Court File and Parties

COURT FILE NO.: CV-20-08 DATE: 2021-04-06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Farm Credit Canada v. 1047535 Ontario Limited and Mack Todd Manary

BEFORE: The Honourable Mr. Justice P. R. Sweeny

COUNSEL: Michael Cassone, Counsel for the Plaintiff Beverly Bly, Counsel for the Attorney General of Canada, Defendant by Counterclaim T Lipton, Counsel for Her Majesty the Queen in the Right of Ontario, Defendant by Counterclaim Mack Todd Manary, self represented

Also Present: Grand Chief Wabiska Mukwa Cassandra Manary, Kathy Manary, and Brent Manary

HEARD: 24 March 2021 at Simcoe

ENDORSEMENT

[1] This action was commenced by statement of claim electronically issued in Simcoe on January 21, 2020. A document purporting to be a statement of defence, counterclaim, class action, crossclaim or set-off, land claim in trespass, Quo Warranto (defence and counterclaim) was delivered on or about February 13, 2020. That document was not in compliance with the Rules of Civil Procedure including: it did not properly name the defendants in the action; it did not have paragraph numbers; and it had documents attached to it. It was filed notwithstanding these deficiencies as requested by Mack Todd Manary. The full title of proceedings is attached as Appendix A.

[2] There were further documents purporting to amend the initial defence and counterclaim. The first, dated July 18, 2020 was amended by, inter alia, replacing Grand Chief Buffalo Eagle with Grand Chief Wabiska Mukwa. The second, dated September 23, 2020 and November 22, 2020, inter alia, added Provincial and Federal Crown counsel and employees personally and asserted a new matter. These were also not in proper form. No motions were brought for any amendments.

[3] It appears that the party identified as the defendant/ plaintiff by counterclaim in the defence and counterclaim, in the style of cause at Appendix A, brought a motion. In addition, the Plaintiff by counterclaim sought to note the defendants to the counterclaim in default. That motion was deemed to be not urgent in accordance with the Notice to the Profession dated March 15, 2020 by Nightingale J. His endorsement dated April 23, 2020 specifically noted at paragraph 5, as follows:

The court also notes that the party Manary has been advised of the irregularity of the proceedings as the statement of defence and counterclaim has not been issued as required by the Rules and the title of proceeding regarding the defendant therein is different than the original title of proceeding in the issued statement of claim. I have used that title in this endorsement only for the purpose of describing the proposed parties and their counsel named by the proposed plaintiff by counterclaim and not to endorse its propriety.

[4] The defendant by counterclaim, Her Majesty the Queen in right of Ontario, wrote to the court requesting the action be dismissed under 2.1.01 of the Rules of Civil Procedure. The plaintiff brought a summary judgment motion in this matter that was returnable on October 14, 2020.

[5] On September 30, 2020, Nightingale, J. issued a further endorsement ordering that the rule 2.1.01 issue be heard at the same time or subsequent to the plaintiff’s motion for summary judgment. In that endorsement, he referred to the defendant/plaintiff by counterclaim as Grand Chief White Buffalo Eagle, Wubiska Mukwa By his Envoy Ninigiwaydinnoong (on behalf of Todd of the Manary Family/owner of 1047535 Ontario Ltd under indigenous law). I shall refer to this person as Grand Chief Wubiska Mukwa. A date was to be set through the trial coordinator for these matters to be heard.

[6] The parties were unable to agree on hearing date for the motion. A case conference was held by conference call on December 17, 2020 to set a timetable and set a date. On December 17, 2020, the Attorney General of Canada also wrote requesting an order under 2.1.01. Mack Todd Manary and the Grand Chief Wabiska Mukwa did not participate in that call notwithstanding they had received notice.

[7] On December 17, 2020, I released an endorsement setting a full day of March 24, 2021 for a hearing to address issues of a summary judgment motion and for the 2.1.01 issues in accordance with endorsement of Nightingale, J. dated September 30, 2020. The endorsement set a timetable for delivery of material with respect to the 2.1.01 motion and the summary judgment motion. However, on the summary judgment motion issue, the endorsement erroneously repeated the same timetable as for the 2.1.01 issue.

[8] The endorsement was not mailed to the defendant Mack Todd Manary until March 3, 2020 through an oversight. Mack Todd Manary and 1047535 Ontario Limited are the proper defendants to this action.

