RACHEL EXETER Appellant v. ATTORNEY GENERAL OF CANADA, 2014 FCA 119

Date: 20140508 Docket: A-258-13 Citation: 2014 FCA 119 CORAM: NOËL J.A. STRATAS J.A. WEBB J.A. BETWEEN: RACHEL EXETER Appellant and ATTORNEY GENERAL OF CANADA Respondent Heard at Ottawa, Ontario, on May 7, 2014. Judgment delivered at Ottawa, Ontario, on May 8, 2014. REASONS FOR JUDGMENT BY: STRATAS J.A. CONCURRED IN BY: NOËL J.A. WEBB J.A. Date: 20140508 Docket: A-258-13 Citation: 2014 FCA 119 CORAM: NOËL J.A. STRATAS J.A. WEBB J.A.

BETWEEN: RACHEL EXETER Appellant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT STRATAS J.A. [ 1 ] This is an appeal from an order dated July 11, 2013 of the Federal Court in file T-943-12 upholding Prothonotary Tabib’s interlocutory order dated May 30, 2013.

[2] In issue before the Prothonotary was an email sent by the adjudicator of the Public Service Labour Relations Board. Theemail states “that a mediated [settlement] agreement was reached.” The time recorded on the mail suggests it was sent just a couple ofhours before the appellant states she agreed to the settlement. The appellant has since maintained that the settlement is the product ofduress.

She seeks production of the email header, which, in her view, will confirm exactly what time zone the time on the email reflects.She believes that if the email was sent before the settlement, this will tend to support her allegation of duress. [3] The Prothonotary denied the appellant’s request for production, finding it irrelevant. The Federal Court dismissed theappellant’s appeal from the Prothonotary under Rule 51. In the Federal Court’s view, the appellant failed to show that the Prothonotaryrelied on an improper principle or fundamentally misapprehended the facts within the meaning of Z.I.

Pompey Industrie v. ECU-LineN.V., [2003] 1 S.C.R. 450, 2003 SCC 27 at paragraph 18 and Canada v. Aqua-Gem Investments Ltd., (FCA), [1993] 2F.C. 425 at pages 462-63 (C.A.). The Federal Court added that the appellant’s representations consisted of “statements unsupported byevidence” and do not “even establish an articulation of the alleged importance of the material sought,” with the result that “it isimpossible to understand how the material sought by the appellant can be relevant.” [4] In this Court, the appellant has not persuaded us that the Federal Court erred in any way.

Indeed, even if we examined thematter on a de novo basis, we would find no merit whatsoever in the appellant’s submission.

The timing of an email stating that asettlement has been reached has no logical connection to the alleged existence of duress. [5] Before this Court, the appellant alleged that the Prothonotary was biased based on certain statements she made in her reasonsin this matter, and in certain words spoken in a hearing before her which resulted in a separate order dated May 22, 2013. [6] In her written reasons in this matter, the Prothonotary noted that the appellant is prone to “fixate and elevate to extremesignificance any perceived or real contradiction or inaccuracy in the respondent’s arguments or affidavits” and advised the respondent totry to prevent inaccuracies in the future.

This is an observation the appellant does not like, but it is no evidence of bias. [7] I turn now to the appellant’s submission that the Prothonotary was biased because of her comments in the earlier hearingresulting in the May 22, 2013 order. To make her submission, the appellant asked for leave to file the audio recording of that hearing.Out of generosity to the appellant, a self-represented litigant, and in the heat of the moment, we agreed to receive the recording to see if ithad any bearing on the issues in this appeal. In fact, this is not what we should have done.

Those seeking to raise matters of what wassaid during a hearing should order a transcript of the recording and file only necessary portions of the transcript as part of the appealbook under Rule 344(1)(e): see the direction dated January 21, 2014 of the Court in Rahman v. AGC in file A-365-13. [8] I note that an appeal from the May 22, 2013 order has made its way to this Court and is pending. In these reasons, I haverestricted my comments to the audio recording insofar as it sheds any light on the appellant’s allegation of bias.

I express no views on themerits of the pending appeal. [9] The audio recording demonstrates that far from showing bias, the Prothonotary acted with great courtesy, patience andprofessionalism in challenging circumstances. The appellant alleged perjury and other dishonourable conduct on the part ofgovernmental officials, offering absolutely no evidence in support. She raised matters well beyond the scope of the notice of motion,even going so far as to request the Prothonotary to prefer charges against certain governmental officials.

After hearing these submissions,the Prothonotary engaged in polite discourse with the appellant for over an hour to investigate whether she had even the tiniest bit ofevidence in support of her serious allegations. In submissions before us, the appellant suggested that the Prothonotary used harsh wordssuch as “you’re holding me in bondage.” The audio recording reveals no such thing. [10] Overall, the appellant submitted that the Prothonotary’s bias led her to make an adverse costs award against her.

But theProthonotary ordered only the usual level of costs against the appellant, consistent with the principle that the unsuccessful party pays.Given the absence of any merit in the matter and the appellant’s behaviour before her, the Prothonotary could have awarded enhancedcosts, indeed solicitor and client costs, against the appellant. But the Prothonotary did not. [11] Alleging bias is “a serious step that should not be undertaken lightly”: R. v. S. (R.D.), (SCC), [1997] 3S.C.R. 484 at paragraph 113; Es-Sayyid v.

Canada (Public Safety and Emergency Preparedness), 2012 FCA 59 at paragraphs 38 and 50.Here, the appellant alleged bias with absolutely nothing in support. [12] Alleging fraud is similarly most serious: Bank of Nova Scotia v. Fraser, 2001 FCA 267.

Here, the appellant frequently allegedfraud and forgery against the officials involved in the matter giving rise to the appellant’s application for judicial review, allegationsunsupported on the record before us and unnecessary to the issue before us: whether the email header was relevant to the issue of duress. [13] The appellant even went so far as to allege, without any evidence, that the audio recording of the proceedings before theProthonotary, made by the Federal Court and held securely by it, was doctored, ostensibly by the Federal Court’s staff. [14] The audio recording reveals that the Prothonotary firmly but politely warned the appellant against the making of extremeallegations with nothing in support.

Her reasons in that matter also warned her. In this Court, the appellant ignored the warning. [15] For the foregoing reasons, the appeal has no merit and I would dismiss it. The appellant’s conduct before us is vexatious andan abuse of process. A costs sanction is warranted. However, the Crown asked for fixed costs only in the amount of $1,500 and I do notconsider it open to us to boost that quantum.

Accordingly, I would fix costs against the appellant in the amount of $1,500, but payableforthwith. [16] I encourage the appellant to focus on bringing her application for judicial review quickly and efficiently to a hearing on themerits instead of advancing serious allegations unsupported by evidence. “David Stratas” J.A.

“I agree Marc Noël J.A.” “I agree Wyman W. Webb J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-258-13 APPEAL FROM AN​​ ORDER OF THE HONOURABLE MR. JUSTICE ROY DATED JULY 11, 2013, NO. T-943-12 STYLE OF CAUSE: RACHEL EXETER v. ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: May 7, 2014 REASONS FOR JUDGMENT BY: STRATAS J.A. CONCURRED IN BY: NOËL J.A. WEBB J.A. DATED: MAY 8, 2014 APPEARANCES : Rachel Exeter ON HER OWN BEHALF Léa Bou Karam For The Respondent SOLICITORS OF RECORD : William F. Pentney Deputy Attorney General of Canada For The Respondent