Docket: T-2556-14
Citation:
2015 FC 435
Toronto, Ontario, April 9, 2015
PRESENT: The Honourable Madam Justice Mactavish
|
BETWEEN:
|
|
INTERNATIONAL
RELIEF FUND FOR THE AFFLICTED AND NEEDY (CANADA)
|
|
Applicant
|
|
and
|
|
MINISTER OF
PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
|
|
Respondent
|
ORDER AND REASONS
[1]
The International Relief Fund for the Afflicted
and Needy (Canada) (IRFAN) is a not-for-profit corporation whose registration
as a charity has been revoked by the Minister of National Revenue. In April of
2014, IRFAN was added to the list of terrorist entities established by the
Governor in Council under section 83.05 of the Criminal Code. The result
of this listing is that IRFAN’s property and assets have been frozen.
[2]
Following the listing, IRFAN sought an exemption
from the Minister of Public Safety and Emergency Preparedness to unfreeze
monies held in its lawyer’s trust account to allow for the payment of legal
fees that IRFAN had already incurred. IRFAN sought a further exemption from the
Minister to permit it to raise funds to pay for legal advice in relation to a
variety of issues arising out of the listing.
[3]
By letter dated November 27, 2014, the Minister
granted an exemption to allow for the transfer of funds to pay for legal
services that had been rendered to IRFAN prior to it becoming a listed entity.
The Minister refused, however, to authorize an exemption to allow for the
raising of funds to pay for legal advice.
[4]
IRFAN commenced an application for judicial
review of the Minister’s decision, and has brought this motion seeking an order
compelling the Attorney General of Canada to pay for its legal costs associated
with its application. IRFAN says it would prefer to raise money for its legal
costs rather than seek state funding, but the Minister has refused its request
to do so. As a result, IRFAN finds itself in a “Catch-22”
situation in that it seeks to challenge the Minister’s denial of the exemption
permitting IRFAN to raise funds that would allow it to advocate for its
de-listing, but it cannot fund the application to challenge the denial
precisely because the exemption has been denied.
[5]
IRFAN submits that the absurdity of this
situation cries out for court-ordered state funding of its legal costs. This is
especially so, IRFAN says, given the exceptional circumstances of this case,
circumstances that have not previously been encountered in Canadian law.
[6]
I have concluded that the motion should be
dismissed as the evidence provided by IRFAN in support of its motion is
deficient in at least two respects.
I.
The Nature of the Relief Sought
[7]
IRFAN’s Notice of Motion seeks either a “Rowbotham order” requiring the Attorney General
of Canada to remunerate counsel representing IRFAN in this application, or, in
the alternative, an order for advance costs.
[8]
A “Rowbotham order”
takes its name from the decision of the Ontario Court of Appeal in R. v.
Rowbotham, [1988] O.J. No. 271, 41 C.C.C. (3d) 1. In contrast, the
authority for making an order of advance costs comes from the Supreme Court of
Canada’s decision in British Columbia (Minister of Forests) v. Okanagan
Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371.
[9]
Justice Stratas discussed the similarities and
differences between the two types of orders in Mahjoub v. Canada (Minister of Citizenship and Immigration), 2012 FCA 296 at para. 12, [2012]
F.C.J. No. 1698. He observed that while the two lines of authority have
developed separately, they are aimed at the same thing: namely, the provision
of court-ordered state funding for legal representation. As a result, the tests
that have been developed share common features.
[10]
Rowbotham orders
are primarily issued in criminal cases, in situations where trial fairness
requires that an accused be represented by state-funded counsel. The legal
foundation for making such orders is found in sections 7 and 11(d) of the Canadian
Charter of Rights and Freedoms, Part 1 of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (UK), 1982 c.11, which guarantee
an accused a fair trial in accordance with the principles of fundamental
justice.
[11]
Before a Rowbotham order will be made, an
accused must establish that he or she is:
1.
Indigent;
2.
Ineligible for Legal Aid;
3.
