VEXATIOUS LITIGANT - CANADA POST v VARMA

Date: 20000609

Docket: T-498-99

BETWEEN:

    CANADA POST CORPORATION

    Applicant

    - and -

    ADITYA NARAYAN VARMA

    Respondent

    REASONS FOR JUDGMENT

DAWSON J.

[1]    Canada Post Corporation seeks to have Mr. Varma declared a vexatious litigant in the Federal Court of Canada pursuant to the provisions of section 40 of the Federal Court Act (the "Act"), R.S.C. 1985, c. F-7 as amended by S.C. 1990, c.8, s.11.

[2]    In support of its application, Canada Post filed the affidavit of George Avraam, a lawyer with the firm of solicitors representing Canada Post Corporation in this proceeding. Mr. Avraam was cross-examined on that affidavit by Mr. Varma, who is self represented in this proceeding.

[3]    Mr. Avraam's affidavit provided a chronology of proceedings commenced by Mr. Varma in the courts of Ontario, the Federal Court of Canada and various federal tribunals.

[4]    In response, Mr. Varma filed the affidavit of Ralph Murray Gavert, which contained in the order of 20 volumes of exhibits.

SECTION 40 PROCEEDINGS
[5]    This matter originally came on for hearing before me on February 8, 2000. After continuing with his oral submissions for some time, Mr. Varma stated:
        So, Milady, I have " the situation is dichotomous here for me. Either I stand here in front of you and in this Federal Court of Canada, as corrupt and as debauched as it is, risk deteriorating my condition and give my life up, which would bring great happiness to you all, or ask you, not by any judicial laws or anything but on humanity alone, that, please, for that fraction of a second, pretend I"m white and pretend I"m Jew and let me go home and rest to a point where I am able, and my doctor recommends it, that I"m able to come in and battle you.

[6]    Thereafter, as stated in my Reasons for Order and Order of March 15, 2000:
    [1]    ... I gave leave to the respondent to file with the Court a motion seeking leave to have the hearing of the application adjourned to a further fixed date so as to permit him to conclude his oral submission to the Court on the merits of the application. The respondent did serve such motion.



     [2]    In response, the applicant did not file any responsive material. By letter dated March 1^st, 2000, through its counsel, it wrote advising that "we may be amenable to adjourning" the application, but the applicant wanted to ensure that there was no delay in setting the next available hearing date.

     [3]    In the result, I requested that a teleconference be scheduled to discuss setting a date. In response, by letter dated March 3^rd, 2000, the respondent advised that there was, in his view, no need for a teleconference and he awaited advice from the Court as to the terms of the adjournment. Thereupon, I gave oral directions requesting that the parties advise as to any day in March or April they were not available for the continuation of the hearing. Applicant's counsel advised that counsel was available any day in March or April, with the exception of April 6^th , 2000. The respondent did not advise as to any dates on which he was unavailable but by letter dated March 13^th, 2000, indicated that he was to have been seen by a cardiologist on that day and that it would be prudent to await his doctor's review of the cardiologists's observations before setting dates.

[7]    With this background, I concluded:

     [4]    On balance, I believe fairness dictates that a date be set now. In the result, it is directed that the hearing of the application will be continued on Tuesday, April 11^th, 2000, commencing at 9:30 in the morning in Toronto. In the event that the respondent is advised that he is, for medical reasons, unable to proceed on that date he may apply to the Court for an adjournment in the ordinary course.

     [5]    As to the duration of the hearing, the respondent has repeated his earlier request that seven days be set for the hearing of the application. This request was previously dealt with and at the specific direction of the Chief Justice it was ordered that the duration of the hearing not exceed one day. That order having been issued by the Chief Justice, the duration of the hearing will not exceed one day on Tuesday, April 11^th, 2000.

[8]    Mr. Varma did not attend in Court on April 11, 2000.

[9]    After confirming that Mr. Varma had been advised of the date and place of sitting, and after requesting that the usher look for Mr. Varma, I decided to proceed with the conclusion of the hearing as authorized by Rule 38 of the Federal Court Rules, 1998.

[10]    In Foy v. Foy (No. 2) (1979), 102 D.L.R. (3d) 342 (Ont. C.A.),[Leave to appeal to the Supreme Court of Canada dismissed] at page 355, the Court of Appeal for Ontario found that on a proceeding to declare a respondent a vexatious litigant "[a] court is entitled to take notice of its own records and of the proceedings contained therein".

