Barth v Saskatchewan (Social Services), 2021 SKCA 41

Court of Appeal for Saskatchewan Docket: CACV3556/CACV3606 Citation: Barth v Saskatchewan (Social Services) , 2021 SKCA 41 Date: 2021-03-19 Between: Tim Aaron Barth Appellant/Respondent (Respondent) And The Minister of Social Services for the Province of Saskatchewan Respondent/Applicant (Third Party) And Leah Faye Barth Respondent/Respondent (Petitioner) Before: Caldwell, Barrington-Foote and Tholl JJ.A.

Disposition: Application granted Written reasons by: The Court On application from: FLD 307 of 2018, Saskatoon Application heard: February 5, 2021 Counsel: Tim Aaron Barth, appearing on his own behalf Robert Feist for the Applicant Ministry of Social Services Anna Singer for the Respondent Leah Faye Barth The Court: I. INTRODUCTION [ 1 ] The Minister of Social Services [Ministry], with the support of Leah Faye Barth, has brought applications pursuant to Rules 46.1 and 46.2 of The Court of Appeal Rules to dismiss appeals brought by Tim Aaron Barth and to have Mr.

Barth managed as a vexatious litigant in this Court. [ 2 ] Upon application under Rule 46.1 by any party to an appeal, the Court may quash an appeal that discloses no right of appeal, is frivolous or vexatious, is manifestly without merit or is otherwise an abuse of the process of the court (see Jardine v Hyggen , 2018 SKCA 38 , [2018] 7 WWR 713).

Upon application by any person under Rule 46.2, if it has been established that a litigant has “habitually, persistently, and without reasonable cause commenced frivolous or vexatious proceedings in the court”, the Court may bring that misuse of the litigation process to an end by prohibiting the person from commencing proceedings without leave of the Court or a judge of the Court. [ 3 ] Each of these Rules describes an aspect of the Court’s inherent jurisdiction as a superior court of record, namely, the power to prevent its process from being abused by the filing or repetitive filing of unmeritorious proceedings.

However, because they limit a litigant’s access to the courts, the powers set forth in Rules 46.1 and 46.2 must be used sparingly and only in the clearest of cases. This is one of those cases. [ 4 ] The state of affairs that exists in this Court with respect to Mr. Barth’s appeals requires that the Court make an order under Rule 46.2(1) of The Court of Appeal Rules . We are not persuaded, however, to exercise the Court’s powers under Rule 46.1(1) to strike any of the appeals Mr. Barth has commenced.

We agree, nonetheless, that his multiple appeals, which directly involve the family law proceedings between him and Ms. Barth, must be consolidated so that they can be perfected and heard together as one appeal in an expeditious way. Our reasoning in this regard and the details of this result are as follows. II. BACKGROUND [ 5 ] Mr. Barth has commenced multiple appeals in this Court concerning the same lis . Between December 11, 2019, and February 26, 2021, he has commenced, or attempted to commence, eleven appeals in this Court. Nine of his notices of appeal arise directly out of family law matters involving Ms.

Barth and their son (DIV 565 of 2020, Saskatoon; FLD 307 of 2018, Saskatoon; FLD 156 of 2017, Battleford [family law proceedings]). The first and last appeal Mr. Barth filed are indirectly related to the family law proceedings, each involving a fees dispute between Mr. Barth and one of his former counsel in that litigation. [ 6 ] The Court of Queen’s Bench record in the family law proceedings discloses that Mr.

Barth has filed numerous applications and made frequent appearances in that Court in relation to divorce, custody and child protection matters and in the Provincial Court in relation to a child protection matter. He has also made complaints to the Law Society of Saskatchewan about the conduct of lawyers involved in the family law proceedings. We understand he has also complained to governing bodies in respect of the conduct of other professionals involved in the family law proceedings.

