Date: 19980713
Docket: T-646-98
BETWEEN:
DANIEL P. CREIGHTON,
Applicant,
- and -
STEFAN FRANKO, DAVID & SUSAN GRANT, CANADIAN
IMPERIAL BANK OF COMMERCE, MARY, FREDERICK AND
KATHLEEN BOYCHUCK, CAMBRIDGE WESTERN LEASEHOLDS
LIMITED, EDMUND AND SYLVIA MOROSHKYN,
Respondents.
REASONS FOR ORDER
JOHN A. HARGRAVE,
PROTHONOTARY
[1] By order of 26 June 1998 I struck out this lamentable and abusive proceeding, by reason of want of jurisdiction, in that exercise also touching upon the res judicata and estoppel arguments of the Respondents, including in rem estoppel, and upon the concept that the Federal Court may not question the orders of the British Columbia and Saskatchewan Superior Courts, acting within their jurisdiction, by a collateral attack. I indicated reasons would follow.
BACKGROUND
[2] Mr. Creighton, through his company, Creighton Holdings Ltd. (also called the "Company") held land in Saskatchewan and in British Columbia between about 1974 and 1989. The land was pledged as security for very substantial money loaned by the Saskatoon Credit Union (also called the "Credit Union").
[3] Mr. Creighton and the Company got into business difficulties in 1983, resulting in a B.C. Supreme Court breach of contract judgment against him and his company in early 1984. As a result the Credit Union appointed a receiver by instrument in March of 1984, but on discovering, contrary to Mr. Creighton's undertaking, the Company's property was being improvidently leased, had a court appointed receiver put into place in Saskatchewan in April of 1984. The Credit Union also obtained a court appointment of a receiver over the Company's assets in British Columbia on the basis of likely dissipation.
[4] Over the next several years legal proceedings proliferated between the Credit Union on the one hand and Mr. and Mrs. Creighton and the Company on the other hand. Among the proceedings were actions in the Saskatchewan Court of Queen's Bench, the Saskatchewan Court of Appeal and a fraudulent conveyance proceeding in the B.C. Supreme Court, portions of which went to the B.C. Court of Appeal. The result of all of this was that the Credit Union became the owner, on a judicial sale, of the Saskatchewan property and the British Columbia property was sold, by the B.C. Supreme Court, part to two numbered companies and a smaller parcel to a Mr. and Mrs. Langdale. These various sales took place in 1989. During the course of litigation Mr. Creighton became the subject of vexatious litigant orders of the B.C. Supreme Court, the B.C. Court of Appeal and the Saskatchewan Court of Queen's Bench.
[5] To complete the transactions concerning the land, the individual Respondents subsequently purchased the land either directly from the Credit Union or, in the case of Mr. and Mrs. Moroshkyn, from Mr. and Mrs. Langdale. The Canadian Imperial Bank of Commerce (also called the "CIBC") and Cambridge Western Leaseholds Limited (also called "Cambridge Western") are mortgagees of the land at issue.
[6] After filing numerous criminal charges against counsel for the Credit Union, all of which were stayed by the Attorney General of Saskatchewan, Mr. Creighton began his first action in this Court, 11 June 1991, T-1665-91, out of the Ottawa registry, seeking an order directing the registrars of title in Saskatoon, Saskatchewan and Kamloops, British Columbia to show the Company as registered owner of various land and buildings. Mr. Creighton discontinued that action a month later, but on the same day commenced a second Federal Court action T-1898-91 claiming similar relief. Various of the defendants applied to have action T-1898-91 dismissed for want of jurisdiction. Mr. Creighton filed a submission invoking, among other things, Section 25 of the Federal Court Act, that being the section of the Act granting the Trial Division original jurisdiction, between subject and subject, if no other court established under the Constitution Acts, 1967 to 1982, has jurisdiction. In October of 1991 Mr. Justice Dubé dismissed the second action for want of jurisdiction. Mr. Creighton, unfazed by the dismissal of his action, filed for default judgment, an application which the Court refused to entertain.
[7] In 1993 Mr. Creighton attempted, by ex parte proceedings, to set aside the dismissal of his second Federal Court action, but failing in that enterprise began yet another Federal Court action, his third, in October of 1993, T-2392-93, maintaining, in an ex parte motion, that the defendant, the Credit Union, had no standing to come before the Court. This application was dismissed by the Associate Chief Justice, however the order permitted Mr. Creighton to bring his claim within sixty days, serving all parties against whom relief was sought. Mr. Creighton took an appeal of the Associate Chief Justice's order, which resulted in an extension of the sixty day deadline.
