2014 NBCA 34, 2014 NBCA 34

Source: Court of Appeal of New Brunswick

Jurisdiction: New Brunswick

Citation: 2014 NBCA 34

Opinion

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 54-13-CA 103-12-CA JULES BOSSÉ, ANNE DOIRON BOSSÉ and LES ENTREPRISES ENVIROTEK LTÉE APPELLANTS JULES BOSSÉ, ANNE DOIRON BOSSÉ et LES ENTREPRISES ENVIROTEK LTÉE APPELANTS - and - - et - FARM CREDIT CANADA RESPONDENT FINANCEMENT AGRICOLE CANADA INTIMÉE Bossé v. Farm Credit Canada, 2014 NBCA 34 Bossé c.

Financement agricole Canada, 2014 NBCA 34 CORAM: The Honourable Justice Deschênes The Honourable Justice Richard The Honourable Justice Quigg CORAM : l'honorable juge Deschênes l'honorable juge Richard l'honorable juge Quigg Appeals from decisions of the Court of Queen’s Bench: July 27, 2012, and April 4, 2013 Appels de décisions de la Cour du Banc de la Reine : Le 27 juillet 2012 et le 4 avril 2013 History of Case: Historique de la cause : Decisions under appeal: Unreported (July 27, 2012) and 2013 NBQB 131 Décisions frappées d’appel : Inédite (le 27 juillet 2012) et 2013 NBBR 131

Preliminary or incidental proceedings: [2012] N.B.J. No. 107 (C.A.) [2012] N.B.J. No. 290 (C.A.) [2013] N.B.J. No. 25 (C.A.) [2013] N.B.J. No. 67 (C.A.) [2013] N.B.J. No. 89 (C.A.) [2013] N.B.J.

No. 224 (C.A.) Procédures préliminaires ou accessoires : [2012] A.N.-B. n o 107 (C.A.) [2012] A.N.-B. n o 290 (C.A.) [2013] A.N.-B. n o 25 (C.A.) [2013] A.N.-B. n o 67 (C.A.) [2013] A.N.-B. n o 89 (C.A.) [2013] A.N.-B. n o 224 (C.A.) Appeal heard: November 26 and 27, 2013 Appel entendu : le 26 et 27 novembre 2013 Judgment rendered: November 27, 2013 Reasons delivered: May 29, 2014 Jugement rendu : le 27 novembre 2013 Motifs déposés : le 29 mai 2014 Reasons for judgment: The Honourable Justice Richard Concurred in by: The Honourable Justice Deschênes The Honourable Justice Quigg Counsel at hearing: Jules Bossé appeared in person and for Les Entreprises Envirotek Ltée Anne Doiron Bossé appeared in person For the respondent: Blair C.

Fraser Motifs de jugement : l’honorable juge Richard Souscrivent aux motifs : l’honorable juge Deschênes l’honorable juge Quigg Avocats à l'audience : Jules Bossé a comparu en son nom et pour Les Entreprises Envirotek Ltée Anne Doiron Bossé a comparu en personne Pour l’intimée : Blair C. Fraser

THE COURT The appeal is dismissed with costs on a solicitor and client basis, with each appellant being jointly and severally liable for the costs. LA COUR L’appel est rejeté avec dépens suivant le tarif des frais entre avocat et client, chaque appelant étant solidairement redevable des dépens. The judgment of the Court was delivered by RICHARD J.A. I. Introduction [ 1 ] Neither the factual matrix, nor the law underlying this appeal, is complex. Both relate to an action for deficiency after a company defaulted on two loans and the proceeds of consequential mortgage sales were insufficient to satisfy the debt.

The action is against the defaulting corporation and two individuals who had guaranteed the first loan and were co- borrowers in the second. Despite the relative simplicity of the matter, the parties have been embroiled in lengthy court proceedings that have brought them before the Court of Queen’s Bench numerous times, seven times before the Court of Appeal and once before the Federal Court of Canada.

The proceedings are the result of frivolous claims the debtors/guarantors continue to advance. [ 2 ] In short, Jules Bossé and Anne Doiron Bossé, together with Les Entreprises Envirotek Ltée, owe Farm Credit Canada (“FCC”) money after Envirotek defaulted on two loans that were secured by collateral mortgages. FCC asserted its rights of sale under the collateral mortgages and the properties were sold at auction.

FCC then commenced an action to recover the deficiency owed on the loans after the mortgage sale. [ 3 ] What has been the focus of most of the litigation is a series of documents the Bossés themselves created and then forwarded to FCC, pursuant to which they claim having made payment in full of all amounts due. In essence, these documents purport to obligate the United States Treasury to pay certain sums of money that exceed the deficiency owed on the loans after the mortgage sale. The Bossés tendered these documents to FCC and claimed that, by application of the Bills of Exchange Act , R.S.C. 1985 c.

B-4, they have fulfilled their obligations to FCC. Not surprisingly, the documents have been found to have no legal value, and the Bossés’ claims have repeatedly been dismissed. Yet, the Bossés persist. [ 4 ] The current matter consists of two appeals that have been consolidated. The first appeal is against the decision of the Court of Queen’s Bench granting FCC

summary judgment, and the second relates to that Court’s subsequent assessment of the quantum of the claim. The Bossés advance numerous grounds of appeal challenging, among other things, the validity of certain legislation, the jurisdiction of the Court of Queen’s Bench, factual findings, the determination of questions of law, and the Court’s application of the law to the facts. [ 5 ] After hearing the appellants’ arguments, we dismissed the appeal and awarded costs to FCC on a solicitor and client basis. At the time, we indicated that reasons for our decision would follow.

These are the reasons for which I joined my colleagues in disposing of the appeal in that fashion. In sum, the grounds of appeal are as frivolous as the Boss és’ original argument that FCC was paid in full when it received the bogus documents. From the outset, the courts have repeatedly denounced their defence, consistently ruling it to be frivolous. Yet the Bossés have persisted and have appealed or sought leave to appeal virtually every ruling. In my view, this is one of those cases where the threshold for an award of costs on a solicitor and client basis has been met. II.

