Docket: T-2262-12
Citation:
2015 FC 110
Vancouver, British Columbia, January 28, 2015
PRESENT: The Honourable Madam Justice Simpson
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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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ORDER AND REASONS
(Reasons
given orally on January 27, 2015)
[1]
In a decision dated June 4, 2014, the
Prothonotary granted the Defendant’s motion for security for costs (the
Decision). These reasons dismiss the Plaintiff’s appeal from that Decision.
I.
Issues
[2]
There are three issues:
1.
Should four affidavits, which were not before
the Prothonotary, be received for use on this appeal?
2.
Was the question before the Prothonotary vital
to the final issue in the Plaintiff’s action? If this question is answered in
the negative, the next issue is as follows.
3.
Is the Prothonotary’s decision clearly wrong,
i.e. based on a wrong principle or on a misapprehension of the facts?
II.
Discussion
A.
Issue 1
[3]
The Plaintiff’s affidavit sworn on April 23,
2014, was before the Prothonotary and was considered on this appeal. However,
the Plaintiff also wished to rely on three affidavits sworn on November
14, 2014. They were his own, one from his father and one sworn by his brother. In addition,
there was a second Plaintiff’s affidavit sworn on January 8, 2015. As noted
above, they were not before the Prothonotary and I declined to receive them
because there was no suggestion that the material they contained could not have
been before the Prothonotary. It is my view that they were produced to
improve the Plaintiff’s case for impecuniosity and in an effort to remedy some
of the deficiencies in evidence identified by the Prothonotary.
B.
Issue 2
[4]
The question before the Prothonotary was whether
the Plaintiff should be required to give security for costs. The Plaintiff’s
action is for damages arising from a decision made by the Warden of Ferndale
Institution to move him to administrative segregation for 20 days. The case law
is clear that security for costs is not vital. In this regard, see Fraser v James Family Foods Ltd, 2011 FC 569 at para 16.
C.
Issue 3
[5]
The fact that $13,228.97 has been awarded in
costs in favour of the Crown in other proceedings and remains unpaid is not
disputed. In my view, the Prothonotary was not clearly wrong. He considered the
appropriate rules, being Rules 416(1) and 417, and canvassed the case law to
determine the standard of proof required of the Plaintiff. He correctly decided
that a high standard was required and reasonably concluded that it had not been
met because: i) there was no evidence about the Plaintiff’s wife’s assets; ii) there
was no evidence that friends and family were unable to provide the Plaintiff with
financial assistance; and iii) the Plaintiff had consistently been able to
afford the filing and other fees associated with the ten lawsuits he has
commenced since 2010.
[6]
Having concluded that impecuniosity had not been
shown, it followed that Rule 417 did not apply and the Prothonotary was
entitled to exercise his discretion in favour of granting the Defendant’s
motion for security for costs. In view of his conclusion on impecuniosity, the
Prothonotary was not required to deal with the merits of the Plaintiff’s
action. Accordingly, I will not consider that portion of his Decision.
[7]
Finally, I note that this is not a case in which
the Decision requiring security for costs has barred a plaintiff from access to
the court due to poverty. In this case, the Decision made because the Plaintiff
failed to demonstrate that he is impecunious.
III.
Conclusion
[8]
The appeal will be dismissed. Costs will be awarded
to the Defendant in any event of the cause and fixed at $500.
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