Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: National Bank of Canada, Plaintiff
AND:
Marcel Guibord, Defendant
BEFORE: Mew J.
COUNSEL: Michael S. Myers and Justin Papazian, for the Plaintiff
Marcel Guibord, Defendant, in person
HEARD: 21 September 2021 (by videoconference), at Ottawa
Endorsement
1National Bank of Canada seeks summary judgment on its action to enforce certain security granted to the Bank by the defendant in return for the Bank’s forbearance from enforcing a default judgment obtained by the Bank in other proceedings.
2The bank also seeks summary dismissal of the defendant’s counterclaim in this proceeding in which the defendant seeks by way of relief: (a) production of “an original, notarized copy of the “Charge” or “Note”” (which I take to be a reference to the Charge/Mortgage of Land dated 11 January 2019 in favour of the Bank, which was registered against the defendant’s title to a property municipally known as 3213 Old Highway 17, Rockland, Ontario (the "Property"); and (b) production of a true copy of the British North America Act, 1867, 30 Vic., c.3 “with three valid readings and an unrepealed enabling clause and Royal Assent”.
3Further, the Bank seeks orders pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. c.43 (as amended) prohibiting the defendant from instituting any further proceeding in any court without leave of a judge of this court and striking out the defendant’s defence and counterclaim in this proceeding on the basis that it is a vexatious proceeding.
4The defendant has brought three motions, seeking:
a. An adjournment of the plaintiff’s motion until the release from jail of the defendant’s “representative”, a “Mr. Paquin”, who is incarcerated until 2021;
b. the stay of a scheduling order of Master (now Associate Judge) Kaufman dated 26 March 2021 pending:
i. the disposition of motions for leave to appeal orders of Gomery J. dated 4 May 2021, which dismissed a notice of appeal by the defendant from Master Kaufman’s order on the basis that it was frivolous, vexatious or otherwise an abuse of the process of the court, and of Hackland J. dated 23 April 2021 which revoked the defendant’s fee waiver and prohibited him from applying for new fee waivers without leave of the court; and
ii. “Consultation with the Crown during the Stay”;
c. Summary judgment for relief including:
i. an order recognising that the court is located on unceded land and is “under UNDRIP” (United Nations Declaration on the Rights of Indigenous Peoples);
ii. transfer of jurisdiction to an indigenous tribunal;
iii. an order compelling the Crown “to Consult prior to the hearing being conducted”;
iv. an injunction preventing the appointment of a new Governor General of Canada and requiring officials to comply with the defendant’s subpoenas; and
v. an order “altering the Endorsement of Justice Hackland regarding who can speak for the Indigenous People in a Land Claim in Trespass”.
5At the outset of the hearing, an individual describing himself as “Grand Chief Wabiska Mukwa (Zane Bell)” asked for, and was granted, permission, as a friend of the defendant, to request an adjournment on behalf of the defendant due to the defendant’s poor health. He explained that the defendant is to have surgery on a yet to be scheduled date. It subsequently became apparent that the defendant was, in fact, also present on the remote hearing, and the defendant himself then provided further information about his condition. A letter from a doctor was also produced.
6The medical letter contained no explanation of why Mr. Guibord was medically unable to participate in the hearing and after hearing submissions, I declined the adjournment request on medical grounds, with the proviso that we could take short breaks any time Mr. Guibord wished us to.
The Defendant’s Motions
7The relief requested by the defendant was set out in several documents authored by Mr. Guibord. While it was not certain whether they had all be served and filed in accordance with the Rules of Civil Procedure, the plaintiff did not object to Mr. Guibord speaking to the relief sought by him. At times, Grand Chief Wabiska Mukwa also spoke on Mr. Guibord’s behalf.
8After hearing the parties’ submissions, I declined to adjourn the motion or to grant any of the relief requested. My reasons for so deciding can be briefly summarised.
Representation
9Mr. Guibord sought an adjournment so that Mr. Paquin, a non-lawyer, can represent him. According to the plaintiff, he has made a similar request on at least one previous occasion. The plaintiff submitted that this was a delaying tactic. Whether or not that is so, it was evident that Mr. Guibord himself has a firm grasp of legal principles and authored numerous documents and communications that were before the court, almost all of which were written in English. At the motion hearing, translation services were provided by an interpreter. And the assistance of Grand Chief Wabiska Mukwa was available.
10I am quite satisfied that Mr. Guibord was afforded, and took, every opportunity to present his case and participate in the hearing.
Pending Appeals
11There are pending applications by Mr. Guibord for leave to appeal to the Divisional Court from Gomery J’s decision to deny an appeal from an order of Master Kaufman and Hackland J’s fee waiver orders. None of the issues raised on those pending appeals have any bearing on the substantive issues raised by the plaintiff’s motion or otherwise prejudice the defendant’s situation vis-à-vis these motions. Nor has any stay of the orders under appeal been sought from the Divisional Court. I would also observe that the merits of the leave applications appear to be weak.