[11]    In view of Mr. Varma's failure to attend to complete his oral submissions, and in view of his apparent intent, expressed in the respondent's written record, to rely on documents already filed with the Court, I have therefore taken into account those publicly available documents filed in Federal Court proceedings and specifically referenced in these reasons in order to clarify or complete the record.

FACTUAL BACKGROUND
[12]    In the affidavit filed in support of the application, Mr. Avraam swears that Mr. Varma was a unionized employee of Canada Post and that during his tenure with the corporation, Mr. Varma was dismissed three times. The first dismissal occurred in 1980 and resulted in a settlement which was based on a demotion.

[13]    The second dismissal resulted in a settlement in which it was agreed that a firm of chartered accountants would investigate several of Mr. Varma's allegations against Canada Post.

[14]    The third and final dismissal occurred on December 28, 1988. That dismissal resulted in a grievance arbitration before an arbitrator.

[15]    Since 1991, the respondent has commenced a number of proceedings in the Federal Court against the Minister of Labour, the Canada Labour Relations Board, the Canadian Human Rights Commission, Canada Post Corporation and the Privacy Commissioner. Some proceedings were commenced in the Court of Appeal. With respect to the proceedings commenced in the Trial Division, the respondent has filed two appeals with the Court of Appeal from decisions of the Trial Division. Mr. Varma has also filed an unsuccessful application for leave to appeal a decision of the Federal Court and one application for reconsideration in the Supreme Court of Canada.

[16]    At the time of the hearing of this application, one appeal pending in the Court of Appeal is yet unheard. In all other cases brought before this Court, proceedings have been dismissed, originating motions struck, extensions of time to file originating motions denied and motions for reconsideration dismissed.

[17]    In summary, Mr. Varma has not met with success at either level of the Federal Court in any of his proceedings.

RELEVANT STATUTORY PROVISION
[18]    Section 40 of the Act provides 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.

(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).

(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.

(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.

(5) A decision of the Court under subsection (4) is final and is not subject to appeal.

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) 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) 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) 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) La décision rendue par la Cour aux termes du paragraphe (4) est définitive et sans appel.

[19]    An application under subsection 40(1) of the Act may proceed only with the consent of the Attorney General of Canada. In the present matter, consent was granted on March 11, 1999.

[20]    The jurisprudence of this Court has not set forth, in any detail, the purpose of subsection 40(1) of the Act. However, in Mishra v. Ottawa (City), [1997] O.J. No. 4352, Sedgwick J. of the Ontario Court of Justice (General Division) considered the purpose of the equivalent provision of the Ontario Courts of Justice Act, R.S.O. 1990, c. C. 43 and stated at paragraph 52 of his reasons:
     [52]    An order will not readily be granted by this court that would restrict in any way the free access of any person to the courts to assert his or her civil rights and remedies. The access must be exercised responsibly and with due regard for the applicable laws and rules of procedure and the integrity of the administration of justice, including the protection accorded to others against being indiscriminately made the subjects of vexatious proceedings.

[21]    An order under subsection 40(1) is an extraordinary remedy. However in appropriate cases, it is necessary in order to maintain respect for the judicial process and to protect others from frivolous and pointless litigation.

FACTORS TO BE CONSIDERED
[22]    As for the factors to be considered when an application is brought pursuant to subsection 40(1) of the Act, in Vojic v. Canada (Minister of National Revenue), [1992] F.C.J. No. 902, T-663-92 and T-1300-92 (October 2, 1992) (T.D.), McGillis J. of this Court stated as follows:
     Since this section is similar in wording to subsection 150(1) of the Courts of Justice Act, 1984, S.O. 1984 c. 11, guidance may be obtained in determining the law applicable to vexatious proceedings by referring to judgments rendered in Ontario.



