The Attorney General of Canada v. Mennes

[Indexed as: Canada (Attorney General) v. Mennes]

Ontario Reports

Court of Appeal for Ontario,

Feldman, Lauwers and Strathy JJ.A.

October 9, 2014

122 O.R. (3d) 434 | 2014 ONCA 690

Case Summary

Civil procedure — Applications — Cross-examination — Application judge not denying appellant natural justice in refusing to allow him to cross-examine affiant on affidavit in vexatious litigant application — Affidavit simply setting out court proceedings in which appellant had been involved — Appellant not meeting his onus to justify cross-examination.

Courts — Vexatious litigants — Appellant originally seeking adjournment of vexatious litigant application as he needed 55 days to prepare to cross-examine affiant on uncontroversial affidavit setting out court proceedings in which he had been involved — Appellant then serving motion on short notice, returnable on date of hearing of vexatious litigant application, seeking Charter remedies — Application judge refusing to allow appellant to cross-examine affiant and not hearing Charter motion but adjourning hearing for one month to permit appellant to file affidavit and respond fully to application — Application judge's actions not giving rise to reasonable apprehension of bias — Appellant not denied natural justice — Finding that appellant was vexatious litigant fully supported by evidence.

The appellant had been declared a dangerous offender and sentenced to indeterminate incarceration. He had also been declared a vexatious litigant in the Federal Court. The respondent brought an application under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43 to have the appellant found to be a vexatious litigant in the courts of Ontario. The respondent's record included an affidavit prepared by a lawyer at the Department of Justice setting out the court proceedings in which the appellant had been involved. The appellant took the position [page435] that he needed 55 days to prepare for and conduct a cross-examination of the affiant. He served a motion on short notice, returnable on the date of the hearing of the vexatious litigant application, seeking remedies under the Canadian Charter of Rights and Freedoms for the seizure of his computer and to stay the application. The application judge ruled that the appellant could not conduct the proposed cross-examination and that the motion seeking the return of his computer was not related to the vexatious litigant application and would be dealt with at a later time. The application was adjourned for a month to permit the appellant to prepare his response to the application. On the return date, the application judge refused the appellant's request that he recuse himself on the basis of a reasonable apprehension of bias. The appellant did not file any responding material or participate in the hearing.