Docket:
A-338-13
Citation: 2014 FCA 89
Present: STRATAS
J.A.
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BETWEEN:
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DR. V.I. FABRIKANT
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Appellant
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and
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HER MAJESTY THE QUEEN IN
RIGHT OF CANADA and
CORRECTIONAL SERVICE OF CANADA
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Respondents
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REASONS FOR ORDER
STRATAS J.A.
[1]
Dr. Fabrikant is a
self-represented inmate at Archambault Institution. He moves to waive the $50
filing fee for filing a notice of appeal. The respondents oppose.
A. The Court’s jurisdiction in this
motion
[2]
Under Rule 71(4) of the Federal
Courts Rules, a notice of appeal cannot be filed until the proposed
appellant pays a fee. Rule 19 provides that the fees are set out in Tariff A.
Tariff A currently sets the fee for filing a notice of appeal at $50.
[3]
Rule 55 provides that “in
special circumstances…the Court may vary a rule or dispense with compliance
with a rule.”
[4]
Given the express power
under Rule 55, I need not consider whether the Court’s jurisdiction is also
founded in its plenary or inherent jurisdiction to regulate its own process:
see, e.g., Association des Compagnies de Téléphone du Québec Inc. v.
Canada (Attorney General), 2012 FCA 203 at paragraphs 26-29; Canada
(National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA
250 at paragraph 48; Canada (National Revenue) v. RBC Life Insurance Company,
2013 FCA 50 at paragraph 35.
[5]
Accordingly, this Court has
the jurisdiction to grant the relief sought. The question is whether this Court
should exercise its discretion in favour of waiving the filing fee.
B. Principles guiding the Court’s
exercise of discretion
[6]
In my view, there are two
competing principles at the heart of the Court’s exercise of discretion to
waive filing fees. The task of the Court is first to consider how these two
competing principles play out on the evidence adduced in the motion.
[7]
These two competing
principles are as follows:
•
The right of access to
the Court. This right is not
untrammelled and absolute: British Columbia (Attorney General) v.
Christie, 2007 SCC 21, [2007] 1 S.C.R. 873. Reasonable restrictions are
appropriate. Nevertheless, when considering the exercise of its discretion to
waive fees the Court must keep the principle of access to the Court front of
mind. It is “one of the foundational pillars protecting the rights and freedoms
of our citizens”: B.C.G.E.U. v. British Columbia (Attorney General),
[1988] 2 S.C.R. 214 at paragraph 26. Indeed, for over half a millennium, the
English legal system we have inherited has exempted those who cannot pay court
fees from paying them: A Means to Help and Speed Poor Persons in their
Suits (UK) (1495) 11 Henry VII c. 12. See also the discussion in Vilardell
v. Dunham, 2013 BCCA 65, Polewsky v. Home Hardware Stores Ltd.
(2003), 66 O.R. (3d) 600, 229 D.L.R. (4th) 308 (Div. Ct.), and Toronto
Dominion Bank v. Beaton, 2012 ABQB 125.
•
The need to charge fees
for services rendered. This
also has an access to justice dimension. Courts cannot dispense justice without
adequate resources. Reasonable user fees are an important source of revenue
needed by courts to fund their operations. There is nothing objectionable in
requiring those availing themselves of the Court’s services to pay a fee that
contributes to the cost of those services. As the English legislation, above,
shows, court fees have also been a feature of the English court system for over
half a millennium.
[8]
In exercising its
discretion, the Court must go beyond a simple weighing of these principles on
the evidence adduced in the motion. Rule 71(4) imposes a requirement to pay
fees and does so without any qualification. Rule 55 provides that only in
“special circumstances” can the Court depart from the requirement to pay fees.
For this reason, rare are the cases in which the Court relaxes the requirement
to pay fees.
C. Insistence on evidence of sufficient
particularity and credibility
[9]
All of this Court’s
decisions on this point are in the form of orders, sometimes with explanatory
preambles, not reasons. A review of those orders, however, reveals an
insistence that the evidence offered in support of the fee waiver be particular
and credible.
[10]
It is all too easy for those
seeking a fee waiver to assert that they are poor. It is also easy to go a
little further and assert they cannot afford to pay the fee. But neither of
these assertions, without more, will suffice. In the analogous context of
evidence of irreparable harm in stay motions, see my similar comments in Stoney
First Nation v. Shotclose, 2011 FCA 232 at paragraph 48, Glooscap
Heritage Society v. Minister of National Revenue, 2012 FCA 255 at paragraph
31 and Gateway City Church v. Canada (National Revenue), 2013 FCA 126.
[11]
In my view, given the
requirement that “special circumstances” be shown, only particularized,
credible evidence will suffice. In general, parties seeking a waiver of fees
must describe, with particularity, their financial situation, with specific
reference to numbers setting out sources of funding, assets and expenses.
D. The evidentiary record in this case
[12]
Before this Court is an
affidavit from Dr. Fabrikant and an affidavit from a legal assistant employed
by the Department of Justice.
