Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20220422 DOCKET: C69295, C69339, C69406, C69609, C70058 and C70152

MacPherson, van Rensburg and Roberts JJ.A.

DOCKET: C69295

BETWEEN

ASMIN Grand Chief Wabiska Mukwa on behalf of Brent and Kathy and Cassandra of the Manary Family and Sprucepoint Farms Ltd. Plaintiffs (Appellants)

and

Farm Credit of Canada, Agricultural Commodity Corp., Ministry of Finance of Ontario, Vic Fedeli, Greg Orencsak, Deon Cousins, David Carrigan, Jeff Quann, Kim Dargie, Christopher Chew, Jessica Barton, Ron Hester, Dean Eastman, Christi Bernardo, Her Majesty the Queen in right of Canada, The Attorney General of Canada, Taylor Andreas, Dan Luxat, Jacob Pollice, Joanna Pawelek, Her Majesty the Queen in right of Ontario, The Attorney General of Ontario, Candice Camilleri, Lorinda Cheung, Kisha Chatterjee, Town of Georgina, John Hart and Andrew Biggart Defendants (Respondents)

DOCKET: C69339

AND BETWEEN

Her Majesty the Queen in right of Ontario, as represented by the Minister of Transportation Applicant (Respondent)

and

John Vieraitis Respondent (Appellant)

DOCKET: C69406

AND BETWEEN

Farm Credit of Canada Plaintiff (Respondent)

and

1047535 Ontario Limited and Mack Todd Manary Defendants (Appellant)

AND BETWEEN

1047535 Ontario Limited and Mack Todd Manary Plaintiffs by counterclaim (Appellant)

and

Farm Credit of Canada, Attorney General of Canada and Attorney General of Ontario Defendants by counterclaim (Respondents)

DOCKET: C69609

AND BETWEEN

Farm Credit of Canada Plaintiff (Respondent)

and

1047535 Ontario Limited and Mack Todd Manary Defendants (Appellant)

DOCKET: C70058

AND BETWEEN

National Bank of Canada Plaintiff/Defendant by counterclaim (Respondent)

and

Marcel Guibord Defendant/Plaintiff by counterclaim (Appellant)

DOCKET: C70152

AND BETWEEN

Amir Sarac Plaintiff (Appellant)

and

Wilstar Management Ltd., Ryan Gibson and Debbie Dykstra Defendants (Respondents)

Grand Chief Wabiska Mukwa, acting in person No one else appearing for the appellants

Heard: in writing

Determination pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 with respect to the appeal from the order of Justice Jasmine T. Akbarali of the Superior Court of Justice dated March 5, 2021, with reasons reported at: 2021 ONSC 1632 (C69295).

Determination pursuant to r. 2.1 of the Rules of Civil Procedure with respect to the appeal from the order of Justice Scott K. Campbell of the Superior Court of Justice dated March 19, 2021, with reasons at: 2021 ONSC 2107 (C69339).

Determination pursuant to r. 2.1 of the Rules of Civil Procedure with respect to the appeal from the order of Justice Paul R. Sweeny of the Superior Court of Justice dated April 6, 2021, with reasons reported at: 2021 ONSC 2541 (C69406).

Determination pursuant to r. 2.1 of the Rules of Civil Procedure with respect to the appeal from the order of Justice Paul R. Sweeny of the Superior Court of Justice dated May 26, 2021, with reasons reported at: 2021 ONSC 3820 (C69609).

Determination pursuant to r. 2.1 of the Rules of Civil Procedure with respect to the appeal from the order of Justice Graeme Mew of the Superior Court of Justice dated October 5, 2021, with reasons reported at: 2021 ONSC 6549 (C70058).

Determination pursuant to r. 2.1 of the Rules of Civil Procedure with respect to the appeal from the order of Justice Frederick L. Myers of the Superior Court of Justice dated November 25, 2021, with reasons reported at: 2021 ONSC 7776 (C70152).

Reasons for Decision

[1] The appellants in all these appeals claim to be members of the Anishinabek Solutrean Métis Indigenous Nation (“ASMIN”). These appeals further share the ASMIN Grand Chief Wabiska Mukwa (“Mukwa”) as either an appellant, a purported appellant by inserting himself into the title of proceedings on appeal, or a purported representative of the appellant(s).

[2] Despite the various legal issues and parties present in these appeals, nearly identical relief is requested by Mukwa on behalf of the various appellants, namely: that the laws and customs of ASMIN govern the proceedings, and the court of appeal “vacate Jurisdiction” over ASMIN members; that the Crown or Governor General conduct consultations with ASMIN; and that the date of perfection of the appeals “be tolled” until consultation occurs.

