Bogue v. Bogue, 2023 ONSC 1642

Court File and Parties

COURT FILE NO.: CV22-00687532ES DATE: 20230313 SUPERIOR COURT OF JUSTICE – ONTARIO ESTATES COURT

RE: Glenn Bogue, Applicant AND: Colin Bogue, Respondent

BEFORE: C. Gilmore, J.

COUNSEL: Liza Saad, Counsel, for the Respondent Glenn Bogue on his own behalf

HEARD: February 23, 2023

Endorsement on Motions

Introduction

1There are two motions before the Court. The Respondent’s motion to dismiss the within Application on the grounds that his brother, the Applicant Glenn Bogue, is not permitted to act without counsel and the Applicant’s motion for various relief set out below:

1. Transfer of the proceedings to an Indigenous Tribunal.
2. An Order on Consent for the production of the bank records for the $64,500 loan Colin Bogue alleges he lent to Doris Bogue (“Doris”) in 2013 and 2014, failing which the $64,500 is to be paid back.
3. An Order striking the false Affidavit of Colin Bogue.
4. An Order striking any Application or Responding material served after Nov. 24, 2022.
5. An Order that Civil Rule 15 was not timely raised, and/or was waived.
6. An Order that the Crown consult, and protect Indigenous Laws, Customs and Traditions.
7. In the alternative, a lawyer for Doris be funded out of the proceeds of sale of her home.

2There is no dispute that the parties are co-Attorneys for Property for their mother Doris. They are therefore acting in a representative capacity in this litigation and require counsel. For the reasons set out below, the relief sought by the Respondent is granted.

3The Applicant’s motion is dismissed for the reasons set out below. The numerous arguments made by the Applicant are without legal foundation or have no legal relevance or validity.

Background

4The Applicant and Respondent are the co-Powers of Attorney for Property for their mother Doris who is an incapable person. The Applicant has brought the within Application seeking certain relief including directions, payment of ¼ of the sale proceeds from his mother’s home to a specified account, directions with respect to the balance of funds from the house sale proceeds, a partial distribution of the proceeds, an accounting, and certain relief related to the “Bogue-Munro Agreement.”

5The Respondent has brought a separate Application seeking to remove the Applicant as his mother’s Power or Attorney for Property. That relief is not sought by the Respondent in the context of this motion.

6Doris lives in a long-term care facility. Her largest asset was a home located at 24 Watercliffe Road. The home was sold in July 2022. The proceeds of sale are currently held in the real estate lawyer’s trust account and have not been released due to a disagreement between the parties as to where the funds should be deposited. As a result of the disagreement, the Respondent initiated his Application to remove his brother as co-Attorney for Property. The Respondent submits that his brother’s Application is frivolous, vexatious and unsupportable both factually and legally.

7The crux of the argument between the parties in the Applications is as follows. The Applicant seeks to have one-fourth of the sale proceeds, being what he considers to be his share of his mother’s money pursuant to her Will, deposited in a Northern Credit Union account. He believes that the major banks are on the brink of financial collapse, but that Northern Credit Union is not at the same risk. He seeks to have his one quarter interest “protected” by being placed in a Northern Credit Union account.

8The Respondent’s position is that the Applicant’s attempt to “secure” his one-quarter share of his mother’s Estate puts him in a conflict of interest with respect to his fiduciary duties to his mother and is self-serving. Further, his view that the major commercial banks are at financial risk is not grounded in reality.

9The Applicant is a suspended member of the Law Society of Ontario (“LSO”) due to his incapacity. He has been the subject of numerous LSO investigations and has a lengthy disciplinary history. His vexatious conduct has been found to pose a harm to the public. The Respondent submits that the Applicant’s Application is a continuation of his pattern of conduct in the courts and that such conduct is harmful to their mother. Further, his conduct is an abuse of the Court’s process and judicial resources.

10The Respondent brings his motion to dismiss his brother’s motion in light of the requirement that the Applicant cannot act in a representative capacity without counsel.

The Respondent’s Motion

11I turn to this motion first, as success on this motion will mean the within Application is dismissed unless the Applicant retains counsel.

12The Applicant is acting in this litigation in his capacity as Attorney for Property for his mother and has not retained counsel. The Respondent seeks to dismiss the Applicant’s Application on the grounds that the Applicant is acting in a representative capacity and pursuant to Rule 15.01(1) of the Rules of Civil Procedure, he must be represented by counsel. The Rule is not discretionary.

13Further, the Applicant was a lawyer but has been suspended by the Law Society of Ontario and cannot represent himself in a counsel capacity.

