PRACTICE |
Nelson v. Canada
A-88-02
2003 FCA 127, Sharlow J.A.
11/3/03
13 pp.
Vexatious proceedings--Appeal from order made pursuant to Federal Court Act, s. 40 on application of Crown ([2002] 2 C.T.C. 79 (F.C.T.D.)) requiring appellant to obtain leave to institute any proceedings in Federal Court of Appeal or to continue any of appeals now outstanding--Eight of appellant's unsuccessful interlocutory motions now under appeal-- Whether Motion Judge's decision based on error of law or misapprehension of facts sufficiently serious as to warrant interference--Appellant seeking to adduce evidence consisting of documents recently obtained pursuant to Privacy Act application--Generally, new evidence not admitted on appeal if evidence could have been presented to Court below --Crown acknowledged appellant did not have documents in time to put documents before Motions Judge--Therefore, new evidence should be accepted if practically conclusive of issue or interests of justice so require--However, nothing in documents relevant to question of whether appellant conducted himself in proceedings in manner justifying order against him--Therefore, no reason to admit new evidence in appeal--Motion to admit new evidence denied--Appellant argued order pursuant to s. 40 must be made on basis of originating application, not interlocutory motion--S. 40 simply refers to "application"--Term sufficiently broad to include originating applications and motions--Generally, motion submitted for consideration under Federal Court Rules, 1998, r. 369, dealt with on basis of written representations unless Judge persuaded matter requires oral hearing--Only reason for requesting oral hearing that appellant wished to cross-examine affiant on affidavit and counsel for Crown--However, counsel for Crown did not submit affidavit, so nothing on which to cross-examine counsel of Crown--Only facts stated in affidavit relevant to Crown's s. 40 motion unchallenged--Accordingly, Motions Judge did not err in dealing with Crown's motion under r. 369 --History of proceedings provides ample evidence appellant pursuing claims against Crown in abusive manner--Motions Judge did not err in any respect in making order under appeal --Appeal dismissed--Federal Court Rules, 1998, SOR/98- 106, r. 369--Federal Court Act, R.S.C., 1985, c. F-7, s. 40 (as am. by S.C. 1990, c. 8, s. 11)--Privacy Act, R.S.C., 1985, c. P-21.