He has not paid any of the numerous costs awards made against him in the Court of Queen’s Bench or in this Court. [ 7 ] In the course of his appeals, Mr. Barth often refuses to follow The Court of Appeal Rules , preferring to loosely adhere to Rules

of the Supreme Court of Canada, SOR/2002-156, as he interprets them. We also understand that, in light of these circumstances, theMinistry offered to pay for legal counsel for Mr. Barth, but he has rejected that offer. [8] The following summarises the appeals and applications Mr. Barth has put and attempted to put before this Court, withoutassessment of their merit: (

a) CACV3532—Timothy Aaron Barth v Iffat Ritter. Mr. Barth filed his first notice of appeal on December 11, 2019, appealingagainst a Court of Queen’s Bench order dated November 14, 2019. In the decision, Elson J. dismissed Mr. Barth’s application to extendthe time to have his former lawyer’s accounts assessed under s. 67 of The Legal Profession Act, 1990, SS 1990-91, c L​10.1. Mr.

Barth didnot file a factum or appeal book within the time allowed under The Court of Appeal Rules, resulting in an application by the respondentlawyer on September 25, 2020, seeking an order to perfect the appeal, failing which it would be exposed for dismissal for want ofprosecution. Justice Schwann heard the perfection application on October 5, 2020, and adjourned it sine die, not to be returned for 30days, so as to provide Mr. Barth the time to perfect his appeal. Mr. Barth filed his written argument and the appeal book on December 3,2020.

He then filed an application seeking to have the respondent file her factum. The respondent filed her factum in advance of the returndate of the motion but, at Mr. Barth’s insistence, the Court nonetheless heard his application on January 12, 2021. In that hearing,Mr. Barth asked to file additional written argument in the appeal proper. Justice Tholl granted this request, ordering Mr. Barth to file hismaterials no later than February 22, 2021. This appeal was heard on March 3, 2021, and the Court’s decision is reserved. It is the onlyappeal brought by Mr. Barth that has reached the hearing stage. (

b) CACV3556—Timothy Aaron Barth v Leah Barth and Ministry of Social Services. On January 10, 2020, Mr. Barth filed anotice of appeal against the entirety of a January 3, 2020, decision of Justice Scherman. In that decision, Scherman J. dismissedMr. Barth’s applications seeking orders barring the Scharfstein Gibbings Walen Fisher LLP law firm from acting for Ms. Barth, removingRobert Feist as counsel for the Ministry, and requiring Ms. Barth to file her criminal record. As well, Mr.

Barth had sought an order toprevent a previously prepared custody and access report from being used in the family law proceedings and an order holding Ms. Barth incontempt. Justice Sherman ordered certain documents to be provided or made available to Mr. Barth. He also adjourned the childprotection proceedings. On February 4, 2020, the Ministry, supported by Ms. Barth, applied to quash the appeals in CACV3556 and CACV3568 (see below). Apanel of this Court quashed all but one of Mr.

Barth’s grounds of appeal in both appeals as being manifestly without merit (Barth v Barth(21 February 2020) Regina, CACV3556 and CACV3568 (Sask CA) [Barth SKCA]). The Court declined to strike the ground of appeal inCACV3556 pertaining to the dismissal of Mr. Barth’s application to have Ms. Barth held in contempt of court. This ground was not struckbecause it appeared to this Court that Scherman J. could have mistakenly thought another Queen’s Bench chambers judge had alreadydisposed of it (Barth SKCA at paras 13(

c) and 14). Mr. Barth has taken no steps to perfect his appeal in CACV3556 on its one remainingground. The Supreme Court of Canada denied Mr. Barth’s application for leave to appeal against Barth SKCA on February 18, 2021, . (

c) CACV3568—Timothy Aaron Barth v Leah Faye Barth and Ministry of Social Services. On January 23, 2020, Mr. Barth fileda notice of appeal against a decision of Crooks J. made January 20, 2020. Justice Crooks issued a fiat under which she adjourned theMinistry’s child protection matter to March 3, 2020 (to obtain an update regarding Ms. Barth’s custody application and to determinewhether the child protection matter should proceed), ordered that Mr. Barth have access to an affidavit filed by the Ministry, struck one ofMr. Barth’s affidavits, and dismissed the remainder of his application without prejudice.

