BERNARD FIEDERER Plaintiff v. MARC GIROUX, 2024 FC 156

Date: 20240131 Docket: T-1548-22 Citation: 2024 FC 156 Ottawa, Ontario, January 31, 2024 PRESENT: Mr. Justice Sébastien Grammond BETWEEN: BERNARD FIEDERER Plaintiff and MARC GIROUX CANADIAN JUDICIAL COUNCIL Defendants ORDER AND REASONS [ 1 ] Mr. Fiederer brought an action against the defendants based on their failure to investigate his complaints against several judges. This is the second action Mr. Fiederer has brought on this issue. The first action was dismissed because it was clearly unfounded. An associate judge dismissed the second one because it was aimed at relitigating the issues raised in the first. Mr.

Fiederer appealed this decision. I am dismissing Mr. Fiederer’s appeal, as the associate judge made no reviewable error in dismissing the action. Moreover, I am granting the respondents’ motion to declare Mr. Fiederer a vexatious litigant. I. Background [ 2 ] In 2016, Mr. Fiederer brought an action in the Quebec Superior Court against a notary who allegedly committed faults with respect to the preparation of a commercial lease. In 2018, the Superior Court dismissed the action: Fiederer v Litvack , 2018 QCCS 3796 . The Court found that Mr.

Fiederer’s action was prescribed, as it was brought more than three years after he learned of the facts giving rise to his claim. Moreover, even if the action were not prescribed, the Court found that it would fail on the merits. [ 3 ] Mr. Fiederer’s subsequent appeal before the Quebec Court of Appeal was summarily dismissed as being abusive and having no reasonable chance of success: Fiederer v Litvack , 2018 QCCA 2012 . Mr. Fiederer asked the Court of Appeal to reconsider this decision, without success: Fiederer v Litvack , 2019 QCCA 681 .

When he brought a similar motion for the second time, the Court of Appeal declared him a quarrelsome and vexatious litigant: Fiederer v Litvack , 2019 QCCA 1095 . [ 4 ] Mr. Fiederer then filed a number of complaints regarding these events before the Canadian Judicial Council [the Council]. He alleged various mistakes on the part of the judges who heard his case, as well as partiality and collusion between these judges and the Chambre des notaires. All these complaints were rejected. Moreover, the Council declared him a vexatious complainant. [ 5 ] After the rejection of his last complaint, Mr.

Fiederer brought an action in damages in this Court against the Council, Mr. Marc Giroux (the Council’s Executive Director) and the Attorney General of Canada. The Council and Mr. Giroux brought a motion to strike Mr. Fiederer’s action. I allowed this motion, because Mr. Fiederer’s statement of claim did not disclose any reasonable cause of action: Fiederer v Canada (Attorney General) , 2022 FC 48 . I found that given the nature of their functions, the Council and Mr. Giroux are immune from suit unless they act in bad faith.

The Federal Court of Appeal summarily dismissed an appeal of my judgment: Fiederer v Canada (Attorney General) , 2022 FCA 102 . [ 6 ] Mr. Fiederer recently brought a new action in damages in this Court against the Council and Mr. Giroux. He tried to file a number of motions and sent repeated emails to the Court. They need not be described in detail at this stage. Mr. Fiederer then brought a “motion for judgment”.

Associate Judge Alexandra Steele dismissed this motion and struck the statement of claim, because it disclosed no reasonable cause of action and was frivolous, vexatious and an abuse of process. [ 7 ] Mr. Fiederer now appeals Associate Judge Steele’s order. Moreover, the Council and Mr. Giroux bring a motion to declare Mr. Fiederer a vexatious litigant, pursuant to

section 40 of the Federal Courts Act , RSC 1985, c F-7 [the Act ]. I will deal with each motion in turn. II. Appeal of the Order of the Associate Judge [ 8 ] I am dismissing Mr. Fiederer’s appeal of Associate Judge Steele’s order dismissing his action. [ 9 ] On appeal, I may substitute my own view for that of the associate judge with respect to questions of law. This is called the correctness standard.

With respect to other questions, namely questions of fact and questions of mixed law and fact (unless there is an extricable question of law), the standard is higher: I can only intervene if the associate judge made a palpable and overriding error: Hospira Healthcare Corporation v Kennedy Institute of Rheumatology , 2016 FCA 215 , [2017] 1 FCR 331. [ 10 ] The associate judge correctly stated the law regarding motions for

summary judgment and cause of action estoppel: see, in particular, Barendregt v Grebliunas , 2022 SCC 22 . Moreover, she committed no palpable and overriding error in finding that Mr.