Unable to represent him- or herself adequately;
and
4.
Involved in a serious and complex legal
proceeding affecting the individual’s liberty interests.
[12]
Although Rowbotham orders have primarily
been made in criminal cases, the Supreme Court granted a Rowbotham order
in a non-criminal child welfare proceeding that implicated the section 7 Charter
rights of a mother: New Brunswick (Minister of Health and Community
Services) v. G.(J.), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47. Amongst
other things, the mother in G.(J.) was able to satisfy the Court that
she had no other way of securing legal representation in a proceeding concerning
the custody of her child.
[13]
The respondent argues that a Rowbotham order
is not available in this case because, as a corporate entity, IRFAN cannot
invoke the protections of section 7 of the Charter. For the purposes of
this motion, I will assume, without deciding, that section 7 Charter
rights are at stake in this proceeding, whether they be those of IRFAN itself
or the derivative rights of its members.
[14]
In contrast to the Rowbotham test, the Supreme Court of Canada identified three criteria that
must be satisfied in order to justify an award of advance costs: Okanagan
above, at para. 40. That is, the burden
is on the party seeking such an order to show that:
1.
It genuinely cannot afford to pay for the
litigation, and no other realistic option exists for bringing the issues to
trial - in short, the litigation would be unable to proceed if the order were
not made.
2.
The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of
sufficient merit that it is contrary to the interests of justice for the
opportunity to pursue the case to be forfeited just because the litigant lacks
financial means.
3.
The issues raised transcend the individual
interests of the particular litigant, are of public importance, and have not
been resolved in previous cases.
[15]
The Supreme Court went on in Okanagan to
observe that even if these criteria have been satisfied, it is still in the
Court’s discretion to determine whether the interests of justice would be best
served by making the order: at para. 41. This is consistent with Rule 400 of
the Federal Courts Rules, S.O.R./98-106, which confer full discretion on
this Court in relation to matters of costs.
[16]
However, as Justice Stratas noted in Mahjoub,
above, an order for advance costs involves “an
extraordinary exercise of discretion”: at para. 24. Moreover, as this
Court noted in Hagwilget
Indian Band v. Canada (Minister of Indian Affairs and Northern Development) 2008 FC 574 at para. 1, 328 F.T.R. 215, the decision of the Supreme Court in Okanagan
and Little Sisters Book and Art Emporium v. Canada
(Commissioner of Customs and Revenue), 2007
SCC 2, [2007] 1 S.C.R. 38, along with ordinary prudence and common
sense, dictate that extreme caution should be used in the exercise of this
power.
[17]
With this understanding of the relevant tests, I
will next examine the evidence provided by IRFAN in support of its motion.
Given the overlap in the two tests, I will consider the related elements of the
Rowbotham and Okanagan tests together.
II.
IRFAN’s Financial Position
[18]
I would start by recognizing that if IRFAN
wanted to use its own resources to fund this litigation, it would first have to
obtain an exemption from the Minister to allow it to do so. As noted earlier,
the Minister has previously granted IRFAN an exemption to allow it to pay its
legal fees. The question is, however, whether IRFAN has established that it no
longer has any assets available to it.
[19]
Common to both the Rowbotham and Okanagan
tests is the requirement that the party seeking state-funded costs be
unable to pay for its own legal costs. That is, the moving party must show that
it is indigent and ineligible for Legal Aid (Rowbotham) or that it
genuinely cannot afford to pay for the litigation, and that the litigation
would be unable to proceed if the order were not made (Okanagan).
[20]
Although these requirements are phrased somewhat
differently, at the end of the day, the burden is on the party seeking either a
Rowbotham order or an order for advance costs to demonstrate that its
financial position is such that it cannot pay for its own legal costs.
[21]
The Supreme Court held in Little Sisters
that a party seeking an order of advance costs must first explore various
funding options such as private funding, fundraising campaigns and loans: at
para. 40. I accept that as a result of the listing, these avenues are not
available to IRFAN. Indeed, as counsel for IRFAN noted at the hearing, it is
the decision of the Minister refusing an exemption to allow it to fundraise
that is the subject of this application for judicial review.
