Court File and Parties

CITATION: Guibord v. National Bank, 2021 ONSC 5408

DIVISIONAL COURT FILE NO.: 404/21

DATE: 20210810

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Marcel Guibord, Moving Party

AND:

National Bank, Responding Party

BEFORE: D.L. Corbett J.

COUNSEL: Mr Guibord, unrepresented Moving Party, not appearing

Grand Chief Mubiskwa Mukwa, unauthorized representative of Mr Guibord

IN WRITING, IN CHAMBERS

ENDORSEMENT

[1] The moving party, Mr Guibord, seeks leave to appeal from the decision of Hackland J. ordering that Mr Guibord not seek a fee waiver in respect to this case or related proceedings without prior leave from a judge, and from a decision of Gomery J. pursuant to R.2.1.01, dismissing an appeal from a scheduling order of Master Kauffman.

[2] Preliminary matters have arisen in respect to these motions for leave to appeal which have given rise to this court issuing several directions, including directions pursuant to R.2.1 of the Rules of Civil Procedure. In sum, a person identifying himself as “Grand Chief Mubiskwa Mukwa” claims to be the “Grand Chief” of a First Nation or Métis band and in that capacity purports to represent Mr Guibord in these proceedings (for ease of reference I refer to this person as “Mukwa” in the balance of these reasons). Mukwa has refused to follow simple case management directions from the court, has purported to introduce issues entirely irrelevant to the appeal into the case management process, and has generally disrupted the orderly process of the case. Mr Guibord, despite directions addressed to him, has refused to take even the most basic steps that would satisfy the court that he is aware of these proceedings, much less that he has authorized and is responsible for the vexatious conduct of Mukwa that has been undertaken in Mr Guibord’s name and on his behalf.

[3] This raises the first preliminary issue: Mukwa is not entitled to represent another person in this court. He is not a licensed legal professional. This court may give permission for an unlicensed person to speak to the court on behalf of a party, at the party’s request. There has been no such request made by Mr Guibord.

[4] Mukwa’s dealings with this court raise other issues that go beyond the issue of his seeking to represent another person without a request by that person followed by the court’s permission. Mukwa presents himself, not as Mr Guibord’s representative, but somehow as a spokesperson for something called “ASMIN”, which is said to be an acronym for “Anishinabek Solutrean Métis Indigenous Nation”. I will refer to this entity as “ASMIN” in the balance of these reasons, an acronym used by Mukwa in his correspondence with the court.

[5] ASMIN is not a party to or intervenor in these proceedings. ASMIN is a stranger, in law, to these proceedings, and is not entitled to participate.

[6] Further, the record does not show that ASMIN is a legal entity.

[7] The court has sought to assist Mr Guibord by providing clear directions about what is required for him to pursue the motions that have been purportedly raised on his behalf in this court by Mukwa. With each direction comes a further set of vexatious responses from Mukwa and silence from Mr Guibord. This must not continue. Mr Guibord may have legitimate legal interests in this case, and the conduct of his “representative” places Mr Guibord’s pursuit of any legitimate interests he may have in peril and exposes Mr Guibord to potentially substantial adverse costs awards and possible orders against him. This court is not satisfied that Mr Guibord even knows what is being done in his name, in this court, or that he understands the possible implications for him, as a litigant, of the behaviour undertaken in his name by Mukwa thus far.

Litigation History in the Divisional Court

[8] By email dated May 10, 2021, Mukwa emailed Divisional Court as follows:

Attached is a combined "appeal" of 2 Interlocutory Orders.

We will forward our Appeal Record and Factum shortly.

Would Div. Court forward a Fee Waiver.

Thank you.

[9] Divisional Court staff responded as follows on May 10, 2021:

It is required you send a scheduling request as per D.2 of the Notice to Profession (link below), after which your matter will be sent to our Administrative Judge to be case managed as this is now a requirement for all matters in Divisional Court at this time. Once the Administrative Judge grants your request, arrangements/timelines to file further materials will be made-do not forward your Appeal Book and Factum as it will not be accepted/filed at this time.

https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/div-ct-feb2021/

The Fee Waiver Requisition can be found here(Form 3):

http://ontariocourtforms.on.ca/en/court-fee-waiver-guide-and-forms/

[10] Mukwa responded to staff on May 11, 2021 as follows:

Greetings,

Here is the D2 information:

National Bank v Guibord, from Ottawa Superior Court.