She refused to bar Mr. Feist from acting for theMinistry. The Ministry applied, concurrent with its application in CACV3556 (see above), to quash the appeal in CACV3568. In BarthSKCA, the Court quashed the entirety of this appeal as being manifestly without merit. As noted, the Supreme Court of Canada denied Mr.Barth’s application for leave to appeal against Barth SKCA. (

d) CACV3606—Tim Barth v Leah Barth and Ministry of Social Services. On March 20, 2020, Mr. Barth filed a notice of appealagainst the March 9, 2020, fiat of Wilkinson J., which varied a prior interim parenting order. Justice Wilkinson granted interim solecustody of the parties’ child to Ms. Barth, pending trial or final disposition of the issue of custody, with supervised access to Mr. Barth.She also awarded costs of $2,000 in favour of Ms. Barth. On March 24, 2020, Mr. Barth applied pursuant to Rule 15 of The Court ofAppeal Rules to impose a stay of execution of the fiat. On March 25, 2020, Ms.

Barth applied to lift the automatic stay imposed by Rule15(1). Justice Jackson granted Ms. Barth’s application, lifting the stay of execution as it related to the parenting portion of Wilkinson J.’sfiat (Barth v Barth (09 April 2020) Regina, CACV3606 (Sask CA)), and dismissed Mr. Barth’s application as unnecessary. Mr. Barth hastaken no steps to have the appeal under CACV3606 perfected. (

e) CACV3628—Tim Barth v Leah Barth, Ministry of Education and Ministry of Social Services. On April 28, 2020, Mr. Barthfiled a notice of appeal against a March 27, 2020, decision of Bardai J. dismissing Mr. Barth’s application to have certain records producedby the Ministry of Education in the family law proceedings. There has been no activity of any kind on this appeal. (

f) CACV3668—Tim Barth v Leah Barth. On July 9, 2020, Mr. Barth filed a notice of appeal against a June 23, 2020, interimchild support and spousal support order granted by Dovell J., which also referred the family law proceedings to a pre-trial conference. OnJuly 29, 2020, Schwann J.A. granted Mr. Barth’s application to stay the execution of Dovell J.’s order as it related to spousal support, butnot child support. Mr. Barth has not filed his written argument or the appeal book in this appeal. (

g) CACV3688—Tim Barth v Leah Barth. On September 9, 2020, Leurer J.A. dismissed Mr. Barth’s application for an extensionof time to appeal against a May 11, 2020, order of Wilkinson J. that provided Mr. Barth with Skype access to his child and granted himleave to apply to have the issue of supervised access reviewed at any time after July 31, 2020. Mr. Barth had attempted to file a notice ofappeal on August 18, 2020, but it was rejected as being out of time. This appeal is closed. (

h) CACV3689—Tim Barth v Leah Barth. On September 9, 2020, Leurer J.A. dismissed Mr. Barth’s application for leave toappeal against an August 18, 2020, order of Goebel J. declining to adjourn the pre-trial conference in the family law proceeding, whichhad been set for September 2, 2020. Mr. Barth had attempted to file a notice of appeal on August 24, 2020, but it was rejected as herequired leave to file it. He then applied for leave to appeal and for an order staying the execution of Goebel J.’s order. Justice Leurer, in

denying leave to appeal, observed there was no basis to grant a stay of execution. This appeal is closed. (

i) CACV3690—Tim Barth v Leah Barth. On August 24, 2020, Mr. Barth filed a notice of appeal against an August 21, 2020,fiat of Crooks J. under which she had dismissed his application to bar Ms. Barth’s counsel from acting for her. He then applied for leave toappeal against that decision and to stay its execution. On September 24, 2020, Tholl J.A. dismissed both applications, noting that Mr.Barth had a right of appeal without leave, so leave was not required. Mr. Barth has not filed his written argument or the appeal book in thisappeal. (

j) CACV3767—Tim Barth v Leah Barth. On January 13, 2021, Mr. Barth filed a notice of appeal against a judgment fordivorce and an award of costs against him issued on December 21, 2020, in DIV 565 of 2020, which is a standalone divorce proceedingthat Ms. Barth initiated. Mr. Barth has not filed his written argument or the appeal book. (

k) CACV3785—Tim Barth v McDougall Gauley LLP. On February 26, 2021, after the hearing of this application, Mr. Barthfiled a notice of appeal against a February 25, 2021, Registrar’s Certificate of Assessment issued in QBG 1134 of 2019 (Saskatoon),pursuant to Rule 11-23 of The Queen’s Bench Rules and The Legal Profession Act, 1990, s. 69(b). The Certificate assesses accounts forlegal services rendered in connection with the family law proceedings and orders Mr. Barth to pay the accounts rendered. III.

