JOSE LUIS FIGUEROA Applicant v. THE ATTORNEY GENERAL OF CANADA, 2019 FC 505

Date: 20190423 Docket: T-77-18 Citation: 2019 FC 505 Ottawa, Ontario, April 23, 2019 PRESENT: The Honourable Mr. Justice Mosley BETWEEN: JOSE LUIS FIGUEROA Applicant and THE ATTORNEY GENERAL OF CANADA Respondent ORDER AND REASONS I. Introduction [ 1 ] This is a motion by the Respondent, the Attorney General of Canada, for an Order under

section 40 of the Federal Courts Act , RSC 1985, c F-7 [the Act ] that no further proceedings be instituted in the Federal Court by the Applicant, Mr. Jose Luis Figueroa, except by leave of the Court. The Respondent also seeks an order dismissing the underlying application in this Court file, or in the alternative, preventing Mr. Figueroa from continuing this application without leave. II. Background [ 2 ] Mr. Figueroa was a member of the Frente Farabundo Marti para la Liberacion Nacional (FMLN) while at university during the civil war in El Salvador.

He was not involved in the armed struggle but served as a political activist. Following the peace accords reached in the early 1990s under the auspices of the United Nations, he helped former FMLN combatants transition into civilian life. [ 3 ] In 1997, Mr. Figueroa came to Canada and sought refugee status. His application was dismissed in May 2000. After further proceedings, his application for an exception on humanitarian and compassionate grounds, under

section 25 of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ], was ultimately granted by the Minister of Citizenship and Immigration in 2015. Mr. Figueroa is now a permanent resident. [ 4 ] Since 2015, Mr. Figueroa has brought a number of proceedings before the Federal Court seeking review of Canada’s refusal to grant him certificates under two different statutory regimes: the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism , SOR/2001-360 [ RIUNRST ] and the provisions of the Criminal Code , RSC 1985, c C-46,

section 83.07 , which provide for the listing of terrorist entities by the Governor in Council. [ 5 ] The basis of Mr. Figueroa’s requests for these certificates stems from an inadmissibility report issued in 2009 under IRPA

section 44 (the s 44 Report) which found that there were reasonable grounds to believe that Mr. Figueroa was inadmissible to Canada on security grounds because of his membership in the FMLN. In a decision dated May 5, 2010, the Immigration Division found Mr. Figueroa to be inadmissible pursuant to IRPA paragraph 34(1) (

f) and issued a deportation order. Mr. Figueroa filed an application for leave and judicial review of this decision, but leave was refused on August 30, 2010. [ 6 ] Mr. Figueroa then applied for permanent residence based on humanitarian and compassionate factors pursuant to IRPA s 25, but that application was initially declined.

In a decision issued in July 2014, I found that the Minister’s delegate had erred in unreasonably referring to the FMLN as a " “terrorist organization,” " a term not employed by the statute, and giving disproportionate weight to that consideration: Figueroa v Canada (Citizenship and Immigration) , 2014 FC 673 at para 38 . [ 7 ] Following the grant of permanent residency in 2015, Mr. Figueroa requested an extension to again challenge the s 44 Report. In disposing of the request as out of time, the Federal Court commented on the Report’s reasonableness. Specifically, the Court found Mr.

Figueroa had failed to show the Report was unreasonable, stating instead that the decision was " “very clear and lucid” " and supported by " “abundant” " evidence: Figueroa v Canada (Public Safety and Emergency Preparedness) , 2016 FC 1396 at para 55 . [ 8 ] Mr. Figueroa’s contention in seeking to challenge the s 44 Report is that " “[the] CBSA officer [who made the report], CSIS officers and apparently other officers holding positions at a high level of the Canadian government still consider the allegation of membership with a ‘terrorist organization’ as being true.” " Mr.

Figueroa further claims that his name continues to be tarnished, and that he is not able to " “reassume a normal life as it existed before the allegation.” " [ 9 ] In pursuing this contention, Mr. Figueroa has filed a number of applications in the Federal Court and appeals in the Federal Court of Appeal which are set out in detail in the Attorney General’s Motion Record and supplementary Book of Documents received at the hearing. [ 10 ] With respect to the

interpretation of the listing provision in the Criminal Code , in May 2013, Mr. Figueroa requested a certificate from the Minister of Public Safety and Emergency Preparedness stating that he was not a listed entity. After he was advised that there

was no reason to issue a certificate, Mr. Figueroa filed an application for mandamus . The Federal Court dismissed the matter, accepting the Minister’s submissions that the certificates were intended for persons whose names could be confused for a listed entity: Figueroa v Canada (Public Safety and Emergency Preparedness) , 2014 FC 836 at paras 10–23 . [ 11 ] Similarly, the Federal Court has previously ruled on the

interpretation of RIUNRST in related proceedings involving Pastor Karl Walther Keller. Pastor Keller had granted Mr. Figueroa asylum to avoid deportation while he was awaiting ministerial relief from his inadmissibility finding: Keller v Canada (Foreign Affairs) , 2016 FC 903 at para 1 [ Keller 2016 ].