[9] Notwithstanding the fact that Mack Todd Manary did not receive a hard copy of my endorsement in the mail, documents were delivered by the Grand Chief Wabiska Mukwa. The documents were delivered by email. Documents were directed to me as the judge who made the December 17th order. Cassandra, Cathy and Brent Manary were on two case conferences calls and one Zoom hearing and identified themselves as representatives of Mack Todd Manary. When asked directly by me as to their familial relationship with Mack Todd Manary, the Manarys refused to answer. I am satisfied that Mack Todd Manary was aware of all the steps in this proceeding. Cathy Manary said on a case conference call that it did not matter if she had told Todd about the hearing because he was entitled to get notice in writing.

[10] The Grand Chief Wabiska Mukwa served summonses to witness on the Chief Justice of Canada and a former registrar of the Supreme Court of Canada seeking to compel their attendance on March 10, 2021. The witnesses sought a case conference to move to quash the summonses. That matter came before me on March 9, 2021. The Manarys, not including Mack Todd Manary, and Grand Chief Wabiska Mukwa were on that call. On that day, I released an endorsement adjourning the matter to March 12, 2020. The adjournment was to allow for a date to be set the following week for a hearing of the motion to quash.

[11] Before March 12, 2020, documents were delivered which included a motion for summary judgment on behalf of the Grand Chief Wabiska Mukwa. There were also documents delivered to address the rule 2.1.01 issues.

[12] In the case conference call on March 12, 2021, I was attempting to move this matter forward by setting a date to schedule a motion to quash the summonses. Cassandra Manary, Kathy Manary, and Brent Manary raised an issue as to whether Todd Manary was on the conference call. He was not. While attempting to find appropriate dates for the motion to quash and dealing with the scheduling of the matters, Cassandra Manary indicated she wished to bring a motion that I recuse myself. She requested one hour to provide motion material.

[13] Faced with the recusal motion, I adjourned the proceedings to March 17th, 2021 at 10:00 a.m. to address the issue of the recusal motion. In addition, counsel for the witnesses was to deliver material to quash the summonses to witness.

[14] On March 17, 2021, a hearing was held by Zoom. No motion for recusal was actually brought. As I understand the situation, the Manarys and Grand Chief take the position that I have no jurisdiction to hear this matter. During the hearing, I was advised by Cassandra Manary that I was “recused by ASMIN” (Anishinabek Solutrean Métis Indigenous Nation).

[15] The hearing on the rule 2.1.01 issue and the summary judgment motion was set for March 24, 2021. I adjourned the motion to quash the summonses to that date, to be heard with the other matters. The responding parties were given until March 22nd, 2021 to file any responding material to the motion to quash.

March 24, 2020 Hearing

[16] Mack Todd Manary was present in court on March 24th. At the outset of the hearing, I ruled that the individual identified as Grand Chief Wabiska Mukwa did not have standing to address the court in this matter. The pleading improperly referred, first to some other entity, and then was apparently amended to include his name. It is improper. He is not a defendant to the action and therefore could not be a plaintiff to a counterclaim. Accordingly, he had no status to make submissions at the hearing. I also note that on several occasions on prior hearings he would speak on at length about issues which were not relevant to the issues to be addressed and his thoughts would trail off. He said it was due to brain surgery he had recently. When I asked when he had the surgery, he said it was not relevant. He posed direct questions to me in the course of the case conferences: questioning the jurisdiction of the court and talking about whether it was a court of equity.

[17] The Manarys, who had previously identified themselves as the Envoys of ASMIN, were present. Cassandra Manary and Kathy Manary attended by zoom. Brent Manary was present in the court. These three are not parties to this action. They have no standing to address the court. Accordingly, the microphones for the individual identified as Grand Chief Wabiska Mukwa, and the Manary’s were muted. Brent Manary was requested to step back from the counsel table. Notwithstanding my request, he continued at certain times of the hearing to seek to address the court. He remained in the courtroom for the whole proceeding and was not ordered to be removed by me.

[18] I took the step of not allowing these persons to address the court because they have no standing. These persons had improperly insinuated themselves into the court process to disrupt the court process. It is improper and cannot be condoned. They repeatedly questioned me directly about issues. They interrupted. They went on long discourses about matters not in issue.

[19] The Grand Chief Wabiska Mukwa and the Manarys have repeatedly sent correspondence to the court and sought to file documents with the court that are not in proper form. They consist of communications directly to the judge. They do not use the appropriate title of proceedings for this action.

[20] This abuse of the court’s process must be controlled to ensure that the parties to the proceeding are able to have the dispute adjudicated on the merits.