[22]
Based upon the affidavit filed in support of
IRFAN’s motion, I also accept that Legal Aid is not available to the
organization in this case.
[23]
That said, as the Federal Court of Appeal
observed in Al Telbani v. Canada (Attorney General), 2012 FCA 188 at
para. 9, 441 N.R. 173, a litigant who asks the state to subsidize the costs of
a dispute against the state must demonstrate its financial inability to pay “by filing, at the very least, a detailed statement of their
income and expenditures and a complete financial statement”. Bald
assertions of impecuniosity will not suffice: Metrolinx (GO Transit) v.
Canadian Transportation Agency, 2010 FCA 45 at para. 10, [2010] F.C.J. No.
192
[24]
The only evidence that has been provided to the
Court with respect to IRFAN’s financial situation is a statement in the
affidavit of a legal assistant working in the office of Yavar Hameed, the lawyer
who has been assisting IRFAN in this matter. Based on information obtained from
Mr. Hameed, the legal assistant states that “the
Applicant has no available funds or assets in its possession or held in the
possession of the RCMP capable of paying for legal fees even if an exemption or
Judicial Order for release of […] assets currently held by the Applicant was
granted”: at para. 29. There is no indication in the affidavit as to the
source of Mr. Hameed’s own knowledge of IRFAN’s financial situation.
[25]
IRFAN recognizes that there are “shortcomings” in the evidence it provided to the Court
with respect to its financial situation, and that the evidence “could be more detailed and specific”. IRFAN submits,
however, that as a listed entity, it has a statutory duty to disclose all of
its assets, and that the RCMP is thus fully aware IRFAN’s financial position.
Given that the RCMP reports to the Minister whose decision underlies this
application for judicial review, IRFAN says that I should accept the evidence
it submitted regarding its financial position, notwithstanding its
shortcomings. IRFAN further submits that I should draw an adverse inference
from the failure of the Minister to adduce evidence disputing the legal
assistant’s assertion that IRFAN is impecunious.
[26]
I do not accept IRFAN’s arguments.
[27]
The jurisprudential requirement that an
applicant provide information regarding its financial position when seeking a Rowbotham
order or an order for advance costs is designed to provide the Court
with the information necessary to determine whether the applicant has
established the existence of exceptional circumstances that would justify the
granting of such an order. The fact that IRFAN may have provided financial
disclosure to the RCMP is of no assistance to me in deciding whether a Rowbotham
order or order for advance costs should be granted in this case.
[28]
Moreover, by arguing that it should be excused
from the requirement to provide the sort of detailed financial information
contemplated in Al Telbani because the RCMP already has information
regarding its financial position, IRFAN is essentially trying to shift the onus
to the respondent to prove that IRFAN is not impecunious. This is not
appropriate, given that the jurisprudence clearly puts the burden on the party
seeking a Rowbotham order or order for advance costs to demonstrate that
extraordinary relief of this nature is justified.
[29]
I would further note that by relying solely on
affidavit evidence provided by a legal assistant in counsel’s office who has no
apparent first-hand knowledge of IRFAN’s financial situation, the respondent is
unable to test the reliability of the limited evidence that has been adduced by
IRFAN in a meaningful way.
[30]
As a consequence, IRFAN has not satisfied the
indigency requirement of the Rowbotham test, nor has it demonstrated
that it genuinely cannot afford to pay for the
litigation such that it should be entitled to an order for advance costs.
[31]
My finding on this point is
sufficient to dispose of IRFAN’s motion. However, in the event that IRFAN were
to bring another motion of this nature in the future, I will comment briefly on
other shortcomings in the record before me.
III.
Availability of Representation
[32]
Under the Rowbotham test, an applicant
for state-funded counsel must also demonstrate that he or she is unable to
represent him- or herself adequately. In a motion for advance costs, the moving
party must establish that no other realistic option
exists for bringing the issues to trial.
[33]
As Justice Stratas observed in Mahjoub,
above, at para. 16, courts have repeatedly emphasized “the
need for an accused seeking a Rowbotham order to establish that
significant efforts have been made to find other legal representation or
funding”, citing, by way of example, R. v. Rain, 1998 ABCA 315 at
para. 88, 223 A.R. 359; R. v. Malik, 2003 BCSC 1439, [2003] B.C.J. No.
2167; R. v Dew (E.J.), 2009 MBCA 101 at paras. 22 and 98, 245 Man.R.
(2d) 211; R. v. Rushlow, 2009 ONCA 461 at paras. 28‑30, 96 O.R.
(3d) 302.
[34]
Rule 120 of the Federal Courts Rules
provides that corporations must be represented by counsel unless the Court, in
special circumstances, grants leave for an officer to represent the corporation.
The legal assistant’s affidavit asserts that the unnamed “directing
Board members” of IRFAN are “aged and are dealing
with serious [unidentified] medical issues” and that they do not have
the legal training or knowledge to represent IRFAN in connection with this matter.
Even if I were prepared to accept this very general assertion, I have not been
persuaded that IRFAN has no other realistic option for bringing this
application before the Court.
[35]
According to the legal assistant’s affidavit,
Mr. Hameed has been representing IRFAN on a pro bono basis to this
point, but he would be unable to continue doing so without Court-ordered
funding. Paul Champ represented IRFAN on the costs motion and advised the Court
that he would not continue to act for IRFAN unless an arrangement was made for
the payment of his fees.
[36]
However, as Mr. Champ himself noted during the
hearing, there are a number of other lawyers who are willing to take on cases
such as this one on a pro bono basis. There is no suggestion that IRFAN
has contacted any of these lawyers to see if they would be will to act in this
case.
[37]
A review of the three previous decisions
involving IRFAN that were cited by the parties in argument also reveals that at
least three other lawyers have acted for IRFAN in litigious matters in the
past. It is, moreover, evident from the record that one of these lawyers has
already been involved in this matter. There is no suggestion that IRFAN has
contacted any of these individuals to see whether they would be willing to
represent IRFAN in this application on a pro bono basis.
[38]
I recognize that an argument could be made that
by acting for a listed entity such as IRFAN, counsel could at least
theoretically contravene the provisions of section 83.03 of the Criminal
Code, R.S.C. 1985, c. C-46 by providing services to a listed entity. There
is no evidence before me, however, that this has been an impediment to finding
counsel willing to represent IRFAN in this matter.
[39]
That said, a final comment should be made for
the benefit of counsel who IRFAN may consult in the future, who may be
concerned that they could run afoul section 83.03 of the Criminal Code
by agreeing to represent IRFAN.
[40]
The Minister’s counsel has clearly stated on the
record that there would be no basis on which to prosecute counsel simply for
representing IRFAN in connection with this application. Citing the Supreme
Court’s decision in R. v. Khawaja, 2012 SCC 69 at para. 53, [2012] 3
S.C.R. 555, counsel stated that Parliament’s intent in enacting the terrorism
offences of the Criminal Code “was not to prohibit
innocent or socially useful conduct that does not materially enhance the
abilities of a terrorist group to facilitate or carry out terrorist activity”.
IV.
Conclusion
[41]
Given the shortcomings in the evidence adduced
in support of this motion, IRFAN has not satisfied the test for either a Rowbotham
order or an order for advance costs. I have also not been persuaded that I
should exercise the discretion conferred on me by Rule 400 of the Federal
Courts Rules in IRFAN’s favour.
[42]
I am, however, satisfied that the underlying
application for judicial review involves an unusual situation implicating new
legislation that has not previously been tested. I will therefore dismiss the
motion without prejudice to IRFAN’s right to bring a further motion for
state-funded costs on better evidence. In the exercise of my discretion, I make
no order as to costs.
Email this Content