Date: 20140604
Docket: T-2262-12
Citation:
2014 FC 538
Vancouver, British Columbia, June 4, 2014
PRESENT: Case Management Judge Roger R. Lafrenière
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BETWEEN:
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SAMEER MAPARA
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Plaintiff
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and
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HER MAJESTY THE QUEEN
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Defendant
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REASONS FOR ORDER AND ORDER
[1]
The Defendant, Her Majesty the Queen (the
Crown), seeks an order pursuant to Rule 416 of the Federal Courts Rules
that the Plaintiff, Mr. Sameer Mapara, give security for the Crown’s costs in
this action in the amount of $15,430.78.
[2]
The Crown also seeks an order preventing the
Plaintiff from taking any further step in this action until the security requested
has been paid into Court and an extension of time to serve and file the Crown’s
pre-trial conference memorandum until 30 days from the date security is posted.
[3]
For the reasons that follow, the motion is
granted.
I.
Nature of the Plaintiff’s Claim
[4]
The Plaintiff is a federally incarcerated inmate
serving a life sentence for first degree murder at Ferndale Institution, a minimum-security federal correctional facility located in Mission, British Columbia.
[5]
On December 18, 2012, the Plaintiff commenced
the underlying action in damages against the Crown following his
involuntary placement in administrative segregation for a 20-day period, from
June 1, 2012 to June 20, 2012. The Plaintiff alleges that the Warden of
Ferndale Institution wrongfully and without justification directed that the
Plaintiff be removed from the general population, involuntarily transferred to
Mission Institution and placed in administrative segregation in its secure
custody unit.
[6]
The Plaintiff was informed that the placement
action was being taken according to subsection 311(2)(a) of the Corrections
and Conditional Release Act because there were reasonable grounds to believe
that the Plaintiff had acted, or attempted to act, in a manner that jeopardized
“the penitentiary or the safety of any person”. In
particular, the Plaintiff was accused of making misrepresentations regarding a
charitable fundraiser proposal and producing misleading documentation. The Ferndale
Management Team expressed concern that the Plaintiff and his family members may
have been beneficiaries of the charity.
[7]
The Plaintiff claims that there is no factual
foundation for the allegations against him and that the placement was in
reprisal for the Plaintiff’s use of the grievance process and for bringing
several proceedings against the Warden of Ferndale Institution, including a
number of applications for judicial review before this Court and several habeus
corpus petitions to the British Columbia Supreme Court, the British
Columbia Court of Appeal and the Supreme Court of Canada.
[8]
The Plaintiff alleges in the Statement of Claim
that he was falsely and wrongfully imprisoned by the Warden, that the Warden was
negligent is fulfilling the statutory duty owed to the Plaintiff, and that his
section 7, 9 and 12 Charter rights were breached, thus warranting a
remedy pursuant to section 24(1) of the Charter.
II.
Procedural History
[9]
The Crown’s Statement of Defence was served on
February 1, 2013. There is no record of any Reply being filed by the Plaintiff.
[10]
On July 5, 2013, the Plaintiff brought a motion
in writing seeking relief from the implied undertaking rule that would allow
the Plaintiff to use certain documents produced in the present action for use
in an appeal to the British Columbia Court of Appeal of a decision of the
British Columbia Supreme Court pronounced on February 14, 2013 dismissing
the Plaintiff’s application for habeus corpus. By Order dated August 16,
2013, the motion was granted without costs.
[11]
On February 7, 2014, the Chief Justice ordered
that the proceeding continue as a specially managed proceeding. The Plaintiff
was directed to submit, following consultation with the Crown, a proposed
timetable for completion of the next steps in the proceeding within 20 days.
[12]
On February 25, 2014, the Plaintiff submitted a
letter advising that the parties had agreed that the Plaintiff would serve and
file a requisition for pre-trial conference and a pre-trial conference
memorandum by March 17, 2014. Directions were issued accordingly to the parties.
[13]
Upon receipt of the Plaintiff’s Requisition, the
pre-trial conference was fixed for hearing on May 7, 2014.
[14]
On April 10, 2014, the Crown brought the present
motion. The pre-trial conference was adjourned pending disposition of the
Crown’s motion.
III.