         A review of the Ontario authorities reveals that the categories for vexation are never closed and the history of the proceedings must be examined carefully to determine if the conduct of the litigant is vexatious in nature. Proceedings have been held to be vexatious in circumstances where there were no reasonable grounds to institute the action, the issue had already been determined by the court and unsuccessful appeals were pursued. [See Foy v. Foy (1979), 102 D.L.R. (3d) 342 (Ont. C.A.); Re Mascan Corp. and French (1988), 49 D.L.R. (4^th) 434 (Ont. C.A.); Lang Michener et al. and Fabian et al. (1987), 37 D.L.R. (4^th) 685 (Ont. H.C.J.)]. In Lang Michener et al. and Fabian et al., supra, the court observed that it is "... a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented...". [underlining added]

[23]    A respondent's behaviour both in and out of the court has been held to be relevant. In Canada v. Warriner, (1993) 70 F.T.R. 8 (T.D.), McGillis J. noted that frivolous and unsubstantiated allegations of impropriety had been levelled against lawyers who had acted for or against the respondent. In Vojic, supra, McGillis J. took into account the fact that the respondent had failed to appear on several occasions and had shown disregard for the Court. In Yorke v. Canada, (1995), 102 F.T.R. 189 (T.D.), Rouleau J. considered a number of factors, including that the respondent's proceedings in the Federal Court were replete with extreme and unsubstantiated allegations.

[24]    In Canada (Attorney General) v. Mishra, [1998] F.C.J. No. 562, T-617-98 (May 1, 1998) (T.D.) Nadon J. placed significant emphasis on the fact that a similar order had been made declaring the respondent to be a vexatious litigant in Ontario.

ANALYSIS
[25]    I will now consider the evidence before me relevant to the following factors:
     (i)    the history of proceedings before this Court;

    (ii)    Mr. Varma's behaviour in and out of Court; and,

    (iii)    other orders.

(i) The history of proceedings before this Court
Proceedings in respect of the Canada Labour Relations Board
[1]    Mr. Varma filed two formal complaints with the Canada Labour Relations Board against members of his union for alleged breaches of the duty of fair representation. Notwithstanding those applications and an application for reconsideration, the Board dismissed Mr. Varma's allegations in January of 1991.

[2]    Mr. Varma then commenced an application in the Federal Court of Appeal (A-130-91) seeking an order setting aside the Board's decision. That application was quashed by the Federal Court of Appeal in September of 1992, without prejudice to Mr. Varma's right to seek an extension of time within which to bring an application or applications for judicial review. Mr. Varma was given 35 days to seek such extension of time.

[3]    A number of years later, on February 17, 1997, Mr. Varma filed an application for reconsideration with the Canada Labour Relations Board in respect of its decisions of January 1991. The Board dismissed Mr. Varma's application. In response, Mr. Varma filed an originating notice of motion in the Federal Court of Canada, Appeal Division, (A-552-97) to review and set aside the Board's decision dismissing the application for reconsideration. That application for judicial review was dismissed on February 11, 2000 with costs ordered payable by Mr. Varma to the respondent, Canada Post Corporation.

Proceedings in respect of the Canadian Human Rights Commission
[4]    As the result of refusal of the arbitrator to reinstate Mr. Varma to his position at Canada Post, Mr. Varma filed a complaint with the Canadian Human Rights Commission on March 22, 1993. That complaint alleged, amongst other things, that the arbitrator was a racist who conducted a neo-nazi forum and typically denied Mr. Varma the very fundamentals of natural justice, "a classic display of systemic racism". The complaint was not accepted by the Canadian Human Rights Commission. Mr. Varma was advised of this by letter dated April 14, 1993.

[5]    Mr. Varma then attempted to file a notice of motion in the Federal Court to have the Canadian Human Rights Commission's decision reviewed. However his motion was brought out of time (93-T-139). By consent the motion was dismissed on June 7, 1993 without prejudice to Mr. Varma's right to seek appropriate relief at a later date.

[6]    Mr. Varma then filed another complaint with the Canadian Human Rights Commission on July 9, 1993.

[7]    Mr. Varma again complained, among other things, that the arbitrator was a racist. The Canadian Human Rights Commission did not pursue the complaint and advised Mr. Varma by letter dated December 10, 1993 that the Commission had closed its file.

[8]    As a result of that decision, Mr. Varma filed an originating notice of motion in the Federal Court, Trial Division on January 6, 1994 requesting that the decision of the Canadian Human Rights Commission be set aside (T-16-94).

[9]    The Court dismissed Mr. Varma's application.

[10]    Mr. Varma then appealed the decision to the Federal Court of Appeal (A-465-95).

