Docket: 17-T-24
Citation:
2017 FC 576
Ottawa, Ontario, June 12, 2017
PRESENT: The Honourable Madam Justice Gagné
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BETWEEN:
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DR. V.I.
FABRIKANT
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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ORDER AND REASONS
[1]
The Applicant is an inmate serving a life
sentence at Archambault institution, who was declared a vexatious litigant by
judgment of this Court rendered in 1999. By this preliminary motion in writing
under Rule 369 of the Federal Courts Rules, SOR/98-106, he is asking the
Court, once again, to waive the filing fees otherwise payable under Tariff A of
the Rules, with respect to his motion for leave under subsection 40(3) of the Federal
Courts Act, RSC 1985, c F-7 and, if leave is granted, with respect to his
application for judicial review.
[2]
On the merit of his application for judicial
review, the Applicant intends to challenge the Offender Final Grievance
Response of the Assistant Commissioner, Policy, of the Correctional Service of
Canada, denying his request to obtain reimbursement of “all
money spent for purchase of kosher milk and milk products”.
[3]
The basic principles concerning motions for
waiver of fees have been summarized by Prothonotary Aylen in a recent decision
dismissing a similar motion from the same Applicant (Fabrikant v Canada,
2016 FC 954, appeal to the Federal Court dismissed on November 25, 2016
(T-1405-16), appeal to the Federal Court of Appeal pending (A-458-16))
[Previous Case].
[4]
In fact, the Previous Case is just one of many
cases brought before this Court by the Applicant, since he was declared
vexatious. Just within the last few years, the Applicant has brought before
this Court numerous similar motions, most of which were accompanied by a motion
for waiver of fees. In many cases, the form of the Applicant’s documentation
did not comply with the Rules and non-service of documentation or insufficient
proof of service often caused numerous and unnecessary exchanges between the
Applicant and officers of the Court.
[5]
A decision on a request for fee waiver is
discretionary in nature, and waiver should only be granted in special
circumstances (Rule 55 of the Rules). In all cases, the applicant will have to
demonstrate his or her impecuniosity such that the requirement to pay a filing
fee would prevent him or her from pursuing a reasonably good claim before the
Court (Spatling v Canada (Solicitor General), 2003 FCT 443).
[6]
In support of his motion in the Previous Case,
the Applicant had filed an affidavit to the fact that he earned $26.19 per two
week period. In the present case, he states that he now earns $30.24 every two
weeks. In addition, the Respondent has filed a statement of the Applicant’s
account at the Correctional Service of Canada showing that as of April 19,
2017, the Applicant held a balance of $234.47.
[7]
Under the circumstances before me, I agree with
the Respondent that the Applicant has failed to discharge his burden of proving
his impecuniosity with sufficient particularity, and that the requirement to
pay the filing fees would prevent him from pursuing his claim. In addition to
the amount the Applicant earns every month, he has, at minimum, a few hundred
dollars that he can decide to use as he pleases. I say “at
minimum” because in his September 7, 2016 affidavit, the Applicant does
not attest having disclosed all of his actual sources of income or “outside” bank account(s), just as he fails to refer
to any financial record that could support his motion.
[8]
In addition to having failed to convince me that
a waiver is warranted to prevent an injustice, I am of the view that the fact
that the Applicant has been declared a vexatious litigant militates against fee
waiver. Section 40 of the Act is the prime tool to keep vexatious litigants
away from judicial resources. As Justice David Stratas recently held, “[s]ection 40 reflects the fact that the Federal Courts are
community property that exists to serve everyone, not a private resource that
can commandeered in damaging ways to advance the interests of one” (Canada
v Olumide, 2017 FCA 42 at para 17). But in addition to section 40 of the
Act, the payment of fees and the award costs under Rule 400 serve in deterring
vexatious litigants from abusing the system and in deterring any litigant from
filing vexatious or unnecessary procedures.
[9]
Section 40 of the Act has been used in the
Applicant’s case almost two decades ago. Yet, when considering the number of
motions he filed with this Court just within the last few years, not to say his
numerous motions to reconsider the orders rendered and directions issued by
this Court, the Applicant seems to still perceive the Court’s resources as
private ones. In fact, it could be said that a section 40 judgment was not
sufficient in the Applicant’s case, as his multiplication of proceedings and
incessant motions remain a drain on public funds and on this Court’s scarce
resources.
[10]
Finally, I also agree with the Respondent that
the merits of the underlying proposed application for judicial review are weak,
at best.
[11]
The Applicant is Jewish and follows a kosher
diet. He argues that since October 24, 2014, he has been forced to buy kosher
milk from the canteen as he is of the view that the powdered milk distribution
system in the penitentiary is not kosher. Yet it appears from the Assistant
Commissioner’s decision (at page 2) that the Applicant was provided with a
certification from the Kashruth Council of Canada stating that the powdered
milk is kosher, along with a confirmation by the Institution Rabbi that the
powdered milk distribution system is compliant with established hygiene
standards.
[12]
Based on the motion record before me, it appears
that the Applicant’s application for judicial review is prima facie
frivolous. Waiving the filing fees in those circumstances would essentially
annihilate the effect of the section 40 judgment against the Applicant.
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