ANALYSIS [9] While the Ministry has applied for orders pursuant to both Rules 46.1 and 46.2 of The Court of Appeal Rules, the Ministry’sapplication is properly addressed principally under Rule 46.2(1), which provides: If, on application of any person, the court or a judge is satisfied that a person has habitually, persistently, and without reasonable causecommenced frivolous or vexatious proceedings in the court, the court or a judge may make an order prohibiting the commencement ofproceedings without leave of the court or a judge. [10] There is no case law from this Court interpreting Rule 46.2.

However, prior to its adoption, this Court confirmed that it had theinherent jurisdiction to declare litigants vexatious, or to prohibit the commencement of proceedings without leave, to protect the properadministration of justice and to prevent an abuse of its process: Hollick v St. Mary’s Credit Union, [1991] SJ No 566 (QL) (Sask CA), andHrabinsky v Mabel Allan (13 September 1983) Regina (Sask CA). As such, we conclude that Rule 46.2(1) recognises an aspect of theCourt’s inherent jurisdiction.

An instructive explanation of the inherent jurisdiction of appellate courts in this context is found in Bojkovicv Rentz Bros. Inc., 2010 MBCA 17 at paras 59-66, 251 Man R (2d) 244. [11] In interpreting Rule 46.2(1) and ascertaining the principles that inform its application, we take guidance from the case law ofother appellate courts and of superior courts. Those courts have stressed that an order of the nature contemplated under Rule 46.2(1)should not be made lightly.

The right of access to the courts is an aspect of the rule of law and the relief afforded under Rule 46.2(1)—although it does not preclude access—imposes an additional burden on the exercise of rights of appeal granted by legislation.

AsDonald J.A. put the matter in Lindsay v Canada (Attorney General), 2005 BCCA 594, 219 BCAC 187, the question for the Court iswhether “the litigant has taken himself over the line”. [12] In Green v University of Winnipeg, 2018 MBCA 137 at para 28, [2019] 2 WWR 35, Steel J.A. described an equivalent ordermade under Manitoba legislation that is substantially similar to Rule 46.2(1) as “exceptional”.

She cited Winkler v Winkler (1990), (MB KB), [1991] 2 WWR 369, 70 Man R (2d) 47 (CA), for the proposition that the right to access the justice systemshould be restricted only in “the clearest and most compelling circumstances”. See also Dawson v Dawson, 2014 BCCA 44 at para 16, 349BCAC 307; Van Sluytman v Muskoka (District Municipality), 2018 ONCA 32 at para 23, 26 CPC (8th) 130; Pearlman v Atlantic TradingCo., 2010 BCCA 362 at para 5, 291 BCAC 81.

We also note that the legislation at issue in the British Columbia and Manitoba casesrequired the court to be satisfied only as to the persistent and unreasonable commencement of vexatious proceedings; whereas, our Rule46.2(1) refers to frivolous or vexatious proceedings and, as such, might seem to have slightly greater reach. However, at its root, Rule 46.2speaks to aspects of the Court’s inherent jurisdiction to prevent its process from being abused. [13] Regardless, we agree that orders under Rule 46.2(1) should be granted sparingly.

That idea is found in the language of the Ruleitself, which contemplates an order being made only when the person subject to it has met the condition of “habitually, persistently, andwithout reasonable cause” commencing “frivolous or vexatious proceedings” in this Court. [14] There is, also, the other side of the access to justice coin to consider.

