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FCA declares inmate a vexatious litigant

Overview

In Canada (Attorney General) v Fabrikant, 2019 FCA 198, Stratas JA declared the respondent, Mr. Fabrikant, to be a vexatious litigant. Stratas JA discontinued his ongoing proceedings and barred him from bringing new proceedings without leave of the Court.

Mr. Fabrikant is a federal inmate, who has commenced numerous court proceedings during his incarceration. Two other courts had already found Mr. Fabrikant to be vexatious.

Mr. Fabrikant alleged that Stratas JA was “intellectually incapable” of hearing his matter and requested that he recuse himself. The request was denied.

While Stratas JA had been assigned to several of Mr. Fabrikant’s previous cases, Stratas JA held that there was no evidence of bias or unfairness. Further, the decision to assign many of a party’s matters to a single judge is a sensible case management practice, which prevents inconsistent results and encourages efficiency.

Stratas JA found that declaring Mr. Fabrikant a vexatious litigant was necessary, was consistent with the purposes of the vexatious litigant legislation, and that Mr. Fabrikant’s lack of governability or harmfulness to the court system and participants justifies the result.

Stratas JA pointed to a number of factors to support his finding, including (at para 26): the commencement of unmeritorious proceedings, allegations of bias and illegality against member of the Court, sending inappropriate emails directly to Court officials and occasionally judges, and failure to follow the Federal Court Act and Federal Court Rules. He also noted that Mr. Fabrikant displays “[a] hostility to the idea that he could be wrong and disparagement of all who disagree with him” and has a “narcissistic attitude”.

Also of concern were Mr. Fabrikant’s attempts to control and manipulate court proceedings by filing multiple motions filled with insults and accusing judges of illegality for quashing his proceedings on the basis of lack of merit.

In response to Mr. Fabrikant’s suggestion that the Court has condoned his behaviour, Stratas JA noted that any mistakes of the judges of the court have been prompted by Mr. Fabrikant’s behaviour. Moreover, the Court even adopted the new rule of assessing whether a claim is doomed to fail in motions for waivers of filing fees, specifically in response to Mr. Fabrikant.

Stratas JA discontinued Mr. Fabrikant’s pending files and ordered that he will be required to seek leave to commence new proceedings.

While Stratas JA focused on Mr. Fabrikant’s behaviour, he recognized that the Attorney General has contributed to the problem by not being more proactive about parties exhibiting vexatious behaviour, at para 34:

“Mistakes can happen for other reasons too. Some of these can be laid at the feet of the Attorney General. Sometimes the Attorney General has failed to respond to the respondent’s filings, thereby depriving the Court of much-needed assistance. As well, mistakes are inevitable in a court that is too busy and under-resourced: for almost twenty years, this Court’s legal complement of judges has not changed but the difficulty, size and complexity of this Court’s workload have skyrocketed. The workload might fall if the Attorney General sought vexatious litigant orders more often and more swiftly where they are warranted. But all too often, the Attorney General does not do so, arguably falling short of his legal duty to “[regulate]… all litigation for or against the Crown”: Department of Justice Act, R.S.C.. 1985, c. J-2, para. 5(d).”

Conclusion

Inmates serving lengthy sentences may need to bring numerous court proceedings to challenge correctional decisions. However, the law is clear that the number of proceedings brought is not the only factor, and instead the court is concerned with the party’s overall behaviour in the court proceedings.

While individuals like Mr. Fabrikant were allowed to commence numerous proceedings over several years before being declared vexatious litigants, Stratas JA’s comments may trigger a shift in how the Attorney General responds to parties who commence many proceedings.

It remains to be seen whether or not the Court will see an increase in vexatious litigant applications. However, this decision raises concerns for federal inmates, especially the large portion of them who are self-represented. They may not understand the relevant laws and rules of procedure or appreciate the possible consequences of behaviour they exhibit in court proceedings.

Of course, vexatious litigants still have access to the courts. However, a vexatious litigant declaration may create a significant barrier for a federal inmate, who already has difficulties commencing proceedings and obtaining legal representation and information.

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