[2017] 2 F.C.R. D-8
Practice
Discontinued Proceedings
Pending motions
Motion for directions under Federal Courts Rules, SOR/98-106 (Rules), r. 54 as to status of appeal, vexatious litigant motion — In appeal at issue, respondents moving to declare appellant vexatious litigant pursuant to Federal Courts Act, R.S.C., 1985, c. F-7 (Act), s. 40 — Court issuing order preventing Registry from filing anything presented by appellant until appellant supplies proof that he has paid previous cost orders — Appellant submitting proof, notice of abandonment of his appeal to Registry — Respondents asserting in writing that appeal, motion to declare appellant vexatious litigant remaining alive — Court construing respondents’ letter as motion seeking directions — Appellant’s notice of abandonment not complying with Rules — Whether: unconventional document filed by appellant discontinuing appeal; motion declaring appellant vexatious litigant still alive; Court able to answer questions at issue in motion for directions under Rules, r. 54 — Irregularity can be cured pursuant to Rules, r. 56 — Appellant’s notice of abandonment in substance a notice of discontinuance under Rules, r. 166 — Therefore, appeal in case at bar ended, court file closed — Once proceeding ending by discontinuance, motions aimed at settling disputes within proceeding or advancing proceeding serving no further purpose — However, vexatious litigant motion not aimed at settling disputes within appeal or advancing appeal — Vexatious litigant motion broader than appeal herein, aiming to prevent appellant from continuing other existing proceedings or starting new proceedings without leave of Court — S. 40 providing that relief brought by application, not motion — Such application an application within meaning of Rules, r. 300 that can be prosecuted as an independent, stand-alone proceeding — Vexatious litigant motion therefore still existing — File having to be set up with motion placed in it — However, notice of motion not an originating document — Court curing irregularity on its own motion pursuant to Rules, r. 47 — Appropriate here to treat notice of motion as notice of application — Court ordering Registry to, inter alia, treat notice of motion under Act, s. 40 as notice of application, open new file for application — Appellant given new opportunity to respond to application record — Order issued accordingly.
Olumide v. Canada (A-201-16, 2016 FCA 287, Stratas J.A., order dated November 17, 2016, 13 pp.)