[3] None of the appeals have been perfected. Instead, the appellants have brought various motions seeking substantially similar relief as sought in the notices of appeal.

[4] In response to the court’s notices to the appellants, pursuant to r. 2.1.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that the court is considering dismissing or staying any or all of the subject appeals, written submissions were provided by Mukwa on behalf of the appellants for all of the appeals. Beyond the ten pages of submissions that are permitted for each appeal pursuant to r. 2.1.01(3), Mukwa provided the court with ten additional submissions totaling over a hundred pages for the appeals. No other submissions were received from any of the appellants; that is, Mukwa purported to respond to the court’s notices on behalf of the appellants in each of the appeals.

[5] The court is now tasked with determining whether any or all of these appeals should be dismissed or stayed pursuant to r. 2.1.01(1). For the reasons that follow, all of the appeals are dismissed. Additionally, the court will no longer be accepting any filings or correspondence by Mukwa in proceedings in this court where he is not a party.

Analysis

[6] The application of r. 2.1 is “limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488.

[7] Having reviewed the notices of appeal, the related notices of motion, the multiple r. 2.1 submissions, all submitted by Mukwa on behalf of the various appellants, as well as email communications from Mukwa with court staff and counsel for the respondents in relation to the appeals and the r. 2.1 proceedings, it is obvious that there are no issues raised or arguments made that are relevant to any of the orders under appeal.

[8] Rather, Mukwa, on behalf of the various appellants, makes bald assertions that are wholly unrelated to the orders under appeal. This is further apparent given that, although the various orders under these appeals relate to a range of legal issues, such as enforcing defaulted mortgage payments, issuing a warrant under the Provincial Public Transportation Act and Highway Improvement Act, R.S.O. 1990, c. P.50, and contesting an eviction, the notices of appeal, related notices of motion and r. 2.1 submissions are nearly identical, and the relief sought is clearly aimed at preventing the completion of the appeals.

[9] In addition to the appeals having no hope of success, the appeals exhibit many of the features this court has recognized as characteristic of vexatious litigation, such as:

• Arguments that are unintelligible or highly confused;
• Persistent reiteration and amplification;
• Written submissions contain much that is not legally relevant to the dispute;
• Inappropriate submissions in both form (curious formatting, many pages, odd and irrelevant attachments, multiple methods of emphasis) and content (rambling discourse, rhetorical questions, repeated misuse of technical terms, inappropriately ingratiating statements, ultimatums, and threats);
• The persistent pursuit of unsuccessful appeals; and
• Unsustainable allegations and gratuitous complaints against members of the legal profession.

See Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at paras. 18‑20; Scaduto, at para. 9; Khan v. Krylov & Company LLP, 2017 ONCA 625, 138 O.R. (3d) 581, at para. 13; and Rallis v. Myers, 2019 ONCA 437, at para. 5.

[10] In addition to unfounded and vexatious allegations against court staff and counsel for the respondents, Mukwa has also made spurious allegations and objections against multiple judges of this court and the Superior Court of Justice.

[11] These appeals are the clearest of cases in which r. 2.1 should be applied to dismiss the appeals.

[12] We wish to emphasize that these appeals do not raise the issue of the appropriateness of the application of r. 2.1 to Indigenous rights claims or in the context of appeals brought by Indigenous persons.

[13] Although a motion under r. 2.1 focuses on the pleadings in the proceeding under consideration and the submissions of the parties, the court may look to reasons and pleadings in other proceedings to determine whether the case before it is abusive: Khan v. Law Society of Ontario, 2020 ONCA 320, 446 D.L.R. (4th) 575, at para. 9, leave to appeal to S.C.C. refused, 39321 (January 28, 2021).

[14] Decisions of the Superior Court of Justice involving Mukwa reveal that anyone can become a member of ASMIN by filling out an application and paying $225: Mukwa v. Farm Credit of Canada, 2021 ONSC 1632, at para. 19; Sarac v. Wilstar Management Ltd., 2021 ONSC 7776, at para. 14; and Farm Credit Canada v. 1047535 Ontario Ltd., 2021 ONSC 3820, at para. 19.

[15] Various Superior Court of Justice decisions, while the subject of these appeals, have repeatedly and consistently recognized that, rather than pursuing legitimate Indigenous rights claims, Mukwa is engaging in abusive litigation tactics, often called Organized Pseudo-legal Commercial Arguments (“OPCA”), in order for the appellants to avoid their financial or other legal obligations: Farm Credit Canada v. 1047535 Ontario Ltd., 2021 ONSC 2541, at paras. 29-33; National Bank of Canada v. Guibord, 2021 ONSC 6549, at para. 35; Sarac, at paras. 23-24; and Mukwa, at paras. 28, 44.

