Court File and Parties

COURT FILE NO.: CV-22-88476 DATE: 22/03/2022 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: MARCEL GUIBORD, on behalf of GRAND CHIEF ZANE BELL, Plaintiff – and – HER MAJESTY THE QUEEN IN RIGHT OF CANADA, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, NATIONAL BANK OF CANADA, LAURENT FERREIRA, MARTIN GAGNON, GHISLAIN PARENT, and MICHAEL MYERS Defendants

Counsel: Self-represented (for Marcel Guibord) Michael Myers for the National Bank and the individual defendants No one appearing for the defendant governments

HEARD: In writing

Reasons for Judgment

Justice Sally Gomery

[1] The court has received a requisition, on behalf of the defendants National Bank of Canada and the four individual defendants, for the dismissal of this action under r. 2.1.01 of the Rules of Civil Procedure. No one has yet appeared on behalf of the federal or Ontario governments.

1. After reviewing the statement of claim, I issued an endorsement on February 22, 2022, directing the registrar to give notice to the plaintiff that the action could be struck and to invite him to make submissions as to why the lawsuit should proceed. I have now received and read the plaintiff’s submissions. I do not need to obtain responding submissions from the defendants to make a final determination as to whether the action should be struck pursuant to r. 2.1.01. For the reasons that follow, I find that the action is frivolous, vexatious and an abuse of process, and accordingly dismiss it.

The Test Under Rule 2.1.01

[2] Rule 2.1.01(1) says that the court may, “on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court”. Dismissal under the rule can be requested by any party to a proceeding.

[3] Rule 2.1.01’s purpose is “nipping in the bud actions which are frivolous and vexatious in order to protect the parties opposite from inappropriate costs and to protect the court from misallocation of scarce resources”. [^1] The court must wield the power granted by r. 2.1.01 carefully. The abusive nature of a proceeding must be apparent “on the face of the pleadings themselves”. [^2] The Ontario Court of Appeal has repeatedly emphasized that r. 2.1.01 is a blunt instrument, reserved for the clearest of cases as opposed to close calls. [^3]

[4] A lawsuit is an abuse of the court’s process if it is nothing more than an attempt to re-litigate claims that have already been decided. It is therefore relevant, in considering whether an action should be struck under r. 2.1.01, if the plaintiff has the same qualities as a vexatious litigant under s. 140 of the Courts of Justice Act. [^4] I will consider these qualities more fully later in these reasons.

[5] An action should not, however, be struck under r. 2.1.01 simply because a plaintiff has sued unsuccessfully in the past. While rule 2.1 “should be applied robustly to bring to an early end to vexatious proceedings, the matters should not be considered lightly or dismissively”. [^5]

Mr. Guibord’s Past Litigation with the National Bank

[6] In his statement of claim in this action, the plaintiff, Marcel Guibord, describes himself as “an Indigenous Métis man, who resided at 3213 Old Hwy 17, Clarence-Rockland, Turtle Island, until possession was taken from him by the Sheriff”. He acknowledges that the defendant bank held the mortgage to the property at 3213 Old Hwy 17 (the “Property”). Three of the individual defendants, Laurent Ferreira, Martin Gagnon, and Ghislain Parent, are the National Bank of Canada’s senior officers. The defendant Michael Myers is a lawyer who has acted for the Bank in proceedings against Mr. Guibord.

[7] This is the second time that Mr. Guibord has been involved in litigation with the National Bank of Canada. In May 2019, the Bank sued Mr. Guibord to enforce a mortgage on the Property in May 2019 (the “2019 Action”). The 2019 Action has been vigorously litigated, as is apparent from the numerous decisions it has spawned.

[8] Mr. Guibord contested the 2019 Action on the basis that (among other things): the Property was on unceded territory and therefore could not be seized; the Superior Court had no jurisdiction over the action and should be transferred to an indigenous tribunal; and the National Bank’s debt was offset by $450,000 in funds that Mr. Guibord’s wife had deposited in 1984 and 1999, in respect of which Mr. Guibord allegedly held three certificates of deposit (the “Certificates”).

[9] On October 5, 2021, Justice Mew granted the Bank’s motion for summary judgment. [^6] He denied Mr. Guibord’s request to adjourn the motion until he could be assisted by a representative who was then in jail, finding that Mr. Guibord “was afforded, and took, every opportunity to present his case and participate in the hearing”. [^7] On the merits of the action, Mew J. concluded that the Bank was entitled to possession of the mortgaged Property for the purpose of its sale, so that it could recover the money owed by Mr. Guibord to the Bank.

