TURMEL: Crown Response to Reconsider FCA Vexatious Litigant Motion http://SmartestMan.Ca/s40rnc.pdf Court File Number: A-265-22 FEDERAL COURT OF APPEAL B E T W E E N : JOHN TURMEL Appellant (Moving Party) and HIS MAJESTY THE KING Respondent (Respondent to the Motion) RESPONDENT'S MOTION RECORD MOTION RECORD INDEX TAB Document Page No. 1 Judgment and Reasons of the Federal Court in Attorney General of Canada v John C Turmel (T-962-22), dated November 9, 2022 1-22 2 Notice of Appeal, issued December 9, 2022 23-41 3 Direction of the Federal Court of Appeal, dated March 6, 2023 42-43 4 Excerpts from the Notice of Motion and Written Representations of the Respondent in support of its Federal Court of Appeal Vexatious-Litigant Motion 44-50 5 Reasons for Order of the Federal Court of Appeal, dated June 15, 2023 51-57 6 Order of the Federal Court of Appeal, dated June 15, 2023 58-59 7 Affidavit of Lisa Minarovich, sworn June 29, 2023 60-66 Exhibits A. Respondent's Letter to the Federal Court of Appeal, dated February 6, 2023 62-63 B. Respondent's Letter to the Federal Court of Appeal, dated February 28, 2023 64-66 8 Written Representations of the Respondent, dated July 4, 2023 67-75 WRITTEN REPRESENTATIONS OF THE RESPONDENT, PART I - OVERVIEW 1. This Court should not reconsider its recently issued order regulating the appellant's access to the Federal Court of Appeal. Reconsideration is available only where an order does not accord with the reasons given, the court has overlooked a matter that it should have addressed, or the order contains clerical mistakes, errors or omissions. None of these circumstances is present in this case. 2. The appellant, John Turmel, alleges that this Court should not have granted a vexatious-litigant order while his appeal of a similar Federal Court order is outstanding. However, there is no reason in law why this Court could not grant a vexatious-litigant order while it considers his appeal. Mr. Turmel also relies for his reconsideration motion on his own mistake in failing to respond to Canada's vexatious-litigant motion. However, reconsideration is not available to correct errors by a party. PART II - STATEMENT OF FACTS A. The Federal Court Vexatious-Litigant Order 3. By decision dated November 9, 2022, the Federal Court declared Mr. Turmel a vexatious litigant in that court (the "Federal Court Vexatious-Litigant Order"). The Federal Court Vexatious-Litigant Order, which was issued pursuant to s. 40 of the Federal Courts Act and the Court's plenary powers, prohibits Mr. Turmel from instituting or continuing any proceedings in the Federal Court except with leave, sets conditions for obtaining this leave, and includes measures that regulate Mr. Turmel's ability to assist others with their Federal Court proceedings.1 1 Judgment and Reasons of the Federal Court in Attorney General of Canada v John C Turmel (T-962-22), dated November 9, 2022, paras 7, 49 and Judgment Respondent's Motion Record ("RMR"), Tab 1, p 20-21; Federal Courts Act, RSC 1985, c F- 7, s 40(1) 4. Mr. Turmel has appealed the Federal Court Vexatious- Litigant Order to this Court.2 2 Notice of Appeal, issued December 9, 2022, RMR, Tab 2 All materials in this appeal have been filed, and the appeal is ready to be scheduled for hearing.3 3 Reasons for Order of the Federal Court of Appeal, dated June 15, 2023 ("Federal Court of Appeal Vexatious- Litigant Reasons"), para 3, RMR, Tab 5, p 53 B. The Federal Court of Appeal Vexatious-Litigant Order 5. On February 6, 2023, the respondent to the appeal, the Attorney General of Canada (incorrectly named as ""His Majesty the King," and hereinafter "Canada"),4 4 The Attorney General of Canada has requested in its Memorandum of Fact and Law filed in the underlying appeal that the title of proceedings be amended to name the Attorney General of Canada as the sole and proper respondent to this appeal. wrote to this Court to request that the appeal continue as a specially managed proceeding. Canada's letter explained that it intended to bring a motion in the course of the appeal for an order declaring Mr. Turmel a vexatious litigant in this Court, and requested case management in order that Canada could seek procedural directions or orders concerning this motion.5 5 Respondent's Letter to the Federal Court