[11]    In addition to appealing the decision, Mr. Varma made a complaint to the Canadian Judicial Council against the conduct of the judge of the Trial Division who dismissed his application.

[12]    That complaint alleged, among other things:
     Clearly this was not a Just Forum - the fix was in; in concert with the melodramatics of the corrupt ... it was clear that ... [the judge] was to orchestrate a perception of Justice -- The Defendants now had themselves a judge that would rule in their favour in their absence. [underlining in original]

[13]    There is no evidence that the complaint was found in any way to be substantiated and Mr. Varma did not suggest that to be the case.

[14]    Subsequent to filing the notice of appeal from the decision of the Trial Division, various motions were brought before the Federal Court of Appeal. Mr. Varma made a motion to vary the contents of the appeal book by adding material. This motion was dismissed. A further interlocutory order was granted prohibiting Mr. Varma from cross-examining a deponent on her affidavit. A motion brought by Mr. Varma for reconsideration of those orders was dismissed by Pratte J.A.

[15]    The Federal Court of Appeal dismissed Mr. Varma's appeal. It also dismissed Mr. Varma's application for an extension of time to reconsider its decision.

[16]    Mr. Varma then filed an application for leave to appeal to the Supreme Court of Canada, which was subsequently dismissed. Mr. Varma's application for reconsideration of that decision denying leave was also dismissed.

Proceedings in respect to the Privacy Act
[17]    Mr. Varma has made a number of attempts to obtain documentation from Canada Post Corporation. In 1995, Mr. Varma brought an originating notice of motion in the Federal Court, Trial Division (T-2603-95), requesting that Canada Post provide him with photocopied documents. An extension of time for the bringing of the application was refused and the application was set aside.

[18]    Mr. Varma_ then filed proceedings in the Federal Court, Trial Division (T-2133-96). The Associate Senior Prothonotary, Mr. Giles, noted in an order that there had been three separate applications under the Privacy Act, apparently for an order for the production of photocopies of documents. Mr. Giles struck out the amended originating notice of motion noting that repetitious proceedings may well result in costs and costs on a solicitor and client basis.

[19]    Mr. Varma then made another complaint to the Privacy Commissioner about the conduct of Canada Post, alleging that it had improperly withheld documents from him. The Privacy Commissioner concluded that Canada Post was justified in its decision and that Mr. Varma's rights under the Privacy Act were not violated.

[20]    Mr. Varma then filed a notice of application to the Federal Court seeking an order setting aside the decision of the Privacy Commissioner (T-1587-98).

[21]    That matter was heard by McGillis J. In her reasons for judgment, she stated as follows:
     [3]    At the hearing of the application, the applicant made rambling, incoherent and unsubstantiated submissions concerning Project 800, the Protocols of the Learned Elders of Zion, kickbacks, thefts and "judges on the take". His submissions were replete with scurrilous and defamatory remarks concerning present and former politicians, the members of two prominent Canadian Jewish families, and judges of the Federal Court of Canada and the Ontario Court of Appeal, particularly those of the Jewish faith. He described a proceeding in the Ontario Court of Appeal as the "three monkeys trial", presided over by three judges, two of whom were "Elders of Zion". Another judge of the Ontario Court of Appeal was described by him as "the banality of evil". He also stated that he had made an application for "bet din under Talmudic laws", giving up all of his rights to appear before the "Jewish Court". To date, he has apparently not yet heard back from the rabbi. Throughout his submissions, the applicant made derogatory comments concerning other Jewish persons. Underlying his submissions appears to be the notion that there is some sort of nefarious conspiracy propagated by the "Elders of Zion".

     [4]    It is unnecessary for me to summarize in any greater detail the position taken by the applicant in his written materials and his oral submissions. In my opinion, his application is utterly devoid of merit and constitutes a severe abuse of the process of the Court.

     [5]    The application is dismissed. Costs are awarded against the applicant in the amount of $5,000.00, payable forthwith.

[22]    Mr. Varma has filed a notice of appeal in respect of that decision (A-735-99). In the notice of appeal, he raises as a ground of appeal the institutional racism in the Federal Court of Canada. His second ground of appeal is that McGillis J. opted to deal with his application pursuant only to the Protocols of the Learned Elders of Zion and not to the relevant portions of the statutes, acts, constitutional rights and laws of Canada. This appeal has not yet been heard.