Michael Myers for National Bank.Myers@phmlaw.com

Grand Chief Mukwa for Marcel, per SCC in Daniels v Canada at (54). Askit4equity@gmail.com.

c. From Ontario perspective, this is a Notice of Motion for Leave to Appeal 2 Interlocutory orders that share common grounds.

From the Indigenous perspective, Ottawa and Toronto are on Un-Ceded Anishinabek (Algonquin) Land. This is an Appeal, where Marcel chooses Federal Crown Andreas as 1 of his representatives, per SCC in Daniels v Canada at (54).

Crown Andreas must Consult, per Tsilhqot'in v BC (78) and R v Desautel (72), regarding Mandate in The Royal Proclamation of 1763, that Ottawa and Toronto vacate Jurisdiction to Metis when the Land is Un-Ceded.

The case is historic re Metis rights.

d. Time required : 2 hours

e. The Gomery J Order dismissed our Notice of Appeal of a Case Mngmt Order that Marcel produce his Summary Judgmt Motion by May 28, so Hearing should be prior to May 28, unless a Stay is ordered.

We will fwd both decisions.

f. There is no consent.

g. Matter commenced before March, 2020.

h. Proceeding is not new.

i. No agreed to timetable yet.

Crown and Mr. Myers refuse to co-operate as required by The Royal Proclamation of 1763 and SCC Decision.

[11] Staff then sent information respecting requests for fee waivers and advised Mr Guibord as follows by email dated May 11, 2021:

Justice Corbett directs me to advise you as follows:

1. The moving party is asked to forward copies of the decisions of Hackland J. and Gomery J. by May 14, 2021.

2. The moving party is directed to provide his own email address and address for service to the court by May 14, 2021, since his named representative is not authorized to practice law or to represent another person before this court. If the moving party is seeking to have an agent (rather than a lawyer) represent him in this court, then he may request permission by providing full particulars of his request by email.

3. The respondent is directed not to communicate with the court further about the merits of the motions for leave to appeal pending further directions from the court.

4. The court will provide further directions once it has received the decisions as requested.

[12] Mukwa emailed on May 11^th^, noting that copies of the decisions of Hackland and Gomery JJ. had been provided to the court by responding counsel.

[13] The Notice of Motion for Leave to Appeal is a curious document, which I attach to this decision. The document speaks for itself.

[14] Mukwa responded to the court’s direction on May 12, 2021, as follows:

Given that Justice Corbett has again refused to be bound by numerous SCC Decisions, and given there is no Treaty for Ottawa with any Indigenous People, and given that the Div. Court has no jurisdiction on said Un-Ceded Land:

1. The ASMIN Grand Council will convene today to decide on the Recusal of Justice Corbett, per Indigenous Laws, Customs and Traditions.

2. The Recusal shall also address Div. File #232/21 and #218/21.

We will advise the Court on May 13, 2021 of the result.

[15] Mukwa sent a further email to the court on May 13, 2021, as follows:

Attached is:

1. The Decision of our Grand Council.

2. The Gomery J Order of May 4, 2021

3. The Hackland J Order of Apr. 23, 2021

4. The Kaufman Order where the Grand Chief was the Envoy.

5. The Hackland J. Ruling of Feb. 13, 2021 where Jean Marc Paquin is to be the Envoy. The Order disallowing Spirit Warrior was in effect overturned by the ONCA on March 19, 2020, since Spirit Warrior is there as a Representative of Choice and not as Counsel.

In the herein matter, we attach a Notice of Motion to enforce our Order, or to have a much needed Case Conference, which would clear up a huge misunderstanding of the law that has caused so much wasted court time.

[16] Attached to Mukwa’s email of May 13, 2021 (among other things) was a document purportedly styled as an “ASMIN Tribal Council Decision”. The decision states as follows:

After deliberating, the Grand Council, via its Envoy Grand Chief Wabiska Mukwa, reports its Decision to Recuse Justice Corbett from this and any future case involving ASMIN or its Indigenous Members.

The “decision” goes on to state:

We authorize the Grand Chief to file a Motion in Divisional Court to enforce this Decision, pursuant to our Indigenous Laws Customs and Traditions, recognized as at least equal to British legal concepts, or, in fact, the only lawful Court on Un-Ceded Land.

The decision is shown to be authorized by the “ASMIN Grand Council” but nowhere is anyone other than Mukwa identified as a member of this Council.

[17] Also attached to Mukwa’s email dated May 13, 2021 is a “Notice of Motion to Recuse” asking for an order “to enforce” the recusal “decision” of the Grand Council.

[18] Staff sent the following email to the parties on May 13, 2021:

Justice Corbett directs me to advise you as follows:

1. The moving party may bring a motion asking Justice Corbett to recuse himself. Such a motion shall include a notice of motion, evidence by way of affidavit, and a written factum setting out the moving party's arguments for the relief that he is seeking. Once the moving party serves these materials, the court will provide further directions in respect to the motion. Pending disposition of that motion by the court, this case shall proceed as directed by Justice Corbett in his capacity of administrative judge of the Divisional Court: advising that a party intends to move for recusal or serving a notice of motion for recusal does not have the effect of staying the case or precluding the jurist from presiding pending disposition of the recusal motion.

2. So that the parties are under no misapprehension, the purported order for recusal of Justice Corbett said to have been taken by the Applicant's representative's Council, has no legal effect in this court. It is not for a party to decide who his judge will or will not be and the suggestion to the contrary is vexatious.

3. Mr Guibord may not appear in this court by way of an agent unless and until he obtains permission from the court for representation by an agent.

4. The court acknowledges receipt of several of the requested decisions from the courts below but still requires a set of the reasons of Hackland J. respecting the fee waiver issue. This is to be provided to this court by May 14, 2021.

5. The orders of the courts below are not stayed by proceedings taken in this court thus far.

[19] On May 14, 2021, the court received an email from Mukwa as follows:

Attached is the Fee Waiver en francais, as approved by the ASMIN Grand Council, per our Laws, Traditions and Customs.

We note the difficulty before Hackland J that Marcel communicates in French, and requires Jean Marc Paquin as one of the ASMIN Envoys of our choice to provide the Metis interpretation.

The same difficulty persists at the Div Court.

[20] By email sent by court staff on May 16, 2021, the court directed as follows:

Justice Corbett directs me to advise you as follows:

1. The moving party is entitled to bring a motion that I recuse myself. Such a motion requires a notice of motion, a motion record (containing evidence in support of the motion) and a factum. The moving party is asked to advise when he intends to serve these materials and provide them to the court. Until such a motion is brought and decided, I shall continue to case manage these matters.

2. Mr Guibord has been advised that he may not be represented in this court by a non-lawyer unless the court gives him permission for an agent to represent him. No such permission has been sought or granted. Therefore, the court will not accept communication from or provide communication to anyone other than Mr Guibord in respect to this matter in future unless and until the court gives permission for Mr Guibord to be represented by an agent.

3. The court provides service in both of Ontario's Official Languages. If Mr Guibord wishes to communicate with the court in French, he shall so advise the court. To this point, the court has been communicating with him in English in this matter because all communications purportedly sent on his behalf, and all documents filed on his behalf in this matter, have been in English, aside only from an unsigned fee waiver request received on May 14, 2021.

4. The order of Justice Hackland prohibits Mr Guibord from seeking a fee waiver without first obtaining permission from a judge. Mr Guibord is asked to provide this court with a copy of the permission obtained from a judge for the fee waiver for which he has purportedly applied.

5. The court has received a copy of Justice Hackland's order, but not the reasons for the order. The portion of transcript provided to the court did not deal with the fee waiver issue. Counsel for the responding party is asked to provide the court with a copy of Justice Hackland's reasons respecting the fee waiver issue by May 21, 2021.

Mr Guibord is directed to respond to these points by May 21, 2021. The court will then provide further directions.

No response was ever received from Mr Guibord.

[21] By email from Mukwa on May 18, 2021, Mukwa purported to seek to appeal or review my case management directions. The purported motion is an obvious abuse of process, seeking, on its face, to review orders that were neither sought nor denied during case management and violating, on its face, the court’s direction that Mukwa not be permitted to communicate with the court on behalf of Mr Guibord. Mr Guibord, himself, has not sought any relief in respect to this court’s case management orders.

[22] By email dated May 20, 2021, the court directed as follows:

Justice Corbett directs me to advise you as follows:

The Registrar is directed to send a notice pursuant to R.2.1 respecting the most recent purported notice of motion purportedly served on behalf of Mr Guibord. In addition to responding to the concerns about the substance of the purported motion itself, Mr Guibord and his representative should also respond to the following concerns:

1. The court is considering making an order that the representative of Mr Guibord be barred from representing any person other than the representative himself in proceedings in the Divisional Court without prior leave from an administrative judge of the Divisional Court.

2. The court is considering making an order that the organization purportedly represented by Mr Guibord's representative be barred from representing any person other than the organization itself in proceedings before the Divisional Court without prior leave of an administrative judge of the Divisional Court.

3. The court is considering making an order staying Mr Guibord's motion for leave to appeal for thirty days pending compliance with case management directions of the court, after which, if directions have still not been followed, dismissing the motion for leave to appeal as abandoned.

4. The court is considering making an order precluding Mr Guibord from making or continuing any motion in this court without prior permission from an administrative judge on the basis of the vexatious conduct of his case in this court thus far.

5. The court is considering making ancillary orders requiring the representative of Mr Guibord, that representative's organization, and Mr Guibord himself, from providing a copy of this court's decision to any other court in Ontario before which they appear in any capacity, to reduce the risk of serial abuse of process.

[23] Mr Guibord did not respond to the R.2.1.01 notice.

[24] Mukwa responded by email on May 21, 2021, as follows:

Our numerous emails on behalf of Marcel, as his representative of choice, is a right established by the SCC in Daniels v Canada 2016 SCC 12 at para. 54, then para 56 where a Declaration would only confirm existing law.

This right to choose was confirmed by the Feldman Panel in Blanchard v Georgina 2020 ONCA 232 at para 7, reversing the Order of Thorburn JA that mirrors exactly what Corbett J is again doing, in error.

This is the core of our current Motion for a Review of the various orders of Corbett J. that block our emails sent to Div Court from the ASMIN Grand Council.

Justice Corbett further fails to understand that in the Hackland J. Court, the french interpreter was present, but Marcel asserted his Right to have a Metis-French language expert Jean Marc Paquin present.

This is why the peremptory hearing was actually adjourned!

Now we face another Rule 2.1, this time from the Div Registrar, denying in part the Right to choose ASMIN Envoys, and to proceed only under Ontario Rules, and not Indigenous Laws.

Our main issue is that Hackland J. stated Ottawa is on Un-ceded Land, which triggers The Royal Proclamation of 1763, enshrined at S. 25 of Charter and cited by the SCC in Tsilhqot'in at para 69 as foundational to Crown-Canada relations.

Further, on April 23, 2021 the SCC in R v Desautel confirmed that Aboriginal Common Law continued after 1982. This Imperial Doctrine was laid out by Lord Mansfield in Campbell v Hall, restricting British Law only to where the British CONQUERED the native Indigenous Peoples.

For Canada, the SCC clearly stated in both Haida v BC at para. 25, and Desautel at para. 30, (citing CJ McLachlin in Manitoba Metis) that the Indigenous of Turtle Island were NEVER CONQUERED.

This is why Hackland J. and Corbett J. do not have Jurisdiction. We will assert SCC authority in our Rule 2.1 Request Submission, where we will also cite the ONCA Registrar decision on May 19, 2021 that our similar appeal is NOT frivolous.

Please note Mr. Marentic received the UN CERD Directive that ASMIN send to Geneva all evidence of violations of the CERD Convention, RATIFIED by Canada.

The Div Court Registrar has erred. Its CERD violating judges and Registrar will now be reported to Geneva.

The Div Court so far is blocking the real issue: our Right to Subpoena the Governor General, which is the Appeal from Gomery J's Order protecting Kaufman M's refusal to deal with OUR Jurisdiction, and two Indigenous Subpoenas issued from a Superior Court on OUR Un-ceded Land.

This brings us to the fee form signature.

The Grand Council approved the form orally. We do not sign documents per our Oral Laws, cited as equal by the SCC in Delgamuukw v BC at paras. 85-87 and 147-148.

Finally on May 14, 2021, we sent the request to SCJ Ottawa to produce the Reasons of Hackland J.

We demand Div Court transfer Jurisdiction to our ASMIN Tribunal ASKIT forthwith, and that the Federal Crown Consult.

The Recusal of Corbett J. must proceed under our laws.

ASKIT Grand Chief Wabiska Mukwa Per UN Simple Signature Protocol

[25] On June 1, 2021, Mukwa responded to the R.2.1.01 notice. Paragraph 1 of his response – which is the premise on which his dealings with this court have been based, is as follows:

The Supreme Court of Canada just made a Landmark decision in the Desautel case, in April of 2021. The honour of the Crown [. . .] recognizes the impact of the “superimposition of European laws and customs” on pre-existing Aboriginal societies. Aboriginal peoples were here first, and they were never conquered; yet, they became subject to a legal system that they did not share Therefore, Marcel and his Tribes are not part of the Ontario Court system

Mukwa’s argument is premised on not being subject to Ontario and Canadian law and not being subject to the jurisdiction of the courts of Ontario.

[26] By email dated June 16, 2021, Mukwa wrote further as follows;

After Justice Corbett clearly violated the Decision of the SCC in Daniels v Canada at paras (54-56) regarding Marcel's right to representation of his choice, we emailed Div. Court on May 19, 2021 for a Review of Justice Corbett's decisions.

The Review also involves the SCC Decision in R v Desautel which stated Aboriginal Common Law continues now.

We have also received yet another Endorsement by Justice Gomery, which violates our Jurisdiction under Aboriginal Common Law. We wish to add this Endorsement dated June 14, 2021 to the existing Appeal of Gomery J. and Hackland J.'s Decisions.

What is the Status of this Review of the Decisions of Justice Corbett?

[27] Staff responded to this email on June 16, 2021 as follows:

Decisions pursuant to R.2.1 are under reserve in this court and will be released in due course.

[28] Mukwa pursued his request to review my case management decisions again and was directed to an Administrative Judge for directions. Mukwa responded as follows:

We have your reply dated Aug. 4, 2021 indicating we should contact an Admin Judge to arrange the Review by Panel of Corbett J's deliberate violaton of SCC Decisions on Indigenous Rights.

Here is our email dated June 16, 2021 to an Admin Judge regarding the Review by Panel.

Obviously this Admin. Judge cannot be Corbett J.

The Review is now URGENT.

We have now copied Governor General Simon.

ASKIT Grand Chief Wabiska Mukwa Per UN Simple Signature Protocol

[29] Staff then advised Mukwa as follows by email August 4, 2021:

A decision to invoke the process under R.2.1 is not reviewable. Decision on the R.2.1 issue is under reserve. No further steps will be taken or permitted in this matter until that decision is released. The parties will then have appeal rights arising from that decision.

The parties may expect a R.2.1 decision before the end of August 2021.

Decision

[30] No motion has been served seeking an order from this court that it recuse itself from these proceedings. The basis provided in email communications is that Mukwa believes the court has issued directions that are inconsistent with legal principle. There is no substance to this objection, but even if there were any merit to it, a reasonable apprehension of bias is not established by showing that a judge erred in law. No basis has been set out that justifies such an order. That said, it is still open to Mr Guibord to bring a recusal motion, on proper materials. If that happens in this case, the court will adjudicate the recusal issue.

[31] This court ordered the moving party, Mr Guibord, to provide his own email address and mailing address to the court by May 14, 2021. This direction has not been followed.

[32] This court ordered that Mukwa could not represent Mr Guibord in this court unless Mr Guibord asked permission of the court and provided an explanation for his request. No request has ever been made by Mr Guibord that Mukwa be his representative in this court. Mukwa has cited Daniels v. Canada, 2016 SCC 12, para. 54, as authority for the proposition that a First Nations litigant may have his representative of choice in court proceedings. That is not what Daniels says. One issue in Daniels, as stated in para. 54 of the decision, was whether “Métis 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.” This has nothing to do with representation of a party in a private law dispute in a court of law. The Court of Appeal did not establish a principle that anyone may, as of right, have a non-lawyer represent them in court. Rather, in Blanchard v Georgina, 2020 ONCA 232, para 7, a panel of the Court of Appeal exercised its discretion to permit Mukwa to make submissions on behalf of the appellant. The court has the discretion to permit an agent to act as a representative in court, a principle previously stated in this court. It is the court that decides whether this will be permitted in a particular case. Blanchard establishes no principle to the contrary.

