Date: 20090730
Docket: A-182-09
Citation: 2009 FCA 237
Present: LAYDEN-STEVENSON
J.A.
BETWEEN:
MOHAMMAD
ASLAM CHAUDHRY
Appliclant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LAYDEN-STEVENSON J.A.
[1]
The
respondent seeks security for costs under Rule 416(f) of the Federal Courts
Rules. I am satisfied, for the reasons that follow, that this is an
appropriate case for such an order.
[2]
Rule
416(f) provides:
|
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.
|
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;
|
[3]
The respondent asks for an order requiring:
·
the applicant to give security for costs in the
amount of $2,970 representing the estimated costs that may be awarded to
the respondent if the application is not successful;
·
the security to be given by paying $2,790 into
court pursuant to Rule 418(a) within 60 days from the date upon which the
applicant receives notice of the order, failing which the application will
be dismissed with costs;
·
the applicant to provide notice to the
respondent when payment into court is made;
·
the applicant to pay costs of the motion,
payable forthwith, in any event of the cause.
[4]
Further, the respondent asks that the applicant
be prohibited from taking any further steps in this application until payment
of the security has been made and notice has been given.
[5]
The
applicant was rejected on probation by the employer in 2004. He referred a
grievance against his dismissal to the Public Service Labour Relations Board.
He additionally filed a complaint under section 23 of the Public Service
Staff Relations Act, R.S.C. 1985, c. P-35, alleging that he had been
threatened with the loss of his job if he filed a grievance. The grievance and
complaint were heard together by the board member, sitting as both an
adjudicator and a board member under the Public Service Labour Relations Act,
S.C. 2003, c. 22, s. 2. The applicant was represented by his bargaining agent.
The decision dated July 13, 2005 dismissed both the complaint and the
grievance.
[6]
The
applicant filed a judicial review application against the decision with respect
to the grievance (the grievance decision). He took no action with respect to
the complaint until January 9, 2009, when he submitted a request for
reconsideration. On March 25, 2009, the board member dismissed the application
for reconsideration. That decision is the subject of this application (the
reconsideration decision).
[7]
The
respondent has provided evidence of certificates of assessment with respect to
proceedings in the Federal Court, the Federal Court of Appeal and the Supreme
Court of Canada regarding the grievance decision. The amount of $4,260 assessed
on December 4, 2008 in relation to Federal Court file number T-374-06 remains
unpaid. The amount of $2,100 assessed on December 9, 2008 in relation to
Federal Court of Appeal file number A-229-07 (an appeal from F.C. T-374-06)
remains unpaid. Demands for payment of both amounts were made by the respondent
in December, 2008. On November 13, 2008, the Supreme Court of Canada refused an
application for leave to appeal. Costs were taxed and assessed against the
applicant in the amount of $1,408.91. There is no indication that payment has
been made with respect to that amount.
[8]
There are
other matters in the Federal Court and the Federal Court of Appeal where costs
have been ordered to be paid by the applicant to the respondent. Specifically,
the following amounts remain outstanding:
·
$500 costs - Order of Prothonotary Aalto dated July
11, 2007 (F.C. file
number T-702-07);
·
$750 costs - Federal Court judgment dated March
17, 2008 (F.C. file
number T-702-07);
·
$500 costs - Federal Court of Appeal judgment
dated May 5, 2008 (F.C.A. file number A-489-07).
[9]
On the
evidence, I am satisfied that the applicant has a history of failing to pay the
costs awarded against him. The amount of $2,500 remains outstanding in relation
to this Court alone. Unless the applicant can bring himself within Rule 417, I
see no reason to refuse the respondent’s request. Rule 417 states that an order
for security for costs may be refused in circumstances where an applicant
demonstrates impecuniosity and the Court is of the opinion that the case has
merit.
[10]
Although I
have grave doubts regarding the merits of the application, the applicant, in
any event, has not demonstrated impecuniosity. The standard in this respect is
high. Frank and full disclosure is required and the onus must be discharged
with particularity: B-Filer Inc. et al. v. Bank of Nova Scotia, 2007 FCA
409, 371 N.R. 292; Heli-Tech Services (Canada) Ltd. v. Weyerhaeuser Co.,
2006 FC 1169, 300 F.T.R. 192.
[11]
The
applicant provides no specificity with respect to impecuniosity. There is a
statement in his memorandum of fact and law (rather than in his affidavit) that
“the irrefutable evidence of a person’s impecuniosity is his entitlement for
Social Assistance.” He claims to have been on social assistance since August,
2005. He acknowledges receipt of a cheque in the amount of $3,406 from Treasury
Board on June 22, 2009. There is nothing further. There is no detail regarding
the applicant’s finances (assets, income, expenses, liabilities), his ability
to access funds, his prospects for employment, or his efforts in this regard.
The applicant has not met the evidentiary burden required to demonstrate
impecuniosity.
[12]
The only
other argument responsive to the motion is that Rule 416 does not apply to the
applicant because it relates only to “a third party or a party in a
counterclaim.” This ill-conceived assertion arises as a result of Rule 415
which provides that Rules 416 to 418 apply, with such modifications as are
necessary, to parties bringing and defending counterclaims and third party
claims, to applicants and respondents in an application and to appellants and
respondents in an appeal. Rule 415 does not restrict the application of Rule
416 to third parties or parties involved in counterclaims. Rather, it ensures
that, unlike the former Rule 446 (which applied only to actions), Rule 416
applies to all proceedings, actions, applications and appeals.
[13]
Turning to
the amount of the security for costs that should be ordered, I am not satisfied
that the amount claimed in the respondent’s proposed draft bill of costs is
reasonable. It is not at all certain, if the applicant is not successful, that
the respondent will be entitled to costs at the upper end of Column III. I have
concluded that the order for security for costs should specify the amount of
$1,670, including disbursements. The respondent will be awarded costs of the
motion in the amount of $300.
"Carolyn
Layden-Stevenson"
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