of Appeal, dated February 6, 2023, RMR, Tab 7A, p 63 6. Canada sent a further letter to this Court on February 28, 2023. This letter requested that the Court expedite Canada's previously submitted request for case management as the deadline for its Memorandum was approaching, and Canada wished to seek leave in advance of this deadline to file a joint Memorandum of Fact and Law and Written Representations addressing both the appeal and its motion. The letter also advised of Canada's intention to seek a direction or order in case management that its motion be heard orally, together with the appeal.6 6 Respondent's Letter to the Federal Court of Appeal, dated February 28, 2023, RMR, Tab 7B, p 65-66 7. By direction dated March 6, 2023, this Court denied Canada's request to have the appeal continue as a specially managed proceeding. In doing so, Webb J.A observed that he did not see the need for case management or any reason why Canada's motion "could not be addressed in the normal course," which in the Federal Court of Appeal, is a motion in writing (the "March 6 Direction").7 7 Direction of the Federal Court of Appeal, dated March 6, 2023 ("March 6 Direction"), RMR, Tab 3, p 42-43 8. Canada accordingly proceeded to prepare its vexatious- litigant motion as a motion in writing under Rule 369.2 of the Federal Courts Rules.8 8 Notice of Motion and Written Representations of the Respondent in support of its Federal Court of Appeal vexatious-litigant motion, RMR, Tab 4, p 63; Federal Courts Rules, SOR/98-106, s 369.2 ("Federal Courts Rules") Canada served and filed its motion on April 27, 2023. Mr. Turmel did not file a response to the motion.9 9 federal court of appeal vexatious-litigant reasons, para 4, rmr, tab 5, p 53 69 9. On June 15, 2023, this Court granted Canada's motion (the "Federal Court of Appeal Vexatious-Litigant Order"). The Federal Court of Appeal Vexatious-Litigant Order prohibits Mr. Turmel from instituting or continuing any proceedings in this Court (other than the present proceeding), except with leave. Like the Federal Court Vexatious-Litigant Order, the Federal Court of Appeal Vexatious-Litigant Order also sets conditions for obtaining this leave, and includes measures regulating Mr. Turmel's ability to assist others with their proceedings in this Court.10 10 Order of the Federal Court of Appeal, dated June 15, 2023 ("Federal Court of Appeal Vexatious-Litigant Order"), RMR, Tab 6, p 58-59 PART III - POINTS IN ISSUE 10. The sole issue on this motion is whether this Court should reconsider the Federal Court of Appeal Vexatious-Litigant Order. PART IV - SUBMISSIONS 11. This Court should not reconsider the Federal Court of Appeal VexatiousLitigant Order. Rule 397 of the Federal Courts Rules provides that the Court may reconsider the terms of an order 1) if it does not accord with the reasons given for it, 2) if a matter that should have been dealt with has been overlooked or accidentally omitted, or 3) to correct clerical mistakes, errors or omissions.11 11 Federal Courts Rules, s 397 70 None of these circumstances is present in this case. A. The Federal Court of Appeal Vexatious-Litigant Order accords with the reasons given for it 12. The Federal Court of Appeal Vexatious-Litigant Order is entirely consistent with the reasons given for it. In his reasons granting the order, Laskin J.A. observed that Mr. Turmel displays many of the hallmarks of a vexatious litigant, and that the evidence "overwhelmingly shows that a vexatious litigant order is called for" to regulate his access to, and ability to assist others with, their Federal Court of Appeal proceedings.12 12 Federal Court of Appeal Vexatious-Litigant Reasons, para 10, RMR, Tab 5, p 56 13. The reasons also listed the specific terms whereby the Court would regulate Mr. Turmel's access and ability to assist others, which terms are repeated almost verbatim in the Federal Court Vexatious-Litigant Order.13 13 Federal Court of Appeal Vexatious-Litigant Reasons, para 11, RMR, Tab 5, p 56-57; Federal Court of Appeal Vexatious-Litigant Order, RMR, Tab 6, p 58-59 There can be no suggestion in these circumstances but that the order accords with the reasons given for it. B. The Court has not overlooked or accidentally omitted a matter that should have been dealt with 14. Mr. Turmel has not shown that this Court overlooked or omitted a matter that it should have addressed in the Federal Court of Appeal Vexatious-Litigant Order. He alleges in written representations that it was "premature" for the Court to rule on Canadas motion while his underlying appeal, which concerns similar issues, was still outstanding.14 14 appellant's written representations, para 6, appellant's motion record, p 6 However, Mr. Turmel has identified no reason in law why this Court could not rule on Canada's motion while it considers the underlying appeal. 