[8] Mr. Creighton again tried to resurrect his second Federal Court action, seeking default judgment: in May of 1994 Mr. Justice Rouleau ordered that file T-1898-91 "be closed once and for all because this Court has determined that it does not have jurisdiction". In late 1994 Mr. Creighton filed a notice of discontinuance of the appeal of the Associate Chief Justice's order in the third action and also a notice of discontinuance of his third action, the 1993 action.
[9] In March of this year Mr. Creighton wrote to the Federal Court seeking a date and time for an application to be heard in his third action, T-2392-93, the action which he had discontinued. This brings us to the present proceeding which Mr. Creighton, who acts for himself, commenced 9 April 1998.
[10] In this current and fourth action Mr. Creighton seeks, by originating notice of motion, an order from the Court directing the registrar of the Saskatoon land title office and the registrar of the Kamloops land title office to cancel existing certificates of title over the same parcels of land which have been the subject of some 14 years of litigation and to issue new certificates of title, free and clear of mortgages given by the present owners, in the name of the Company, Creighton Holdings Ltd. Mr. Creighton also seeks some form of censure of the Saskatoon Credit Union Ltd., over what he refers to as failures to comply with sections of the Farm Debt Review Act and the Income Tax Act and for bid rigging under the Competition Act. However the Credit Union is not a party to these proceedings.
[11] Mr. Creighton initially sought to have his originating notice of motion in this proceeding dealt with on its merits and in its entirety during a half hour hearing set for 11 May 1998. I directed that the hearing would go forward only with respect to the parties speaking to an adjournment of the matter to the special sitting. When the motion came on for hearing on 11 May Mr. Creighton was still of the view that his claim to the land ought to be dealt with immediately in the time allocated. Counsel for the Respondents indicated that the whole matter might take several days to hear, at best, but that there were issues of jurisdiction and res judicata which could be canvassed in a day and might well dispose of the whole matter. Those issues, in effect a motion to strike out the originating notice of motion, came on for hearing 26 June 1998.
THE PRESENT MOTION
[12] The motion records, including argument and other supporting material, filed on behalf of the Canadian Imperial Bank of Commerce and on behalf of Cambridge Western Leaseholds Limited constitute an exceedingly workmanlike approach to the motion to strike out on the basis of want of jurisdiction and of res judicata. The affidavit material in support is thorough. The research, both for legal precedent and for relevant background material, is impressive.
[13] In contrast, Mr. Creighton chose not to file any material. His position is that the individual Respondents, who now own the land in question, did not themselves file affidavits dealing with the merits. That being the case and because Mr. Creighton could thus not cross-examine them on affidavit material, he chose not to file any material himself. This is set out in part in a letter received by the Vancouver registry on the evening of 25 June 1998, the evening before the special hearing was scheduled to begin.
[14] In the letter of 25 June, which came to the Court's attention on the morning of the 26th, Mr. Creighton indicated that he would not attend on the motion to strike out, but wished to participate by telephone: such short notice, without good reason, would usually be unacceptable, however since a number of counsel and parties were present I directed that the motion proceed.
[15] Mr. Creighton, who participated by telephone, indicated that he was withholding his written argument because he had been served with no material originating directly from Mr. Franko, the Grants, the Boychucks or the Moroshkyns. Mr. Creighton seemed not to understand that there was no obligation on those land holders to file material, at this point, defending their interests in their land or dealing with the merits of Mr. Creighton's claim, but rather that this was a motion to deal with procedural aspects, namely the right of Mr. Creighton to bring his present proceeding.
[16] Mr. Creighton requested but was refused an adjournment. He indicated that he would not listen to any further comment, but would appeal in any event. He said he would not participate and hung up his telephone.
[17] Judging by a past history of many attempted ex parte motions, his attempt to have a major claim dealt with on its merits in thirty minutes and his attitude toward proper procedural issues, it is apparent that Mr. Creighton does not grasp the concept that while a claimant is entitled to seek a remedy through the courts, a claimant must also hear, consider and deal not only with substantive defences, but also with any reasonable procedural points brought by those responding. In any event, despite cautions that by failing to participate in this present motion he would damage his own position, Mr. Creighton refused to participate, but rather chose to put his faith in an appeal process which, given his non-participation, may well be illusory.