Issues

[21] There are three issues before me:

1. Should the counterclaim against the provincial Crown and federal Crown be dismissed under rule 2.1.01?

2. Should the plaintiff be granted summary judgment against Mack Todd Manary and 1047535 Ontario Limited?

3. Should the summonses to witness naming the Chief Justice of Canada and the former registrar of the Supreme Court of Canada be quashed?

[22] Mack Todd Manary sought an adjournment. He indicated he wanted to file material in response to the motion to quash. I note he had notice that material was due by Monday March 22nd. In any event, it appears that he did not initiate the summonses and that the other persons were aware of the timelines and chose not to file material. He indicated he wanted to cross-examine the affiant on the motion for summary judgment. He wanted to file additional material for the rule 2.1.01 motion.

[23] The adjournment request for the rule 2.1.01 motion and the motion to quash was denied. I granted an adjournment of the motion for summary judgment and set out a timetable for delivery of further material.

Rule 2.1.01

[24] Mr. Manary said he wanted to file material in response to the rule 2.1.01 issue. There was material filed by others. He filed reply material to the material provided by the Crown. There was no right to reply set out in my order of December 17th. In any event, I considered that material. On this issue, I set a procedure for delivery of written submissions. Mr. Manary asserts that he did not have the opportunity to deliver submissions because he did not receive notice of this matter. I reject his contention. I observe that a number of other individuals purported to be acting on his behalf, the Manarys and The Grand Chief Wabiska Mukwa were fully aware of the Order having received my endorsement of December 17th, 2020 by email. I am satisfied that the defendants, Mack Todd Manary and 1047535 Ontario Limited, had notice of my endorsement of December 17th, 2020 well in advance of the date that it was mailed out, and they were aware of the timetable for delivery of material. I am satisfied that is appropriate for me to make a determination under rule 2.1.01 in a summary manner based on the material provided.

[25] The statement of claim asserts that in April 2014, the plaintiff loaned the defendants the sum of $198,000.00 pursuant to a loan agreement dated April 1, 2014. In May 2014, the plaintiff loaned the defendants the additional sum of $150,000.00 evidenced by a loan agreement dated May 26, 2014. As security for the loans, the defendant 1047535 Ontario Limited granted the plaintiff a mortgage dated April 14, 2014 securing the sum of $400,000.00 plus interest at a ceiling rate of 18% per year. The mortgage was registered in the Land registry Office as document number NK69596. On or about August 1, 2019 the defendants defaulted on their obligation under the loans and the mortgage. They have not cured their default. The plaintiff has demanded payment and the defendants have not paid.

[26] The initial statement of defence and counterclaim was not in an appropriate court form. The title of proceedings did not properly name the defendants and added other entities. I have observed that there have been two or three attempts to amend the pleadings to add individuals and to amend and add claims.

[27] As the Court of Appeal stated (quoting Myers J.) in Scaduto v. Law Society of Upper Canada, 2015 ONCA 733 at para 9:

Rule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves. … There are two conditions generally required for 2.1 to be applied. First, the frivolous, vexatious or abusive nature of the proceeding should be apparent on the face of the pleading as required by the rule. Second, there should generally be a basis in the pleading to support the resort to the attenuated process of rule 2.1.

[28] The pleading in this case is not a close call. It is plainly vexatious. Resorting to the attenuated process of rule 2.1 is appropriate.

[29] The words used in the pleading, the form of the pleading including appendices, are all consistent with the illegitimate litigation tactics commonly referred to as “organized pseudo-legal commercial arguments”, as described in Meads v. Meads, 2012 ABQB 571.

[30] In Jarvis v Morlog, 2016 ONSC 4476, Myers J. wrote at para 2 and 3:

Some courts take pains to write lengthy, learned reasons to show OPCA plaintiffs how each element of their pleading is abusive. I respectfully take a different view. In my view, plaintiffs who file OPCA claims are playing a game that is designed to frustrate the system and inflict unrecoverable expense and needless stress on the defendants. OPCA claims have been derided as abusive over and over again in courts across the country. … Nor do I accept that these plaintiffs believe in good faith that they can avoid their just debts by creating unilateral fee schedules and using legal words jumbled into sentences that have no English meaning. In my view, even if some OPCA plaintiffs are being conned by “gurus,” they still know that at bottom they have no legal defence to the debts or claims asserted against them and they only go to the gurus to avoid their legal obligations, at best, or to lash out in bad faith at the system and their creditors at worst. It plays right into OPCA plaintiffs’ ill motives to treat their claims with respect and spend hour upon hour of judicial time writing lengthy, reasoned responses to the gibberish that they spew.

