Executive Summary: Key Legal and Evidentiary Issues

• Court assessed whether a vexatious litigant met the requirements under subsection 40(4) of the Federal Courts Act for leave to commence a new judicial review.

• The applicant’s motion materials were found structurally compliant but substantively non-compliant with several Federal Courts Rules.

• Supporting affidavits lacked admissible evidence and did not demonstrate a reasonable litigation plan or compliance assurances.

• Alleged Privacy Act violations tied to failure to release documents under the Hague Convention on Service were viewed as part of prior, unsuccessful litigation.

• Court concluded the intended proceeding constituted an abuse of process and lacked reasonable factual and legal grounds.

• Costs were awarded to the respondent in the amount of $1,080.00.

Facts and outcome of the case

Background
Volodymyr Hrabovskyy, previously declared a vexatious litigant by the Federal Court in 2017, sought leave under subsection 40(4) of the Federal Courts Act to commence a new application for judicial review. This intended proceeding arose after the Office of the Privacy Commissioner rejected his complaint against Global Affairs Canada’s Diplomatic Law Division, which he alleged had withheld certain documents—specifically proof of service or non-service from Germany and Norway in 2015—under the Privacy Act. These documents were linked to his prior attempts to serve materials through the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. The applicant argued that Global Affairs Canada acted like a postal intermediary and was obliged to forward the certificates to him.

Legal issues before the court
The Court needed to determine whether Mr. Hrabovskyy had met the statutory test: that the intended proceeding was not an abuse of process and had reasonable grounds, and that he would prosecute it in an acceptable manner. The Court also evaluated whether the proposed proceeding was essentially a continuation of his prior failed litigation, including similar matters previously dismissed by both the Federal Court and the Superior Court of Quebec.

Court’s analysis
The Court found the applicant’s motion record to be deficient. While it met certain structural filing requirements, it failed substantively under multiple rules due to inconsistencies in party names, formatting irregularities, and non-compliance with procedural requirements for affidavits. The affidavits submitted were labeled as “affidavit of documents” but did not contain admissible evidence or meet the requirements for a supporting affidavit under Rule 363. The Court also noted the absence of a litigation plan, evidence of legal advice, or commitments to comply with court rules and directions. On the merits, the Court determined the proposed proceeding was an abuse of process, as it effectively sought to relitigate issues from his past unsuccessful cases, only now framed through the Privacy Act.

Decision
Justice Duchesne dismissed the motion for leave, finding that the applicant had not demonstrated that his proposed proceeding was reasonable, nor had he shown it would be conducted appropriately. The Court concluded the matter was an abuse of process and lacked a reasonable factual and legal basis. The Court ordered the applicant to pay the Attorney General of Canada costs fixed at $1,080.00, representing party-and-party costs at the midpoint of column III of Tariff B for items 5 and 6. The decision resulted in a win for the respondent, Global Affairs Canada’s Diplomatic Law Division.