[13]
The legal assistant’s
affidavit, tendered by the respondents, merely appends a memorandum of fact and
law filed by the respondents in file A-274-13. File A-274-13 is Dr. Fabrikant’s
appeal from a denial of another request by Dr. Fabrikant for a fee waiver. The
relevance of file 274-13 to the present matter is unclear. Indeed, a review of
page 4 of the Prothonotary’s decision at issue in file A-274-13 shows that Dr.
Fabrikant’s evidence was less particularized than the evidence before me. It
will be for a panel of this Court in file A-274-13 to review the decisions
below and assess whether there are any grounds to intervene. That is not before
me in this motion.
[14]
In his affidavit, Dr.
Fabrikant states that if the fees are not waived, he “would not be able to
proceed any further in this case, which is very important to [him].” He sets
out the following information regarding his financial position, information
uncontradicted by the respondents:
1.
I have been in jail for 21
years by now. My official pay in jail is $52.50 per two weeks. After all
deductions are taken, I get $20.93, which I can actually spend. This comes to
$20.93/14 = $1.40 per day. One telephone call to my family costs $0.57. I used
to make 3 calls every day, now due to new deductions, I can not longer afford
it [sic]. There is no money left for postage or canteen items. My family
does not have a car; they can not [sic] visit me in jail, so the
telephone communication becomes vitally important; jail food is to a great
degree inedible and must be supplemented by purchases from canteen.
2.
I was extremely lucky to
have received full moral support of my family during all these years, and it
would be totally inappropriate for me to ask any of them to spend money on me,
especially taken into consideration that my wife and children are not
financially at ease at all.
3.
I have already borrowed
significant amounts of money from my relatives to save my life by paying for
cardiac care, which Correctional Service refused to pay, as well as to pay for
university education for my children.
D. Analysis
[15]
The respondents oppose Dr.
Fabrikant’s motion on three grounds.
[16]
First, the respondents submit
that the evidence does not set out Dr. Fabrikant’s “sources of revenue or his
ability to secure financial assistance, by way of loan or voluntary assistance,
from family or friends.” I disagree. The passage from his affidavit set out
above does exactly that.
[17]
Second, the respondents point
out that there is an appeal pending in this Court in file A-274-13 from the
denial of an application made by Dr. Fabrikant for a fee waiver. That is true
but, as I have observed above, the evidentiary record in that matter appears to
be different. I would add that Dr. Fabrikant has received fee waivers from this
Court on a number of different occasions based on the particular evidentiary
records placed before the Court. All I can do is exercise my discretion on the
basis of the particular evidentiary record before me.
[18]
Third, the respondents suggest
that to grant Dr. Fabrikant a fee waiver “would create a precedent for almost
every inmate.” I reject this. Different inmates have different financial
means. Some inmates have considerable means. The Court should determine whether
to grant a fee waiver based on the above principles and the particular evidence
before it, not slippery slope arguments based on generalizations.
[19]
To the extent that Dr.
Fabrikant’s financial condition is similar to those of other inmates, I am
concerned that an adverse exercise of discretion in this case would foreclose
access to the courts by a whole class of inmate. This matters, as the decided
cases show that inmates often need resort to the courts. Indeed, the Rules
Committee might wish to consider whether the Rules should be amended to provide
for a fee exemption for particular classes of litigant, rather than requiring
persons in those classes on a case-by-case basis to bring motions that are
time-consuming and sometimes complicated.
[20]
I also understand that Dr.
Fabrikant has been declared to be a vexatious litigant under section 40 of the Federal
Courts Act, R.S.C. 1985, c. F-7. But he is entitled under subsection 40(3)
of the Act to seek leave to commence new proceedings and I understand he has
done so. Ultimately, he will have to overcome that difficult obstacle. But he
remains an individual entitled to access to the Courts, albeit access that can
be had at the present time only through the gateway provided by subsection
40(3) of the Act.
[21]
Based on the evidence before
the Court, the $50 filing fee is just over five weeks net pay for Dr. Fabrikant
before he attends to his other expenses. It is evident from the details
provided in Dr. Fabrikant’s affidavit that those other expenses are significant
and that realistically Dr. Fabrikant cannot draw upon assets or other sources
of funding.
[22]
In these circumstances,
based on the evidentiary record before this Court and the principles set out
above, I exercise my discretion in favour of granting the fee waiver.
[23]
I emphasize that my decision
in this motion is an original exercise of discretion based on the particular
evidentiary record before me, not an appeal from an exercise of discretion
below that is governed by the standard of review set out in Housen v.
Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 or Z.I. Pompey Industrie v.
ECU-Line N.V., 2003 SCC 27, [2003] 1 S.C.R. 450, as the case may be.
E. Disposition
[24]
The motion is granted with
costs. The fee of $50 for the filing of the notice of appeal is waived.
“David Stratas”
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