Date: 20120620
Docket: A‑282‑11
Citation:
2012 FCA 188
CORAM: NOËL J.A.
TRUDEL J.A.
MAINVILLE J.A.
BETWEEN:
HANI AL TELBANI
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
[1]
Hani Al Telbani is appealing
an interlocutory order of the Federal Court (2011 FC 945) by which his motion
for advance costs was dismissed. The appellant filed his motion in the context of
proceedings in an application for non‑disclosure of information
instituted by the Attorney General of Canada under subsection 38.04(1) of
the Canada Evidence Act, R.S.C. 1985, c. C‑5 (Federal Court
docket DES‑2‑10).
[2]
The factual background in
place before the Attorney General made his application is as follows. On June 4, 2008, Hani Al Telbani was
refused the right to board an Air Canada flight to go to Saudi Arabia. At that time, he was given a copy of an emergency direction
stating that the Minister of Transport, Infrastructure and Communities had
determined that he posed an immediate threat to aviation safety. The appellant’s name was on the no‑fly list. Following that, the appellant filed two applications
for judicial review in the Federal Court, the first challenging the initial
decision to place his name on the no‑fly list (T‑973‑08), and
the second concerning the negative outcome of the re‑examination of that
initial decision (T‑1696‑09). This
is the context in which the Attorney General filed his application for non‑disclosure
to protect certain pieces of information related to those applications for
judicial review.
[3]
Relying on the teachings of the
Supreme Court of Canada in British Columbia (Minister of Forests) v.
Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, the Federal Court
judge (Judge) concluded that the three conditions required for advance
costs to be ordered (Okanagan conditions) had not been met in this case. These are reproduced at paragraph 17
of the Federal Court’s reasons and are not in dispute. The subject of this appeal concerns only the application of
the facts to those conditions.
[4]
Although the Judge readily acknowledged
the link between the Attorney General’s application and the appellant’s
applications for judicial review, he analyzed the Okanagan conditions in
light of the Attorney General’s application. The appellant submits that the Judge should also have taken
into account the seriousness of the issues raised in his two applications
for judicial review. Had he done so, he would
have concluded differently.
[5]
At paragraphs 3 and 4
of his reasons, the Judge replied to that argument by first pointing out that
he was ruling only on the Attorney General’s application and that the Federal
Court was not called upon to consider the merits of the appellant’s two applications
for judicial review. The
Judge further noted that both of those files involved respondents other than the
Attorney General, who did not intend to take a position on the claims made in
those files, and that it would be up to the judge eventually responsible for
ruling on both of those applications for judicial review to make a decision on
advance costs in both files.
[6]
Having made that decision,
the Judge therefore analyzed the evidence in respect of the Okanagan
conditions.
[7]
Regarding the first
condition, he stated that he was unable to conclude that the appellant was
financially unable to pay for the litigation. More specifically, the Judge wrote the following:
Not only has Mr. Al Telbani not proven his
impecuniosity, but he has also failed to establish that there is no other
alternative that would allow him to pay his legal fees.
[8]
This is at best a finding of
mixed fact and law in which this Court will only intervene if it is satisfied
that the Judge erred in principle or reached a conclusion that is plainly
wrong: Little Sisters Book and Art Emporium v. Canada (Commissioner of
Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38, at paragraph 49;
Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R. 303, 2004 SCC 9, at paragraph 27. I have not been satisfied that this
was so.
[9]
Litigants who ask the state
to subsidize all or part of the costs incurred in a dispute against the state
must show their financial inability by filing, at the very least, a detailed
statement of their income and expenditures and a complete financial statement. This
was not done in the case at bar.
[10]
Furthermore, with regard to
alternative sources of funds, such as a spouse or extended family members,
litigants must file “a financial table which is as complete as possible”
showing the financial situation of those persons: Charkaoui, Re, 2004 FC
900. Litigants must explain
in sufficient detail the specific financial circumstances of those persons or,
if applicable, provide valid reasons why they do not have access to alternative
resources. In this case, the evidence
submitted by the applicant is limited to two very general statements: he cannot
impose a financial burden on his parents beyond the contributions they have
already made to supporting him for his studies in Canada, and his other family
members lack the financial means to assist him (Appellant’s affidavit filed in
the Federal Court, appeal book, page 46, at paragraphs 36 and 38).
This evidence is insufficient to constitute a
financial table which is as complete as possible. The record reveals nothing about the appellant’s parents’
financial means except that they are the ones who supported him financially
during the course of his studies in Canada and that they would be inclined to
help him so that he could settle in Saudi Arabia.
[11]
It is therefore not surprising
that the Judge found it difficult to establish a clear picture of the appellant’s
financial situation.
[12]
It is not in dispute that
the Okanagan conditions are conjunctive. Since the first condition was not satisfied, the
motion had to be dismissed. However, in the
event that he had erred, the Judge nonetheless pursued his analysis under the
second and third conditions.
[13]
Under the second condition,
which raises the question of whether the claim to be adjudicated is prima
facie meritorious and the collateral question of whether it would be
contrary to the interests of justice for the opportunity to pursue the case to
be forfeited just because the appellant lacks financial means, the Judge
concluded that the appellant was not a respondent in the usual sense of the
term in docket DES‑2‑10 in respect of which the motion for
advance costs was filed. The
Judge noted that two experienced state‑funded counsel had been
appointed as amici curiae to participate in both the in camera
and public hearings required by the case and that only 31 documents were
at issue. As a result, the workload of any
counsel representing the appellant would be reduced. Thus, the Judge concluded that it would be “exorbitant to
order advance costs” in such circumstances.
[14]
Finally, turning to the third question,
the Judge concluded that the issues raised by the appellant did not transcend
his own interests and were not of public importance, having been resolved in
previous cases. In this he
was referring, among other things, to the appellant’s stated intention to use
the argument of constitutional invalidity against section 38 of the Canada
Evidence Act or the order to be made under that section (Appellant’s
Memorandum of Fact and Law, at paragraph 11). First of all, I note that the appellant has not yet filed
with the Federal Court a Notice of Constitutional Question as required by section 57
of the Federal Courts Act, R.S.C. 1985, c. F‑7. Second, the Judge correctly pointed out that the appellant’s
contentions on the validity of section 38 have already been decided by the
Canadian courts. According to the Judge, it
therefore cannot be argued “that these are issues of the utmost important and
of public interest, especially as Mr. Al Telbani has failed to explain how the
arguments he might raise would challenge the exhaustive analysis that the
Supreme Court undertook in [R. v. Ahmad, 2011 SCC 6, [2011] SCJ No 6,
and the Court of Appeal for Ontario in Abou‑Elmaati v. Canada
(Attorney General), 2011 ONCA 95, [2011] OJ No 474]” (Judge’s reasons
at paragraph 33).
[15]
As noted above, the Judge did
not have to deal with the final two Okanagan conditions, but he decided to
do so in obiter. Subject
to the same caveat, I agree with his analysis.
[16]
In short, I am not satisfied
that the Judge erred in principle or made any other error warranting this Court’s
intervention in the analysis of the appellant’s arguments supporting his motion
for advance costs. Consequently, I would dismiss the
appeal with costs in this Court.
“Johanne Trudel”
“I concur.
Marc
Noël, J.A.”
“I concur.
Robert M. Mainville, J.A.”
Certified true
translation
Sarah Burns
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