ANALYSIS
[18] I first touch upon the ability of the Court to strike out an originating notice of motion. In most instances the correct procedure is to contest the matter at the eventual hearing, unless there are special circumstances.
[19] This was considered by the Federal Court of Appeal in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (1995) 176 N.R. 48, although the court did not there decide whether an originating notice of motion might be struck out relying upon what are now Rules 4, the gap rule and Rule 221, by which pleadings may be struck out. The Court of Appeal was of the view that there was not necessarily a gap in the Federal Court Rules, for "... the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself." (p. 52). Mr. Justice of Appeal Strayer did go on to leave open the possibility of striking out an originating notice of motion, in an exceptional instance, where it was so clearly improper as to be without any possibility of success:
| "This is not to say that there is no jurisdiction in this court either inherent or through rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. (e.g. Cynamid Agricultural de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127, at 120-121 F.C. (T.D.)). Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion.". |
[20] Subsequently, in Canadian Pasta Manufacturers' Association v. Aurora Importing & Distributing Ltd., an unreported 23 April 1997 decision in proceeding A-252-97, the Federal Court of Appeal struck out an application for judicial review when, in the Court's opinion, the application could not possibly succeed. I have reached a similar conclusion: this is an exceptional instance, for Mr. Creighton's proceeding is so clearly improper that it could not possibly succeed. I now turn to several of the various procedural points presented by the Respondents.
[21] While there are a number of procedural points which the Respondents might raise, there are two principle faults with the claim which might be fatal to it. Both touch on jurisdiction, but from a different view point. There are also valid estoppel arguments.
[22] Expanding a little, first, there is the question of whether the Federal Court has jurisdiction ratione materia, for mere inspection the nature of the subject matter of the claim, results in some doubt as to whether the Court has jurisdiction. Second, if this Court does, in fact, have jurisdiction, ought not the claim to be dismissed on the basis that courts of competent jurisdiction have already decided the same point between Mr. Creighton and his company on the one hand and the Respondents, among others, on the other hand. Thus, in effect, Mr. Creighton is estopped from raising the same issues, on this application, as were previously adjudicated upon by the Saskatchewan Court of Queen's Bench, the Saskatchewan Court of Appeal and by the courts in British Columbia. The relief sought by Mr. Creighton, in these proceedings, constitutes a collateral attack on the orders and judgments of courts of competent jurisdiction: the Federal Court of Canada has no jurisdiction to declare an order or judgment of another superior court, acting within its jurisdiction, to be invalid. Mr. Creighton is also estopped from re-litigating his claim to the land and this is particularly so given the nature of past judgments which are in rem judgments.
Jurisdiction of the Federal Court of Canada
[23] The three essential requirements in order to find jurisdiction in the Federal Court are set out in ITO-International Terminal Operators Ltd. v. Miida Electronics Inc. [1986] 1 S.C.R. 752 at 766:
| "1. There must be a statutory grant of jurisdiction by the Federal Parliament. |
| 2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the present statutory grant of jurisdiction. |
| 3. The law in which the case is based must be a 'law of Canada' as the phrase is used in Section 101 of the Constitution Act, 1867.". |
For the Federal Court to have jurisdiction all three requirements must be met. In the present instance the claim brought by Mr. Creighton, in his originating notice of motion, clearly does not meet the first and second conditions set by the Supreme Court of Canada in International Terminal Operators Ltd.
