IN THE SUPREME COURT OF NOVA SCOTIA
Citation: MacDonald v. Smith, 2013 NSSC 143
Date: 2013/01/16
Docket: Ant. No. 391860
Registry: Antigonish
Between:
Michael MacDonald and Maritime
Residential Housing Development Limited
Plaintiff
-and-
Stephen Smith, Moray Tawse, Robert Inglis,
Scott C. McKenzie, Jason Ellis, Jeremy Wedgbury,
Susan J. Biggar and Liza White [of the Board of Directors
of First National Financial GP Corporation]
-and-
Karen Kinsley [President: Canada
Mortgage and Housing Corporation]
Defendants
Judge: The Honourable Justice N. Scaravelli.
Heard: January 16, 2013, in Antigonish, Nova Scotia
Written Decision: May 3, 2013
Counsel: Michael MacDonald the plaintiff, self represented
Rebecca LeBlanc, for the Defence
Andrew Fraser for the Defence
By the Court (Orally):
[1] The Plaintiffs in this case have filed for a motion for summary judgement and Defendants have filed motions for summary judgment on the pleadings and a dismissal of the action, summary judgment on the evidence and dismissal of the action as well as a motion for a dismissal of the action on the basis that it is an abuse of process. I want to put on the record the background of this matter as I have determined from the file materials, recordings, as well as the legal documentation and affidavits on file.
[2] The Plaintiff, Maritime Residential Housing and Development Limited is the Mortgagor and the Plaintiff, Michael MacDonald, is the Guarantor on a mortgage of lands located in Antigonish County.
[3] The Defendant, First National Financial: GP Corp is Mortgagee. The named individuals in this action are members of the Board of Directors. The Defendant Ms. Kinsley is President of CMHC another Defendant. CMHC provided mortgage loan insurance to First National regarding the Plaintiff’s mortgage limited to the amount of the mortgage loan which appears to be approximately $731,000. It is evident that the mortgage went into arrears at some point in time.
[4] In April 30th actually of 2012, the Plaintiffs, Maritime Residential and Mr. MacDonald commenced an action against the Defendants claiming as relief the face value amount of the mortgage loan as well as payment by the Defendants of an amount in excess of $16,000,000 jointly and severally. The Defendants filed defences claiming dismissal of the action on the grounds that it is frivolous, vexatious, improper and discloses no cause of action. The court notes that in May of 2012 the Defendant, First National, commenced foreclosure proceedings against the Plaintiffs which proceeding was defended and is, I am advised, still before the courts.
[5] In July of 2012 the Plaintiffs filed a motion for summary judgment setting a date for hearing of August 14th, I note the motion also sought an order directing the RCMP to investigate CMHC for mortgage fraud. This motion was accompanied by a draft order directing payment by the Defendants of an amount in excess of $16,000,000.
[6] The motion states the Plaintiffs rely on rules as well as the “laws attached Elizabeth Windsor and noted in the Penteteuch”. There was no affidavit evidence submitted in support of the motion. A telephone conference call with the parties was conducted by Justice Scanlan on August 9, 2012 where it was noted the deficiency in the Plaintiff’s filing of an affidavit supporting the motion. At that time the Defendants indicated there would be motions from their side regarding summary judgment requesting dismissal. Justice Scanlan directed the parties to arrange court dates for these motions to be heard in Antigonish and to set out filing deadlines. Justice Scanlan at that time directed the Plaintiffs to file an affidavit with supporting documentation and, according to the Plaintiffs, indicated the Plaintiff would have to submit to the laws of Canada and the Province of Nova Scotia. Justice Scanlan at that time also granted an order prohibiting the Plaintiffs from attempting to make further contact with the Defendants directly.
[7] On August 27th the Plaintiffs directed a letter to the court indicating they refused to file an affidavit. In September court officials attempted, through telephone calls and voice mails to arrange hearing dates. The Plaintiff did not respond. By letter dated September 17th the court advised the parties’ motions would be heard today’s date in Antigonish.
[8] On October 5, 2012 Justice Scanlan directed a letter to the Plaintiffs confirming the August telephone conference and the requirement to file an affidavit and supporting documentation prior to the January hearing.
[9] On October 10th Defence counsel by correspondence and email requested a motion by telephone conference to set filing deadlines. Mr. MacDonald replied by email that he was unavailable for any telephone conferences.
[10] December 7th Mr. MacDonald forwarded a letter to the court indicating he was using the Queen’s law and wanted proof under the Queen’s law that he was required to file an affidavit.
[11] December 17th Mr. MacDonald filed his 23 page brief, much of which declares himself subject to some special and different law as bizarrely defined by him. He does not attorn to the laws of Canada. I note that this brief, as well as some previous correspondence was forwarded directly to some of the named Defendants contrary to Justice Scanlan’s order.
[12] I have reviewed the pleadings, the affidavits filed by the Defendants on their motions and the briefs filed by both the Plaintiffs and the Defendants.
[13] The Plaintiffs are litigants as described in the case of Meads versus Meads, Alberta Queen Bench [2012 ABQB 571]. The Plaintiffs in this case have acted throughout on the basis of pseudo-legal and spurious beliefs. The Plaintiffs deny they have an obligation to honour the courts and the laws of Canada. They declare they are only subject to a different law as bizarrely defined in their brief. In my view the Plaintiffs have deliberately chosen not to follow the provisions of our rules or the direction of the court. Mr. MacDonald has indicated he is not prepared to abandon his position. This approach attacks the court’s authority and is inherently vexatious and on this basis a court can strike the Plaintiff’s claim. The Plaintiffs are self-represented. I have reviewed the Plaintiff’s claim and I am unable to identify any valid, legal arguments. I find the Plaintiff’s legal proceedings constitute an abuse of the court’s process.
[14] In my view the only remedy likely to control this abuse is dismissal of the Plaintiff’s action. Again for the record and in terms of the summary judgment motion by the Defendants both on the pleadings and on the evidence, I think it is self-evident from my comments that there is no legal connection in this case certainly between the Plaintiffs and CMHC. CMHC loan insurance protects lenders. In this case it insured First National in respect to the Plaintiff’s mortgage and not the Plaintiffs. It is self-evident there exists no contractual conditions between the Plaintiffs and CMHC. There is no cause of action against CMHC or obviously Ms. Kinsley. They would be entitled to summary judgment on the pleadings. This would flow, obviously to First National. The action filed by the Plaintiffs seens to focus on CMHC. There is no cause of action established at all in the claim that would be sustainable against First National. The affidavit evidence filed on behalf of the Defendants in the pleadings clearly indicates that the claim does not raise a genuine issue for trial.
[15] This is a case where the court could use its jurisdiction to dismiss the Plaintiff’s claim due to the vexatious nature of the proceedings. I find the proceedings do constitute an abuse of process by the Plaintiff’s action on that basis. I would also, for the record, find the Defendants would be entitled to summary judgment on the pleadings and the evidence which would obviously as well entitle an order for dismissal of the claim.
[16] I want to be clear that upon reviewing this file the Plaintiff’s actions certainly contain elements of what has been described in the Meads case as “organized pseudo-legal commercial argument litigants”. Persons involved in this type of legal action across Canada cause significant problems in the court process and under Meads, should be dealt with directly and early in the stages of legal proceedings.
[17] I am dismissing the Plaintiff’s claims and I am also going to award costs to the Defendants - the Defendant not individuals, the Defendant corporations in the amount of $1,500 each.