Evidence on the Motion
[15]
The evidence adduced by the Crown in support of
the motion is not particularly contentious. Since 2010, the Plaintiff has
instituted 10 actions, applications or appeals against the Crown, the Attorney
General of Canada or the Government of Canada before this Court and the British
Columbia Supreme Court and Court of Appeal. The majority of the proceedings
were either dismissed with costs or discontinued by the Plaintiff. Costs fixed
or assessed by the courts against the Plaintiff total $13,228.97 and remain
unpaid. Other costs ordered against the Plaintiff in favour of the Crown, which
have yet to be assessed, are estimated at $9,633.52.
[16]
The Plaintiff filed an affidavit in response replete
with personal opinion and argument. To the extent that the affidavit offends
the Rules, the inadmissible portions have been ignored.
[17]
The Plaintiff concedes that certain costs orders
remain unpaid. He states, however, that he is impecunious and that he has
depleted all his financial resources “many years ago.”
He affirms that he has no resources to provide the security for costs
requested by the Crown and does not have the means to raise such funds or
security. He further states that if the Court were to grant the Crown’s motion,
it would deprive him of his right to the courts, thus exacerbating the
injustice against him.
[18]
The Plaintiff states that he has had limited
financial support from his wife since he married her in 2007 but that, due to
health problems, she has not been able to work since the Spring of 2012. The
Plaintiff submitted a doctor’s note dated April 18, 2014 which states that his
wife “is temporarily disabled at this time for regular
activities.”
[19]
The Plaintiff also describes the changes to
inmate rates of pay in his affidavit, which he claims have left him unable to
build a savings reservoir. In order to establish his impecuniosity, the
Plaintiff has provided copies of his financial account balances as of early 2014
at both Mission Institution and Ferndale Institution, which reflect balances of
$0.00 and $84.06, respectively.
[20]
At paragraph 62 of his affidavit, the Plaintiff
states that he had to borrow $300.00 from his family to pay the filing fee for
the requisition for pre-trial conference.
IV.
Relevant Rules
[21]
This motion has been brought under Rule
416. Pursuant to Rule 416(1), the Court may order a plaintiff to give security
for the defendant’s costs where, among other things:
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f) the
defendant has an order against the plaintiff for costs in the same or another
proceeding that remain unpaid in whole or in part,
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f) le
défendeur a obtenu une ordonnance contre le demandeur pour les dépens
afférents à la même instance ou à une autre instance et ces dépens demeurent
impayés en totalité ou en partie
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[22]
Subrule 416(3) states that unless the Court
orders otherwise, the Plaintiff may not take any further steps in the action
(other than an appeal from that order) until the security required by an order
under subsection (1) has been given.
[23]
Rule 417 provides that the Court may refuse to
order that security for costs be given if a plaintiff demonstrates
impecuniosity and the Court is of the opinion that the case has merit.
V.
Issues to be Determined
[24]
A defendant is prima facie entitled to security
for costs where there is an unpaid costs order against the plaintiff in whole
or in part (Ayangma v The Queen, 2003 FC 1013 at para 14; Coombs v
Canada, 2008 FC 894 at para 7; Lavigne v Canada Post Corporation,
2009 FC 756 at para 64; Sauve v Her Majesty the Queen, 2011 FC 1081, at
para 14; aff’d 2012 FCA 287, 2012 FCA 287, at para 6).
[25]
The Plaintiff concedes that he owes costs to the
Government of Canada in the context of other litigation matters, although
he argues that the Crown has grossly misstated those obligations. He further
argues that any amount(s) owing will likely be set off by the costs that will
be awarded to him upon conclusion of his other pending litigation matters.
[26]
As the Crown has filed clear and uncontradicted
evidence of outstanding costs orders against the Plaintiff, I am satisfied that
the Crown is prima facie entitled to an order for security for costs.
[27]
Since the Plaintiff takes no position with
respect to the Crown’s request for an extension of time to serve and file a
pre-trial conference memorandum, the only disputed issue to be determined on
this motion is whether the Plaintiff has met the test under Rule 417 for
avoiding giving security for costs.
VI.
Analysis
A.
The Plaintiff’s Alleged Impecuniosity
[28]
The onus falls on the Plaintiff to demonstrate
that he is impecunious. In Heli Tech Services (Canada) Ltd v Weyerhaeuser
Company, 2006 FC 1169, [Heli Tech] Mr. Justice Douglas Campbell
described the type of disclosure that is necessary:
[8] As to the evidence required to prove impecuniosity, a
high standard is expected; frank and full disclosure is required. That is, the
onus must be discharged with “robust particularity”, so that “there be no
unanswered material questions (Morton v. Canada (Attorney General)
(2005), 75 O.R. (3d) 63 (S.C.J.) at para.32).
