Docket: A-367-14
Citation:
2015 FCA 53
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CORAM:
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NOËL C.J.
GAUTHIER J.A.
BOIVIN 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,
CORRECTIONAL SERVICE CANADA
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Respondents
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REASONS
FOR JUDGMENT
NOËL C.J.
[1]
Dr. Fabrikant, a litigant designated as
vexatious under subsection 40(1) of the Federal Courts Act, R.S.C.,
1985, c. F-7 (the Act), brought before the Federal Court on or about June 23,
2014, a motion for leave under subsection 40(3) of the Act to file an
application for judicial review challenging a decision of the Commissioner of
the Correctional Service of Canada. He attached to this motion a separate
motion to waive the filing fees associated with the first.
[2]
On June 26, 2014, Gagné J. (the Federal Court
judge) issued the following direction in relation to Dr. Fabrikant’s motions: “Motion Record not to be accepted for filing, and filing fees
not waived.”
[3]
On August 11, 2014, Dawson J.A. directed the Registry
to accept for filing Dr. Fabrikant’s notice of appeal to this Court in
relation to the above direction. On September 3, 2014, the parties agreed under
Rule 343 of the Federal Courts Rules, SOR/98-106, to the contents of an
appeal book. Though an appeal book was certified by Dr. Fabrikant, subsequent
communications between the parties revealed that Dr. Fabrikant’s affidavit in
support of his motion to waive filing fees had been omitted.
[4]
Due to this omission, the respondents resisted
the setting down of a hearing date for the appeal before this Court, arguing
before Dawson J.A. that time would be required to supplement the appeal book,
as well as to amend their memorandum of fact and law, which had been premised
on the erroneous assumption that Dr. Fabrikant’s motion to waive filing fees
had not been supported by any affidavit. Dawson J.A. rejected this argument,
directing on January 9, 2014, that the respondents would be granted 14 days to
file, among other things, an amended appeal book, and 21 days to file a
memorandum of fact and law amended to remove inaccuracies. Any other amendment
would require leave of the Court.
[5]
An amended appeal book was subsequently
submitted by the respondents. However, the Registry refused to file it, as this
was done after the date which had been set by Dawson J.A. On January 30, 2015,
the respondents brought a further motion to file an amended memorandum of fact
and law that would include additional submissions, and to bring new evidence in
the form of motions material filed in another proceeding before the Federal
Court.
[6]
During the hearing, Dr. Fabrikant consented to
this motion as well as to the filing of the amended appeal book. As a result,
the only issues before this Court are those raised in Dr. Fabrikant’s appeal.
In his notice of appeal, Dr. Fabrikant asks that the Court “quash the decision” of the Federal Court judge, and
order that his motion for leave to file be allowed, as well as his motion to
waive the fees attaching to this first motion.
[7]
In their amended memorandum of fact and law, the
respondents conceded that the December 28, 2013 affidavit included in the
amended appeal book was before the Federal Court judge (amended appeal book,
tab 9). The respondents argued, however, that Dr. Fabrikant had put a similar
affidavit before Prothonotary Tabib (the Prothonotary) in a separate proceeding
in which he had also moved to have his filing fees waived. Because she
dismissed his motion and this exercise of discretion was upheld by this Court (Fabrikant
v. Canada, 2014 FCA 273 [Fabrikant 1]), the respondents argued, we
should once again uphold the Federal Court’s identical decision on a similar
set of facts.
[8]
In response, Dr. Fabrikant argued that the
evidence before the Prothonotary was unhelpful in disposing of the case at bar,
as it was distinct from the evidence that had been before the Federal Court
judge. The exact same evidence, however, was put before Stratas J.A., he
argued, and the motion to waive filing fees in that case was allowed (Fabrikant
v. Canada, 2014 FCA 89 [Fabrikant 2]).
[9]
Before dealing with the parties’ submissions, I
feel it necessary to briefly characterize the decision under review. Where a court
disposes of a motion, this ought to be done by way of an order (see Fabrikant
1 at para. 23). Though directions to the Registry may be issued in
connection with an order, a direction itself is not the proper form for
disposing of a motion. Where a direction has the practical effect of disposing
of a motion, however, as in the case at bar, this Court can review it as though
it were an order, provided the wording is sufficiently clear to construe what
that order would have held (ibidem at para. 21).
[10]
It is clear from the wording of her direction
that the Federal Court judge intended to deny Dr. Fabrikant’s motion to waive
filing fees. An issue arises, however, as to whether she intended to deny his
motion to file his application for judicial review, or merely directed the
Registry not to file his motion record as a consequence of her refusal to waive
the filing fees. The better view is that she opted for the latter given that
her decision not to waive the filing fees was dispositive of the matter before
her.
[11]
The issue before this Court is therefore whether
the Federal Court judge erred in denying Dr. Fabrikant’s motion to waive filing
fees. Such a decision is discretionary in nature, and as such, must stand
unless the judge below acted on a wrong principle or failed to give appropriate
weight to relevant considerations (Jensen v. Canada (Attorney General), 2000
CanLII 15614 (FCA) at para. 2). Where a decision is rendered without reasons,
this Court must “consider the record to determine
whether there was material before the [Federal Court judge] which could form
the basis for [her] exercise of discretion consistent with legal principles and
the requirements of Justice” (ibidem at para. 3).
[12]
As the Federal Court judge provided no reasons,
the above test directs this Court to review the record. Having reviewed the
contents as agreed upon by the parties, including Dr. Fabrikant’s
affidavit on his finances, I conclude that it was open to the Federal Court
judge, on the record before her, to exercise her discretion as she did. Given
the nature of this exercise, the fact that another judge chose to exercise his
discretion differently based on a similar record in another proceeding
initiated by Dr. Fabrikant is no reason to overturn the Federal Court judge.
[13]
I would dismiss the appeal with costs.
“Marc Noël”
“I agree
Johanne Gauthier J.A.”
“I agree
Richard
Boivin J.A.”
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