Courts have extraordinary power to put an end to frivolous cases, but use it sparingly as shown by a recent case involving a persistent VIA worker
When someone repeatedly tries to bring the same issue before a court, judges have a powerful tool they can use to put a stop to it.
The Federal Court of Canada was recently faced with the question of whether or not to use this power in a case involving a former Via Rail worker who lost numerous attempts to get $200,000 in lost wages.
The tool in question — in this case, s. 40 of the Federal Courts Act — gives the court the ability to order that no further proceedings on the matter be instituted by the person without the court’s permission. In the legal world, such frivolous pursuits are known as vexatious proceedings.
The case involved Vijay Goela, who had been an employee of Via for many years. Since January 1999 he had been seeking the assistance of the court to collect the $200,000 through a series of motions.
Motion one: In January 1999, Goela filed a motion to compel Via to pay him specified wages and benefits. He lost and Via was awarded $500 in costs.
Motion two: In January 2003, Goela brought a motion seeking the wages and benefits. He lost again and was ordered to pay Via $500 in costs. That ruling was appealed, and Goela lost again. That litigation was called vexatious but the court recognized that Goela, as a self-represented litigant, did not comprehend the legal process. Via was awarded $300 in costs.
Motion three: In March 2005, Goela filed a motion seeking substantially the same wages and benefits as above, in larger amounts adjusted for the passage of time. The court refused to accept filing of the motion on the basis the same issues had been decided previously. In refusing, Justice Campbell explained at length that it was not appropriate for Goela to continue seeking his specified relief at the Federal Court. Justice Campbell said, “The case is finished, sir. It is not to be brought back here.”
Motion four: Despite Justice Campbell’s direction, Goela filed another motion with the Federal Court. It was refused in May 2006. At the fourth motion, Via sought to have a declaration made under s. 40 to prohibit any further motions being brought forward by Goela on this matter.
A s. 40 application at the Federal Court, by law, may only be made with the consent of the Attorney General of Canada. Via obtained such consent.
Quoting from the Federal Court of Appeal in the 2004 decision of Canada v. Olympia Interiors the court said:
“The power conferred on the court by s. 40(1) of the act is, of course, most extraordinary, so much so that it must be exercised sparingly and with the greatest of care. In a society such as ours, the subject is generally entitled to access the courts with a view of vindicating his or her rights. This concern was obviously in the mind of legislators, seeing that some balance is built into s. 40 by allowing proceedings to be instituted or continued with leave of the court … the order puts the court in control of the process. The net effect is that a person who becomes the subject of a s. 40(1) order is not totally foreclosed from instituting a fresh proceeding or of continuing an existing one. He or she must first obtain the court’s permission to do so.”
Justice Snider said there was little doubt that Goela’s motion was vexatious.
“Mr. Goela’s actions demonstrate a pattern of an obdurate denial and a wilful blindness to the unreasonable grounds of his claim, which have been explained by several decision-makers,” said Justice Snider. “
But that pattern didn’t justify an outright ban on Goela’s ability to bring proceedings before the court. There were a number of factors that worked in Goela’s favour, including:
•while he was obviously passionate about the matter, he was polite to the court during all of his hearings;
•although he took submissions out of context in his filed materials and failed to provide the court with all relevant documents, had did not willfully misrepresent the facts;
•he has not included inflammatory materials or statements in his motion records; and
•all of his motions related to an earlier arbitration decision, therefore there was no multiplicity of proceedings.
“I do not believe that a broad order is warranted on these facts,” said Justice Snider. “Further, I believe that the dismissal of this motion and an order restricting Mr. Goela’s rights with respect to the arbitrator’s award will likely serve to stop the mischief that is occurring.”
For more information see:
Goela v. Via Rail Canada, 2006 CarswellNat 1275 (F.C.)
What the law says
Section 40(1) of the Federal Courts Act states that: “If the Federal Court of Appeal or the Federal Court is satisfied, on application, that a person has persistently instituted vexatious proceedings or has conducted a proceeding in a vexatious manner, it may order that no further proceedings be instituted by the person in that court or that a proceeding previously instituted by the person in that court not be continued, except by leave of that court.”