[29]
More recently, Mr. Justice Robert Mainville
provided the following description of the type of evidence required to trigger
the application of section 417 in Sauve v Canada, 2012 FCA 287:
[10] Material
evidence must be submitted in order to sustain a claim of impecuniosity,
including complete and clear financial information presented in a
comprehensible format. Tax returns, bank statements, lists of assets, and
(where possible) financial statements should be submitted. Evidence of the impracticability
of borrowing from a third party to satisfy the security order should also be
provided. The possibility of accessing family and community resources should be
considered. No material issue should be left unanswered.
[30]
While the Plaintiff has provided some
institutional financial statements, the evidence provided falls well short of
the “full and frank disclosure” described in the
above jurisprudence. Impecuniosity must be demonstrated to a high
standard, with particularity and full disclosure. This means complete, clear
and current financial information, supported by documentation such as tax
returns, bank statements and lists of assets.
[31]
The Plaintiff states that he “has no resources to provide the security for costs requested”
and does not “have the means to raise such funds or
security”; however, the evidence before me would suggest otherwise. The
Plaintiff appears to have had no difficulty in coming up with almost $1,000.00 over
the past three years to pay filing fees in pursuit of his various litigation
efforts against the Crown. No information is provided regarding the source of such
funding, other than for the most recent filing fee for the requisition for
pre-trial conference in the present proceeding.
[32]
Further, other than a bald statement by the
Plaintiff, there is no indication that the friends and family members that he
mentions, such as his father and brother, would be unwilling to provide him
with financial assistance. To the contrary, the Plaintiff’s own evidence
suggests that he has been able to borrow money from family when necessary in
order to pursue litigation.
[33]
As for his wife’s illness, it does not speak to
her financial means, resources or ability to provide financial assistance to
the Plaintiff.
[34]
The Plaintiff has consistently paid filing fees to
advance the various proceedings he has brought over the past three years. Notwithstanding,
when costs are sought from the Plaintiff, he conveniently pleads poverty. The evidence tendered by the
Plaintiff to make out that position is inconsistent and insufficient.
[35]
I therefore conclude that the Plaintiff has failed
to establish that he is impecunious.
[36]
Although this finding is dispositive of the
motion, for the sake of completeness, I will now turn to the merits of the
Plaintiff’s action.
B.
The Merits of the Case
[37]
On the issue of the merits of his case, the
Plaintiff simply states that he believes that his claim not only has sufficient
merit, but is also compelling and persuasive. In this regard, he relies on his
Pre-Trial Conference Memorandum already served and filed. He further states
that the Crown has no compelling defence, which is why they did not prepare
their pre-trial conference memorandum, and have attempted to use this motion
for security and his legal disability as an inmate to gain leverage against him
to end his litigation and avoid judicial scrutiny.
[38]
The Crown submits that the Plaintiff’s case has
no merit as he simply makes bald statements of fact that provide no basis upon
which to conclude that he has discharged his burden under Rule 417. The Crown
also relies on a decision of the Supreme Court of British Columbia where the
Plaintiff advanced similar allegations of retaliation by the Warden, but in
relation to an involuntary transfer to another institution. The Court dismissed
the Plaintiff’s application, finding that there was no basis for a conclusion
that the Warden or the institution had acted in bad faith. The Plaintiff’s
appeal of that decision was also dismissed (see: Mapara v Warden of Ferndale Institution, BCSC No 26236 (Vancouver Registry), February 14, 2013, Silverman
J. and Mapara v Ferndale Institution [Warden], 2014 BCCA 49).
[39]
The Crown further submits that the Plaintiff has
made similar allegations in other proceedings, but that his assertions have
been given no credence. The Plaintiff has not provided any proof that the
Warden retaliated against him for exercising his rights, only his suspicions. The
Plaintiff’s allegations are serious and it was incumbent on the Plaintiff to
demonstrate in response to the Crown’s motion that there is some evidence,
beyond conjecture and suspicion, to prove such allegations.
[40]
I am not satisfied that the Plaintiff has
adequately demonstrated that his case has merit. As the burden under Rule 417
falls on the Plaintiff to satisfy the Court that the case has sufficient merit,
I conclude that both elements of the conjunctive test under Rule 417 are
missing.
VII.
Conclusion
[41]
For the above reasons, I find that the Plaintiff
has failed to demonstrate both impecuniosity and that his case has any merit.
In making these findings, I am mindful of the two fundamental values in our
system of litigation, that is “that everyone should be
able to have their day in court” and “that
defendants must have reasonable protection from claims that have no merit”
(Wall v Horn Abbot Ltd, 176 NSR (2d) 96, 29 CPC (4th) 204 (CA) at 208).
[42]
I acknowledge that the Plaintiff’s circumstances
as a prisoner incarcerated in a federal institution raise the concern of proper
access to justice. In Heli Tech above, Justice Campbell discussed access
to justice in the context of Rule 417:
[4] The
jurisprudence supports the Rule in providing access to justice even though a
litigant might be required to pay security for costs but is unable to do so:
Justices of
this court have stated that care should be taken in exercising a power to order
security for costs to ensure that the order does not deprive an appellant of
his right to appeal (Phoenix Transportation Consultants Ltd. v. Pacific
Freightways Ltd., [1989] B.C.J. No. 2189);
…‘the general
rule is that poverty is no bar to a litigant’. The power to require security
for costs ought not to be used so as to bar even the poorest man from the
courts…(Kropp v. Swaneset Bay Golf Course Ltd., [1997] B.C.J. No. 593
quoting from the leading English decision Pearson v. Naydler, [1977] 3
All E.R. 531 at para.16; and
There can be no question that an injustice would result if a
meritorious claim were prevented from reaching trial because of the poverty of
a plaintiff. If the consequence of an order for costs would be to destroy
such a claim no order should be made. Injustice would be even more manifest if
the impoverishment of plaintiff were caused by the very acts of which plaintiff
complains in the action (John Wink Ltd. v. Sico Inc., [1987] O.J. No.
5).
[43]
More recently, in Nicholas v Environmental
Systems (International) Limited, 2009 FC 1160 Mr. Justice Richard Mosley
addressed the issue of access to justice in the context of Rule 417 in the
following terms:
[20] The Courts
have been anxious to ensure access to justice where a litigant is required to
pay security for costs but is unable to do so. This was expressed in the
following terms by Reid J. in John Wink Ltd. v. Sico Inc., (1987), 57
O.R. (3d) 705, 15 C.P.C. (2d) 187, [1987] O.J. No. 5, at paragraph 8:
There can be no question that an injustice would result if a
meritorious claim were prevented from reaching trial because of the poverty of
the plaintiff. If the consequence of an order for costs would be to destroy
such a claim no order should be made.
[44]
While I am sympathetic to the challenges that
the Plaintiff must face as a self-represented federal inmate conducting
litigation in the courts, the fact that he has made no payment, or any arrangements
to pay the outstanding costs awards over time militate against him. Further, I
cannot ignore that the Plaintiff is no ordinary litigant. The Plaintiff has chosen
to bring numerous proceedings against the Crown. It should therefore have come
as no surprise to the Plaintiff that there would be cost consequences in the
event he was unsuccessful.
[45]
Based on all of the foregoing, I am satisfied
that it is appropriate to grant the Crown’s motion for security for costs in
this matter.
[46]
As for the amount of costs to be provided by the
Plaintiff, I note that the draft Bill of Costs provided by the Crown includes a
claim for fees related to preparation for contested motions. The claim as it
relates to the Plaintiff’s motion for relief from the implied undertaking is denied
as the motion was dismissed without costs. The claim for the present motion is
allowed at 5 units.
[47]
As for the claims for anticipated fees for
written argument following the trial (5 units), and assessment of costs (3
units), I am not satisfied that such fees will be incurred in the event the
matter proceeds to trial. In addition, the amount of $2,000.00 claimed for
anticipated disbursements appears to be somewhat high.
[48]
In the circumstances, the security to be paid by
the Plaintiff is hereby fixed in the amount of $12,000.00.
[49]
The Crown requests that the security be provided
in full before any further steps are taken by the Plaintiff in this proceeding.
Given the late stage of this proceeding, I find payment of security in full to
be appropriate.
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