Statutory Grant of Jurisdiction
[24] The Federal Court, being a statutory court without inherent jurisdiction, must look to jurisdiction conferred by the specific language of federal legislation. Such a statutory grant is found, generally, in Sections 17 - 28 of the Federal Court Act. Here the Applicant relies upon Section 25 of the Federal Court Act:
| "The Jurisdiction of the Federal court of Canada is obtained pursuant to Section 25 of the Federal Court Act. There is no other Court constituted that has extraprovincial jurisdiction to make an order that is effective over two provinces." (paragraph 10 of originating notice of motion). |
Mr. Creighton does also refer to Section 56(1) of the Federal Court Act, however that section is not germane to the present consideration, for it deals with writs of execution. Mr. Creighton refers, as an alternative, to the failure of the Credit Union to comply with the Farm Debt Review Act, the meaning of foreclosure as set out in Section 79 of the Income Tax Act and to bid rigging by the Credit Union, contrary to the Competition Act. None of these additional heads of jurisdiction are germane for a number of reasons including first, the Credit Union is not a party to these proceedings; second, it is clear from the material filed by the Respondents and from the decisions out of the Saskatchewan courts that Mr. Creighton's holding company was just that, a holding company and not a farming enterprise coming within the Farm Debt Review Act; third, that there were no foreclosures, but rather judicial sales of the land; and finally, the allegation of bid rigging is just that, a bare allegation without particulars, an allegation which has been long ago disposed of by other courts. Thus Section 25 of the Federal Court Act is the only pertinent section to consider in the context of the statutory grant of jurisdiction to this Court. Section 25 provides as follows:
| "Section 25 Extraprovincial jurisdiction |
| 25. The Trial Division has original jurisdiction, between subject and subject as well as otherwise, in any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada if no other court constituted, established or continued under any of the Constitution Act, 1867 to 1982 has jurisdiction in respect of that claim or remedy.". |
[25] Section 25 of the Federal Court Act applies where no other court constituted under any of the Constitution Acts has jurisdiction in respect to a claim or remedy. Thus Section 25 does not constitute a valid statutory grant of jurisdiction where a claimant could seek relief in the superior court of any province: Lower Similkameen Indian Band v. Allison [1997] 1 F.C. 475 at 489 - 90 (T.D.) and Powderface v. Baptiste (1997) 118 F.T.R. 258 at 265 and following in which Mr. Justice Heald considered an action in damages by an Indian Band against individuals and concludes by finding that the court lacks jurisdiction. This is clearly put in Winmill v. Winmill [1974] 1 F.C. 539 at 543, Mr. Justice Collier pointing out that "... Section 25 comes into play only when jurisdiction, in the sense of jurisdiction over a subject matter (or in some cases over persons), has not been conferred upon any "other court" by legislation, inherent powers or by some other recognized means by which those other courts ordinarily entertain causes or matters. Where there is that hiatus, and where the remedy claimed or relief sought arises from a law or the laws of Canada, then the Trial Division of this Court has jurisdiction.". Mr. Justice Collier's decision was confirmed by the Court of Appeal, [1974] 1 F.C. 686.
[26] Returning to the present matter I ought first to determine the subject matter of Mr. Creighton's claim. He puts it succinctly in his brief of argument filed 9 April 1998 on the first page:
| "The pith and substance of this application is for this Court to direct the Registrars of land titles offices in the Province of Saskatchewan and British Columbia to reinstate the title to certain parcels of land back into the name of Creighton Holdings Ltd. which have been taken away by way of foreclosure proceedings and sale by a receiver-manager.". |
Now some of this is not strictly so, for the was no foreclosure, but rather the land was transferred by way of judicial sales. However it is clear that the subject matter of Mr. Creighton's application is land in Saskatchewan and land in British Columbia.
[27] There is no question that the jurisdiction over land in Saskatchewan is that of the Saskatchewan Court of Queen's Bench, if not by statute, then by virtue of inherent jurisdiction. The same holds true as to the jurisdiction of the Supreme Court of British Columbia over land in British Columbia. Thus Section 25 of the Federal Court Act does not come into play with respect to the subject matter of Mr. Creighton's application: Section 25 of the Federal Court Act cannot be invoked to provide the necessary statutory grant of jurisdiction. However at this point I must touch upon Creighton v. Saskatoon Credit Union Ltd. (1994) 72 F.T.R. 78.
[28] In Creighton v. Saskatoon Credit Union Ltd., at page 80, Associate Chief Justice Jerome left open whether the Federal Court might have jurisdiction pursuant to Section 25 of the Federal Court Act, but denied Mr. Creighton ex parte remedies against the registrars of land titles in Saskatchewan and British Columbia. Associate Chief Justice Jerome went on to the effect that the question of jurisdiction ought to be properly addressed. Now in Mr. Creighton's earlier action, T-1898-91, Mr. Justice Joyal specifically expressed doubts as to jurisdiction: see the first page of his unreported reasons of 24 October 1991. However the jurisdiction argument was brought to an end by the 7 October 1991 Order of Mr. Justice Dubé: "IT IS HEREBY ORDERED THAT the action be dismissed for lack of jurisdiction of The Federal Court, ...". Thus the jurisdiction point is no longer open.