Factual Background [ 6 ] In February 2007, FCC loaned Envirotek the sum of $180,000, a loan Anne Doiron Bossé and

Jules Bossé personally guaranteed. As security for this loan, Jules Bossé, in his capacity as President of Envirotek, executed a collateral mortgage in favour of FCC against certain properties. In November of that same year, FCC loaned Envirotek, and Jules Bossé and Anne Doiron Bossé personally, the sum of $255,000. The Bossés undertook to repay the loan plus interest, and also, in the event of default, to pay, on demand, all costs, insurance premiums and other outstanding charges.

A collateral mortgage against certain other properties served as security for this second loan. [ 7 ] In June 2010, FCC sent a formal notice to Envirotek, Anne Doiron Bossé and Jules Bossé notifying them that the two loans were in arrears. This formal notice included a Notice of Intent to Realize on Guarantee and a Notice of Intent to Realize on Security. Envirotek, Jules Bossé and Anne Doiron Bossé failed to repay FCC.

On January 18, 2011, Anne Doiron Bossé, Jules Bossé and Envirotek were notified that FCC was asserting its right of sale under the collateral mortgages and they received Notices of Sale for the properties in question. [ 8 ] On March 2, 2011, the properties described in the collateral mortgages were sold in mortgage sales for a total of $216,200. FCC then commenced an action to obtain the deficiency owed on the two loans. [ 9 ] In February 2012, FCC began receiving documents from the Bossés. These documents were titled as follows: 1. Notice in the nature of and demand for set-off, settlement and closure; 2.

Notice of Administrative Judgment; 3. Notice of Default in Dishonor; 4. Private registered set off bond of $420,000; 5. Private registered set off bond of $640,000; 6. Constructive notice of conditional acceptance and request for abatement of sale; 7. Notice in the nature of demand for set-off settlement and closure; 8. Affidavit in Support of commercial discharge; 9. Request regarding a statement of account; and 10.

Affidavit of Specific negative averment. [ 10 ] These documents or copies – it is unclear – were returned to the Bossés, together with a notice that FCC would only accept payment by certified cheque or cashier’s cheque. [ 11 ] The Bossés and Envirotek defended the action for deficiency on the basis the documents forwarded to FCC constituted repayment of the monies owed under the loans. They filed a Notice of Motion seeking court recognition of their defence and sought the return of the properties sold at public auction.

They argued the Bills of Exchange Act required FCC to present the documents to the United States Treasury for payment. The Bossés claimed that, without proof the documents had been presented for payment, FCC was deemed to have been paid in full.

[ 12 ] In a decision delivered on November 4, 2011, a judge of the Court of Queen’s Bench dismissed their motion. The motion judge held the documents in question had no legal value as Mr. Bossé had invented and created them himself with the help of certain American web sites. The judge ruled the motion was frivolous and vexatious and an abuse of the court’s process. He ordered Mr. Bossé to forthwith pay costs of $1,000. [ 13 ] By Statement of Claim dated December 15, 2011, the Bossés and Envirotek commenced legal proceedings in the Federal Court against FCC and its Chief Financial Officer.

Raising some undefined Charter issues and other arguments, the Bossés and Envirotek sought the re-conveyance of some of the properties sold by public auction and claimed damages, punitive damages, and costs.

On February 8, 2013, in an unreported decision, a judge of the Federal Court dismissed the action with costs of $1,000, holding as follows: It is plain and obvious that these pleadings disclose no cause of action as there is no legal basis of the relief sought and they are wholly devoid of any particulars regarding the alleged breach of the Charter or the basis upon which relief is sought from Greg Stewart, the president and CEO of FCC.

They also constitute an abuse of process as the matters alleged in these pleadings have been fully and finally determined by the New Brunswick courts, which do possess jurisdiction to rule on these matters. [pp. 4-5] [ 14 ] The Bossés and Envirotek sought leave to appeal the New Brunswick judge’s dismissal of their motion. They wanted to raise eighteen grounds of appeal. On March 30, 2012, a judge of this court refused to grant leave and awarded FCC costs of $750: Bossé v. Farm Credit Canada , [2012] N.B.J. No. 107 (C.A.) (QL) . [ 15 ] In turn, FCC applied for

summary judgment on the ground there was no defence to the action. The Bossés and Envirotek replied with their own motion, seeking to have FCC’s action dismissed. Instead of obtaining a date from the Court for the hearing of their motion, they inserted, as the return date, the date FCC’s

summary judgment motion was to be heard, and asked that their motion to dismiss the action be heard first. A judge of the Court of Queen’s Bench refused to entertain the motion to dismiss because it had not been properly filed with the Court. Moreover, as the judge pointed out, the issues were going to be addressed in any event in the motion for

summary judgment. On July 27, 2012, the judge granted

summary judgment in favour of FCC on the grounds there is no defence to the action. The motion judge then scheduled a hearing for the assessment of damages. In rendering her decision, the judge reached the same conclusion as the previous motion judge: she held the documents the Bossés had forwarded to FCC in purported payment of their debt were of no legal value. As a result, she held the Bills of Exchange Act did not apply. [ 16 ] The Bossés and Envirotek appealed the

summary judgment. In addition, they sought a stay of execution of the motion judge’s order, and, as part of the relief in their notice of motion, sought both the dismissal of the action and the referral of the matter to the Federal Court of Canada. A judge of this Court dismissed their motion and ordered them to pay costs in the amount of $2,000: Bossé v. Farm Credit Canada , [2012] N.B.J. No. 290 (C.A.) (QL) . [ 17 ] After

summary judgment was ordered but before the quantum of the claim was assessed, Mr. Bossé filed a motion in the Court of Queen’s Bench asking the assigned judge to recuse herself from the matter. On December 18, 2012, the judge dismissed that motion and ordered Mr. Bossé to pay costs of $1,000. Mr. Bossé sought leave to appeal the judge’s decision not to recuse. On January 21, 2013, the motion for leave to appeal was dismissed with costs of $1,000: Bossé v. Farm Credit Canada , [2013] N.B.J. No. 25 (C.A.) (QL) . [ 18 ] The appeal of the

summary judgment decision was scheduled to be heard on January 17, 2013. However, on that date, this Court inquired whether the parties might not wish to adjourn the appeal until after the trial of the quantum of FCC’s claim, so that any issues arising out of that trial could be addressed at the same time. The parties agreed, so the appeal was adjourned: Bossé v. Farm Credit Canada , [2013] N.B.J. No. 67 (C.A.) (QL) . [ 19 ] On January 29, 2013, Mr. Bossé filed another motion in the Court of Queen’s Bench, this one seeking to amend the statement of defence and to advance a counterclaim.

