by Mr. Nelson of the order of Hargrave P. dated August 7, 2001 (item 23 above) |
August 27, 2001 (Dawson J.). Motions dismissed with costs of $700 payable forthwith (appeal pending: A-504-01 filed August 31, 2001). |
| 30 |
August 27, 2001: appeal by Mr. Nelson of the order of Hargrave P. dated August 16, 2001 (item 24 above) |
August 27, 2001 (Gibson J.). Motions dismissed with costs of $300 payable forthwith (appeal pending: A-570-01 filed September 27, 2001) |
[15] As the foregoing summary discloses, eight of Mr. Nelson's unsuccessful interlocutory motions are now under appeal in this Court (A-283-01, A-284-01, A-379-01, A-380-01, A-503-01, A-504-01, A-505-01, A-570-01).
[16] On October 18, 2001, Justice Rouleau made an order on the Crown's application dismissing T-942-00 on the basis that the statement of claim discloses no reasonable cause of action, is scandalous, frivolous or vexatious, and is otherwise an abuse of the process of the Court. His order also prohibited Mr. Nelson from filing any documents in T-942-00 for a period of 60 days. It permitted Mr. Nelson to appeal his order, and required the Crown to bring an application under section 40(2) of the Federal Court Act within 60 days. His reasons are reported as Nelson v. Canada (Minister of Customs and Revenue Agency), 2001 D.T.C. 5644, [2002] 1 C.T.C. 66. An appeal of that decision is pending (A-634-01).
[17] Mr. Nelson is the subject of a vexatious litigant order in British Columbia. A copy of the order appears in the record.
[18] The Crown's application under section 40 of the Federal Court Act came before Justice Blais. The issue in this appeal is whether the decision of Justice Blais is based on an error of law or a misapprehension of the facts that is sufficiently serious to warrant interference by this Court.
Motion for new evidence
[19] Mr. Nelson filed a motion, to be heard at the beginning of the hearing of the appeal, permitting him to adduce evidence on appeal pursuant to Rule 351. The material consists of documents recently obtained by Mr. Nelson pursuant to an application under the Privacy Act. Decision on the motion was reserved.
[20] Generally, new evidence will not be admitted on appeal if it is evidence that could, with diligence, have been presented in the Court below. In this case, counsel for the Crown acknowledged that Mr. Nelson did not have these documents in time to put them before Justice Blais. Therefore, they should be accepted at this stage if they are practically conclusive of the issue on appeal, or there is some other reason to conclude that the interests of justice require that they be admitted.
[21] The main fact that Mr. Nelson is trying to prove with these documents is that he does not owe the tax debts the Crown claims, and that the Canada Customs and Revenue Agency is aware that he has deductible losses from recent taxation years that could be applied to reduce his tax debts, but they have wrongly refused to make the appropriate adjustments. I see nothing in these documents that is relevant to the question of whether or not Mr. Nelson has conducted himself in proceedings in this Court in a manner that justifies an order against him under section 40 of the Federal Court Act. Therefore, I must conclude that there is no reason to admit them in this appeal. The motion to admit new evidence should be denied.
Arguments on the appeal
[22] Mr. Nelson argues that an order under section 40 of the Federal Court Act must be made on the basis of an originating application, not an interlocutory motion as was done here. There is no merit to that argument. Section 40 of the Federal Court Act simply refers to an "application". That term is sufficiently broad to include originating applications and motions.
[23] Mr. Nelson also argues that Justice Blais should have required oral argument on the motion rather than dealing with it under Rule 369 on the basis of written representations, as the Crown had requested in its notice of motion. In the material Mr. Nelson filed in response to the Crown's motion, he indicated that he wished to have an oral hearing. Generally, a motion submitted for consideration under Rule 369 will be dealt with on that basis unless the Judge is persuaded that the matter requires an oral hearing. The only reason Mr. Nelson gave for requesting an oral hearing was that he wished to cross-examine Ms. Nygard on her affidavit (referred to above) and counsel for the Crown. However, counsel for the Crown did not submit an affidavit, so there was nothing to cross-examine him on. And the only facts stated in Ms. Nygaard's affidavit that are relevant to the Crown's section 40 motion are unchallenged facts about the conduct of Mr. Nelson in the Court proceedings. Mr. Nelson did challenge some statements in Ms. Nygaard's affidavit relating to whether he has paid certain court ordered costs, but the evidence he submitted to establish that he had in fact paid the costs, which he recounted in his oral presentation on this appeal, is not conclusive on that point. In my view, Justice Blais did not err in dealing with the Crown's motion under Rule 369.
[24] The remainder of Mr. Nelson's arguments are based on allegations that his tax debt is not what the Crown claims it is, that the Crown has wrongfully refused to process adjustments in this favour to which he is entitled, and that the Crown has taken unlawful steps to collect the tax debts. The record discloses no evidence that proves these allegations. Even if there is merit to these allegations, they cannot justify the use of abusive tactics in proceedings in this Court.
[25] The history of Mr. Nelson's proceedings provides ample evidence that Mr. Nelson has chosen to pursue his claims against the Crown in an abusive manner. Justice Blais did not err in any respect in making the order under appeal.
[26] This appeal should be dismissed with costs fixed at $3,500 payable forthwith.
"K. Sharlow"
J.A.
"I agree - Marshall Rothstein J.A."
"I agree - Marc Noël J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING OF THE APPEAL FROM THE ORDER OF THE TRIAL DIVISION DATED JANUARY 23, 2002, IN DOCKET T-942-00.
DOCKET: A-88-02
STYLE OF CAUSE: The Honourable Robert H. Nelson Founder President of Public Defenders for himself and as representative of all those also improperly denied benefits
v.
Her Majesty the Queen as represented by the Hon. Martin Cauchon Minister of Canada Customs and Revenue Agency
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 18, 2003
REASONS FOR JUDGMENT BY: Sharlow J.A.
CONCURRED IN BY: Rothstein, Noël J.J.A
DATED: March 11, 2003
APPEARANCES:
Mr. Robert H. Nelson ON HIS OWN BEHALF
Mr. Robert Carvalho FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Robert H. Nelson ON HIS OWN BEHALF
Kelowna, B.C.
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario