ALEX MARTINEZ Appellant v. COMMUNICATIONS SECURITY ESTABLISHMENT, 2019 FCA 282

Date: 20191112 Docket: A-257-19 Citation: 2019 FCA 282 CORUM: RENNIE J.A. RIVOALEN J.A. MACTAVISH J.A. BETWEEN: ALEX MARTINEZ Appellant and COMMUNICATIONS SECURITY ESTABLISHMENT Respondent Dealt with in writing without appearance of parties. Order delivered at Ottawa, on November 12, 2019. REASONS FOR ORDER BY: RENNIE J.A. CONCURRED IN BY: RIVOALEN J.A. MACTAVISH J.A. Date: 20191112 Docket: A-257-19 Citation: 2019 FCA 282 CORUM: RENNIE J.A. RIVOALEN J.A. MACTAVISH J.A. BETWEEN: ALEX MARTINEZ Appellant And COMMUNICATIONS SECURITY ESTABLISHMENT Respondent REASONS FOR ORDER RENNIE J.A. [ 1 ] The respondent moves for an order to quash this appeal pursuant to subsection 52 (

a) of the Federal Courts Act , R.S.C. 1985, c. F-7 and under the inherent jurisdiction of the Federal Court of Appeal to control its own process and prevent abuse of that process, on the grounds that:

a) The Notice of Appeal fails to disclose a reasonable or specific ground of appeal, and as such, it provides no legal basis for a valid appeal;

b) The Notice of Appeal seeks relief that is outside the jurisdiction of the Court; and

c) It is plain and obvious that the appeal cannot succeed. [ 2 ] The respondent also contends that the manifest lack of merit in the appeal renders it invalid on its face and brings it within the character of a vexatious proceeding or a proceeding that is otherwise an abuse of the process of the Court. [ 3 ] By way of background, in February 2017, the appellant made a request under the Privacy Act , R.S.C. 1985, c. P-21 , for access to personal information in three information banks. The Communications Security Establishment (CSE), relying on various provisions of

the Act which authorize a refusal of disclosure, refused. [4] In October 2017, the appellant sought judicial review pursuant to

section 41 of the Privacy Act of CSE’s decision. [5] On judicial review, the Federal Court judge (Roussel, J.) concluded that CSE did not err in its response to the appellant that nopersonal information relating to him was found in the relevant information banks. By Order rendered on November 23, 2018, JusticeRoussel dismissed the application for judicial review filed by the appellant in Court file no. T-1616-17. [6] On July 5, 2019, the appellant filed a Notice of Appeal to the Federal Court of Appeal, seeking the following relief:

a) That the decision of the lower court be rescinded and that the documents requested be released;

b) An order and injunction be issued to stop "“all investigation, suppression, observation and monitoring across Canada andinternationally;”" and

c) Costs and damages of 15 million dollars. [7] The Notice of Appeal also includes three "“whereas”" clauses, which assert "“embezzlement”", "“misconduct”", and "“criminaldeviance”" on the part of CSE, the purpose of which was to cause bodily harm or death of the appellant. The clauses argue that thepurpose of the refusals was to frustrate his "“internal investigations”" of certain national and municipal police forces. The

preamblesassert, in a manner that is not clear, that former prime ministers were also engaged in "“the case”". Which "“case”" the appellant isreferring to is not clear. [8] This Court, constituted under

section 101 of the Constitution Act, 1867, (UK), 30 & 31 Vict, c. 3, s. 91, has all the power andauthority inherent to its status as a court. Those powers include the jurisdiction to make all orders necessary to control its processes andfunctions as a court (Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; Janssen Inc. v. AbbvieCorporation, 2014 FCA 176; R. v.

Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331). [9] Under this source of jurisdiction, the Federal Court of Appeal may quash or summarily dismiss an appeal where there is such amanifest lack of substance that it is clearly bound to fail, or takes on the character of a vexatious proceeding and constitutes an abuse ofprocess. [10] Abuse of process is a flexible doctrine, based on the idea that a court has an inherent discretion to terminate litigation at thepreliminary stage in order to prevent abusive proceedings that bring the administration of justice into disrepute (Timm v. Canada, 2014FCA 8). In Sellathurai v.

Canada (Public Safety and Emergency Preparedness), 2011 FCA 1 at paragraph 7, Justice Mainville echoedthe words of the Federal Court of Appeal in Yukon Conservation Society v.

National Energy Board, (FCA), [1979] 2F.C. 14 (F.C.A.), in which Justice Le Dain stated the standard as follows: Courts of Appeal will exercise the power of quashing or summarily dismissing an appeal where there is such manifest lackof substance in the appeal as to bring it within the character of vexatious proceedings, or where by a change of circumstancesthe issue between the parties or the ‘substantum of the litigation’ has disappeared, so that a judgment of the court would notserve any practical purpose, except as to costs. [11] This appeal manifestly lacks substance.

The Notice of Appeal does not disclose any argument, fact, or legal basis for appeal. It doesnot define any clear legal issues or give fair notice to the respondent of the case that has to be met. It violates Rule 337(

d) of the FederalCourts Rules as it fails to contain a complete and concise statement of grounds. It is also self-evident that the request for damages, aremedy not open to a court sitting in judicial review, cannot be granted by an appellate court (CBC/Radio-Canada v. Canada(Commissioner of Official Languages), 2015 FCA 251, [2016] 3 F.C.R. 55). It makes scandalous and vexatious allegations, none ofwhich have any foundation in the record. [12] I therefore conclude that this Notice of Appeal is an abuse of the Court’s process, is vexatious and doomed to fail, and should bedismissed with costs.

The appellant’s motion of September 13, 2019 will consequently be dismissed, as the Court had the benefit ofreviewing all of the submissions filed by the parties. “Donald J. Rennie” J.A. “I agreeMarianne Rivoalen, J.A.”“I agreeAnne L. Mactavish, J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-257-19

STYLE OF CAUSE: ALEX MARTINEZ v. COMMUNICATIONS SECURITY ESTABLISHMENT motion dealt with in writing without appearance of THE parties REASONS FOR ORDER BY: RENNIE J.A. concurred in by: RIVOALEN j.a. MACTAVISH j.a. DATED: NOVEMBER 12, 2019 WRITTEN REPRESENTATIONS BY : Alex Martinez on his own behalf Marieke Bouchard Mélyne Félix FOR THE RESPONDENT, C ommunications Security Establishment SOLICITORS OF RECORD : Nathalie G. Drouin Deputy Attorney General of Canada Ottawa, Ontario For The Respondent, Communications Security Establishment