On February 6, 2013, at the outset of the hearing into the quantum of damages, the motion judge dismissed the motion to amend and awarded FCC costs of $500. After dismissing the motion, the Court proceeded with the trial to determine the quantum of FCC’s damages. The trial began on February 6 and continued on February 8, 15 and 22, 2013. [ 20 ] Meanwhile, the judge’s dismissal of the motion to amend became the subject of yet another application for leave to appeal, this one dated February 12, 2013.

On March 18, a judge of this Court dismissed that motion and ordered costs be paid to FCC in the amount of $2,000: Bossé v. Farm Credit Canada , [2013] N.B.J. No. 89 (C.A.) (QL) .

[ 21 ] On April 4, 2013, the judge of the Court of Queen’s Bench delivered her reasons for decision ordering the Bossés and Envirotek to pay FCC the amount of $279,410 (being $263,998.14 plus costs of $15,410 calculated in accordance with Scale 4 of Tariff “A”) plus disbursements. In rendering her decision, the judge accepted the appraisals of a particular expert witness on the market value and liquidation value of the woodlots that had been sold at the mortgage sale. The judge rejected other values assigned to the land by others who did not have this appraiser’s particular expertise.

The judge held it was reasonable for FCC to have relied on the appraised values of the land and concluded that FCC had [TRANSLATION] “fulfilled its duty to take reasonable measures to obtain an amount reflecting the market value of the lands, since it relied on a trustworthy appraisal and added the sum of $1,000.00 for each parcel of land” noting that FCC had [TRANSLATION] “obtained more than the upset prices from the third parties at the mortgage sale” (para. 87). In her reasons for decision, reported at 2013 NBQB 131 , [2013] N.B.J.

No. 408 (QL), the judge concluded as follows: [TRANSLATION] I was satisfied on the evidence that the plaintiff [FCC] exercised its power of sale in accordance with the [ Property] Act . There is no evidence that FCC acted in bad faith in exercising its power of sale. It took reasonable precautions to obtain a price reflecting the fair market value of the lands. At the mortgage sales, it sold and acquired the lots for prices that reflected the market value of these parcels of land at the time of the sale.

I find that FCC acquired the lands at a price that reasonably reflected their value according to the information available at the time of the mortgage sales. FCC rightfully relied on the appraisals prepared by Mr. Dubé to set their upset price. It acquired these parcels given that no other bid had been received for them at the mortgage sales. This is not a situation where the difference between the market value of the property and the proceeds of the sale is so great that it shows on its own that the mortgagee unjustly sacrificed the interests of the defendants and acted recklessly.

In fact, the total proceeds of the sale of the lands at the mortgage sales, that is, $216,200.00, falls between the liquidation value of $188,888.00 and the estimated market value of $251,600.00 set by Mr. Dubé. In my opinion, FCC did not obtain an unfair advantage. The total amount paid by the plaintiff for the 10 parcels of land at the mortgage sales was higher than the total amount it obtained from third parties at the subsequent private sales of these 10 parcels of land. I accept as satisfactory the explanations given to justify the large decrease in the values assigned to the properties by Ms.

Desjardins in 2007, the original purchase price and the amounts obtained at the mortgage sales. The crisis that rocked the forest industry between 2007 and 2011 generated sluggishness and is largely responsible for the decrease in value, in addition to the other factors listed above. FCC is not a chartered bank. Contrary to what happened in Banque Nationale du Canada v. Desrosiers , FCC did not acquire the mortgaged properties at a nominal price. The lands were sold for a total sum of $216,200.00 at the mortgage sales, and that sum represented the market value at that time.

I am not satisfied on the evidence that the defendant suffered a loss as a result of the sale of the lands. Even if we accepted that the defendant have suffered a loss of interest as a result of the sale of the mortgaged lands, this loss would clearly not have been brought on voluntarily by FCC. The defendants have not proven that their loss of interest was voluntarily caused by FCC, in the sense that it was willed by FCC or was the result of FCC’s intentional conduct.

Under s. 47(6) of the Act , FCC would not be answerable for this loss. [paras. 88-92] [ 22 ] The trial judge then proceeded to calculate the deficiency taking into account expenses, interest and insurance and making certain adjustments to account for the revenue generated by the sales. [ 23 ] The Bossés and Envirotek have appealed the judge’s decision on the quantum of FCC’s claim on 13 grounds. By motion, they sought a stay of execution of the judgment. That motion was dismissed on August 6, 2013: Bossé v. Farm Credit Canada , [2013] N.B.J.

No. 224 (C.A.)(QL) . [ 24 ] By motion scheduled to be heard immediately before the hearing of their appeals, Mr. Bossé sought relief under the Canadian Charter of Rights and Freedoms , including a declaration that the Property Act , R.S.N.B. 1973, c. P-19, be declared “ultra vires or of no force and effect.” Mr. Bossé gave the required notice of the constitutional challenge to the Attorneys General of Canada and New Brunswick, as required under s. 22(3) of the Judicature Act , R.S.N.B. 1973, c. J-2. The notice included a number of questions Mr.

Bossé had previously posed to the Office of the Attorney General of New Brunswick and which, not surprisingly, had been met with a polite suggestion he seek legal advice. I attach as “Appendix A” a copy of the “Notice of Demand to the General Attorney (sic) of New Brunswick and the General Attorney (sic) of Canada” dated November 1, 2013. For reasons I will explain below in addressing the matter of costs, I find it noteworthy that the document is signed by Mr. Bossé over the following signature line: Jules Bossé

Authorized Representative of JULES BOSSÉ sui juris, All rights reserved, and in effect now Without prejudice [25] The motion to have the Property Act declared ultra vires was dismissed from the Bench withoutcalling on either counsel for FCC or for the Attorney General of New Brunswick to answer to Mr. Bossé’s arguments. At the time, weindicated that reasons for our decision would follow. These are those reasons and they are simple: first, we refused to hear aconstitutional challenge at this late stage of the proceedings; and, second, the constitutional challenge is frivolous because Mr.

Bossé hasnot advanced any credible basis upon which it could be found that the Property Act was not enacted pursuant to, or exceeded validprovincial power. III. Issues on Appeal [26] For the sake of fullness, and in order to enable the reader to understand the scope of theseappeals, I will set out verbatim the numerous grounds. This said, I see no reasons to canvas each ground independently. They are prolix,often duplicitous and, on application of the proper standards of review, are all devoid of any merit. As a result, I find myself able todispose of this appeal in a very

summary manner, which is how one would expect frivolous claims or defences to generally be resolved. [27] Regarding the appeal against the

summary judgment, the grounds are set out in the Notice ofAppeal in the following words:

a) As the transcript will disclose, Justice Lavigne committed an error of law by refusing to accept to hear the Motion to dismiss CourtCase EC-37-2011 for no cause of action, without lawful justification, even if the Motion has been timely submitted without success to the Judicial District of Edmundston on April the 20th and the 23rd, 2012 and on July 16 2012 and timely served the same day to theRespondent (Plaintiff), as arbitrarily refused on July 17 by the Clerk Administrator, with the notice of refusal to the Appellant on July 20th 2012, while keeping the motion with evidence in his office.

b) As the transcript will disclose, Justice Lavigne committed an error of law saying before the Appellant (Defendant) plead that theprior decisions of Justice Ouellette dated November 4, 2012 and of Justice Quigg dated March 30, 2012, were not to be relevant to herdecision on the

Summary Judgment, having for effects that the Appellant (Defendant) did not plead on those matter to defend and JusticeLavigne relied almost exclusively on those two decisions in her oral presentation to explain her decision, that she couldn’t take a decisionin opposition to those two decisions.

c) As the transcript will disclose and evidence in support, Justice Lavigne committed an error of law in her decision, relying on adecision, while Justice Ouellette said himself “non-competent” having no jurisdiction, when seeing the said Bills of Exchange at theHearing of the Motion on October 12, 2011, prior every other comments and his decision on the matter.

d) As the transcript will disclose, Justice Lavigne committed an error of law by giving a decision avoiding the application of the law asprescribe the two Supreme Court decisions, REFERENCE AS TO VALIDITY OF THE DEBT ADJUSTMENT ACT and the Alberta(Attorney-General) v. Atlas Lumber Co., (SCC) – 1940-12-20 about the legal value of the Bills of Exchange andPromissory Notes prior any application of provincial law.

e) As the transcript will disclose, Justice Lavigne committed an error of law avoiding the necessity for presentment of the Bills prior herdecision, ignoring Bills of Exchange Act R.S.C., 1985, c. B-4 as prescribe the law as follows: «84.

(1) Subject to this Act, a bill must be duly presented for payment. If not presented

(2) If a bill is not duly presented for payment, the drawer and endorsers are discharged. »

f) As the transcript will disclose, Justice Lavigne committed an error of law, when the Plaintiff party, still being in possession and control of two Bills of Exchange never shown evidence that the two Bills of Exchange were presented for payment prior any action on the matter as the law prescribed. As the transcript will disclose, Justice Lavigne committed an error of law in her decision, when the Bills of Exchange Act R.S.C., 1985, c. B-4 , clearly states that the Plaintiff is: « 91. Not dispensed with

(2) The fact that the holder has reason to believe that the bill will, on presentment, be dishonored does not dispense with the necessity for presentment.»

g) As the transcript will disclose, Justice Lavigne committed an error of law in her decision, when the Bills of Exchange Act R.S.C., 1985, c. B-4 , clearly states that the Plaintiff is: 95.

(1) Subject to this Act, when a bill has been dishonored by non-acceptance or by non-payment, notice of dishonor must be given to the drawer and each endorser, and any drawer or endorser to whom the notice is not given is discharged.”

h) As the transcript will disclose, Justice Lavigne committed an error of law by avoiding the application of the Bills of Exchange Act . in her decision, when the Bills of Exchange Act R.S.C., 1985, c. B-4, clearly states that the Respondent (Plaintiff), having accepted and being the Holder in due Course of the Bills since February 24, 2011, is engaged by Estopel as follows: « 128. The acceptor of a bill by accepting it is precluded from denying to a holder in due course (

a) the existence of the drawer, the genuineness of his signature and his capacity and authority to draw the bill; (

b) in the case of a bill payable to drawer’s order, the then capacity of the drawer to endorse, but not the genuineness or validity of his endorsement; or (

c) in the case of a bill payable to the order of a third person, the existence of the payee and his then capacity to endorse, but not the genuineness or validity of his endorsement.»

i) As the transcript will disclose, Justice Lavigne committed an error of law, when the Respondent (Plaintiff) party having never shown evidence of presentment at the designated Clearing House that the two Bills of Exchange ever been of no value to compensate the debts.

j) As the transcript will disclose and evidence in support, Justice Lavigne committed an error of law, the Plaintiff party having never shown evidence that the two Bills of Exchange have been dishonored by the designated Clearing House, being the only evidence that would have justified her decision.

k) As the transcript will disclose, Justice Lavigne committed an error of law by avoiding the application of the Bills of Exchange and Promissory Notes according to the Constitutional Act of Canada, section 91(18) as should apply prior any provincial law, notwithstanding the decision of two Case laws of the Supreme Court of Canada and a decision of the Court of Québec in respect of the application of the Constitutional law, as read by the Appellant (Defendant) at the hearing.

l) As the transcript will disclose, Justice Lavigne committed an error of law hearing, where the Plaintiff didn’t’ send a Notice to the Attorney generals of New Brunswick and Canada as section 22(3) (

b) of the JUDICATURE ACT prescribed, regarding the application of Bills of Exchange and Promissory Notes under the law of New Brunswick prior the application of sections 138 and 95(1) of the Bills of Exchange Act R.S.C., 1985, c. B-4 as prescribed section 91(18) of the Constitutional Act.

m) As the transcript will disclose, Justice Lavigne committed an error of law by admitting the application of the Bill of Exchange and Promissory Notes in Tehrani c. Comodini, 2009 QCCQ 11107 was only applicable because the note was a cheque, but would not be applicable to «Bill of Exchange» and «Promissory Notes» in her decision, when the Act . say in its heading «An Act relating to bills of exchange, cheques and promissory notes».

n) Justice Lavigne committed an error of law giving a decision on the ground, where no special provision is contained in the law of New Brunswick, neither in the law of Canada to avoid the application of a Federal law, in regards of the application of the Bills of Exchange Act R.S.C., 1985, c. B-4,

section 138 subject to sections 84(1) (2)(3) and 95(1) , notwithstanding of section 192(1) , that should be apply prior the application of any other law in New Brunswick.

o) As the transcript will disclose, Justice Lavigne committed an error of law giving a decision on the ground, of hearsay of the Respondent (Plaintiff), having shown no merit to action, failed to present prima facie or conclusive evidence for all of the essential facts.

p) As the transcript will disclose, Justice Lavigne committed an error of law giving a decision on the ground of hearsay of the Plaintiff, having shown no merit to action, having presented only one Case law of the Provincial Court of Ontario, where it was said to have similar documents then the Appellant-Defendants’ party in Court Case EC-37-2011, where the Judge had qualified those documents of «frivolous, vexatious and having no legal value», without showing any element of evidence of such similarities for the purpose of the hearing.

q) Notwithstanding to any other possible error of facts and error of law, within the coming transcript of the hearing of July 27, 2012. [Emphasis in original.] [ 28 ] As for the appeal against the assessment of the quantum of FCC’s claim, the grounds read as follows:

a) Ms. Justice LaVigne committed an error of law by failing to obligate FCC to her order of July 27, 2012 in respect of the PRACTICE MEMORANDUM # 1 MORTGAGE SALE DEFICIENCY ACTIONS of the New Brunswick Chief Justice contrary to section 12(1) (2) of the

CHAPTER J-2 Judicature Act ., TRIAL DIVISION in regard of appraisals done by the two FCC’s employees of New Brunswick, being Lise Desjardins and Charles Dubé, as being compulsory prior the calculation of damages.

b) Ms. Justice LaVigne committed an error of law by failing to obligate FCC to respect the initial agreement as the condition for the signatures of the defendants for an amount of $435 000, being 73% of the accepted value of the initial FCC’s appraisal of $ 595 000, (Decision p. 16 [41]).

c) Ms. Justice LaVigne committed an error of law in her decision, having failed to acknowledge the indisputable fact that FCC failed to act with diligence in respect of its prior obligation as prescribe section 4(2) (f.41) of the Farm Credit Canada Act , S.C., 1993. c. 14 to dispose of the properties as a fair market value until five years after the acquisition. prior the application of FCC’s power of sale under

section 44 and 45 of the Property Act, RSNB 1973, c P-19 and its protection under section 46(6) of the same Act : therefore. FCC was not “force d’agir dans un laps de temps limité et dans des condition défavorables” (Decision, p. 5 [17], [18], p. 14 [33], p. 28 [78]).

d) Ms. Justice LaVigne misconstrued the facts, committing thereof, errors of law in her decision (Decision p. 26 [71]), regarding her statement in respect of the management and the involvement of Ms. Chantal Fortier from FCC, as the transcript will disclose.

e) Ms. Justice LaVigne committed an error of law in her decision, in light of FCC’s false and misleading representations referring to FCC, being in violations under

Section 52 and 74 of the Competition Act , RSC, 1985, c. C-34 inter alias to

Section 77 , 18 . (1), 18. (4), 18. (14) and, 18. (15) of the Consumer Protection Act , S.O.2002, c. 30,

Schedule A , prior the signatures of the promissory notes and by the validation of FCC’s appraisal by Mr. Charles Dubé, (Decision p. 29 [83]), showing to have been done by using false and invalided data as the transcript will disclose.

f) Ms. Justice LaVigne committed an error of law in her decision (Decision p. 32 [90]), having failed to acknowledge the indisputable fact that FCC has, or ought to have taken advantage of the original promissory notes and the collateral mortgages, (Decision p. 2-3 [6] – [7]), as per section 12(1) (3)(4) of the Farm Credit Canada Act , S.C. 1993, c. 14, FCC having shown with Ms.

Chantal Fortier and Me Tracy Wong, being witnesses, having said under oath to have acted over the defendant’s party on copies provided by FCC, being not in possession and control and having any affidavit from FCC to show that they legally acted in being in possession and control of these original promissory notes and the collateral mortgages in support of their seizure and claim.

g) Ms. LaVigne committed an error of law in her decision, having failed to acknowledge the indisputable fact that FCC has, or ought tohave taken advantage of the original promissory notes and the collateral mortgages (Decision p. 2-3 [6] – [7] and p. 32[90]), as persection 74(1) of the Financial Administrative Act, R.S.C. 1985, c. F-1, in order to pursue the legal action against the defendants.

h) Ms. LaVigne committed an error of law in her decision, having failed to acknowledge the indisputable fact that FCC acted on copiesinstead to have proceeded only with the original promissory notes and the collateral mortgages contrary to section 31(1)(2)(3) of theCanada Evidence Act, (R.S.C., 1985, c. C-5), section 74(1) of the Financial Administrative Act, R.S.C. 1985, c. F-1 and section 100(3) ofthe Bank Act, S.C. 1991, c. 46.

PART II STATUS AND POWERS, as the transcript will disclose.

i) Ms. Justice LaVigne misconstrued the facts, committing thereof, errors of law in her decision (Decision p. 28 par. [77]), without anyadmissible evidence of the said five reasons to establish that “les lots boisés ont perdu de la valeur entre 2007 et mars 2011” as thetranscript will disclose.

j) Ms. Justice LaVigne misconstrued the facts, committing thereof, errors of law in her conclusion (Decision p. 32 [91]), without anyadmissible evidence that “La crise qui a secoué l’industrie forestière entre 2007 et 2011 a entraîné une morosité et est en grande partieresponsable pour la diminution dans les valeurs…”, the plaintiff having fundamentally failed in making the point on that issue, as thetranscript will disclose.

k) Ms. Justice LaVigne committed an error of law in her decision (Decision p. 32 [90], and p. 33-37 [93] – [105]), adding legal fees,insurance fees and interest, without any admissible evidence of the said Plaintiff damages, when evidence shown that the plaintiff’sclaim is done over copies, being not in possession and control of original promissory notes and original collateral mortgages (Decision p.2-3 [6] – [7]).

l) Ms. Justice LaVigne misconstrued the facts, committing thereof, errors of law in her decision regarding “les Bossé ont informé letribunal qu’ils désiraitent contre-intérroger Mme Fortier et Me Wong” (Decision p. 32 [90], whereas the decision to

schedule a hearingon the matter was Hers and not requested by either parties as the transcript of the conference call of October 25, November 2 and 14,2012 will disclose.

m) Any other ground to appeal that the coming transcripts of the conference call of October 25, November 2 and 14, 2013 and of thehearing heard on February 6, 8, 15 and 22, 2013, will disclose. [29] Since we have concluded the appeal has no merit, we must then turn to the question of costs. FCC seeks costs on asolicitor and client basis. IV. Analysis A. The

summary judgment decision [30] The issue before the Court of Queen’s Bench judge on the

summary judgment motion wasstraightforward. The judge had to determine whether there was any defence to FCC’s action. At the close of the hearing, the judgerendered a decision from the bench. She held there was none except with respect to the quantum of the claim, so she ordered

summaryjudgment in favour of FCC and set a trial date for the assessment of the quantum. This ruling is consistent with rule 22.04(2) of the Rulesof Court. [31] To determine the motion for

summary judgment, the judge considered the pleadings, theaffidavits and the exhibits that had been filed before her. She applied the law as set out in this Court’s decision in Cannon v. Lange,(1998), (NB CA), 203 N.B.R. (2d) 121, [1998] N.B.J. No. 313 (C.A.) (QL), per Drapeau J.A. (as he then was). Thejudge concluded the stringent test for

summary judgment had been met. She reasoned, as had the motion judge who had earlierdismissed the Bossés’ and Envirotek’s motion seeking the return of the properties sold at auction, that the documents created by Mr.Bossé were of no legal value. Since they had no legal value, the Bills of Exchange Act did not apply and there was no need for a trial onthe question of whether these had been properly presented to FCC in payment of the debt. The judge characterized the defence as“frivolous”, and concluded there was no reason to doubt the outcome of trial.

[32] For the most part, the grounds of appeal against this decision are as frivolous as the defence tothe action. These can be summarily dismissed on the basis that, in making discretionary rulings, the judge acted judicially and, indetermining the motion for

summary judgment, the judge reviewed the relevant evidence and applied the correct legal test. Thereremains only the question whether the judge erred in law in determining that the documents the Bossés and Envirotek forwarded to FCCin purported payment of their debts had no legal value. In that respect, I am of the view she clearly did not. [33] I attach as “Appendix B” some of the documents that were forwarded to FCC in purportedsatisfaction of the obligations of the Bossés and Envirotek. By themselves, and without the need for any analysis, they illustrate theabsurdity of the defence to FCC’s claim.

In short, one cannot go to the Internet and produce documents that purport to create obligationsupon the United States Treasury and then present these to a creditor and say “here, go try to collect from the US Treasury before you cancollect from me that which I owe you.” It would be ludicrous if it were that easy to satisfy a debt. [34] Surprisingly enough, this is not the first time such a daft attempt was made to satisfy one’sobligation to a creditor. Not surprisingly, the courts have rejected them all: Banque Laurentienne du Canada c.

Carabes, 2011 QCCS5832, [2011] J.Q. no 16060 (QL), aff’d 2012 QCCA 214, [2012] Q.J. no. 748 (QL); Compagnie de fiducie du Groupe Investors ltée c.Ouellet, 2011 QCCS 7508, [2011] J.Q. no. 22269; Services de financement TD inc. c. Michaud, 2011 QCCQ 14868, [2011] J.Q. no.17928; Caisse Desjardins des Chênes c. Pétrin, 2012 QCCS 1847, [2012] J.Q. no. 3987 (QL), aff’d 2012 QCCA 1268, [2012] J.Q. no.6653 (QL); Caisse Desjardins des Métaux Blancs c. Langlois, 2012 QCCS 1443, [2012] J.Q. no. 3146 (QL); Banque Laurentienne duCanada c. Renaud, 2012 QCCS 4025, [2012] J.Q. no. 8005 (QL); Banque Manuvie du Canada c.

Hamel, 2012 QCCS 2187, [2012] J.Q.no. 4773 and Banque Nationale du Canada c. Weerts Stefanelli, 2013 QCCS 2974, [2013] J.Q. no. 7039 (QL). In the Langlois case, Dumas J. noted that the defendant in that matter was the 29th person to have produced a document in the nature of what was called a“Private registered set off bond” in an attempt to pay Caisse Desjardins, and observed that complaints had been made to the Sûreté duQuébec and to the RCMP.

These cases demonstrate that courts have universally found defences of actions based on these types ofschemes to be frivolous and abusive. [35] In sum, I am of the view the motion judge was correct in issuing

summary judgment for thereasons she gave and find no basis for appellate intervention. B. The assessment of the quantum [36] The assessment of the quantum of FCC’s claim was tried over 4 days. In the end, the judgeordered judgment in the amount of $263.998.14 plus costs. In doing so, the judge accepted the expert evidence FCC had adduced at trialover that adduced by Mr.

Bossé. [37] The hodgepodge of grounds of appeal the Bossés and Envirotek advance in support of theirappeal against the assessment of the quantum of FCC’s claim, for the most part, seem to raise questions of fact or mixed law and fact thatwould require the appellants to demonstrate they are the result of one or more palpable and overriding errors. Yet, no such error has beenshown either on the face of the decision or upon a review of the evidentiary record.

In what can only be described as very difficultcircumstances, the judge overcame obstructions resulting from the plethora of issues raised and the incoherence of many of thearguments presented and arrived at a quantum that is grounded on the evidentiary record. I find no palpable and overriding error in herfindings. [38] As for the alleged errors of law, these are without any foundation. Many of the statutes invokedin the grounds of appeal were neither pled in the Statement of Defence nor properly argued before the trial judge. They have norelevance to this matter.

In my view, the judge applied the correct law to the circumstances of this case and I find no reversible error inher decision. C. FCC’s claim for costs [39] FCC seeks to recover costs on appeal on a solicitor and client basis. I agree that this is a casewhere such an award of costs is justified. [40] The following statement of this Court, per Ryan J.A., in Sirois v. Centennial Pontiac BuickGMC Ltd. (1988), (NB CA), 89 N.B.R. (2d) 244, [1988] N.B.J. No. 407 (C.A.) (QL), continues to govern in

determining whether costs should be awarded on a solicitor and client basis: Solicitor and client costs are awarded in rare and exceptional cases where the actions of one of the parties are onerous as against anotherparty. Orkin, The Law of Costs (2nd ed. 1987), at pages 2-61 and 2-62 sets out the author's opinion along with a number of illustrations: Such orders are not to be made by way of damages, or on the view that the award of damages should reach the plaintiff intact, and areinappropriate where there has been no wrongdoing.

An award of costs on the solicitor-and-client scale, it has been said, is ordered only in rare and exceptional cases to mark the court'sdisapproval of the conduct of a party in the litigation.

Orders of this kind have been made where a litigant's conduct has been particularlyblameworthy, for example, where there were allegations of fraud or impropriety either unproven or abandoned at trial; or wanton andscandalous charges; or allegations of perjury; or collusion; or where the responsible party perpetrated a fraud on the court, e.g., bypreparing and presenting forged documents; or by filing a deliberately deceptive affidavit in support of an order without notice; or byconcealing a document until trial and then relying on it; or prolonged the trial by engaging in obstructionist tactics; or brought motionswithout merit to exhaust an opponent's resources; or intentionally misled the court by giving false evidence as to material facts; or incontempt proceedings.

Solicitor-and-client costs have been awarded to the successful party where an action was without any foundationin law, or where an appeal was considered to be without merit; and in a libel action where fault was admitted, only the amount ofdamages being contested; or where a carrier failed to admit liability for the contamination of food until shortly before trial, although ithad been aware of the facts much earlier; or where defendant in a wrongful dismissal action pleaded just cause without basis for the plea;or in an action for indemnification by an insured against his insurer where the insurer, in refusing to settle a personal injury claim had notused reasonable care for the protection of its insured, acted in bad faith and the plaintiff ought not to have had to bring the action. [para.10] [41] In Mailhot v.

Savoie, 2004 NBCA 17, 268 N.B.R. (2d) 348, Larlee J.A. explained theunusual nature of solicitor and client costs in these terms: […] solicitor-client costs are the exception, not the rule. They are reserved for a party subjected to wrongdoing that is reprehensible,scandalous or outrageous (see Mackin v. New Brunswick (Minister of Finance)); Rice v. New Brunswick, 2002 SCC 13 , [2002]1 S.C.R. 405 and Young v. Young, (SCC), [1993] 4 S.C.R. 3 at paras. 249-251). [para. 37] [42] In my view, this is a case where FCC has been subjected to wrongdoing that isreprehensible, scandalous and outrageous.

Whittled down to its core, this was a simple claim on a debt that should have been decided onsummary judgment with perhaps a simple trial on the quantum. Instead, it turned into a litigation nightmare for FCC, requiring it torepeatedly respond to motions, applications and allegations that were each ultimately found to be frivolous or without any merit.Moreover, the Bossés made claims and advanced defences that any reasonable person would know were devoid of merit.

It defies logicthat one could print out bonds for any sum of money, let alone significant amounts, and simply say to one’s creditors “here, go away,you have been paid.” I am convinced the Bossés knew this.

Their persistence and the vigour with which they challenged or sought tochallenge virtually every ruling made against them convinces me they engaged in litigation warfare against FCC as an obstructionisttactic in the hope they would deplete not necessarily FCC’s resources but rather its resolve to obtain a judgment for the balance of thedebt owed. [43] The numerous cases emanating from Quebec where such schemes have been denouncedillustrate a stream of vexations litigants intent on abusing the court process in an effort to escape from their legitimate obligations.

Thereis no evidence that the pointless defence advanced in this case was inspired by some guru of the type identified and denounced in acomprehensive decision Rooke A.C.J. authored in Meads v. Meads, 2012 ABQB 571, [2012] A.J. No. 980 (QL). But one thing is certain:the Bossés did not invent the defence out of thin air.

One can only conclude they were at least inspired by some of the techniquesemployed by a category of vexatious litigants Rooke A.C.J. called Organized Pseudolegal Commercial Argument Litigants (“OPCAlitigants”). [44] Meads identified and described certain types of vexatious litigants that fall into categorieslabeled: Detaxers, Freemen or Freemen-on-the-Land, Sovereign Men or Sovereign Citizens, Church of the Ecumenical RedemptionInternational (CERI), and Moorish Law. However, Rooke A.C.J. points out “there is often a lack of homogeneity, and some individualsor groups have no name or special identity” (para. 1).

What the OPCA litigants have in common is that they “employ a collection oftechniques and arguments promoted and sold by 'gurus' … to disrupt court operations and to attempt to frustrate the legal rights ofgovernments, corporations, and individuals” (para. 1). Rooke A.C.J. explains that OPCA litigants are unified by the following factors:

1. a characteristic set of strategies (somewhat different by group) that they employ, 2. specific but irrelevant formalities and language which they appear to believe are (or portray as) significant, and 3. the commercial sources from which their ideas and materials originate. [para. 4] [ 45 ] The present case features, to varying degrees, the first two of these factors, while the third is unknown. [ 46 ] The first is evident from the similarity between the appellants’ strategy and those in the Quebec cases.

There are also some similarities with a sub-category of OPCA litigants identified in Meads who engage in “Money for Nothing Schemes.” Rooke A.C.J. explains that these schemes “are different from the other OPCA strategies … , as they do not challenge or subvert the court's authority, but instead purport to provide a mechanism by which the OPCA litigant can obtain unconventional benefits” (para. 529). One of these is described as “Bill Consumer Purchases”, which appears to have some similarities to the scheme in the present case.

It is described in Meads as follows: Recently the Ontario Court of Appeal has, in Toronto-Dominion Bank v. Di Iorio , 2011 ONCA 792 a paras. 2-3, rejected what seems to be a new 'money for nothing' scheme, where the applicants claimed that documents called "Bill-Consumer Purchases" would discharge a debt: 2 The appellants contend that the motion judge erred by not accepting that the documents they submitted to the respondent, namely, so- called "Bill-Consumer Purchases" were legal tender for their debts. 3 We disagree. The appellants' documents have no commercial value whatsoever.

Accordingly, the appellants' debts to T-D Bank remain unpaid. The trial judgment is not reported, and the Court of Appeal offers little detail on the theoretical basis of this scheme. My assumption is that this concept in some manner relates to the "consumer bills and notes" component of the Bills of Exchange Act , R.S.C. 1985, c. B-4, ss. 188- 192 . A similar scheme may have been in play in Papadopoulos v. Borg , 2009 ABCA 201 . There the court evaluated whether a claim had been proven, when not refuted by affidavit, and concluded that it: ... appears to be a distorted view of the Bills of Exchange Act .