[16] The Divisional Court has barred Mukwa from representing or seeking to represent any person, other than himself, in proceedings in the Divisional Court without prior leave from an administrative judge of the Divisional Court: Guibord v. National Bank, 2021 ONSC 5408 (Div. Ct.), at para. 38.

[17] After reviewing the various vexatious proceedings involving Mukwa in the Superior Court of Justice, Myers J. in Sarac, at para. 25, aptly observed:

This country recognizes that real injustices have been inflicted upon its Indigenous communities including the Métis People. Litigants who try to avoid their financial responsibilities by wrapping themselves in the garb of Indigenous Peoples’ real victimhood and suffering to tie up the courts with illegitimate and abusive claims deserve not another moment of court time or attention.

[18] As also noted by Myers J. in Sarac, at para. 20, Mukwa has “had several opportunities to explain how his claims and processes are anything other than legal gibberish designed to frustrate our already over-burdened civil justice system.”

[19] Mukwa has also had many opportunities at this court to explain how the various appeals are not frivolous, vexatious or otherwise an abuse of process and has not done so for any of the appeals. It would be unfair and a waste of court resources to allow these abusive claims to continue.

[20] We note that that the common thread of these appeals is the participation of Mukwa. Except for one appeal before the court in which Mukwa was a party in the proceeding below, Mukwa has inappropriately inserted himself in these appeals, either by purporting to be a party on appeal by injecting his name into the title of proceedings or by purporting to act as a representative for the appellant(s).

[21] Unless a court orders otherwise, r. 15.01(3) provides that a person in a proceeding may act in person or be represented by a lawyer. The Rules of Civil Procedure define a lawyer as “a person authorized under the Law Society Act to practise law in Ontario”.

[22] There are sound policy rationales for this rule, namely that the Law Society of Ontario is charged with regulating lawyers in the public interest and ensuring standards of professionalism and competence among lawyers: Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, [2018] 2 S.C.R. 453, at para. 16; Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772, at para. 114. Pursuant to the Rules of Civil Procedure and the Law Society of Ontario’s Rules of Professional Conduct, lawyers have various obligations to their clients once they are retained and when they go on record in litigation.

[23] We have serious concerns with Mukwa falsely attempting to act as a party by inserting his name into the title of proceedings and with Mukwa purporting to act as a representative of a party. With the exception of one appeal, Mukwa is neither a proper party nor an authorized representative and as such has no accountability to the court, to the legal profession, or to his purported co-appellants or clients.

[24] This court has implicit powers, that derive from the court’s authority to control its own process, to make procedural orders to prevent an abuse of process and to ensure the just and efficient administration of justice: Lochner, at para. 27; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19; and R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 58.

[25] Mukwa on behalf of the appellants has repeated highly similar unfounded and vexatious allegations in multiple, unsuccessful, and abusive proceedings. As Corbett J. observed in Guibord (Div. Ct.), at para. 38, Mukwa is not fit to act as a representative for a party. Exceptional relief is called for in this case to prevent further abuses of process by Mukwa in this court.

[26] Accordingly, in addition to the dismissal of the subject appeals, Mukwa is barred from making any further filings or communications in the Court of Appeal unless he, himself, is a party to the appeal. To ensure Mukwa is indeed a party to the appeal, prior to making any filings or communications to the court as a party, Mukwa must first obtain leave by bringing a motion, on notice to the parties, to a single judge in writing, and the motion must include the order of the lower court decision that is being appealed.

Conclusion

[27] On the face of the various appeals, related motions, and r. 2.1 submissions, it is clear that the appeals are frivolous and vexatious. It is also clear that the appellants are engaging in delay tactics to avoid their various financial and other legal obligations rather than seeking to have their appeal heard and decided by this court. The appeals are dismissed pursuant to r. 2.1.01.

[28] The court further orders that, except for the filing of any such leave motion itself, no filings or communications are to be accepted from Mukwa or from his email address of askit4equity@gmail.com, in proceedings in the Court of Appeal without prior leave to confirm that he is a party to the appeal. The leave must be sought by bringing a motion, on notice to the parties, to a single judge in writing, and the motion record must include the order of the lower court decision being appealed.

“J.C. MacPherson J.A.” “K. van Rensburg J.A.” “L.B. Roberts J.A.”