The Court confirmed, initially in obiter and then in reasons, that the RIUNRST certificate provisions were intended to address cases of mistaken identity, similar to the Criminal Code provisions: Keller 2016 at para 9; Keller v Canada (Foreign Affairs) , 2018 FC 598 at paras 16–20 . [ 12 ] In the present matter, on January 15, 2018, Mr. Figueroa filed a notice of application for judicial review of a decision by Mr. Alan Kessel, Assistant Deputy Minister and Legal Adviser of Global Affairs Canada, the name under which the Department of Foreign Affairs and International Trade presently operates. Mr.

Kessel had decided to not put before the Minister of Foreign Affairs Mr. Figueroa’s December 14, 2017 application for a certificate under then

section 10 of the RIUNRST . [ 13 ] This was Mr. Figueroa’s second attempt to obtain a RIUNRST certificate and is Mr. Figueroa’s second time coming to the Federal Court for the matter. When he originally did not receive a response to his first request, dated July 11, 2014, Mr. Figueroa filed an application for judicial review requesting mandamus . The request for a certificate was refused on July 17, 2015 on the ground that Mr. Figueroa had not demonstrated that he had been or may be mistaken for a listed person, or that any of his assets had been frozen.

The application for mandamus was then dismissed as moot: Figueroa v Canada (Foreign Affairs and International Trade) , 2015 FC 1341 . A refusal by the Court to reconsider its judgment was upheld by the Federal Court of Appeal: Figueroa v Canada (Foreign Affairs Trade and Development) , 2017 FCA 58 [ Figueroa 2017 FCA 58]. [ 14 ] In declining to present the second request for a RIUNST certificate to the Minister of Foreign Affairs, Mr. Kessel advised Mr. Figueroa that his second request did not disclose any new information compared to his first application. Mr.

Figueroa had not been mistaken for a listed person nor had any of his assets been frozen. Mr. Figueroa then sought judicial review of Mr. Kessel’s decision in January 2018. That application is the underlying matter in respect of which this motion has been brought. [ 15 ] The case is now specially managed, and the parties have brought four other motions (two initiated by each party) and have had three case management conferences with the Court. Mr.

Figueroa has requested directions from the Court on four occasions and has asked the Court to reconsider wording of one interlocutory order four different times, including through one of his two motions. In view of his failure to pay numerous cost orders arising from his unsuccessful litigation, an Order requiring that he pay security for costs was issued by the Case Management Judge on October 19, 2018. III. Issues A. Preliminary issues i. Consent [ 16 ] Consent to make the

section 40 application was signed by Assistant Deputy Attorney General Geoffrey Bickert and filed January 23, 2019. In his written materials, Mr. Figueroa submitted, without support for the proposition, that an Assistant Deputy Attorney General does not have authority to grant consent on behalf of the Attorney General, and that, regardless, this consent breaches the principles of natural justice, given that the Attorney General is the named Respondent in the underlying proceedings. These arguments were not pressed by Mr.

Figueroa at the hearing. [ 17 ] In any event, as the Federal Court of Appeal held in Coote v Lawyers’ Professional Indemnity Company (Lawpro) , 2014 FCA 98 [ Coote ] at paragraph 11 , the Attorney General’s consent can be given by a departmental officer who acts in an appropriate capacity. There is no question that the Assistant Deputy Attorney General is such an officer with delegated authority. Moreover, as it was not the Attorney General of Canada who personally authorized the proceeding, there is no apparent violation of any principle of natural justice and none was identified by Mr.

Figueroa in his written representations or oral submissions. ii. Motion or application [ 18 ] In his written argument, Mr. Figueroa questioned whether a proceeding under

section 40 is to be considered a motion or an application. The wording of the Act may cause some confusion as it refers to " “application” " in English and " “ " " requête ” " in French, which translates as " “motion.” " Mr. Figueroa is correct to point out that whether the request proceeds as a motion or as an application will have an effect on timelines and service requirements. [ 19 ] However, that question was also resolved by the Federal Court of Appeal in Coote , at paragraph 12 . It is possible for an application to be brought under

section 40 independently of any pending litigation. In such cases, it must be commenced by an originating document. The application may also be brought within the framework of an existing matter, in which case it is commenced by notice of motion. I was satisfied that there was no issue to consider in respect of this question and stated so at the hearing. B. Issue for consideration [ 20 ] In my view, the sole remaining issue for the Court to consider is whether the Attorney General has satisfied the test for the issuance of an Order under

section 40 of the Act .

