Discretion should be exercised on what was necessary and fair now and not on speculation about how application would turn out

Applicant was declared vexatious litigant in Federal Court but he still often tried to start applications there. As he had full access to Federal Court of Appeal, he would unsuccessfully bring motions to waive filing fees for his notices of application for judicial review and then he would appeal dismissals of such motions. Federal Court of Appeal issued ruling requiring both courts to deal with applicant’s proceedings at early stage by scrutinizing merits of applications or appeals rather than just dismissing motions for waiver of filing fees. In applicant’s latest motion for order waiving filing fees for notice of appeal, motion was dismissed with order prohibiting applicant from bringing further appeals of underlying judgment and with invitation for submissions from parties on draft order clarifying when applicant could access court. Applicant would only be permitted to access Federal Court of Appeal as appellant in proceedings that he had been granted leave to start, as appellant from Tax Court, or as applicant in judicial review of administrative decision or where he was responding party. There was no basis for granting applicant’s request for recusal as matter had been approached with open mind and recognition that, while one of his matters might have no merit, another one might. To extent court had overlooked bar of s. 40(5) of Federal Courts Act at times, further regulatory order would ensure that it would not happen again. It was not appropriate to wait until Crown’s intended application for him to be declared vexatious litigant was brought, as discretion should be exercised on what was necessary and fair now and not on speculation about how application would turn out. Regulatory order was not same as vexatious litigant declaration and it was needed now to protect court resources.

Fabrikant v. Canada (2018), 2018 CarswellNat 7709, 2018 CarswellNat 8974, 2018 FCA 224, 2018 CAF 224, David Stratas J.A. (F.C.A.); additional reasons (2018), 2018 CarswellNat 6966, 2018 CarswellNat 8971, 2018 FCA 206, 2018 CAF 206, David Stratas J.A. (F.C.A.).