[10] Mew J. held that the assertion that the Property was not subject to possession by the Bank to enforce the mortgage was “clearly untenable in the absence of any assertion or evidence that the defendant’s property is located on a reserve”. He stated that there is “a time, a place and a process for raising and adjudicating the many serious issues of indigenous title that exist and the enduring effects of colonialism” but that the Bank’s mortgage enforcement action was not the appropriate forum in which such issues could be determined. [^8] Mew J. likewise held that the duty to consult did not arise, because “the pleaded dispute between the parties does not raise justiciable issues of aboriginal title, nor is the Crown a party”. [^9]

[11] With respect to Mr. Guibord’s claim about the Certificates, Mew J. noted that the Bank had searched its records and found no reference to any certificates of deposit bearing the numbers of the documents proffered by Mr. Guibord. It also had no record of indebtedness to him in respect of unredeemed certificates. He rejected an unsigned “CFLA Bloomberg Property Securitization Analysis Report” filed by Mr. Guibord as “nonsensical” and “useless”. He furthermore held that any claim that Mr. Guibord might have based on the Certificates was time-barred and bound to fail. [^10]

[12] Finally, Mew J. dismissed Mr. Guibord’s counterclaim, including his claim for transfer of the action to an indigenous tribunal. He held that the counterclaim did not articulate any justiciable cause of action, and was frivolous, vexatious, and abusive. [^11]

[13] In a separate costs’ decision, Mew J. noted that the history of this litigation included “numerous frivolous and unnecessary motions and appeals”, including an appeal to the Ontario Court of Appeal on a procedural issue that the Court held was “completely devoid of merit”. [^12]

[14] Mr. Guibord appealed Mew J.’s decision granting the Bank’s summary judgment motion. On December 1st, 2021, the Court of Appeal dismissed his motion to stay the Bank’s writ of possession. [^13] Nordheimer J. held that Mr. Guibord’s grounds of appeal appeared to have little merit, writing: [^14]

While I do not question the importance of some of the issues that the appellant raises that surround the question of land claims by Indigenous peoples, those issues, as the appellant attempts to invoke them in his appeal and on this motion, do not relate to any of the issues raised by the motion for summary judgment. That motion dealt with a straightforward commercial arrangement between the parties on which there had been default by the appellant. That default entitled the respondent to exercise its rights under the security which it held, namely a mortgage. The respondent sought, and obtained, summary judgment arising from the default, which included obtaining a writ of possession. The various principles and proclamations to which the appellant refers, including the United Nations Declaration on the Rights of Indigenous Peoples, simply have no proper application to the issues raised on the summary judgment motion.

The Allegations and Claims in Mr. Guibord’s New Action

[15] In this new action, Mr. Guibord alleges that mortgage enforcement action was founded on a fraud committed by the Bank, its officers and Mr. Myers. He also says that the defendants converted to their own use the funds that led to the issuance of the Certificates, either deliberately or negligently. Mr. Guibord seeks $500,000 in damages for pain and suffering, an injunction preventing the sale of the Property, and an order giving him back possession of it during this litigation.

[16] With respect to the claims against the government defendants, the style of cause states that the action is brought before the Ontario Superior Court “In Conjunction with the ASMIN / Kinakwii Indigenous Tribunals, under UNDRIP, and Kinakwii Constitution” and constitutes “A Land Claim in Trespass, under Indigenous Laws and Traditions, in Equity, including the Aboriginal Common Law of the Land, existing prior to and after 1982, and UNDRIP and/or under The Law of Ma'at and/or Natural Justice”. [^15] Mr. Guibord asserts a “Land Claim in Trespass on Un-Ceded Metis Land of Turtle Island (North and South America and the Caribbean, and more particularly Eastern Canada and BC) by the Crown doing business as Her Majesty in Right of CANADA and ONTARIO, including the Sheriff of ONTARIO”. He seeks a transfer of the action to the “ASMIN Tribunal ASKIT”, to be tried by “a joint Panel of a Justice appointed by Her Majesty’s government and a Legal Headman from ASMIN”.