It is, however, apparent that the documents do not even slightly resemble genuine bills of exchange. Furthermore, signing for the registered mail that contained the documents does not amount to an "acceptance" of any legitimate bill of exchange that might be in the envelope. "Acceptance" in the Bills of Exchange Act is a technical term, and is not the same as acknowledging physical receipt of the envelope. A scheme of this type warranted elevated costs against the OPCA litigant: Ramjohn v.

Rudd , 2007 ABQB 84 at paras. 9-10 , 156 A.C.W.S. (3d) 38. [paras. 544-547] [ 47 ] The second unifying factor, identified in Meads for OPCA litigants, is only marginally present and only surfaced toward the end of the proceedings. As Rooke A.C.J. points out, “persons who engage in OPCA litigation tend to adopt certain stereotypic motifs” that are, in the vast majority of cases, “almost never shared by other self-represented litigants” (para. 199). One of these motifs relates to how they identify themselves.

They often add atypical punctuation into a name or state “their name in duplicate forms, one with only upper case letters, the second with either upper and lower case letters or only lower case letters” (para. 211). For example, in some of the documents he had filed, Mr. Meads had inserted his signature line as “DENNIS LARRY MEADS by : : Dennis Larry : : ” (para. 211). Recall that, in the “Notice of Demand” he forwarded to the Attorney General, Mr. Bossé described himself as:

Jules Bossé Authorized Representative of JULES BOSSÉ [48] While the actual presence of the third unifying factor is unknown, as I point out, while there may be noevidence that the pointless defence advanced in this case is derived from a commercial source, the obvious inference from the similarityof the defence to those dismissed in the aforementioned Quebec cases is that the Bossés were at least inspired by some of the techniquesemployed by a number of vexatious litigants. [49] Meads reviews some of the criteria certain courts – primarily in Alberta – have identified for awards ofsolicitor and client costs: • solicitor and client costs are awarded where the conduct of a party has been 'reprehensible, scandalous or outrageous': Walsh v.Mobil Oil Canada, 2008 ABCA 268 at para. 112, 440 A.R. 199; Hamilton v.

Open Window Bakery Ltd., 2004 SCC 9 at para. 26, [2004]1 S.C.R. 303; Young v.

Young, (SCC), [1993] 4 S.C.R. 3 at 134, 108 D.L.R. (4th) 193; • solicitor and client costs might suffice to satisfy the objectives of deterrence and punishment that would otherwise be served by apunitive damage award: Colborne Capital Corp. v. 542775 Alberta Ltd., 1999 ABCA 14 at para. 294, 228 A.R. 201; College ofPhysicians & Surgeons, 2009 ABQB 48 at paras. 4-23, 468 A.R. 101; • misconduct during the litigation can surely be found if there is no reasonable basis on which to commence, or continue, litigation:College of Physicians & Surgeons, at para. 33; • a proceeding that was based on groundless allegations and was a type of conduct that should be discouraged: College ofPhysicians & Surgeons, at para. 48; • justice can only be done by a complete indemnification for costs: Foulis v.

Robinson (1978), (ON CA), 21O.R. (2d) 769, 92 D.L.R. (3d) 134 (Ont. C.A.); • there is evidence that the plaintiff did something to hinder, delay or confuse the litigation, where there was no serious issue offact or law which required these lengthy, expensive proceedings, where the positively misconducting party was "contemptuous" of theaggrieved party in forcing that aggrieved party to exhaust legal proceedings to obtain that which was obviously his: Max Sonnenberg Inc.v. Stewart, Smith (Canada) Ltd., (AB KB), 48 Alta. L.R. (2d) 367, [1987] 2 W.W.R. 75 (Alta.

Q.B.); • an attempt to deceive the court and defeat justice, an attempt to delay, deceive and defeat justice: Olson v. New HomeCertification Program of Alberta (1986), (AB KB), 69 A.R. 356, 44 Alta. L.R. (2d) 207 (Alta. Q.B.); • where the defendants were guilty of positive misconduct, where others should be deterred from like conduct and the defendantsshould be penalized beyond the ordinary order of costs: Dusik v.

Newton (1984), (BC SC), 51 B.C.L.R. 217, 24A.C.W.S. (2d) 465 (B.C.S.C.), varied on other grounds (BC CA), 62 B.C.L.R. 1, 31 A.C.W.S. (2d) 199 (B.C.C.A.); • an attempt to delay or hinder proceedings, an attempt to deceive or defeat justice, fraud or untrue or scandalous charges: PharandSki Corp. v. Alberta (1991), (AB KB), 122 A.R. 81, 122 A.R. 395 (Alta.

Q.B.); and • the positive misconduct of the party which gives rise to the action is so blatant and is calculated to deliberately harm the otherparty, then despite the technically proper conduct of the legal proceedings, the very fact that the action must be brought by the injuredparty to gain what was rightfully his in the face of an unreasonable denial: Jackson v. Trimac Industries Ltd. (1993),

(AB KB), 138 A.R. 161 at para. 32, 8 Alta. L.R. (3d) 403 (Alta. Q.B.), affirmed on costs, 1994 ABCA 199 , 155 A.R. 42, 20Alta. L.R. (3d) 117 (Alta. C.A.) (but see Polar Ice Express Inc. v. Arctic Glacier Inc., 2009 ABCA 20 at para. 21, 446 A.R. 295). [para.597] [50] Rooke A.C.J. points out that “[m]any, if not most of these characteristics emerge in a typical proceedingthat involves OPCA concepts and litigants” (para. 598). Many appear in the present case. The Bossés’ and Envirotek’s defence and theirtactics meet the criteria of being “reprehensible, scandalous or outrageous”.

There was no reasonable basis for the defence advanced inthis case, and groundless allegations such as those the Bossés made must be discouraged. What should have been a simple action torecover a debt was hindered and confused by their attempt to defeat justice by the production and subsequent reliance on bogusdocuments. Positive misconduct of this type must be loudly and strictly denounced so the Bossés themselves, and others who might beinclined to behave in a like manner, are discouraged from this type of conduct.

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