All litigants are entitled to treated with respect and with simple human decency before the court. The OPCA positions that they adopt are not. In my view, it is more respectful to OPCA plaintiffs to truthfully tell them that they are engaged in a despicable enterprise that cannot be tolerated than to pretend that there is some merit which deserves academic debate and response. In my view, precious judicial time should be spent on resolving real matters. Simply taking judicial time to respond seriously to OPCA claims gives the claimants a measure of success in advancing their improper purposes. Associate Chief Justice Rooke spent more than enough of his very valuable time creating a textbook of abusive OPCA practices in Meads v. Meads. In my view, not another moment of judicial resources or party expense should be invested on OPCA claims. They should be summarily nipped in the bud with reference to Meads v. Meads and no more as set out in para. 2 above.

[31] The words of Myers J. are apposite to the counterclaim in this matter. This is a straightforward mortgage claim. This pleading is a game designed to frustrate the system and inflict unrecoverable expense and needless stress on the plaintiff, Farm Credit Corporation. The nature of the counterclaim seeks to frustrate the system and inflict unrecoverable expense and needless stress on the defendants to the counterclaim and the individuals who are purported to be named in the amended statement of defence and counterclaim.

[32] These pleadings include the following hallmarks of frivolous and vexatious proceedings:

1. Curious formatting
2. Attachments
3. Varying fonts with bolding and capitals added
4. Adding parties and reference to other tribunals
5. Purporting to amend the pleading to add other defendant to the counterclaim including lawyers for other parties
6. Conclusory assertions
7. A rambling discourse characterized by repetition and a pedantic failure to clarify
8. A claim for $78 Trillion
9. A claim in trespass with no particulars
10. A class action

[33] The counterclaim is frivolous, vexatious, and an abuse of process.

[34] The counterclaim, class action, crossclaim or set-off, land claim in trespass, and Quo Warranto is dismissed. This leaves the statement of defence.

[35] With respect to the issue of costs, although the federal Crown and provincial Crown have the incurred costs, in my view is not appropriate to award costs in this matter. A summary procedure is provided by rule 2.1.01. While I am sympathetic to the legal costs incurred, it was not necessary for extensive materials provided by the defendants to the counterclaim. All that was required was brief written submissions. The pleading speaks for itself.

[36] In the circumstances, there will be no order as to costs.

Summary Judgment

[37] The plaintiff seeks summary judgment. The defendants seek an adjournment to file responding material and to a conduct cross-examination. As I indicated, in my endorsement of December 17, 2020, I did not set out a schedule for delivery of material with respect to the summary judgement. This was my error. It seems that the defendant Mack Todd Manary was labouring under the mistaken belief that other persons were looking after this matter for him. I have struck out the counterclaim and indicated that the individuals purporting to act on his behalf have no legal standing to do so. I have encouraged Mr. Manary to get legal advice and retain a lawyer.

[38] The motion for summary judgment is adjourned to April 29th, 2021 at 10:00 a.m. The parties are to abide by the following timetable, which was set out in court on March 24th:

1. Responding material is due by the defendants, Mack Todd Manary and 1047535 Ontario Limited by April 7, 2021.
2. The plaintiff’s reply material, if any, is due by April 9, 2021.
3. Cross-examinations, if any, are to be completed by April 14, 2021.
4. The plaintiff shall deliver its factum by April 21, 2021.
5. The defendants shall deliver their factum by April 26, 2021.

[39] The examinations, if any, shall be conducted by Todd Manary and/or a lawyer retained on his behalf or on behalf of 1047535 Ontario Limited. No other persons are to be in attendance for the examinations except the parties and lawyers and the witness to be examined.

The Summonses to Witness

[40] The Grand Chief Wabiska Mukwa purported to issue summonses to witness to Richard Wagner, Chief Justice of Canada (I understand that it is in the interim capacity as Administrator acting for the currently vacant post of the Governor General) and a former registrar of the Supreme Court of Canada, Roger Biladeau, Q.C. The witnesses moved to set aside the summonses. As I have outlined, the matter was set to be heard by me today. There was no responding material filed.

[41] I have found that the counterclaim is frivolous, vexatious, and an abuse of process and dismissed it under rule 2.1.01. However, in case the defendants think the summonses relate to the defence of the claim, I must address the summonses to witness.

