CLINTON MAHONEY Plaintiff v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA,, 2021 FC 945

Date: 20210914 Docket: 21-T-21 Citation: 2021 FC 945 Ottawa, Ontario, September 14, 2021 PRESENT: The Honourable Mr. Justice Pamel BETWEEN: CLINTON MAHONEY Plaintiff and HER MAJESTY THE QUEEN IN RIGHT OF CANADA, PAROLE BOARD OF CANADA, PAROLE BOARD OF CANADA APPEAL DIVISION, CORRECTIONAL SERVICE CANADA Defendants ORDER AND REASONS [ 1 ] Mr. Mahoney is an inmate in a federal penitentiary and on October 16, 2020, in two separate actions (T-1692-19 and T-1628-19) was declared a vexatious litigant by Mr. Justice Grammond pursuant to

section 40 of the Federal Courts Act , RSC 1985, c F-7 [ Act ] ( Mahoney v Canada , 2020 FC 975 [ Mahoney ]). [ 2 ] Mr. Mahoney now seeks leave of the Court by way of motion pursuant to subsection 40(3) of the Act to file a new action in damages against Her Majesty the Queen in Right of Canada, the Parole Board of Canada, the Parole Board of Canada Appeal Division and Correctional Service Canada for $34 million, plus costs. I. Background [ 3 ] This is not a new matter for Mr. Mahoney. [ 4 ] On September 8, 2020, Mr.

Mahoney filed an application for judicial review of a decision of the Appeal Division of the Parole Board of Canada denying his application for day and full parole (T-1078-20). This application was unaffected by the decision of Mr. Justice Grammond in Mahoney . [ 5 ] Following a motion by the respondents to strike his application for judicial review, Mr. Mahoney filed a motion for an order that his application proceed and be treated as an action pursuant to subsection 18.4(2) of the Act . On January 25, 2021, the respondent’s motion to strike was dismissed by Mr. Justice Southcott. [ 6 ] On March 16, 2021, Mr.

Mahoney filed a notice of abandonment of his motion seeking to have his application for judicial review converted into an action. However rather than proceeding with his application, Mr. Mahoney files, on March 22, 2021, a fresh motion, again requesting that his judicial review application be treated as an action. On May 4, 2021, Madam Justice Gleason dismissed Mr. Mahoney’s motion. [ 7 ] On May 6, 2021, Mr. Mahoney does two things. First, he files a motion in T-1078-20 seeking to amend his application for judicial review.

Secondly, he serves and attempts to file a motion for leave to institute a new action predicated on the events surrounding his application for judicial review (21-T-15). [ 8 ] In short, having been denied his request in T-1078-20 that his judicial review application proceed as an action, Mr. Mahoney sought leave pursuant to subsection 40(3) of the Act to file a new action in damages against Her Majesty the Queen in Right of Canada, the Parole Board of Canada, the Parole Board of Canada Appeal Division and Correctional Service Canada. [ 9 ] The draft statement of claim that was filed along with Mr.

Mahoney’s motion is just about identical to the one before me now. [ 10 ] On May 27, 2021, Mr. Mahoney attempted to file with the Registry of this Court a notice of abandonment of his motion for leave to institute new proceedings, however on May 31, 2021, the Court directed that his motion not be entertained by the Court. His notice of abandonment was also directed, on June 7, 2021, not be to accepted for filing given the Court’s earlier directive of May 31, 2021. II. The matter presently before the Courts Administration Service [ 11 ] On June 14, 2021, Mr.

Mahoney filed the present motion, again seeking leave of the Court by way of motion pursuant to subsection 40(3) of the Act to file a new action in damages against Her Majesty the Queen in Right of Canada, the Parole Board of Canada, the

Parole Board of Canada Appeal Division and Correctional Service Canada for $34 million, plus costs. As stated earlier, the statement of claim is just about identical to the one attached to his earlier motion of May 6, 2021, and predicated on what Mr. Mahoney claims to be the damages that were caused to him on account of the decisions of the federal boards to which T-1078-20 relates. Mr. Mahoney also alleges that Correctional Service Canada is liable for slandering and defaming him, and violating his Charter rights by using false information in its submissions before the Parole Board. [ 12 ]

Section 40 of the Act states: 40

(1) 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.