Fiederer’s current action is essentially the same as the one that this Court and the Federal Court of Appeal dismissed, and is accordingly devoid of any reasonable chance of success. [ 11 ] In this regard, even if Mr. Fiederer included an allegation of bad faith in his second statement of claim, the associate judge made no reviewable error when she found that it was a bare allegation devoid of any factual foundation, as discussed by the Federal Court of Appeal when it dismissed Mr. Fiederer’s first action. [ 12 ] At the hearing before me, Mr.

Fiederer described at length and with conviction what he perceives to be the mistakes in the Superior Court’s 2018 judgment. In fact, towards the end of the hearing, Mr. Fiederer stated that he did not really want to bring a claim against the Council, but rather insisted that I allow his damages claim, which the Quebec Superior Court and Court of Appeal denied. [ 13 ] There are three fundamental reasons why I cannot address Mr. Fiederer’s submissions regarding the alleged mistakes in the Superior Court judgment.

First, given the structure of the Canadian judicial system, this is the role of the Quebec Court of Appeal, not mine. The Quebec Court of Appeal already found that there was no merit to Mr. Fiederer’s appeal of the Superior Court judgment. Second, if I were to embark on such an analysis, an elementary principle of fairness would require the defendants in the Superior Court to be present and to be given an opportunity to explain why the Superior Court did not make the mistakes alleged by Mr. Fiederer. This did not and could not happen, as the Federal Court does not have jurisdiction over them. Third, Mr.

Fiederer’s request ignores the principle of finality of judicial decisions. One cannot question a decision made by a court when all avenues of appeal have been exhausted. [ 14 ] At the hearing, Mr. Fiederer brought the decision of the European Court of Human Rights in Advance Pharma sp. z o.o v Poland (3 February 2022) to my attention. That decision pertains to controversial reforms to the process for appointing members of Poland’s Judicial Council and Supreme Court.

The European Court found that these reforms and the manner in which they were implemented breached the right to an independent and impartial tribunal established by law, guaranteed by

article 6 of the European Convention on Human Rights. This judgment has no bearing on the issues raised by Mr. Fiederer’s action, as Mr. Fiederer does not challenge the manner in which judges are appointed in Canada. I note that this Court recently dismissed a challenge to the Canadian judicial appointment process in Democracy Watch v Canada (Attorney General) , 2023 FC 31 .

I also note that the European Court, at paragraph 331 of its judgment, reiterated “ the principle of legal certainty, which requires, inter alia , that where the courts have finally determined an issue, their ruling should not be called into question”. [ 15 ] For these reasons, Mr. Fiederer’s motion to appeal the order of Associate Justice Steele will be dismissed. III. Vexatious Litigant Declaration [ 16 ] I now turn to the Council and Mr. Giroux’s motion to declare Mr. Fiederer a vexatious litigant. For the following reasons, I will grant this motion. A.

General Principles [ 17 ] Subsection 40(1) of the Act reads as follows: " 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 .

" [ 18 ] In Canada v Olumide , 2017 FCA 42 , [2018] 2 FCR 328 [ Olumide ] , Justice David Stratas of the Federal Court of Appeal explained the purpose of vexatious litigant declarations and the categories of situations in which such an order may be made: [19] The Federal Courts have finite resources that cannot be squandered. Every moment devoted to a vexatious litigant is a moment unavailable to a deserving litigant. The unrestricted access to courts by those whose access should be restricted affects the access of others who need and deserve it. Inaction on the former damages the latter. […] [22]

Section 40 is aimed at litigants who bring one or more proceedings that, whether intended or not, further improper purposes, such as inflicting damage or wreaking retribution upon the parties or the Court.