[33] Mukwa and his organization have purported to remove me as the case management judge (their “recusal order”) because they disagree with my directions. That “order” is without legal effect and speaks to the ungovernability of Mukwa and his organization in a legal proceeding. A court proceeding between private individuals is not a negotiation or consultation between Mukwa and his organization and the government of Canada or the government of Ontario, nor can the legal proceeding be transformed into such a negotiation or consultation by Mukwa’s will or that of his organization. If Mukwa and his organization believe that collective rights of persons they represent have been infringed or denied, their proper course is legal proceedings, in their own name(s), against Canada and/or Ontario, not attempted subversion of the private law dispute between Mr Guibord and National Bank.

[34] The order of Hackland J. prohibits Mr Guibord from seeking a fee waiver in these or related proceedings without leave of a judge. That order prohibited Mr Guibord from seeking a fee waiver in this court without first obtaining permission from a Judge. Mr Guibord has apparently breached this order. When asked to explain the apparent non-compliance with the order of Hackland J., Mr Guibord failed to respond.

[35] Mr Guibord was directed to provide a signed fee waiver request, attesting to the truth of the facts set out in the request. Mukwa refused to provide a signed copy on the basis that signing the form was contrary to the “Oral Tradition”. Mr Guibord did not respond to this issue himself.

[36] Mukwa and Mr Guibord were directed that the court would not respond to or accept correspondence from Mukwa on behalf of Mr Guibord, since no request had been made or granted for Mukwa to represent Mr Guibord in this court. Mukwa has ignored this direction and continued to correspond with the court, purportedly on behalf of Mr Guibord.

[37] In Mukwa’s response to the R.2.1 Notice, the first paragraph states, clearly, that his position is that Mr Guibord and others “represented” by ASMIN and/or Mukwa are not subject to the courts of Ontario or to the laws of Canada and Ontario. That is the premise of the whole piece: Mukwa will not comply with even the most minor of directions (such as signing a document) because he, his organization, and Mr Guibord, will not be told what to do by the court.

[38] Mukwa is not fit to act as an agent in a legal proceeding. This court orders that Mukwa is barred from representing any person 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.

[39] The request to review or appeal this court’s case management decisions to date is dismissed pursuant to R.2.1.01 as not having been brought by Mr Guibord. The request, having come from Mukwa after this court directed that he no longer be permitted to communicate on behalf of Mr Guibord, is without effect.

[40] Mr Guibord shall comply with the following directions by August 20, 2021, failing which his motions for leave to appeal in this court will be dismissed as abandoned without costs.

(a) he shall provide his email and mailing address to the court;

(b) he shall provide a signed fee waiver request or, alternatively, shall pay the outstanding fees for his motions for leave to appeal;

(c) if Mr Guibord decides to pursue a fee waiver request, he shall provide the court with the permission he has obtained from a Superior Court Justice to request a fee waiver or his explanation as to why he has not complied with the order of Hackland J. in this regard;

(d) he shall advise of the deadline by which he shall serve all of the motion materials on which he relies in respect to the two motions for leave to appeal currently outstanding before the court.

[41] Mukwa purported to initiate a third motion for leave to appeal on behalf of Mr Guibord, in respect to an order of Gomery J. made in June 2021. Mukwa is not entitled to communicate with the court on behalf of Mr Guibord, and the third motion for leave to appeal has not been initiated properly in this court as a result. If Mr Guibord does wish to initiate such a motion for leave to appeal, he must do so himself, by a lawyer authorized to practice law in Ontario, or by way of an agent granted permission by this court to represent Mr Guibord before this court.

[42] There shall be no costs of the R.2.1.01 proceedings or case management proceedings thus far in this court.

D.L. Corbett J.

Date: August 10, 2021