" 40 (1) " " La Cour d’appel fédérale ou la Cour fédérale, selon le cas, 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) An application under subsection (1) may be made only with the consent of the Attorney General of Canada, who is entitled to be heard on the application and on any application made under subsection (3). " (2) " " La présentation de la requête visée au paragraphe (1) 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) A person against whom a court has made an order under subsection (1) may apply to the court for rescission of the order or for leave to institute or continue a proceeding. " (3) " " Toute personne visée par une ordonnance rendue aux termes du paragraphe (1) peut, par requête au tribunal saisi de l’affaire, demander soit la levée de l’interdiction qui la frappe, soit l’autorisation d’engager ou de continuer une instance devant le tribunal. " " "

(4) If an application is made to a court 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. " (4) " " Sur présentation de la requête prévue au paragraphe (3), le tribunal saisi de l’affaire peut, s’il est convaincu 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) A decision of the court under subsection (4) is final and is not subject to appeal. " (5) " " La décision du tribunal rendue aux termes du paragraphe (4) est définitive et sans appel. " " " [ 13 ] The criteria for granting a motion for leave to institute proceedings pursuant to subsection 40(3) of the Act was recently discussed by the Federal Court of Appeal in Bernard v Canada (Professional Institute of the Public Service) , 2020 FCA 211 [ Bernard ].

Both requirements of subsection 40(3) of the Act must be met, to wit , that the Court be satisfied that the proceedings are not an abuse of process and that there are reasonable grounds to support the claim. However, even where both requirements are met, the Court continues to have " “a residual discretion not to grant leave” " ( Bernard at para 6 ). [ 14 ] As regards Mr. Mahoney’s claim, I am not convinced that it has any reasonable chance of success. The statement of claim is composed of bald allegations without the necessary basis in law or underpinning of facts.

I cannot read in the statement of claim where any of the defendants have breached either a statutory duty, or a duty in tort. Mr. Mahoney’s simple assertion that they have does not make it so. Nor am I convinced that Mr. Mahoney has made out a proper cause of action against these defendants.

[15] As regards the allegations against Correctional Service Canada to the effect that they provided false information as part of Mr.Mahoney’s file, there is a statutory process of which Mr. Mahoney can avail himself if he seeks to correct information in his file. Mr.Mahoney does not provide any evidence in his affidavit that he has attempted to correct the information in his file (assuming it was infact incorrect). As regards the assertion that the Parole Board of Canada and its Appeal Division considered allegedly false or incorrectinformation in Mr.

Mahoney’s file in coming to its decision, the fact remains that the Parole Board of Canada "“not only is not bound toapply the traditional rules of evidence, but it is required to take into account ‘all available information that is relevant to a case’”"(Mooring v Canada (National Parole Board), (SCC), [1996] 1 SCR 75 at para 29). The reports created by CorrectionalService Canada and the information contained in them are all relevant to whether or not Mr. Mahoney should have been granted statutoryrelease. [16] In addition, nothing in his affidavit convinces me that Mr.

Mahoney will move forward with his new action in conformity with therules of this Court, or that any of the concerns expressed by Mr. Justice Grammond in Mahoney have been addressed. [17] Under the circumstances, I must dismiss the present motion, with costs. ORDER for 21-T-21 THIS COURT ORDERS that: 1. The plaintiff’s present motion is dismissed with costs. "Peter G.

Pamel" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: 21-T-21 STYLE OF CAUSE: CLINTON MAHONEY v HER MAJESTY THE QUEEN IN RIGHT OF CANADA,PAROLE BOARD OF CANADA, PAROLE BOARD OF CANADA APPEALDIVISION, CORRECTIONAL SERVICE CANADA MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTSRULES ORDER AND reasons: PAMEL J. DATED: September 14, 2021 APPEARANCES: Clinton Mahoney For The Plaintiff (ON HIS OWN BEHALF) Andrew Cosgrave For The Defendants SOLICITORS OF RECORD: Attorney General of Canada Edmonton, Alberta For The Defendants