15. To the extent Mr. Turmel is suggesting that the Federal Court of Appeal Vexatious-Litigant Order somehow binds this Court in the underlying appeal, this argument mischaracterizes the order's effect. The Federal Court of Appeal VexatiousLitigant Order regulates Mr. Turmel's access to this Court but does not address the issue on appeal, which is whether the Federal Court made a reviewable error in regulating his access to that court. Moreover, even if the Federal Court of Appeal Vexatious-Litigant Order purported to address the issue on appeal (which it does not), a prior decision by a single judge of this Court is not binding on a full panel.15 15 apotex inc v canada (health), 2017 fca 160, para 16 16. In any event, if Mr. Turmel felt that it was premature for the Court to grant Canada's motion, it was open to him to oppose the motion or request that it be adjourned. He failed to do so. Just as a party cannot use Rule 397 to re- argue an issue, they should not be permitted to use it to raise an issue they could have but failed to raise earlier.16 16 Sharma v Canada (Revenue Agency), 2020 FCA 203, para3 17. Mr. Turmel now explains that he did not respond to Canada's motion because he was under the mistaken belief that it would be heard orally together with his appeal. However, it is unclear on the facts how Mr. Turmel could have arrived at this belief given the March 6 Direction and the clear indicators in Canada's motion record that the motion was brought in writing.17 17 March 6 Direction, RMR, Tab 3, p 42-43; Notice of Motion and Written Representations of the Respondent in support of its Federal Court of Appeal vexatious-litigant motion, RMR, Tab 4, p 44, 50; Federal Courts Rules, SOR/98- 106, s 369.2 ("Federal Courts Rules") In any event, even if Mr. Turmel was under this mistaken belief, Rule 397 is available only to correct errors by the Court, and not errors by a party.18 18 Campbell River Harbour Authority v Acor (Vessel), 2010 FC 844, para 16 ("Campbell River") C. The Federal Court of Appeal Vexatious-Litigant Order does not contain clerical, mistakes, errors or omissions 18. Finally, the Federal Court of Appeal Vexatious-Litigant Order does not contain any mistakes, errors or omissions of a clerical nature. To the extent that Mr. Turmel relies for his reconsideration motion on his own mistake in failing to respond to Canada's motion, this is not a mere clerical error, and rule 397 is again unavailable to correct errors by a party.19 19 Campbell River, para 18 PART V - ORDER SOUGHT 19. Canada requests that the motion for reconsideration be dismissed. It also requests costs on an elevated basis. In granting the Federal Court of Appeal VexatiousLitigant Order, this Court observed that Mr. Turmel frequently brings meritless proceedings, attempts to re-litigate previously decided issues, and appeals or seeks reconsideration when he is unsuccessful in these proceedings. The present motion is a further example of this vexatious conduct. Canada submits that elevated costs are appropriate in these circumstances, and requests that these costs be fixed at $2,000.20 20 Federal Courts Rules, s 400(3)(k)(i),(o) ALL OF WHICH IS RESPECTFULLY SUBMITTED Dated at Toronto this 4th day of July, 2023. Jon Bricker / Addison Leigh Of Counsel for the Respondent (Respondent to the Motion) ATTORNEY GENERAL OF CANADA Department of Justice Canada Ontario Regional Office PART VI - LIST OF AUTHORITIES Apotex Inc v Canada (Health), 2017 FCA 160 Campbell River Harbour Authority v Acor (Vessel), 2010 FC844 Sharma v Canada (Revenue Agency), 2020 FCA 203 PART VII - STATUTES AND REGULATIONS Federal Courts Act, RSC 1985, c F-7, s 40(1) Federal Courts Rules, SOR/98-106, s 397, 400(3)(k)(i),(o)