Docket: A-346-15
A-347-15
A-348-15
Citation:
2016 FCA 305
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CORAM:
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PELLETIER J.A.
SCOTT J.A.
DE MONTIGNY J.A.
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BETWEEN:
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SAMEER MAPARA
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Appellant
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and
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CANADA
(ATTORNEY GENERAL)
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Respondent
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REASONS
FOR JUDGMENT
DE
MONTIGNY J.A.
[1]
Mr. Mapara, on his own behalf, appeals from
three Orders dated May 8, 2015 whereby the Motions Judge granted the
Respondent’s motions for security for costs in each of Federal Court File Nos.
T-1879-14, T-1925-14 and T-2248-14. Having carefully considered the Record as
well as the oral and written submissions of the parties, I am of the view that
these appeals should be dismissed.
[2]
Mr. Mapara is serving a life sentence for first
degree murder; he has been incarcerated since 2001 and will not be eligible for
parole until 2027.
[3]
Since 2010, Mr. Mapara has commenced 17 actions,
applications or appeals against Canada, in the Federal Court, the Supreme Court
of British Columbia, the Court of Appeal for British Columbia and the Supreme
Court of Canada. The three appeals now before this Court arise from one action
for damages against Her Majesty the Queen (T-1879-14), and two applications for
judicial review of third level grievance decisions by the Commissioner of
Corrections (T-1925-14 and T-2248-14).
[4]
In response to each of the Respondent’s motions
for security of costs, Mr. Mapara conceded that he was indeed indebted to
Canada for unpaid costs. It would appear that the total amount of these unpaid
costs is $20,899.49, to which must be added a further $11,734.50 for costs and
disbursements already incurred or anticipated in the three files that are the
subject of this appeal, according to the affidavit filed by the Respondent.
[5]
In light of the above, and pursuant to paragraph
416(1)(f) of the Federal Courts Rules, S.O.R./98-106, the Respondent is
entitled on a prima facie basis to security for costs, and the Motions
Judge found accordingly.
[6]
Rule 417 of the Federal Courts Rules,
however, prescribes that poverty should not be a bar to litigation. As this
Court stated in Sauve v. Canada, 2012 FCA 287 at para. 7 [Sauve], “…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.”
[7]
Under Rule 417, the Court must be satisfied that
(1) the applicant or the plaintiff (as the case may be) is impecunious, and (2)
the case has merit, before it can exercise its discretion to refuse to order
security for costs. These two requirements are conjunctive. Rule 417 provides
as follows:
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Grounds for refusing security
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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Motifs de refus de cautionnement
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.
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[8]
It is also well established that the onus of
proof to establish impecuniosity is high, and must be discharged with “robust particularity”: see Morton v. Canada
(Attorney General) (2005), 75 O.R. (3d) 63 at para. 32, [2005] O.J. No.
948; Heli Tech Services (Canada) Ltd v. Weyerhaeuser Company, 2006 FC
1169 at para. 8, [2006] F.C.J. No. 1494; Chaudhry v. Canada (Attorney
General), 2009 FCA 237 at para 10, 393 N.R. 67. Material evidence must
therefore be submitted to sustain a claim of impecuniosity, and bald statements
will not be sufficient (see Sauve at paras. 9-10).
[9]
The Motions Judge found that the Appellant’s
evidence did not meet that threshold. His conclusion is based entirely on the
fact that Mr. Mapara had been financially able to pay court fees to commence
his numerous legal proceedings against the Respondent, and had been financially
able to pay his litigation disbursements in these various matters. Accordingly,
he determined that impecuniosity had not been established, and held it
unnecessary to comment on the merits of the underlying proceedings.
[10]
To succeed on his appeals, Mr. Mapara must
convince this Court that the Motions Judge either erred in law or made a
palpable and overriding error in his appreciation of the facts: Imperial
Manufacturing Group Inc. v Decor Grates Incorporated, 2015 FCA 100; Hospira
Healthcare Corporation v The Kennedy Institute of Rheumatology, 2016 FCA
215.
[11]
The gist of Mr. Mapara’s arguments before this
Court is that the Motions Judge failed to appreciate the massive amount of
evidence submitted to substantiate his impecuniosity. Indeed, Mr. Mapara did
file financial statements, tax returns and printouts of his institutional
accounts. There is no doubt in my mind, on the basis of that evidence, that Mr.
Mapara has limited financial means.
[12]
The Motions Judge, nevertheless, found that Mr.
Mapara had not established his impecuniosity since he was able to pay court
fees and disbursements to commence several proceedings. With all due respect,
this inference is questionable for two reasons. First, the fact that Mr. Mapara
was able to pay the filing fees and disbursements with respect to previous
legal proceedings is no indication that he has the means to pay a much larger
amount of legal costs resulting from these proceedings. Second, the Motions
Judge could not come to the conclusion that Mr. Mapara is not impecunious on
the basis of a single factor; such a determination must be based on the
assessment of the overall financial situation of the applicant or the
plaintiff.
[13]
That being said, Mr. Mapara also had to
establish that he could not borrow from family members, especially when some of
them have financially helped him in the past. To that effect, Mr. Mapara
introduced affidavits from his father and brother indicating that they were not
in a position to assist him financially, despite having done so previously. I
agree with the Respondent that these affidavits are short on the particulars
that could have explained their change of circumstances. This should not be
interpreted as imposing an obligation on family members to assist an applicant.
However, in this case, the appellant’s family members did not provide any
explanation as to why they were no longer able to assist.
[14]
As for Mr. Mapara’s wife, who had also
assisted him beforehand, Mr. Mapara deposed that she was ill and unable to
work. Yet he did not adduce any direct evidence from his wife herself or from
her doctors to that effect; moreover, the medical records upon which he relied
to establish his wife’s medical condition were not up to date, and he did not
provide any information with regard to her financial resources or assets. In
those circumstances, it cannot be said that Mr. Mapara has discharged his onus
to establish the impracticability of borrowing from a third party with “robust particularity”.
[15]
I would venture to add, out of an abundance of
caution, that none of the underlying proceedings on these appeals have merit.
Essentially for the reasons advanced by counsel for the Respondent in her
factum, the Appellant does not meet the second prong of Rule 417 and this is a
second reason why his appeal should be dismissed.
[16]
In light of the foregoing, I am therefore of the
view that the decision of the Motions Judge should be upheld, albeit for
different reasons than those he provided. A careful reading of the record as a
whole supports his overall finding that Mr. Mapara is not impecunious for the
purpose of Rule 417.
[17]
Accordingly, I would dismiss the appeals
with costs.
J.A.
"I agree
J.D. Denis Pelletier J.A."
"I agree
A.F. Scott J.A."
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