IV. Relevant legislation " Vexatious proceedings " " Poursuites vexatoires " " 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. " " " " Attorney General of Canada " " Procureur général du Canada " "

(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. " " Application for rescission or leave to proceed " " Requête en levée de l’interdiction ou en autorisation " "

(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. " " Court may grant leave " " Pouvoirs du 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. " " No appeal " " Décision définitive et sans appel " "

(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. " V. Analysis [ 21 ] In Canada v Olumide , 2017 FCA 42 , the Federal Court of Appeal provided guidance regarding the application of

section 40 . The procedure is for litigants who are ungovernable (who flout procedural rules, ignore orders and directions of the Court, and relitigate previously-decided proceedings and motions) or whose proceeding(

s) intentionally or unintentionally " “further improper purposes, such as inflicting damage or wreaking retribution upon the parties or the Court” " : Olumide at para 22 . [ 22 ] Further, " “where a litigant’s misbehaviour is likely to recur in multiple proceedings or actually recurs in later proceedings, and where the purposes of

section 40 are implicated by the nature or quality of the litigant’s conduct,

section 40 remedies become live” " : Olumide at para 24 . Finally, " “where continued unrestricted access of a litigant to the courts undermines the purposes of

section 40 , relief should be granted” " : Olumide at para 31 . [ 23 ] There are certain hallmarks of vexatious litigants, or badges of vexatiousness: Olumide at para 34 .

These include " “meritless proceedings and motions,…the reassertion of proceedings and motions that have already been determined,…the litigant’s purpose, often revealed by the parties sued, the nature of the allegations against them and the language used,…the manner in which proceedings and motions are prosecuted, such as multiple, needless filings, prolix, incomprehensible or intemperate affidavits and submissions, and the harassment or victimization of opposing parties” " : Olumide at para 32 . [ 24 ] These hallmarks are to be taken as non-binding. The purposes of

section 40 must be kept front of mind and the party seeking an order bears the burden of proving vexatiousness on the balance of probabilities: Olumide at para 38 . [ 25 ] It is clear from the record submitted by the Attorney General that Mr. Figueroa has unduly burdened the Court’s resources and diverted them from other litigants with his persistent proceedings. He has relitigated previously decided issues, notably the s 44 Report allegation that there are reasonable grounds to believe that the FMLN has engaged in acts of terrorism. Mr.

Figueroa sought to revive the issue of the s 44 Report’s reasonableness several years after being denied leave for judicial review. Mr. Figueroa misunderstands the Report’s conclusion to be an accusation that he, himself, is a terrorist. He says that he wishes to " “clear his name.” " For that reason, he is unable or unwilling to accept adverse outcomes in the proceedings he has brought and, on the record before the Court, it is manifestly

clear that, unless regulated by an Order under s 40 of the Act , he will continue to seek to relitigate the issue. [ 26 ] This is also reflected in Mr. Figueroa’s attempts to obtain and to judicially review the refusal to provide him with a Criminal Code certificate. He has ignored the Court’s determination that no certificate issued under the statutory scheme will conclusively prove that he is not a terrorist or that FMLN is not an organization that committed terrorist acts. In an Order in Docket T-782-15, the Court noted that Mr.

Figueroa had created unnecessary duplicative proceedings and drained the Court’s and both parties’ resources by proceeding before two forums to pursue the same complaint. [ 27 ] Mr. Figueroa has initiated several frivolous motions, applications, and appeals within his proceedings, including appealing or requesting reconsideration of interlocutory or final decisions as a matter of course. These include Mr. Figueroa’s steps after his first RIUNRST application for mandamus was dismissed as moot. The Court found his request for reconsideration was an attempt to have the Court’s judgment on its merits reconsidered.

Mr. Figueroa then unsuccessfully appealed this reconsideration decision: Figueroa 2017 FCA 58 . [ 28 ] A number of motions Mr. Figueroa brought in his second judicial review regarding a Criminal Code certificate were equally pointless. Mr. Figueroa sought orders to force oral cross-examinations for answers he was dissatisfied with. A prothonotary dismissed the motion. Mr. Figueroa moved to have the dismissal quashed. In dismissing this further motion, the Court noted the original motion had been " “pointless and vexatious.” " Mr.

Figueroa then sought an extension of time to request reconsideration of the latest order, and when that was refused, unsuccessfully appealed the order to the Federal Court of Appeal: Figueroa v Canada (Public Safety and Emergency Preparedness) , 2017 FCA 18 . Mr. Figueroa then unsuccessfully sought reconsideration of the Federal Court of Appeal’s judgment. [ 29 ] Mr. Figueroa has also made requests for the appointment of a different case management judge, making unsubstantiated allegations of bias, and has refused to abandon proceedings found to be moot.

Despite being admonished for his abusive and vexatious behaviour, Mr. Figueroa has continued the same form of conduct, draining the Court’s resources. [ 30 ] Mr. Figueroa ignores directions he has received from the Court about the proper

interpretation and application of the Federal Courts Rules , SOR/98-106 . He has, for example improperly relied on Rules 54 and 397 rather than filing proper appeals: Figueroa 2017 FCA 58 . The imposition of cost awards, which he has frequently failed to pay, has not effectively regulated his behaviour. [ 31 ] Given an opportunity to respond to the Attorney General’s application, both in writing and at the hearing, Mr. Figueroa preferred to recount the long history of his immigration proceedings and to raise a number of irrelevant considerations.

He puts form over function and parses words and pleadings to identify inconsistencies and claim these as " “errors,” " without ever describing their legal effect. Mr. Figueroa is expending precious Court resources making arguments that are both pointless and without merit. [ 32 ] In addition to his concerns about the Attorney General’s consent and the form of the motion, referred to above, Mr. Figueroa questions who the actual Respondent should be in a number of his litigation files.

He questions to whom the money he deposited into Court as security for costs was paid if the Respondent Minister was improperly named, given the changing titles used for those positions by the government. And he questions why he hasn’t received an answer to his request to the Attorney General to consent to an application for a vexatious litigant order against the Attorney General’s counsel with carriage of the proceedings he has himself initiated. In that regard, Mr. Figueroa is the author of his alleged own misfortune.

By filing multiple proceedings, bringing numerous motions and requests for directions within those proceedings, and by inviting motions from the Attorney General in response to those proceedings (by not paying costs awarded against him in a timely manner, for example), Mr. Figueroa has subjected himself to multiple filings and timelines. [ 33 ] Without addressing the merits of the application, Mr. Figueroa argues that the Attorney General has failed to discharge the onus to demonstrate that he is a vexatious litigant.

He collaterally attacks the form of the Attorney General’s submissions without making any argument that would support dismissing the application. In essence, Mr. Figueroa’s pleadings on this motion serve as further proof that he acts as a vexatious litigant. [ 34 ] It is regrettable that matters have come to this end. Mr. Figueroa is evidently an intelligent person with a university education from his native El Salvador. He has the ability to take advantage of the opportunities that Canada can provide to landed immigrants. Mr.

Figueroa had begun to pursue legal studies but has suspended them, he advised the Court, in order to attend to his multiple cases here and in the Court of Appeal. That is, perhaps, an example of how his priorities have become misplaced in an endless pursuit of a solution he cannot achieve. [ 35 ] In the result, the application will be granted, with the relief requested. The Court will declare Mr. Figueroa a vexatious litigant, and he will be prevented from instituting further proceedings in this Court without leave of the Court. Further, Mr.

Figueroa will be prevented from continuing this and other outstanding proceedings in this Court without leave of the Court. [ 36 ] The Order will not bar Mr. Figueroa from accessing the Court to initiate or continue proceedings. He may also bring a motion for rescission of the Order under subsection 40(3) of the Act . However, he will have to demonstrate to the Court’s satisfaction that the application, action or motion is not an abuse of process and that there are reasonable grounds for the proceeding. [ 37 ] As the Attorney General has not sought costs, none will be awarded on this motion.

That does not relieve Mr. Figueroa from any previous order for costs that may remain outstanding. ORDER IN T-77-18 THIS COURT ORDERS that: 1 . The Respondent’s motion is allowed;

2 . It is declared that Mr. Jose Luis Figueroa has persistently instituted vexatious proceedings and has conducted proceedings in a vexatious manner in the Federal Court as described in

section 40 of the Federal Courts Act , RSC 1985, c F-7 ; 3 . Mr. Jose Luis Figueroa may not institute any further proceedings in the Federal Court except by leave of the Court; 4 . Mr. Jose Luis Figueroa may not continue any previously instituted proceedings in the Federal Court, including this Court file, without leave of the Court; and 5 . There is no Order as to costs. “Richard G.

Mosley” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-77-18 STYLE OF CAUSE: JOSE LUIS FIGUEROA V THE ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: APRIL 8, 2019 ORDER AND REASONS: MOSLEY J. DATED: APRIL 23, 2019 APPEARANCES : Jose Luis Figueroa FOR THE APPLICANT (SELF REPRESENTED LITIGANT) Brett J. Nash For The Respondent SOLICITORS OF RECORD : Attorney General of Canada Vancouver, British Columbia For The Respondent