Analysis and the Law

14Rule 15.01(1) of the Rules states as follows:

WHERE A LAWYER IS REQUIRED 15.01(1) A party to a proceeding who is under a disability or acts in a representative capacity shall be represented by a lawyer.

15This is not a discretionary rule. In Direk v. Attorney General of Ontario, 2010 ONSC 3428, at para 6, the Court referred to Gagnon v. Pritchard (2002), in confirming that a person acting in the capacity of a Power of Attorney cannot act as a legal representative in Superior Court proceedings.

16In the more recent case of Brun Del Re v. The Estate of Philip Tomas Buck, 2022 ONSC 6002 at para 19, the Court confirmed that there is no exception to the requirements in Rule 15.01(1). In that case, the Court dealt with a request that an Estate Trustee be permitted to represent the Estate in her personal capacity. The request was declined as an Estate Trustee was found to be a person acting in a representative capacity. There is little doubt that by analogy the same analysis would apply to a Power of Attorney as per Direk.

17As such, the motion must be granted and the within Application be dismissed. Costs will be dealt with below.

The Applicant’s Motion

18As already indicated, the Applicant’s motion shall be dismissed. I will deal with each of the Applicant’s arguments in turn by way of summary.

Argument #1 – Because the Crown never Conquered Turtle Island, the laws of Ontario and Canada, including the Charter and the Rules of Civil Procedure have no Application to the People of Turtle Island.

19I do not subscribe to this argument. The Rules of Civil Procedure and specifically Rule 1.02(1) applies to “all civil proceedings in the Court of Appeal and the Superior Court of Justice” subject to three exceptions which do not apply in this case.

20Because this Application is taking place in the Superior Court of Justice by way of an Application brought by the Applicant, the Rules apply to this proceeding and the Application has attorned to the jurisdiction of this Court.

Argument #2 – The Comity Argument

21The Applicant argues that the Court is bound to enforce, pursuant to the principle of comity, a decision of Tsilhqot’in Universal Supreme Court.

22Courts in British Columbia have commented on the existence of the Universal Supreme Court as follows.

23First, in Holland v. British Columbia (Attorney General), 2021 BCSC 562, at para. 12:

There are several counts alleging interference with Ms. Holland’s performance of her duties as Chief Justice of the Universal Supreme Court. Ms. Holland has for years represented that she holds that title and position. The Universal Supreme Court, if such an entity exists anywhere other than in the mind of Ms. Holland, has no legal authority nor powers in British Columbia.

24Second, in R. v. Holland, 2021 BCCA 184, the Court of Appeal begins, in an appeal brought by Zsuzsanna Holland, at para. 1:

This Court has authority to protect its processes from abuse by litigants who persist in attempting to initiate appeals and applications the Court has no jurisdiction to entertain. On occasion, a litigant’s conduct will be so egregious as to require the Court to act on its own motion. This is one of those occasions.

25At para. 5 the Court explains: “It is convenient to note here that Ms. Holland is subject to vexatious litigant orders in this Court […]”

26Finally, the Court notes, at para. 8, that, in their notice of appeal and certiorari, the appellant:

[A]ppears to assert that (a) the Supreme Court of British Columbia does not have jurisdiction over her based on an Aboriginal land claim; and (b) she holds a judicial office in a tribunal styled as the International Universal Supreme Court of the Tsilhqot’in.

27Third, in Bryfogle v. British Columbia (Children and Family Development), 2016 BCCA 508, the Court of Appeal addressed an application by Bryfogle for “directions as to whether extensions of time for filing two notices of appeal are required and, if so, orders granting such extensions, together with related relief.” The Application was dismissed (at para. 50).

28At para. 15 the Court of Appeal explains the following with respect to jurisdictional issues in the matter, which in my view, is similar to the present case, and therefore helpful:

As to the substance of the jurisdictional issue raised in the proposed notice of civil claim, Associate Chief Justice Cullen observed that Mr. Bryfogle advanced similar arguments in the CFCSA proceeding. He stated:

[33] In relation to those arguments Judge Church held as follows at para. 32:

[32] It became apparent during these proceedings that the positions of Ms. Hegedus and Mr. Bryfogle were quite different and so I have dealt with them separately in my reasons for judgment. With regard to the issue of jurisdiction of this Court to determine these issues, I reject entirely [the] submission of Mr. Bryfogle that this Court lost jurisdiction over these matters on April 1, 2015 as a result of various “orders” and “declarations” by the Chilcotin National Congress and the Universal Supreme Court of the [Tsilhqot’in]. The documents relied on by Ms. Hegedus and Mr. Bryfogle in this regard have no legal relevance or validity.