Section 40 is also aimed at ungovernable litigants: those who flout procedural rules, ignore orders and directions of the Court, and relitigate previously- decided proceedings and motions. [ 19 ] There is no fixed set of criteria to define vexatiousness. The concept must be understood mainly by referring to the purposes of

section 40 : Olumide , at paragraphs 31–32 . Nevertheless, courts have identified a number of " “hallmarks” " of vexatiousness. In Canada (Attorney General) v Yodjeu , 2019 FCA 178 at paragraph 18 , Justice Yves de Montigny of the Federal Court of Appeal listed a number of these hallmarks: . . . filing frivolous and inconsistent proceedings, seeking relief or remedies outside the jurisdiction of this Court, making unfounded allegations of improper conduct against the opposing party, that party’s solicitors and the Court, failing to meet

the deadlines and comply with the rules of the Courts, raising again questions that have already been decided, and non- payment of costs awarded against them . [ 20 ] While a declaration that a litigant is vexatious imposes restrictions on access to the courts, it does not prevent the person from vindicating valid claims. In Olumide , at paragraph 27 , Justice Stratas indicated that: A declaration that a litigant is vexatious does not bar the litigant’s access to the courts. Rather, it only regulates the litigant’s access to the courts: the litigant need only get leave before starting or continuing a proceeding.

B. Application [ 21 ] Mr. Fiederer must be declared a vexatious litigant. His behaviour exhibits several of the hallmarks of vexatiousness. [ 22 ] First, Mr. Fiederer endlessly seeks to relitigate issues that have been finally determined. His submissions before this Court focused almost entirely on the judgment rendered by the Superior Court in 2018. As he eventually made clear, what he really seeks is not an award of damages against the Council but the reversal of the Superior Court’s decision. Absent the constraints flowing from an order pursuant to

section 40 of the Act , he is likely to continue pursuing this goal. This will result in the squandering of scarce judicial resources. [ 23 ] Second, Mr. Fiederer repeatedly makes baseless allegations of corruption and misconduct against several judges and lawyers. Yet, he has not provided any evidence in support of these allegations. Alleging judicial misconduct is a serious matter. Doing so without factual basis is an abuse of process and a hallmark of vexatiousness. This Court cannot offer Mr. Fiederer a forum to repeatedly make such allegations.

See, by way of analogy, Potvin v Rooke , 2019 FCA 285 . [ 24 ] Third, Mr. Fiederer is pursuing his claims in an erratic manner that disregards the rules of procedure. He has sent numerous letters and emails to the Council and to this Court. He has made a number of unfounded motions, in particular to seek various remedies against the lawyers who represent the defendants. For example, he brought a motion for contempt of court against them in the Federal Court of Appeal, which was refused for filing. He also made a complaint against them to the Quebec Bar, which was summarily dismissed for lack of evidence.

In the context of the present proceeding, he made a motion to disqualify them. An associate judge ordered that this motion be removed from the Court file, as it was clearly unfounded and scandalous, frivolous or vexatious. [ 25 ] Fourth, Mr. Fiederer was declared a vexatious litigant by the Quebec Court of Appeal and the Council. As Justice de Montigny wrote in Coady v Canada (Attorney General) , 2020 FCA 154 at paragraph 29 : Needless to say, an order declaring a person to be a vexatious litigant must be based on the conduct of that person in the court making that order.

That being said, other courts’ findings of vexatiousness will carry much weight in

section 40 motions before this Court, especially if these other courts’ findings are based on similarly worded provisions: Olumide , at para. 37 . [ 26 ] For these reasons, it is now necessary to impose restrictions on Mr. Fiederer’s access to this Court. IV. Conclusion [ 27 ] For these reasons, Mr. Fiederer’s motion to appeal the judgment of Associate Judge Steele will be dismissed, and the Council and Mr. Giroux’s motion to have Mr. Fiederer declared a vexatious litigant will be granted, in both cases with costs. ORDER in T-1548-22 THIS COURT ORDERS that : 1.

The plaintiff’s motion to appeal the order issued by Associate Judge Steele on November 9, 2023 is dismissed. 2. The plaintiff is a vexatious litigant pursuant to

section 40 of the Federal Courts Act , RSC 1985, c F-7 . 3. The plaintiff may not commence or pursue proceedings of any kind before the Federal Court without the authorization of the Court. 4. The plaintiff is condemned to pay the costs of these motions. "Sébastien Grammond" Judge FEDERAL COURT SOLICITORS OF RECORD

Docket: T-1548-22 STYLE OF CAUSE: BERNARD FIEDERER v MARC GIROUX AND CANADIAN JUDICIAL COUNCIL PLACE OF HEARING: BY VIDEOCONFERENCE DATE OF HEARING: January 16, 2024 ORDER AND REASONS: GRAMMOND J. DATED: january 31, 2024 APPEARANCES : Bernard Fiederer For The Plaintiff (on his own behalf) Amanda Afeich Mathieu Piché-Messier For The Defendants SOLICITORS OF RECORD : Borden Ladner Gervais LLP Montréal, Quebec For The Defendants