(ii) Mr. Varma"s behaviour in and out of Court
[23]    As noted above, Mr. Varma made allegations of dishonesty on the part of judges of this Court.

[24]    In the respondent's record filed in opposition to this proceeding, Mr. Varma stated that the Court "continues to reflect Institutional & Systemic Racism as currently displayed by the conduct of" certain named judges. In the transcript of the cross-examination of Mr. Avraam, Mr. Varma stated that "probably the most corrupt court in Canada is the Federal Court of Canada." In a request for a direction filed in the Federal Court of Appeal in Court File A-161-00, Mr. Varma requests that a judge "once again act as the agent, peon and/or cretin of the Respondent (Applicant) Canada Post Corporation and send the Appellant copies of the aforementioned letters forthwith."

[25]    With respect to that request for direction, as with many other documents filed in court, Mr. Varma distributes the document not just to the party opposite, but to a distribution list of individuals, three pages in length, who have no apparent connection to the litigation.

[26]    Of counsel appearing for Canada Post, Mr. Varma has repeatedly said words to the effect that he is a lawyer and as such, is not a nice person and that he continues to tell lies.

(iii) Other orders made outside of the Federal Court of Canada
[27]    On February 19, 1998, Festeryga J. of the Ontario Court of Justice (General Division) gave judgment declaring Mr. Varma to be a vexatious litigant. No proceedings may be instituted by Mr. Varma in any court in that jurisdiction except by leave of a judge of the Ontario Court of Justice (General Division). Furthermore, all proceedings previously instituted by Mr. Varma in the Ontario Court of Justice (General Division) and the Ontario Court of Appeal may not be continued except by leave. Festeryga J. also ordered costs against Mr. Varma in the amount of $2,000.00.

[28]    In so concluding, Festeryga J. stated:
     [7]    I have looked at the whole history of the matter and I am satisfied that the respondent has persistently and without reasonable grounds instituted vexatious proceedings. He has appealed the various decisions in which he has been unsuccessful and invariably the grounds for appeal were that the decision was made in a "Court of Star Chambers". In my humble opinion this is a totally untenable position to take.

[29]    Mr. Varma's attempt to appeal the order of Justice Festeryga was unsuccessful as it was brought out of time and applications for leave to appeal to the Supreme Court of Canada were dismissed.

[30]    By order dated April 16, 1999, Bastarache J. of the Supreme Court of Canada granted an application by the Registrar of the Supreme Court under Rule 51.1 of the Rules of the Supreme Court of Canada to have proceedings between the applicant and respondent stayed. Mr. Varma is presently barred from filing further proceedings in respect of the matter. See: Varma v. Canada Post Corp., [1999] S.C.C.A. No. 141.

CONCLUSION
[31]    I have carefully considered Mr. Varma's conduct and the material filed before me.

[32]    The evidence before the Court establishes thatin the proceedings brought by Mr. Varma in this Court, he has attempted to re-litigate issues. Frivolous appeals and requests for reconsideration have been instituted.

[33]    Unsubstantiated allegations of impropriety have been levelled at the lawyer who has acted for Canada Post against Mr. Varma and against judges of this Court. He has distributed court documents to parties unrelated to the proceedings for purposes extraneous to the litigation.

[34]    Mr. Varma has been declared a vexatious litigant in Ontario and is the subject of an order under Rule 51.1 of the Rules of the Supreme Court of Canada.

[35]    The evidence demonstrates without doubt that Mr. Varma has persistently instituted vexatious proceedings or has conducted a proceeding in a vexatious manner.

[36]    I conclude, therefore, that this is an appropriate case to grant the relief requested. Nevertheless, there is one exception to this order. This decision does not apply to proceedings in the Federal Court of Appeal in Court File A-161-00. This is Mr. Varma's appeal from my order setting a date for the hearing of the conclusion of this application. I make this one exception on the ground it is not, in my opinion, appropriate for this decision to immunize my earlier decision in this matter from review.

[37]    The applicant shall have its costs of this application fixed in the amount of $5,000.00, and payable forthwith.

                                "Eleanor R. Dawson"

    Judge

Ottawa, Ontario
June 9, 2000

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