The Federal Court of Canada was recently faced with the question of whether or not to use this power in a case involving a former Via Rail worker who lost numerous attempts to get $200,000 in lost wages.
The tool in question — in this case, s. 40 of the Federal Courts Act — gives the court the ability to order that no further proceedings on the matter be instituted by the person without the court’s permission. In the legal world, such frivolous pursuits are known as vexatious proceedings.
The case involved Vijay Goela, who had been an employee of Via for many years. Since January 1999 he had been seeking the assistance of the court to collect the $200,000 through a series of motions.
Motion one: In January 1999, Goela filed a motion to compel Via to pay him specified wages and benefits. He lost and Via was awarded $500 in costs.
Motion two: In January 2003, Goela brought a motion seeking the wages and benefits. He lost again and was ordered to pay Via $500 in costs. That ruling was appealed, and Goela lost again. That litigation was called vexatious but the court recognized that Goela, as a self-represented litigant, did not comprehend the legal process. Via was awarded $300 in costs.
Motion three: In March 2005, Goela filed a motion seeking substantially the same wages and benefits as above, in larger amounts adjusted for the passage of time. The court refused to accept filing of the motion on the basis the same issues had been decided previously. In refusing, Justice Campbell explained at length that it was not appropriate for Goela to continue seeking his specified relief at the Federal Court. Justice Campbell said, “The case is finished, sir. It is not to be brought back here.”
Motion four: Despite Justice Campbell’s direction, Goela filed another motion with the Federal Court. It was refused in May 2006. At the fourth motion, Via sought to have a declaration made under s. 40 to prohibit any further motions being brought forward by Goela on this matter.
A s. 40 application at the Federal Court, by law, may only be made with the consent of the Attorney General of Canada. Via obtained such consent.
Quoting from the Federal Court of Appeal in the 2004 decision of Canada v. Olympia Interiors the court said:
“The power conferred on the court by s. 40(1) of the act is, of course, most extraordinary, so much so that it must be exercised sparingly and with the greatest of care. In a society such as ours, the subject is generally entitled to access the courts with a view of vindicating his or her rights. This concern was obviously in the mind of legislators, seeing that some balance is built into s. 40 by allowing proceedings to be instituted or continued with leave of the court … the order puts the court in control of the process. The net effect is that a person who becomes the subject of a s. 40(1) order is not totally foreclosed from instituting a fresh proceeding or of continuing an existing one. He or she must first obtain the court’s permission to do so.”
Justice Snider said there was little doubt that Goela’s motion was vexatious.
“Mr. Goela’s actions demonstrate a pattern of an obdurate denial and a wilful blindness to the unreasonable grounds of his claim, which have been explained by several decision-makers,” said Justice Snider. “
But that pattern didn’t justify an outright ban on Goela’s ability to bring proceedings before the court. There were a number of factors that worked in Goela’s favour, including:
•while he was obviously passionate about the matter, he was polite to the court during all of his hearings;
•although he took submissions out of context in his filed materials and failed to provide the court with all relevant documents, had did not willfully misrepresent the facts;
•he has not included inflammatory materials or statements in his motion records; and
•all of his motions related to an earlier arbitration decision, therefore there was no multiplicity of proceedings.
“I do not believe that a broad order is warranted on these facts,” said Justice Snider. “Further, I believe that the dismissal of this motion and an order restricting Mr. Goela’s rights with respect to the arbitrator’s award will likely serve to stop the mischief that is occurring.”
For more information see:
Goela v. Via Rail Canada, 2006 CarswellNat 1275 (F.C.)
What the law says
Section 40(1) of the Federal Courts Act states that: “If the Federal Court of Appeal or the Federal Court is satisfied, on application, that a person has persistently instituted vexatious proceedings or has conducted a proceeding in a vexatious manner, it may order that no further proceedings be instituted by the person in that court or that a proceeding previously instituted by the person in that court not be continued, except by leave of that court.”