[29] Counsel for the CIBC also points out that the fact that Mr. Creighton must seek his relief in the courts of two provinces is of no consequence for one should read the word "court", in the context of no other court having jurisdiction, to include the plural, "courts": see subsection 33(2) of the Interpretation Act, R.S.C. 1985, Chap. I-21. To follow this train of thought to a conclusion, to bring this matter within the scope of the statutory grant of jurisdiction under Section 25 of the Federal Court Act, Mr. Creighton would have to show that no other courts of Canada have jurisdiction and that Mr. Creighton is clearly unable to do. Indeed the courts of Saskatchewan and of British Columbia not only have jurisdiction over claims or remedies sought respecting land in their respective jurisdiction but those courts have already in fact taken jurisdiction over, adjudicated upon and finally decided what are clearly all relevant questions relating to the ownership and title to the land: this is made clear in the various judgements and orders filed by the Respondents in their voluminous affidavits and books of material.
[30] Certainly the Saskatchewan Court of Queen's Bench and the Saskatchewan Court of Appeal have no jurisdiction over land in British Columbia and similarly the Courts of British Columbia lack jurisdiction over land in Saskatchewan. While Mr. Creighton's claim involves land in both provinces and while there may be some relationship between the many proceedings taken in the Saskatchewan courts and the British Columbia courts, I see no reason why Mr. Creighton's claim is incapable of being fairly adjudicated in separate proceedings in the Saskatchewan and in the British Columbia courts. Granted, Mr. Creighton, as a vexatious litigant, in both jurisdictions, may not commence new proceedings without leave. However the issue is whether those courts have the jurisdiction to entertain the subject matter of the claims and clearly those courts do have the jurisdiction. One must conclude this examination, as to the presence of a statutory grant of jurisdiction to the Federal Court, by finding that there is none. I now turn to the second part of the test, federal law to nourish the statutory grant of jurisdiction.
Federal Law to Nourish a Grant of Jurisdiction
[31] If I am in error and should Section 25 of the Federal Court Act be held to be a statutory grant of jurisdiction by Parliament, favouring Mr. Creighton's claims, the second essential requirement, as set out in International Terminal Operators Ltd. (supra), is missing. There is no "existing body of federal law which is essential to the disposition of the case". Mr. Creighton must, but is unable to point to a claim for relief or a remedy under or by virtue of a federal law of Canada.1
[32] I would sum up the present proceeding, from the point of view of a remedy under or by virtue of any federal law of Canada, by noting that the Applicant has attempted to artificially create a claim under the Farm Debt Review Act, Chap. 33 of the 1986 Statutes of Canada, alleging a failure by the Credit Union to give notice of its intention to realize upon its mortgage in accordance with Section 22 of the Farm Debt Review Act. Section 22 requires:
| "22. (1) Every secured creditor who intends to realize on any security of a farmer shall give the farmer written notice, in the prescribed form containing the prescribed information, of his intention to do so and in the notice shall advise the farmer of the right of an insolvent farmer to make an application under section 20. |
| (2) The notice referred to in subsection (1) shall be given to the farmer in the prescribed manner at least fifteen business days before the taking of any action by the secured creditor to realize on the security." (emphasis added). |
Under the Farm Debt Review Act only a farmer, engaged in farming, is entitled to notice of an intended realization on security, farmer and farming being defined in Section 2 of the Act. Neither Mr. Creighton's originating notice of motion nor his affidavit of 2 April 1998 alleges that the Company was ever a "farmer" within the Farm Debt Review Act. Indeed, there is substantial material to the contrary. Mr. Justice Barclay, Saskatchewan Court of Queen's Bench, held that Creighton Holdings Ltd. was not a "farmer" but rather a holding company and a real estate developer and as such was not entitled to relief under the Saskatchewan Farm Land Security Act, 1985 Statutes of Saskatchewan, Chap. F-8.01 (handwritten Reasons for Order of Mr. Justice Barclay, 8 July 1986 and Order of 23 July 1986, tabs 7 and 8 of CIBC book of documents).
[33] The Saskatchewan Farm Land Security Act definitions of farm land, farmer and farming2 are the equivalent of the definitions of farmer and farming under the Farm Debt Review Act.3 Given the similarity in definitions and the finding that Creighton Holdings Ltd. was not a farmer, it follows that the Company was not entitled to any notice under Section 22 of the Farm Debt Review Act. This is a specious issue by which Mr. Creighton has attempted to establish a cause of action under a federal statute.