[34] I agree with those observations and conclusions […]

[emphasis added]

29As a result, with respect to the Applicant’s requested order in this case that “the Decision of the Tsilhqot’in Universal Supreme Court be enforced”, in my view, the above case law demonstrates that this sort of argument has previously been rejected by the courts – that is, that these “orders” or “decisions” have been held to have no legal relevance or validity.

Argument #3 – Lack of Jurisdiction with Respect to Property and Civil Rights

30Section 11(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that “The Superior Court of Justice has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario.”

31In Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, at para. 16, the Supreme Court of Canada wrote, at para. 16, that “The Ontario Superior Court, as a court of general and inherent jurisdiction, may entertain any cause of action in the absence of legislation or an arbitration agreement to the contrary.”

32Further, it is clear that the Constitution Act, 1867, ss. 91 and 92 distribute legislative power (between Parliament and the provincial legislatures), and not the authority or jurisdiction of the courts.

Argument #4 – Indigenous Right to Deal with Canada and Ontario through Indigenous Representatives of Their Choice

33It appears that the sources relied on by the Applicant discuss a right to representation in negotiations with the Crown, on a collective basis. For example the Applicant cites the following passage from Daniels v. Canada (Minister of Indian Affairs and Northern Development), 2016 SCC 12, at paras. 54 and 56 on this point:

[54] The third declaration sought is that Metis and non-status Indians have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples.

[56] However, Haida Nation v. British Columbia (Minister of Forests) […], Xeni Gwet’in First Nations v. British Columbia, […] and Powley already recognize a context-specific duty to negotiate when Aboriginal rights are engaged. Because it would be a restatement of the existing law, the third declaration too lacks practical utility.

34As a result, in my view, the Applicant’s argument on this point lacks foundation.

Argument #5 – Section 35 of the Constitution Act, 1982 Negates the Rules of Civil Procedure

35Section 35(1) of the Constitution Act, 1982 provides: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

36I am not entirely clear what the Applicant is arguing here. I respectfully do not see how the Rules of Civil Procedure could be negated by section 35(1) of the Constitution Act, 1982, or more particularly, whether the Applicant is attempting to argue that the R. v. Van der Peet, [1996] 2 S.C.R. 507 test for the identification of an aboriginal right is made out in this case.

Argument #6 – The Applicant has a Right Under Article V of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) to Choose an Indigenous Tribunal

37A very similar argument was rejected in Guibord v. National Bank of Canada, 2022 ONSC 1801, at para. 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" […] 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".

[Emphasis added.]

38In dismissing the action, the Court states as follows, at paras. 30-31:

[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 […]

Argument #7 – The Application of Rule 15 Triggers the Crown’s Duty to Consult

39Respectfully, I do not see how the Crown duty to consult applies with respect to the application of Rule 15 of the Rules of Civil Procedure.

40As stated in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, at para. 31, the Duty to Consult arises:

‘[w]hen the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.’ This test can be broken down into three elements: (1) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; (2) contemplated Crown conduct; and (3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right.

41As a result, I do not see the application of Rule 15 as involving the Crown or any contemplated Crown conduct in this case.

42In summary I do not find any of the Applicant’s arguments persuasive or founded in either evidence or proper legal analysis. They are dismissed in their entirety.

Orders and Costs

43Given all of the above, I order as follows:

a. The Respondent’s motion is granted. b. The Applicant’s motion is dismissed

Costs

44The Applicant submits that the Respondent has stated that he would not seek costs on this motion. That is not the case according to the Respondent’s counsel. Costs are sought from the Applicant personally.

45The Applicant submits that this entire case was brought on because the Respondent stole $64,000 from their mother. He then refused to put the sale proceeds into a two-signature account. The Applicant submits the only way to end the stealing was to bring his brother to Court.

46The Respondent denies these allegations and submits he is entitled to his costs. I agree. The Respondent has had complete success on his motion and in having the Applicant’s motion dismissed. Given the clear and non-discretionary nature of Rule 15.01(1) and the Court’s finding that the Applicant’s motion was without legal foundation, costs are warranted.

47The Respondent’s Bill of Costs sets out his costs at $4,478.19 for partial indemnity costs, $6,547.79 for substantial indemnity costs and $7,237.65 for full indemnity costs.

48This motion was argued in an hour and the material filed by the Respondent was not extensive. There were no cross-examinations. Costs on a partial indemnity scale are reasonable and proportionate in all of the circumstances.

49I therefore order the Applicant to pay the Respondent’s costs in the amount of $4,400. The costs are due and payable immediately.

C Gilmore, J.