[42] The defendants /plaintiffs by counterclaim, say they seek the following documents: (1) proof of superior title to un-ceded land on Turtle Island prior to ASMIN, or proof of purchase or any treaty with ASMIN for same; (2) proof Victoria signed BNA Act and proof Canada Inc. is not a mere corporation and proof it was not repealed in 1893; and (3) proof Canada Inc. is not a mere corporation.

[43] They were apparently served by Grand Chief Wabiska Mukwa.

[44] First, I observe that the summonses on their face show they were issued out of the Superior Court in St. Thomas. They were obtained by requisition of Brent Manary to the St. Thomas courthouse for the purposes of a Toronto Action No. 20-00646731. They were not issued out of Simcoe Superior Court in this proceeding. Therefore, the summonses themselves are in my view defective.

[45] In any event, assuming they are issued under rule 39.02 (2), the onus is on the party seeking to conduct examinations to show on a reasonable evidentiary basis that the examination will be conducted on issues relevant to the pending motion and that the proposed witness is in a position to offer relevant evidence: Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources), 2002 CanLII 41606 (ON CA), [2002] O.J. No. 1445 (ONCA) at para 30.

[46] This is not a means to get discovery of a non-party or for a fishing expedition.

[47] There is no basis to conclude that their evidence is necessary. In any event, the witnesses have no evidence to give that is relevant. They are not proper persons to provide the documents sought.

[48] This is clearly an abuse of process. These summonses served are an unwarranted imposition on these witnesses. They are served to inconvenience the witnesses and for tactical reasons; to harass and annoy the witnesses. The summonses to witness are quashed.

[49] I have an inherent jurisdiction as a Judge of the Superior Court to control the court process and prevent an abuse of the court process. These summonses were an abuse of the court process. Therefore, I order that the defendants are prohibited from issuing summonses to witnesses to The Right Honourable Richard Wagner, Chief Justice of Canada, Mr. Roger Bilodeau, Q.C. or any other judge, member of the administration, or member of staff at the Supreme Court of Canada without prior judicial approval.

[50] On the issue of costs, I would normally request that a costs outline be provided and accept written submissions on costs. Given the history of this matter, this would likely result it the delivery of many pages from the Grand Chief Wabiska Mukwa and requests for further adjournments. There would be an issue as to who ought to be responsible for the costs: the defendants to the action or the Grand Chief Wabiska Mukwa himself. This would result in additional time and expense for the witnesses. In the circumstances, there will be no order as to costs of the motion to quash the summonses.

Conclusion

[51] In the result, there will be an order as follows:

1. The counterclaim, class action, crossclaim or set-off, land claim in trespass, Quo Warranto in this proceeding is dismissed without leave to amend under rule 2.1.01 of the Rules of Civil Procedure.

2. The summonses to witness issued to Richard Wagner, Chief Justice of Canada, in his capacity as administrator of Canada or otherwise and the former registrar, Mr. Roger Bilodeau, Q. C. are quashed.

3. The defendants are prohibited from issuing summonses witnesses to the Right Honourable Richard Wagner, Chief Justice of Canada, or Mr. Roger Bilodeau Q.C., former registrar Supreme Court of Canada or any other judge, member of the administration or members of the staff of the Supreme Court of Canada without prior judicial approval to be obtained on motion.

4. The plaintiffs’ motion for summary judgment is adjourned to April 29th, 2021 at 10:00 a.m. The parties are to comply with the following timetable:

i. Responding material is due by the defendants, Mack Todd Manary and 1047535 Ontario Limited by April 7, 2021.

ii. The plaintiff’s reply material, if any, is due by April 9, 2021.

iii. Cross examinations, if any, are to be completed by April 14, 2021.

iv. The plaintiff shall deliver its factum by April 21, 2021.

v. The defendants shall deliver their factum by April 26, 2021.

5. There will be no order as to costs for the defendants to the counterclaim for the order with respect to rule 2.1.01.

6. The plaintiff’s costs are reserved to the judge hearing the motion for summary judgment.

7. There will be no order as to costs with respect to the order quashing the summonses.

[52] Counsel for the plaintiff, defendants to the counterclaim, and/or the witnesses may prepare an order to be submitted to me through the trial coordinator at Simcoe for my signature. The approval as to form and content of the defendants, the Grand Chief Wabiska Mukwa and the Manarys is not required.

P.R. Sweeny R. S. J.

APPENDIX A: