[continued from previous message]

under s. 40 only if it is based on an error of law, or a
palpable and overriding error of fact or inextricably mixed
fact and law.52
52 Hospira Healthcare Corporation v Kennedy Institute of
Rheumatology, 2016 FCA 215, paras 66, 79; Ubah FCA, para 3

42. In declaring Mr. Turmel a vexatious litigant, the
Application Judge carefully reviewed Mr. Turmel's litigation
history, and relied on well-established legal principles
concerning s. 40 and the Federal Court's plenary
jurisdiction. On appeal, Mr. Turmel does not allege any
error in the Application Judges identification of these
legal principles, but asserts that the Application Judge
erred in finding that Mr. Turmel has brought meritless
proceedings, and in finding that he has refused to follow
court orders and rules.

43. However, as detailed below, these findings of fact or
mixed fact and law were amply supported by the record before
the Application Judge, and Mr. Turmel has not established
that they are tainted by error, let alone a palpable and
overriding error. This Court should accordingly dismiss this
appeal.

1) The Application Judge did not err in finding Mr. Turmel's
proceedings meritless

44. In describing Mr. Turmel's proceedings as meritless, the
Application Judge observed that Mr. Turmel has personally
instituted at least 67 court proceedings, and has recruited
others to file more than 800 proceedings, nearly all of
which have been unsuccessful. The Application Judge noted
that common reasons for dismissal have included that the
proceedings failed to disclose a reasonable cause of action,
were frivolous, vexatious or an abuse or process, or were
unsupported by evidence. He also observed that Mr. Turmel
has acknowledged his litigation kits are ineffective.53
53 Application Decision, paras 3-4, 8-9, 25-26, 39-40, 42,
AB, Vol 1, Tab B, p 21-22, 27-28, 33-34

45. On appeal, Mr. Turmel does not dispute that he brought
or encouraged others to bring these proceedings, or that the
proceedings were dismissed for the reasons identified by the
Application Judge. However, Mr. Turmel asserts that the
proceedings were not in fact meritless, and that judges who
dismissed them erred in doing so.

46. For example, Mr. Turmel asserts in his Memorandum that
various judges have "failed to the see the logic" in his
proceedings, and erred by disagreeing with "righteous"
requests.54
54 Appellants Memorandum of Fact and Law, paras 61, 63, 64
(see also paras 3, 14) ("Appellants Memorandum")

With respect to the Application Judge's related finding that
he often re-litigates issues, Mr. Turmel similarly asserts
that "I don't refile to show the judges who are wrong, I
refile to find a judge who will be right.55
55 Appellant's Memorandum, para 65

47. This Court should reject these arguments. It was not
open to the Federal Court
on a s. 40 application, and it is not open to this Court on
appeal, to question the court decisions in Mr. Turmel's
prior cases. The proper course instead if Mr. Turmel wished
to challenge these prior decisions was for him to appeal.
Indeed, Mr. Turmel has done so in many cases, although his
appeals have been almost entirely unsuccessful.56
56 Application Decision, paras 8, 11-12, 14-15, 17-18, 20-
21, 23, 41, AB, Vol 1, Tab B, p 22-27, 34

48. Moreover, even if it were open to the Federal Court or
this Court to review them, Mr. Turmel has not established a
reviewable error in any of these prior decisions. He asserts
that his second challenge to federal COVID-19 mitigation
measures was not an an abuse of process because it focused
on different measures than his first challenge. He also
asserts that one court misinterpreted the word "gain" in
order to convict him of gaming offences, and that his
actions in violating a publication ban were justified.
However, the courts in each of these cases expressly
considered and rejected these arguments.57
57 Appellants Memorandum of Fact and Law, paras 14, 20, 77;
Minarovich Affidavit, Exhibit 14 (Ontario Court of Justice
decision, dated May 16, 1994, paras 27-39; Court of Appeal
for Ontario decision, dated August 13, 1996, paras 48-55;
leave refused Supreme Court of Canada decision, dated
October 31, 1996), AB, Vol 1, Tab D, p 234-36, 257-61,
Exhibit 16 (Superior Court of Quibec decision, dated July
12, 2002, paras 19, 24-44), AB, Vol 1, Tab D, p 286-88;
Turmel v Canada, 2022 FC 732, para 12

Mr. Turmel has identified no error in these analyses.

49. At points in his Memorandum, Mr. Turmel suggests that,
even if his proceedings were dismissed, they have ultimately
achieved their goal or assisted others. For example, he
notes that Parliament amended the audit-expense provisions
of the Canada Elections Act after his Federal Court claim
challenging those provisions, and alleges that Health Canada
granted several applications for registration to produce
cannabis after his kit users filed claims or motions
challenging the application processing time. In the criminal
sphere, Mr. Turmel also asserts that his proceedings
resulted in the staying of 4,000 charges or in "sweet deals"
for his kit users.58
58 Appellants Memorandum, paras 10, 23, 25, 37-39, 85

50. However, Mr. Turmel cites no evidence or authority for
these claims, or that his proceedings were responsible for
any of these outcomes. Indeed, far from assisting others,
the Application Judge observed that Mr. Turmels kits have in
fact caused direct harm to their users, many of whom were
ordered to pay costs after their proceedings were
dismissed.59
59 Application Decision, paras 26, 45-46, AB, Vol 1, Tab B,
p 27, 34-35 60 Nelson v Canada, 2003 FCA 127, para 24

51. In any event, even if Mr. Turmels proceedings had merit
or have indirectly assisted others (which is denied), the
Court has affirmed in the s. 40 context that merit alone
cannot justify the use of abusive tactics.60 In this case,
the Application Judge found Mr. Turmels abusive tactics have
included re-litigating issues, intentionally flooding courts
with proceedings, and scandalous allegations against judges
and other parties. Mr. Turmel does not dispute any of these
findings, and they are alone sufficient to support the
Application Judge's ultimate conclusion that Mr. Turmel's
conduct is both ungovernable and harmful.

2) The Application Judge did not err in finding that Mr.
Turmel has refused to follow court orders and rules

52. In declaring him a vexatious litigant, the Application
Judge observed that Mr. Turmel has ignored, disregarded or
refused to comply with court orders and rules.61
61 Application Decision, paras 3, 25, 46, AB, Vol 1, Tab B,
p 21, 27, 35

While Mr. Turmel now asserts that he has ignored only one
court order, and has always followed court rules, the
Application Judge's findings to the contrary were amply
supported by the record.62
62 Appellants Memorandum, paras 21, 81, 89, 91

JCT: There was only one time I ignored a court order but
because the judge said there were more, Crown now says it
was supported in the record even though it was not.

CR: 53. As the Application Judge noted, Mr. Turmel has been
convicted of contempt for violating a publication ban. He
has repeatedly attempted to make submissions on behalf of
other plaintiffs despite Rule 119 and multiple admonitions
from the Federal Court that he is not permitted to do so,
and he and his kit users have often missed legislated and
court-ordered deadlines.63
63 Application Decision, paras 19, 43-44, AB, Vol 1, Tab B,
p 25, 34; Minarovich Affidavit, paras 69-71, 114, 123, 145,
147-48, 202, 262, 301, AB, Vol 1, Tab D, p 65-66, 76, 80,
85-88, 105, 123-24, 139; Federal Courts Rules, s 119(1)

54. The Application Judge also observed that Mr. Turmel has
refused to comply with numerous costs orders.64
64 Application Decision, paras 3, 38, 46, AB, Vol 1, Tab B,
p 21, 33, 35

On appeal, Mr. Turmel now asserts that it is not a matter
of him "refusing to pay" these costs, but of him being
unable to pay. However, he filed no evidence of inability to
pay in the Court below, and any assertion of impecuniosity
is belied by Canada"s evidence that he has paid more than
$4,000 in costs for one of his kit users, and has offered on
social media to pay filing fees for hundreds of others.65
65 Application Decision, paras 5, AB, Vol 1, Tab B, p 21;
Minarovich Affidavit, paras 175, 192, 201, 238, AB, Vol 1,
Tab D, p 97, 102-03, 105, 115

This Court should accordingly reject this argument, and
dismiss Mr. Turmel's appeal.

PART IV - ORDER SOUGHT

55. Canada requests an order dismissing this appeal, with
costs. It also requests that the style of cause in this
matter be amended by removing Her Majesty the Queen and
substituting the Attorney General of Canada as the
respondent, and that this Court direct the Registry to take
any necessary steps to give effect to this amendment.

Signed at Toronto, Ontario, this 29th day of March, 2023
Jon Bricker
Counsel for the Respondent

PART V - LIST OF AUTHORITIES

Badawy v 1038482 Alberta Ltd (Intelliview Technologies Inc),
2019 FC 504
Canada v Fabrikant, 2019 FCA 198
Canada v Ubah, 2021 FC 1466, affd 2023 FCA 26
Coote v Canada, 2021 FCA 150
Fudge v Canada, CFN T-693-22 and several other proceedings
(Judgment of Horne, Associate Judge, dated July 4, 2022,
unreported)
Fudge v Canada, CFN T-693-22 and several other proceedings
(Order of Horne, Associate Judge, dated July 27, 2022,
unreported)
Hospira Healthcare Corporation v Kennedy Institute of
Rheumatology, 2016 FCA 215
Lawyers' Professional Indemnity Company v Coote, 2013 FC 643
(and Order of Hughes J, dated June 13, 2013, unreported),
affd 2014 FCA 98
Nelson v Canada, 2003 FCA 127
Potvin v Rooke, 2019 FCA 285
Simon v Canada, 2019 FCA 28
Stukanov v Canada, 2022 FC 1421
Turmel v Canada, 2022 FC 732
Turmel v Canada, 2022 FCA 166
Virgo v Canada, 2019 FCA 167

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