Duty to Consult
12The genesis of the defendant’s request for a stay of proceedings pending the discharge by the Crown of its duty to consult is the statement in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 SCR 257, at para 78, that:
The duty to consult is a procedural duty that arises from the honour of the Crown prior to confirmation of title. Where the Crown has real or constructive knowledge of the potential or actual existence of Aboriginal title, and contemplates conduct that might adversely affect it, the Crown is obliged to consult with the group asserting Aboriginal title and, if appropriate, accommodate the Aboriginal right. The duty to consult must be discharged prior to carrying out the action that could adversely affect the right.
13No duty to consult arises in this case because, as will be further discussed below, the pleaded dispute between the parties does not raise justiciable issues of aboriginal title, nor is the Crown a party.
Indigenous Rights
14The defendant’s amended statement of defence and counterclaim pleads in some detail particulars of the defendant’s claims as “an Anishinabe (Abenaki) Metis and Non-Status Man. who is a member of 2 tribes. the older ASMIN and the modern Non-Status Kjnalswij Nation”. He asserts that his property is on unceded land and, as such, is protected from seizure by reason of s. 89 of the Indian Act, R.S.C. 1985, c I-5, which provides:
89 (1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band.
15The pleading also refers to, amongst other historical events, the Royal Proclamation (1763) (reprinted in R.S.C. 1985, App. II, No. 1), the Statute of Westminster, 1931 (U.K.), 22 & 23 Geo. V, c. 4, as well as an allegation that the British North America Act, 1867, was not validly enacted. The defendant also pleads that he has “filed a Land Claim”.
16The parties were before Hackland J. on 13 February 2020 to speak to a contested motion by the defendant for an adjournment of the plaintiffs’ motion to strike (ultimately heard at a later date by Roger J.: as to the latter, see National Bank of Canada v. Guibord, 2020 ONSC 8137). A transcript of that hearing includes the following observations made by Hackland J., to which I would also subscribe:
[T]his is a debtor creditor matter involved -- involving your client who is indebted to the bank and their enforcement proceedings under a mortgage. Now I think your client would want to be able to access the ordinary debtor creditor facilities that's available -- that are available in commercial lending, just as they are to any and every lender. Now whether the lender then can assert his rights to collect on that claim, I mean, that's the issue before the court. We're not looking at Aboriginal entitlements, we're not looking at land claims and we're not looking at jurisdiction beyond the basic idea that the Superior Court of Justice has jurisdiction over debtor creditor issues that involve your client in this matter. So I don't see why we would want to get into broad based issues of the entitlements which your particular group may have or basic constitutional issues, other than does this court have jurisdiction.
17Despite the pleaded allegations that I have referred to, the statement of defence does not plead any relief, other than the defence under s. 89 of the Indian Act. That defence is clearly untenable in the absence of any assertion or evidence that the defendant’s property is located on a reserve.
18There 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. However, this mortgage enforcement proceeding is not the appropriate forum in which such issues can be determined.
The Bank’s Claim for Possession
19The Bank seeks possession of the defendant’s property located at 3213 Old Highway 17, Rockland, Ontario. The Bank is a mortgagee of this property.
20In a previous action between the parties, the Bank sued the defendant for monies owing under a line of credit agreement. After obtaining default judgment for $152,273.43 plus costs, the parties entered into a forbearance agreement pursuant to which the defendant agreed to grant to the Bank a second mortgage of the property in the principal amount of $174,871.41. On 11 January 2019, the defendant’s lawyer registered the mortgage against title to the property.
21The Bank alleges that the defendant defaulted on his obligations under the mortgage, providing him with notice of default on 11 January 2019 and again on 11 February 2019. The defendant failed to cure the default. On 4 March 2019, the Bank exercised its right under the mortgage to demand full payment of all amounts secured by the mortgage. No payment having been made by the defendant, on 25 March 2019, the Bank issued and served a Notice of Sale under the Mortgage.
22This action was commenced on 14 May 2019. As of 4 March 2021, the evidence of the Bank is that the total of principal and interest owing under the mortgage stood at $190,405.98, with daily interest of $22.28 accumulating thereafter.
23The Bank’s evidence concerning the existence of the mortgage, the default, the terms of the mortgage and the amounts owing is uncontradicted. The deponents of the Bank’s affidavits were not cross-examined. The court is, accordingly, entitled to accept such evidence as accurate: The Toronto-Dominion Bank v. 466888 Ontario Limited, 2010 ONSC 3798, 103 O.R. (3d) 502, at para 47, affd. 2011 ONCA 149.
24The defendant makes a bare denial of any default having occurred, but offers no evidence of payment to support that allegation. He also pleads that he signed the forbearance agreement under duress but, again, offers no evidence to support this allegation.