[34] That the Company might have been a landlord to a farmer is of no assistance for a landlord, not being a farmer, is unable to invoke the Farm Debt Review Act: see for example Mayer v. Polsin (1992) 11 O.R. (3d) 216 (Ontario Divisional Court).
[35] To sum up this exploration of federal law needed to nourish a statutory grant of jurisdiction, Mr. Creighton is neither making a claim for relief nor seeking a remedy on behalf of the Company against any of the Respondents under or by virtue of the Farm Debt Review Act or any other federal law. Thus Mr. Creighton's attempt to bring this proceeding within the jurisdiction of the Federal Court fails because there is no valid and subsisting federal law upon which he might make a claim for relief or seek a remedy. I now turn to the matter of res judicata.
Res Judicata and Estoppel
[36] Res judicata, in a broad sense, comprises not only what was traditionally thought of as res judicata, but also legal principles of issue and cause of action estoppel and the prohibition of collateral attacks by one superior court against the judgments and orders of another superior court.
[37] To begin, the general principle of res judicata, one adopted from Re Ontario Sugar Co. (1910) 22 O.L.R. 621 at 623 (H.C.J.) (affirmed 24 O.L.R. 332, leave to appeal to the Supreme Court of Canada denied (1911), 44 S.C.R. 659), is as follows:
| "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court of jurisdiction competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." (Sopinka and Lederman on The Law of Evidence in Canada, 1992 at p. 989). |
[38] The concept of res judicata not only precludes relitigation of issues actually determined between the parties in earlier proceedings, but also prevents a party from subsequently raising issues or defences which ought to have been brought forward in the earlier proceedings. This principle was clearly stated by Vice-Chancellor Wigram in Henderson v. Henderson (1843) 3 Hare 99 at 115; 67 E.R. 313 at 319, a passage adopted by Sopinka and Lederman (supra) at page 998:
| "The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." |
This principle was subsequently applied in Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] A.C. 581 at 590, and see also Borley v. Fraser River Harbour Commission (1995) 92 F.T.R. 275 at 279. In effect the issues raised in the present proceeding were the issues in the Credit Union's action in the Saskatchewan Court of Queen's Bench and also the issues before the British Columbia courts. In the alternative Mr. Creighton and the Company had an onus to raise every point belonging to the litigation in their defence in the Credit Union's juridical sale proceedings and indeed were bound to raise them in those proceedings or be forever barred from raising them.
[39] Of course there is the point as to whether the issues raised in the earlier proceedings in Saskatchewan and in British Columbia were between the same parties. There are two answers. First Mr. Creighton and the Company may, for all practical purposes, be one and the same. The Respondents, in the present proceedings, as successors in title to the land in question, are privy to the judicial sale proceedings of the Saskatoon Credit Union. The determination of the issues raised, or which ought to have been raised in the judicial sale proceedings are not only final and binding upon all parties to those proceedings, but also upon all parties claiming by, through or under those parties, including Mr. Creighton and Creighton Holdings Ltd.
[40] The second answer is that in rem judgments, as opposed to in personam judgments, can be invoked by any person against any other person: see for example Bower and Turner on The Doctrine of Res Judicata, Butterworths of London, 1969, at page 214, paragraph 247. Just what are in rem judgments in the present context? Again Bower and Turner (supra) set this out clearly at page 229, paragraph 273:
| "Any English judicial decision which operates upon a thing (in the physical sense) by affecting a disposition of it, is said to determine the status of the thing, and such decision accordingly may be set up by, or against, any member of the English public, as conclusive in rem, whereas any decision which determines, not the disposition of the thing, but solely the personal rights, liabilities, equities and interests of the parties inter se in relation to the thing, concludes those parties only, or their privies.". |
Counsel for Cambridge Western also refers to McGovern v. State of Victoria [1984] V.R. 570 (Supreme Court of Victoria, Full Court). That case involved forfeiture of a vessel to the Crown, however the owner, during the legal proceedings, sold the vessel, to an unsuspecting new owner. The Court in upholding the trial judge, pointed out that the forfeiture order and its consequences operated in rem and thus the order was effective to create an estoppel per rem judicatam, estopping the new owner from calling into question the efficacy or the consequences of the order. A passage which is relevant is one in which the Court referred to several early basic in rem decisions, including The City of Mecca (1881) 6 P.D. 106, and then said:
| "We think that the principle underlying those decisions is indistinguishable from that which should be held to apply to the present case. That principle is that a judicial decision which creates title to or affects property in a thing in possession is a decision that determines the status of that thing and, to that extent, is conclusive in rem. See Castrique v. Imrie (1870) L.R. 4 H.L. 414, at p. 428 and the observation of the Court of Appeal in Fracis, Times & Co. v. Carr (1900) 82 L.T. 698, at p. 702 to the effect that for a judgment to act in rem in relation to a "res" it must determine the status or disposition of it in the way of condemnation, forfeiture, declaration of status or title or order for sale or transfer. The correctness of this proposition remained unimpeached by the reversal of the case on other grounds sub nom. Carr. v. Fracis, Times & Co. [1902] A.C. 176.". (page 576) |
On the basis that the judgments of the British Columbia and of the Saskatchewan courts dealt with the disposition of land they are judgments in rem and give rise to an estoppel against both Mr. Creighton and Creighton Holdings Ltd. This in rem estoppel is in addition to estoppel as between the parties themselves and their privies. Another aspect of estoppel is that this Court does not have the jurisdiction to question orders and judgments of other superior courts in the context of a collateral attack, a point to which I now turn.
Collateral Attacks on Judgments of other Superior Courts
[41] I have read portions of the reasons of the British Columbia and Saskatchewan courts which the Respondents have filed as material on this motion. There is no reason to believe that the courts reached a wrong or irregular decision. However the order of a superior court, be it even wrong or irregular, cannot be questioned collaterally in any other proceeding. It must be treated as valid and binding unless or until it is changed on appeal: see for example Warehouse Security Finance Company Ltd. v. Oscar Niemi Limited (No. 2) [1944] 3 W.W.R. 567 at 590 (B.C.C.A.), in which Mr. Justice of Appeal Robertson refers to Earl of Bandon v. Becher (1835) 3 Cl. & F. 479; 6 E.R. 1517:
| "It is said that the whole of these proceedings spring from a decree of the Court of Exchequer in Ireland, and that decree being pronounced by a court of competent jurisdiction, upon parties legally before it, cannot not now be questioned in another Court of co-ordinate jurisdiction; but, if brought into dispute at all, should be brought into dispute in the Court where it was originally pronounced. I generally agree to the proposition, but I must add to this one qualification, ..." (Lord Brougham at 509 - 510 and 1528). |
Lord Brougham then went on to discuss the exception, that of fraud, contrivance or covin of any description, of which there are no particulars in the present instance.
[42] Mr. Justice Dubé reached a similar conclusion in MacNeil v. Canada (1988) 19 F.T.R. 147, where he refused to make a declaration as to the validity of an order of Supreme Court of Ontario, the proper course being to appeal that order. In the MacNeil case, after discussing the argument made by counsel Mr. Justice Dubé wrote:
| "Whether that argument has merit or not is not for me to decide under the instant proceedings. This court has no jurisdiction to declare an order or orders of the Supreme Court of Ontario valid or invalid. A proper solution would have been to appeal the orders of the Supreme Court of Ontario." (p. 149 - 150). |
[43] Bringing this into the present context, in seeking an order that the registrars of titles in Saskatoon and Kamloops cancelled certificates of title and reinstate certificates of title in the name of Creighton Holdings Ltd., Mr. Creighton is advancing a collateral attack on final orders and judgments of superior courts. The Saskatchewan Court of Queen's Bench and the Saskatchewan Court of Appeal determined, among other things, that the Credit Union mortgage was valid, that the lands be sold by the sheriff, that the Credit Union might bid on the lands, and that the Credit Union became the confirmed purchaser and directed that the registrar of land titles, Saskatoon, issue a new certificate of title in the name of the Credit Union. Similarly the sale of the land in British Columbia was approved by the British Columbia Supreme Court: see the 26 September 1989 Order of Mr. Justice Maczko in Saskatoon Credit Union Ltd. v. Creighton Holdings Ltd., Vancouver Registry no. C873492 and the 27 September 1989 Order of Mr. Justice Hutchinson in the same proceeding.
[44] The Federal Court does not have the jurisdiction to declare the orders and judgments of the Saskatchewan Court of Queen's Bench, of the Saskatchewan Court of Appeal and of the British Columbia Supreme Court invalid.
CONCLUSION
[45] It is clear that the proper courts in which to determine a dispute between subjects, over land in British Columbia and in Saskatchewan are the superior courts of those provinces. Indeed, the matter was litigated, at great length, before the British Columbia and Saskatchewan courts which, by any measure, had jurisdiction and came to a final decision disposing of the land which Mr. Creighton, in these proceedings, says ought to be transferred into the name of Creighton Holdings Ltd. That being the case the Federal Court of Canada has no jurisdiction under Section 25 of the Federal Court Act.
[46] While it is clear that the Federal Court has no jurisdiction, the case also raises an interesting issue of estoppel in rem and the concept that one superior court ought not to comment upon let alone tamper with judgments and orders of another superior court properly made within that court's jurisdiction. Thus, even if the Federal Court were also to have jurisdiction, Mr. Creighton's proper course was to appeal the decisions of the various trial judges in British Columbia and in Saskatchewan, which he did, to no avail.
[47] My initial inclination was to impose solicitor-client costs against Mr. Creighton for this matter has been litigated to a lamentable and abusive extreme. However solicitor-client costs ought not to be imposed lightly, particularly in the absence of Mr. Creighton, even though it was through his own will that he did not participate. On reflection no purpose would be served by ordering taxation of costs on a solicitor-client basis, which could well give rise to a further round of appeals. Thus taxable costs will be based on Tariff B, column 5, for preparation and filing of a contested motion, appearance on the motion and such other services as may be ordered by the Court, here a massive research of British Columbia and Saskatchewan court records going back some fifteen years, together with reimbursement for travel to do that research.
[48] To Mr. and Mrs. Moroshkyn, who attended and made representations, I may not award costs, in that they acted for themselves. However an indemnity for disbursements are in order. The Moroshkyns come from Kelowna. They will have taxable disbursements to cover out of pocket travel, accommodation and food costs.
[49] I thank counsel for putting together a massive amount of relevant material and for presenting substantial and appropriate argument.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
13 July 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DATED: June 29, 1998
COURT NO.: T-646-98
STYLE OF CAUSE: Daniel P. Creighton
v.
Stefan Franko and others
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF
MR. JOHN A. HARGRAVE, PROTHONOTARY
dated July 13, 1998
APPEARANCES:
Mr. Glen Morgan for CIBC
Mr. Gordon Phillips for Cambridge Western Leaseholds Ltd.
SOLICITORS OF RECORD:
Mr. Glen Morgan
Davis & Company
Vancouver, BC for CIBC
Mr. Gordon Phillips
Stikeman, Elliott
Vancouver, BC for Cambridge Western Leaseholds Ltd.
__________________
1 This line of reasoning ignores the fact that Mr. Creighton appears to have no cause of action in his own right. From the facts presented any cause of action would be that of Creighton Holdings Ltd. and it would be for Creighton Holdings Ltd., not Mr. Creighton, to bring proceedings to have the land title registrars in British Columbia and in Saskatchewan issue certificates of title in the name of Creighton Holdings Ltd., which is the relief that has been requested. Here I would note that the Respondents reserve the right to challenge both Mr. Creighton's cause of action and his standing, however on the approach that I have taken, limiting the Respondents to argument as to jurisdiction, estoppel and res judicata , lack of a cause of action and lack of standing are not, on this motion, in issue.
2 Paragraphs 2(d), 2(e) and 2(f) of the Farm Land Security Act define farmland, farmer and farming as follows: "2 In this Act: (d) 'farm land' means land in Saskatchewan that is issued for the purposes of farming and is subject to a mortgage;
(e) 'farmer' means a mortgagor ... of farm land ...;
(f) 'farming' includes live stock raising, poultry raising, dairying, tillage of the soil, bee-keeping, fur farming or any other activity undertaken to produce agricultural products;".
3 "'farmer' means any individual, partnership, corporation or cooperative association that is engaged in farming;
'farming' means the production of field-grown crops, cultivated and uncultivated, and horticultural crops, the raising of livestock, poultry and fur-bearing animals, the production of eggs, milk, honey, maple syrup, tobacco, fibre, wood from woodlots and fodder crops and the production or raising of any other prescribed thing or animal;'".