[17] Mr. Guibord also asserts a cause of action in theft “on behalf of Her Majesty in Right of CANADA for transferring the Consolidated Tax Fund to NYC, which fund includes the Indian Trust, which could compensate said mortgage”. He alleges that the Federal Crown could have paid his mortgage debt to the National Bank, but instead transferred funds to an entity located under the Chase Bank in New York City. He alleges that “Her Majesty the Queen in Right of Canada” and “Her Majesty the Queen in Right of Ontario” are both trade names of “CANADA Inc., a corporation registered on the SEC in Washington, DC, via Letters Patent proclaimed by the Proclamation of the CANADA Act of 1982, which legislation was passed only in the UK Parliament”.

Mr. Guibord’s Response to Notice that the Action Could be Struck

[18] In Mr. Guibord’s submissions in response to the February 22, 2022 endorsement, he alleges that Justice Mew erred in dismissing his defenses and counterclaims in the 2019 Action. He contends that the addition of the federal and provincial governments allows him to assert a land claim that would defeat the National Bank’s mortgage claim, and that he should be allowed to advance new claims against the Bank, its officers, and its lawyers.

[19] Mr. Guibord makes other assertions in his submissions. Amongst other things, he contends that:

• “Parliament has no authority under International Law to issue a Bank of Canada Act”.
• Superior Court judges are not validly appointed through Orders in Council, because “there is no document passed either in the UK or Ottawa Parliament building that authorizes the Privy Council to act in Canada”.
• “By utilizing the Mortgage Act which referes (sic”) to the “person,” National Bank, Michael Myers and Mew J. have breached the Coronation Oath of Queen Elizabeth in 1953, to be the Defender of the Catholic Faith, and to keep the Christian litigants in Her courts free from sin”.

Analysis

[20] As already noted, an action may be found to be frivolous, vexatious and an abuse of process under r. 2.1.01 if it has the features of proceedings giving rise to an order under s. 140 of the Courts of Justice Act. A person may be a vexatious litigant under that provision if it is shown that: [^16]

(a) They bring multiple proceedings to try to re-determine an issue that has already been determined by a court of competent jurisdiction; (b) They roll forward grounds and issues from prior proceedings to repeat and supplement them in later proceedings and bring proceedings against counsel who have acted for or against them in earlier proceedings; (c) They persistently pursue unsuccessful appeals; (d) They fail to pay costs awards of prior proceedings; (e) They bring proceedings for a purpose other than the assertion of legitimate rights, including to harass or oppress others; (f) They bring proceedings where no reasonable person would expect to obtain the relief sought.

[21] I find that the action has the characteristics of a proceeding brought by a vexatious litigant. It represents an attempt to re-litigate issues already adjudicated. It rolls forward grounds and issues, while supplementing them with new arguments. It includes a claim against Mr. Myers, the lawyer who acted for the National Bank in the 2019 Action. All of this results in an action that would, if permitted to proceed, abuse the court’s processes.

[22] In his new action, Mr. Guibord seeks to revisit the issues that were clearly the subject of the 2019 Action and the Summary Judgment Decision. His recent submissions confirm this. His new lawsuit is premised largely on the contention that the Summary Judgment Decision is wrong. He says that the motion judge committed errors in that:

• He denied Mr. Guibord’s request to adjourn the motion;
• He dismissed Mr. Guibord’s argument that the Bank could not enforce its mortgage because the property against which it was registered was on Un-Ceded Land.
• He refused to adjudicate Mr. Guibord’s land claim.
• He determined that any claim based on the Certificates was time-barred, because the National Bank was obliged to ensure that they were “transferred and kept safely for 100 years at the Bank of Canada”.

[23] In terms of relief, in addition to monetary claims, Mr. Guibord seeks an injunction preventing the sale of the Property, an order requiring the sheriff to give him possession of it during the litigation, and a transfer of the action to another tribunal. Mr. Guibord sought these same orders, or variations of them, in the context of the 2019 Action. They were denied by Justice Mew.

[24] If a decision contains reversible errors, the proper way to challenge it is through an appeal. Mr. Guibord has in fact appealed the Summary Judgment Decision. In dismissing Mr. Guibord’s motion for a stay, the Court of Appeal observed that the appeal seems to have little merit. Having received this indication that the appeal will likely not succeed, it appears that Mr. Guibord is seeking to challenge it another way, by launching a collateral attack on the Summary Judgment Decision through a new proceeding. This he cannot do.

