Date: 20121109
Docket: A-353-11
Citation: 2012 FCA 287
CORAM: NOËL
J.A.
PELLETIER J.A.
MAINVILLE
J.A.
BETWEEN:
GARY SAUVE
Appellant
and
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
This
is an appeal from an order, cited as 2011 FC 1081, under which Justice
Martineau (“judge”) of the Federal Court dismissed an appeal from a decision of
Prothonotary Tabib (“prothonotary”) requiring the appellant to give security
for costs in the amount of $10,000 pursuant to paragraph 416(1)(f) of
the Federal Courts Rules, SOR/98-106 (“Rules”).
[2]
The
appellant, a former RCMP officer, has initiated six separate actions in the
Federal Court seeking compensation for harm allegedly suffered at the hands of
the RCMP. Several costs orders have been made against the appellant in these
proceedings, most of which have remained outstanding.
[3]
The
Rules provide that when a plaintiff has outstanding costs orders against
him, the Federal Court may order that security be given for the defendant’s
costs. However, the Rules also provide that such security may be refused
if the plaintiff demonstrates impecuniosity. The pertinent provisions of the Rules
read as follows:
|
416. (1) Where, on the motion of a defendant, it appears to the
Court that
...
(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,
the Court may order the plaintiff to give
security for the defendant’s costs.
417. The Court may
refuse to order that security for costs be given under any of paragraphs
416(1)(a) to (g) if a plaintiff demonstrates impecuniosity
and the Court is of the opinion that the case has merit.
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416. (1) Lorsque, par suite d’une requête du défendeur, il
paraît évident à la Cour que l’une des situations visées aux alinéas a)
à h) existe, elle peut ordonner au demandeur de fournir le cautionnement
pour les dépens qui pourraient être adjugés au défendeur :
[…]
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;
417. La
Cour peut refuser d’ordonner la fourniture d’un cautionnement pour les dépens
dans les situations visées aux alinéas 416(1)a) à g) si le
demandeur fait la preuve de son indigence et si elle est convaincue du
bien-fondé de la cause.
|
[4]
The
prothonotary determined that the appellant had not established that he was
impecunious. She consequently found that section 417 of the Rules did
not apply. She conservatively set the security for costs at $10,000 taking into
account the plaintiff’s own pre-trial submissions that some 50 witnesses would
be called, and her estimate that the trial would last for 2 to 3 weeks. She
also set a one year period to provide the security, considering that the
plaintiff was also required to comply with other orders for costs (including
security for costs) made against him.
[5]
After
carefully reviewing the jurisprudence concerning paragraph 416(1)(f) and
section 417 of the Rules, the judge denied the appeal from the
prothonotary’s order. The appellant, who represents himself, now appeals that
decision to our Court.
[6]
I
need not discuss in any detail the legal principles applicable to security for
costs orders under the Rules since these principles are ably set out in
the reasons of the judge.
[7]
I
only need to point out that though security for costs is a tool in the
furtherance of the efficient and orderly administration of justice, in
determining if such security is required, courts must ensure not only that the
justice system works efficiently, but also that it works fairly for all the
parties involved. When a defendant has obtained an order for costs against a
plaintiff, and the latter does not comply with that order, fairness requires
that the defendant not be unduly exposed to further costs risks. However,
fairness also requires that when it is clear that the effect of an order for
security for costs would be to preclude an impecunious plaintiff from advancing
an otherwise meritorious claim, security for costs in favour of the defendant
should usually be denied.
[8]
The
appellant submits in this appeal that the prothonotary and the judge denied him
access to the judicial system and breached his constitutional rights because he
was poor and self-represented. This submission is a mischaracterization of the
proceedings and of the issues dealt with by both the prothonotary and the
judge. The only relevant issue before them was whether the appellant had indeed
established impecuniosity that prevented him from pursuing his action should
security for costs be ordered.
[9]
The
only evidence submitted by the appellant to support his claim of impecuniosity
were bald statements. A bald statement from a litigant that he does not have
the means to provide security for costs is clearly insufficient to trigger the
application of section 417 of the Rules: B-Filer Inc. v. Bank of Nova
Scotia, 2007 FCA 409; 371 N.R. 292 at paras. 9 to 11; Chaudhry v. Canada (Attorney General). 2009 FCA 237; 393 N.R. 67 at para. 10.
[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.
[11]
The
appellant presented no such evidence to the prothonotary.
[12]
During
the hearing of this appeal, the appellant acknowledged that he had recently
paid $5,000 to satisfy a security for costs order in another related proceeding
before the Federal Court, and that he was prepared to provide a reduced amount
of $5,000 as security for costs in these proceedings. The appellant also
informed this Court that he had secured legal counsel to represent him at
trial. All this seems at odds with his prior statements before the prothonotary
and the judge that he could not pursue these proceedings if the security for
costs order was left standing.
[13]
At
the appeal hearing, the appellant requested that the amount of the security be
reduced to $5,000 on the ground that the respondent is partly responsible for
the large number of witnesses and the estimated length of the trial. I would
deny this request. There is no evidence before us of misconduct on the part of
the respondent in its defence to this action. In setting the amount of the
security at $10,000, the prothonotary considered the relevant factors,
including the list of 50 witnesses proposed by the appellant and the estimated
length of the trial. She further determined that the amount of $10,000 would be
considerably less than the costs to which the defendant would be entitled to in
the event its defence to the action was successful.
[14]
Consequently,
the prothonotary committed no reviewable error in setting the security for
costs at the amount she ordered, and the judge rightfully declined to interfere
with that order. I would therefore dismiss this appeal, with costs.
"Robert M.
Mainville"
“I
agree
Marc Noël J.A.”
“I
agree
J.D. Denis Pelletier J.A.”
FEDERAL COURT OF
APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-353-11
APPEAL FROM AN ORDER OF THE
HONOURABLE MR. JUSTICE MARTINEAU, DATED SEPTEMBER 20, 2011, DOCKET NO. T-996-09
STYLE OF CAUSE: Sauve
v. The Queen
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November
6, 2012
REASONS FOR JUDGMENT
BY: MAINVILLE
J.A.
CONCURRED IN BY: NOËL
J.A.
PELLETIER J.A.
DATED: November
9, 2012
APPEARANCES:
|
Gary
Sauve
|
ON
HIS OWN BEHALF
|
|
Agnieszka
Zagorska
Abigail
Martinez
|
FOR
THE RESPONDENT
|
SOLICITORS OF RECORD:
|
William
F. Pentney
Deputy
Attorney General of Canada
|
FOR
THE RESPONDENT
|
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