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)

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