BERNARD FIEDERER Plaintiff v. ATTORNEY GENERAL OF CANADA, 2022 FC 48

Date: 20220117 Docket: T-1653-21 Citation: 2022 FC 48 Ottawa, Ontario, January 17, 2022 PRESENT: Mr. Justice Sébastien Grammond BETWEEN: BERNARD FIEDERER Plaintiff and ATTORNEY GENERAL OF CANADA MARC GIROUX CANADIAN JUDICIAL COUNCIL Defendants ORDER AND REASONS [ 1 ] Mr. Fiederer brought an action in damages against the Attorney General of Canada, the Canadian Judicial Council [the Council], and the Council’s Executive Director, Mr. Giroux. I am seized of two motions in this action. The first, brought by the Council and Mr. Giroux, is a motion to strike Mr. Fiederer’s statement of claim.

The second is a motion to remove the Attorney General of Canada as a defendant. For the following reasons, I am granting the motion to strike, which makes it unnecessary to rule on the motion to remove a defendant. [ 2 ] Mr. Fiederer’s statement of claim appears to be based on the Council’s dismissal of complaints he made regarding the conduct of certain judges of the Quebec Superior Court and Court of Appeal. These judges dismissed a lawsuit he instituted against the Chambre des notaires. Moreover, the Court of Appeal declared him a vexatious litigant. In particular, Mr.

Fiederer alleges that in 2021, a whistleblower from the Chambre des notaires informed the Attorney General that " “the Chambre des notaires had unlawfully exerted their influence on the judges to make the rulings in their favour.” " He further states that the Council’s Executive Director wrote to him in respect of each complaint, to tell him that his complaints were vexatious and the Council would not investigate further.

He accuses the defendants of " “gross negligence,” " for " “refus[ing] to investigate the serious charges of corruption in the Superior Court and the Court of Appeal in Quebec.” " [ 3 ] The Council and Mr. Giroux bring a motion to strike pursuant to rule 221(1) of the Federal Courts Rules , SOR/98-106 . They argue that Mr. Fiederer’s statement of claim discloses no reasonable cause of action ( subrule 221(1) (a)), is vexatious ( subrule 221(1) (b)) and constitutes an abuse of process ( subrule 221(1) (f)).

I need only consider the first ground. [ 4 ] A pleading discloses " “no reasonable cause of action” " if the facts alleged, even if assumed to be true, do not establish a cause of action: R v Imperial Tobacco Ltd , 2011 SCC 42 at paragraph 22 , [2011] 3 SCR 45 [ Imperial Tobacco ]. In other words, the plaintiff must allege all the facts that are necessary to prove a claim recognized at law. If a necessary element of the claim is missing, the pleading will be struck. Likewise, if the facts inescapably give rise to a valid defence, the claim will be struck as well: Imperial Tobacco , at paragraph 91 .

As the facts must be taken as true, no evidence is permitted beyond the statement of claim and its supporting documents: rule 221(2). Only facts must be taken as true; allegations that are argumentative or merely state legal conclusions can be disregarded. In particular, a plaintiff who alleges bad faith must allege specific facts that buttress such a conclusion: Merchant Law Group v Canada Revenue Agency , 2010 FCA 184 at paragraphs 34-35 ; Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc , 2013 FCA 250 at paragraphs 43-44 , [2014] 2 FCR 557. [ 5 ] In substance, Mr.

Fiederer’s statement of claim impugns the Council’s treatment of his complaints. The Council is an administrative body created by the Judges Act , RSC 1985, c J-1 , and is tasked, among other things, with investigating complaints made against federally appointed judges. As such, it benefits from an immunity against liability in tort or extracontractual liability, unless it acted in bad faith: Ernst v Alberta Energy Regulator , 2017 SCC 1 at paragraphs 50-51 , 115-120, 171. The same immunity benefits Mr.

Giroux, when performing his duties as Executive Director of the Council. [ 6 ] The statement of claim does not contain any allegation of bad faith against the Council or Mr. Giroux. Mr. Fiederer strongly disagrees with the outcome of the investigation, but this is precisely the kind of decision covered by the Council’s immunity. [ 7 ] I note that Mr. Fiederer alleges that the last complaint was made by the Attorney General, not by him. Even if I were to take that extraordinary statement as true, it would not affect the outcome.

If the Council dismissed a complaint made by the Attorney General, it was still acting in the performance of its duties under the Judges Act and was covered by an immunity. [ 8 ] Thus, the Council and Mr. Giroux’s immunity is a complete defence to Mr. Fiederer’s action. As it is a complete defence, it would serve no purpose to allow Mr. Fiederer to amend his statement of claim. [ 9 ] As for the Attorney General, the statement of claim does not clearly state on what basis he would be liable.

To ensure judicial independence, the Judges Act entrusts the investigation of complaints made against judges to the Council, not the Attorney General. Although the statement of claims suggests that the Attorney General was made aware of Mr. Fiederer’s complaints, there is no allegation that Mr. Fiederer requested the Attorney General to investigate the matter. Had he done so, the proper course of action would have been for the Attorney General to invite Mr. Fiederer to pursue the matter with the Council. Thus, the statement of claim discloses no reasonable cause of action against the Attorney General.

[ 10 ] It follows that the Council and Mr. Giroux’s motion to strike must be granted. Mr. Fiederer’s statement of claim is struck in its entirety, without leave to amend. As a result, the Attorney General’s motion to be removed as a defendant becomes moot and will be dismissed. [ 11 ] The Council and Mr. Giroux are seeking their costs. Mr. Fiederer does not make any submissions in this regard. I am of opinion that an amount of $500 is reasonable. ORDER in T-1653-21 THIS COURT ORDERS that : 1. The motion to strike made by the defendants Canadian Judicial Council and Marc Giroux is granted. 2.

The statement of claim is struck out in its entirety without leave to amend. 3. The action is dismissed. 4. The motion to remove the Attorney General as a defendant is dismissed. 5. The plaintiff is condemned to pay costs in the amount of $500, inclusive of taxes and disbursements, to the defendants Canadian Judicial Council and Marc Giroux.

"Sébastien Grammond" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: T-1653-21 STYLE OF CAUSE: BERNARD FIEDERER v ATTORNEY GENERAL OF CANADA, MARC GIROUX, CANADIAN JUDICIAL COUNCIL MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO, PURSUANT TO RULE 369 ORDER AND REASONS: GRAMMOND J.

DATED: JANUARY 17, 2022 APPEARANCES : Bernard Fiederer (self-represented) or The Plaintiff (ON HIS OWN BEHALF) Mathieu Piché-Messier Nadia Effendi Amanda Afeich FOR THE DEFENDANTS (MARC GIROUX AND CANADIAN JUDICIAL COUNCIL) Annie Flamand Pascale-Catherine Guay FOR THE DEFENDANT (ATTORNEY GENERAL OF CANADA) SOLICITORS OF RECORD : Borden Ladner Gervais LLP Barristers and Solicitors Ottawa, Ontario FOR THE DEFENDANTS (MARC GIROUX AND CANADIAN JUDICIAL COUNCIL) Attorney General of Canada Ottawa, Ontario FOR THE DEFENDANT (ATTORNEY GENERAL OF CANADA