25The Bank argues that, viewed as a whole, the amended statement of defence and counterclaim is frivolous, vexatious and an abuse of the court’s process. The defendant is said to be engaging in litigation tactics similar to those employed by “Organized Pseudolegal Commercial Argument” (“OPCA”) litigants as described by Rooke A.C.J.Q.B.A. in Meads v. Meads, 2012 ABQB 571. Suffice it to say that many of the allegations and arguments made by the defendant in this action have recently been found to fall within the remit of OPCA tactics and, thus, not worthy of further judicial analysis: Mukwa v. Farm Credit Canada, 2021 ONSC 1632, at paras 17-29.
26Even without bearing the OPCA brand, many of the allegations made by the defendant appear to be untenable at best and frivolous, vexatious and abusive at worst. Of the other defences raised by the defendant which do bear further comment, I have already addressed the effects of the defendant’s assertion that his property is shielded from seizure because it is located on unceded indigenous land.
27The remaining defence which I propose to address arises from the defendant’s allegation that he owns three Certificates of Deposit (CDs) representing a total of $450,000 that he claims to have deposited with the Bank in 1984 and 1999. He says that these CDs were never redeemed and claims that he was unaware of their existence until 2019.
28The Bank has searched its records and can find no reference to CDs bearing the numbers of the documents proffered by the defendant. Nor does the bank have any record of indebtedness to the defendant in respect of unredeemed CDs.
29While not in evidentiary form, Mr. Guibord stated that the CDs had been purchased by his wife in his name. He was unaware that she had done this. She died in 2010 without having told him. When he found out about the CDs for the first time in 2019, he says that he told the Bank immediately. However, he claims that he never received a response. He claims to have the original certificates in his possession and, consequently, asserts that they could not have been redeemed.
30The defendant tendered, in support of his claim that the Bank is holding the monies represented by the CDs, an unsigned “CFLA Bloomberg Property Securitization Analysis Report” from a company in League City, Texas called Certified Forensic Loan Auditors, LLC which appears to have nothing to do with the CDs, but does make reference to home equity lines of credit, and concludes, in relation to “a Secured Line of Credit on December 23, 2014 for $178,221.41 CDN”:
Invalid foreclosure action. No Assignment of made by agent of Assignee without any known involvement by Assignor. Subsequent recorded documents of foreclosure are dependent upon this document. All documents should be rescinded and the then notarized Assignment of for equivalent value with verifiable proof of funds and note endorsement executed prior to National Bank of Canada acquisition should be recorded for rightful foreclosure to proceed in validating the real parties in interest and in compliance with Rockland Ontario Uniform Commercial Code.
31This document is as nonsensical as it is useless.
32It would be highly unfortunate if the CDs held by the defendant actually represent funds deposited on the defendant’s behalf with the Bank and never redeemed. However, the passage of time since the deposits were allegedly made is such that it is simply too late for the defendant to seek a remedy. The first time that the defendant attempted to seek a remedy was on 11 June 2019 when the statement of defence and counterclaim was filed. That date was outside the 15-year ultimate limitation period in s. 15 of the Limitations Act, 2002, S.O.2002, c. 24, Sch. B, which, by virtue of the transition provisions, and in particular s.24(5)1 of the Limitations Act, would run from 1 January 2004 in respect of the CDs, assuming that the defendant had not discovered the claim that he now asserts before then.
33Accordingly, any claim or set-off based on the CDs is statute-barred and bound to fail.
34In the absence of any genuine issues requiring a trial, the plaintiff shall have summary judgment on its claim for possession and is entitled to obtain a writ of possession.
Dismissal of Counterclaim
35The defendant’s counterclaim is dismissed. It does not adequately articulate any justiciable cause of action. And, in any event, it is frivolous, vexatious, abusive and symptomatic of OPCA tactics.
Vexatious Litigant
36The Bank seeks orders that the defendant is a vexatious litigant and that he should be prohibited from instituting any further proceedings in any court except with leave of a judge, pursuant to s. 140 of the Courts of Justice Act.
37This relief cannot be obtained on a motion within an action. The correct procedure is to bring a separate application: Lukezic v. Royal Bank of Canada, 2012 ONCA 350, at para. 10-16.
38Accordingly, no vexatious litigant order will be made at this time.
Costs
39I am presumptively of the view that the plaintiff is entitled to its costs of the motion and of the action. Within 10 business days of the release of these reasons, the plaintiff should serve on the defendant and deliver to the court via email at SCJ.Assistants@ontario.ca and marked for my attention, a costs summary and a written submission of no more than four pages in length. The defendant will have 10 days after receipt of the plaintiff’s costs submissions to serve and file any responding submission, which must also not exceed four typewritten pages in length.
Order
40The need for the plaintiff to obtain the defendant’s approval as to the form and content of any formal order or judgment arising from this decision is dispensed with. The plaintiff is at liberty to provide me with a draft order for my consideration and signature.
Mew J.
Date: 05 October 2021