As Voith J. commented in Nayyar v Manufacturers LifeInsurance Co., 2016 BCSC 1587 at para 78, a vexatious litigant order is “in certain circumstances, in the public interest and necessary toprevent ongoing abuse of the court’s process” (see also Hokhold v Gerbrandt, 2017 BCCA 216 at para 21). Repetitive, unmeritoriousappeals and applications result in unnecessary expense for all parties and may have other negative effects, including increased conflict anddelay.

They also result in the needless expenditure of the judicial and other resources of the Court that would otherwise be available tomeet the needs of other litigants. In this way, to the extent that an order under Rule 46.2(1) may mitigate these adverse effects of vexatiouslitigation, the order facilitates access to justice by other litigants. [15] A leading decision in this area is Lang Michener Lash Johnston v Fabian (1987), (ON SC), 37 DLR (4th) 685(Ont SC (H Ct J)) (WL) [Fabian]. In Fabian (at para 20), Henry J. identified a non-exhaustive list of factors for consideration in vexatiouslitigant applications.

In our view, the Fabian factors—while not a checklist—serve as a useful guide to the considerations relevant in thedetermination of whether a person has “habitually, persistently, and without reasonable cause commenced frivolous or vexatiousproceedings in the court” (Rule 46.2(1)). Accordingly, we have adapted the Fabian factors to the appellate context. We conclude theCourt, when considering an application under Rule 46.2, should consider factors including: (

a) whether the appellant has brought more than one appeal seeking to determine the same issue; (

b) whether one or more of the appeals discloses no right of appeal (Rule 46.1(1)(b));

(

c) whether one or more of the appeals is manifestly without merit (Rule 46.1(1)(c)); (

d) whether the appellant’s conduct in appealing against a tribunal’s decisions can be considered an abuse of the process of the Court (Rule 46.1(1)(d)); (

e) whether it appears one or more of the appeals was brought for an improper purpose, including the harassment and oppression of a respondent through multiple proceedings brought for purposes other than the legitimate assertion of a statutory right of appeal or a cause of action; (

f) whether the grounds raised in one appeal tend to be rolled forward into subsequent appeals, where they are repeated or supplemented; (

g) whether the appellant has made accusations against or alleges malfeasance on the part of lawyers who acted for or against the appellant in other proceedings; and (

h) whether the appellant has failed to pay costs orders awarded in favour of parties opposite. [ 16 ] Proceeding on this basis, we find that Mr. Barth’s conduct discloses many of the markers of a vexatious litigant identified in Fabian . The Court has already struck one of his appeals as being manifestly without merit and, in another, found that only one of many grounds of appeal, while of dubious strength, was not “manifestly without merit”. In terms of high-level merit assessments, none of Mr. Barth’s applications for leave to appeal or to extend the time to appeal have been successful in this Court.

Moreover, he has repeatedly pursued issues that had previously been dealt with by the courts, including repeatedly seeking to strike the same affidavit. Mr. Barth’s written materials and his oral arguments, which he made under Rule 46.2(2) in response to this application, strikingly demonstrate that he rolls issues forward from one appeal to another, presumably in an attempt to have the courts vindicate assertions that courts have previously found to lack any merit.

He has made allegations against lawyers involved on all sides of the family law proceeding and repeatedly sought to have them removed from the matter. [ 17 ] He has also failed to pay costs orders made against him. No less importantly, Mr. Barth has refused to follow The Court of Appeal Rules , even after having received repeated, practical instruction from Registry staff on court processes and the requirements of the Rules . This has led to delay and to unwarranted and unmeritorious applications in this Court. Mr. Barth’s decision to stubbornly proceed under his own misguided

interpretation of the wrong set of rules consumes an inordinate amount of the limited resources of our Registry. [ 18 ] This is, of course, not how the court process should function. Judicial and justice system resources are finite. Mr. Barth’s appeals and applications consume the time and energy of judges, Registry staff and court staff. This is time and energy that could be used to hear other matters involving other litigants. Mr. Barth has a statutory right to appeal against orders made in the Court of Queen’s Bench, but he is not entitled to abuse this Court’s process in the way that he has.

Registry staff and judges of this Court have made this clear to him. In this respect, Richards C.J.S. wrote in Barth SKCA : [18] There is no doubt that Mr. Barth has commenced a significant number of proceedings in the Court of Queen’s Bench in relation to the issues he is facing with respect to his child. For present purposes, it is not necessary to present a full inventory of them. However, several of those proceedings, at least on the surface of things, appear to be procedurally ill-advised and of dubious merit. That said, Mr. Barth has filed only two appeals in this Court.

As explained above, one of them has at least some merit. [19] Mr. Barth may be approaching the line in this Court where an order under Rule 46.2 might be appropriate. But, he has not yet crossed that line. [ 19 ] Nevertheless, in the eleven months since the Chief Justice made those comments, Mr. Barth has commenced, or attempted to commence, eight additional appeals in this Court. [ 20 ] Pursuant to Rule 46.2(1), we conclude that Mr. Barth has habitually, persistently, and without reasonable cause commenced frivolous and vexatious proceedings in this Court. Although we decline to strike Mr.

Barth’s appeals under Rule 46.1(1), controls must be placed on him and his appeals. Accordingly, we order that: (

a) Mr. Barth is prohibited from filing or attempting to file in this Court, by any means whatsoever, without leave of the Court or a judge thereof, any notice of appeal. (

b) The appeals docketed as Registry Nos. CACV3556, CACV3606, CACV3628, CACV3668, CACV3690 and CACV3767 are hereby consolidated such that the grounds raised under each of the six separate notices of appeal shall be heard together by a panel of the Court as one appeal [consolidated appeal] and the parties thereto shall perfect the consolidated appeal under the following directions and orders of the Court: (

i) Mr. Barth shall serve and file a single, consolidated appeal book on or before 4:00 p.m., on Monday, April 5, 2021, that contains the material set forth under Rule 23 relevant to the grounds of appeal and that complies in form with Rule 24. In the interests of certainty, there is no requirement to include in the consolidated appeal book any list of witness names, notice of cross-appeal, notice under The Constitutional Questions Act, 2012 , SS 2012, c C-29.01 , or transcript. (ii) Mr.

Barth shall serve and file a written argument of no more than 40 pages, on or before 4:00 p.m., on Monday, April 19, 2021, addressing all of the consolidated grounds of appeal. (iii) If counsel for a respondent should consider the filed consolidated appeal book deficient in its content, they have leave to file a supplemental appeal book to cure the deficiencies so identified on or before 4:00 p.m., on Monday, April 26, 2021. (iv) The respondents shall serve and file their respective respondent’s facta on or before 4:00 p.m., on Monday May 10, 2021, responding to all of the grounds of appeal in the consolidated appeal.

(

v) When the consolidated appeal has been perfected in accordance with these orders, the Registrar shall, at her discretion, fix an appeal hearing date. (

c) Registry staff are hereby authorised to reject any document that Mr. Barth attempts to file in contravention of this order. (

d) The consolidated appeal shall, in all other respects, be perfected, set down for hearing and heard in accordance with The Court of Appeal Act, 2000 , SS 2000, c C​42.1 , The Court of Appeal Rules and the practices of this Court. (

e) These orders do not affect any party’s ability to bring an application before a single judge of this Court in chambers to perfect or assist with the perfection and scheduling of the consolidated appeal in accordance with these orders and, in that regard, the judge hearing such an application may amend, modify or vacate these orders as they relate to the perfection and scheduling of the consolidated appeal. (

f) These orders do not affect the appeals docketed as Registry Nos. CACV3532 and CACV3785, which stand separate and apart from the consolidated appeal and from each other. (

g) Mr. Barth shall pay $750 in costs to each of the Ministry and Ms. Barth. [ 21 ] The Registrar shall prepare a formal order giving effect to this judgment, without the necessity of obtaining approval as to its form and content from Mr. Barth, Ms. Barth, the Ministry of Social Services and the Ministry of Education. The Registrar is authorised to send the formal order, along with a copy of these reasons, to Mr. Barth at the email address that he has provided to the Registry. “Caldwell J.A.” Caldwell J.A. “Barrington-Foote J.A.” Barrington-Foote J.A. “Tholl J.A.” Tholl J.A.