[25] Mr. Guibord argues that, because the Crown is a defendant in this action, the land claims that Justice Mew deemed non-justiciable can now be adjudicated. The observation by Mew J. that the Crown was not a party to the 2019 Action was not an invitation to Mr. Guibord to begin a new lawsuit so that he could attempt to re-argue all the same issues adjudicated in the 2019 Action. The premise for exerting a land claim is that the National Bank committed a trespass in enforcing its mortgage. This premise was soundly rejected by both Mew J. and more recently by the Court of Appeal, in the context of Mr. Guibord’s motion for a stay. Adding the Crown as a party to the action does not change the nature of the commercial dispute between Mr. Guibord and the Bank, nor does it allow Mr. Guibord to re-litigate that dispute with the Bank.

[26] Mr. Guibord alleges that he does not actually owe the Bank any money because the Bank, its officers, and its lawyer fraudulently misused or converted funds deposited on his behalf in 1984 and 1999. He also alleges that these defendants negligently lost the Certificates issued to him when these deposits were made. Mr. Guibord alleges that these claims would off-set his mortgage liability to the Bank or entitle him to damages.

[27] These claims again constitute an attempt by Mr. Guibord to re-litigate issues adjudicated in the 2019 Action by rolling them forward and supplementing them with new argument. Mr. Guibord had a full opportunity to argue any set-off claims in the context of summary judgment motion before Justice Mew. He is not entitled to a do-over by naming additional defendants and asserting new causes of action based on the same factual matrix underpinning the 2019 Action. In any event, since Mew J. found that claims based on the Certificates were time-barred, it follows that any claim for recovery or compensation for the funds associated with the Certificates is also time-barred.

[28] The one truly novel claim in the action is a claim against the federal government for “transferring the Consolidated Tax Fund to NYC, which includes the Indian Trust, which could compensate said mortgage”. At para. 23 of the statement of claim, Mr. Guibord alleges that:

Her Majesty the Queen in Right of CANADA could have easily paid this mortgage debt from the Consolidated Tax Fund, especially since the HST revenues have been paying all the expenses of the government, where after Her Majesty the Queen in Right of Canada began to transfer the Consolidated Tax Fund to the Cede & Co located under the Chase Bank in NYC, which is theft.

[29] This allegation, like the allegation that the titles “Her Majesty the Queen in Right of Canada” and “Her Majesty the Queen in Right of Ontario” are trade names of “CANADA Inc., a corporation registered on the SEC in Washington, DC, via Letters Patent”, is gibberish.

[30] The statement of claim otherwise bears hallmarks of typically abusive, frivolous or vexatious litigation. Some allegations are unintelligible or nonsensical; it uses pseudo-legal terminology; and it targets a lawyer who previously acted for an opposing party in previous proceedings involving the same parties.

[31] I conclude that the action is frivolous, vexatious and an abuse of the court’s process. It is appropriate to dismiss this action pursuant to r. 2.1.01, because its abusive nature is apparent on the face of the statement of claim and requiring the defendants to take any steps to defend to it or to present a motion to dismiss would be a waste of their time and resources and those of the court.

[32] The action is accordingly dismissed.

Justice Sally Gomery Released: March 22, 2022

[^1]: Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664, at para. 3. [^2]: Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at para. 8. [^3]: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733; Khan v. Krylov & Company LLP, 2017 ONCA 625; and Khan v. Law Society of Ontario, 2020 ONCA 320. [^4]: R.S.O. 1990, C. C.43. [^5]: Gao v. Ontario WSIB, 2014 ONSC 6497, at para. 18. [^6]: National Bank of Canada v. Guibord, 2021 ONSC 6549 (“Summary Judgment Decision”). [^7]: Summary Judgment Decision, at para. 10. [^8]: Summary Judgment Decision, at paras. 17 and 18. [^9]: Summary Judgement Decision, at para.13. [^10]: Summary Judgment Decision, at paras. 27 to 33. [^11]: Summary Judgment Decision, at para. 35. [^12]: National Bank of Canada v. Guibord, 2021 ONSC 7436, at paras. 3 and 4. [^13]: National Bank of Canada v. Guibord, 2021 ONCA 864. [^14]: National Bank of Canada v. Guibord, 2021 ONCA 864, at para. 7. [^15]: Any extracts from the statement of claim are reproduced exactly as they appear on the pleading, with the same punctuation, spelling and grammar used by the plaintiff. [^16]: Gao v. Ontario WSIB, 2014 ONSC 6497, at para. 14, citing Re Lang Michener et al. and Fabian et al., at pp. 5 and 6; and Landmark Vehicle Leasing Corporation v. Marino, 2011 ONSC 1671, at para. 38.