Docket: T-1958-16
Citation: 2017 FC 563
[ENGLISH
TRANSLATION]
Montréal,
Quebec, June 9, 2017
PRESENT: The Honourable Madam Justice St-Louis
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BETWEEN:
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RICHARD TIMM
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
Richard Timm is appealing a decision of
Prothonotary Morneau [the prothonotary] that granted the motion for security
for costs filed by the Attorney General of Canada [AGC] and ordered
Mr. Timm to provide security of $6640.00 on or before April 17, 2017,
otherwise his application for judicial review would be dismissed and the case
suspended until said security was provided.
[2]
This appeal is pursuant to the application for
judicial review that Mr. Timm filed on September 30, 2016, to
challenge the decision at Step Three made on July 26, 2016, by Senior
Deputy Commissioner, Anne Kelly, in response to his grievance.
[3]
In this grievance, Mr. Timm argued that he
had been the victim of harassment and discrimination and that his physical and
mental health had suffered as a result of the use of nightlights by
Correctional Service of Canada [CSC] officers at the La Macaza institution
where he was detained at the time. The Senior Deputy Commissioner upheld the
grievance in part, but dismissed the allegation of discrimination, which she
considered without merit because Mr. Timm did not base it on “any prohibited grounds of discrimination.”
[4]
Another grievance (this one collective) of which
Mr. Timm is one of the signatories, has also been filed to challenge the same
practice, and a decision at Step Three is awaited in this case.
[5]
Moreover, as at January 5, 2017,
Mr. Timm owed the AGC the sum of $32,394.55 in unpaid costs, and he was
paying off his debt with $15.88 payments every two weeks.
[6]
In this context, the AGC filed a motion for
security for costs under Rules 416(1)(f) and (g) of the Federal Courts
Rules, SOR/98-106 [Rules], calling for payment of a sum of $6640.00 and the
suspension of the current application for judicial review until this sum had
been paid. The AGC then argued that Mr. Timm owed him unpaid costs, that
his September 30, 2016, application for judicial review was frivolous or
vexatious and that he did not have sufficient assets to pay the costs if he
were ordered to do so.
[7]
Mr. Timm objected to this motion, first,
arguing that his application was not frivolous or vexatious, and second, citing
Rule 417, arguing his impecuniosity and the merit of his application for
judicial review. He also argued that the AGC’s motion constituted an abuse of process
seeking to prevent the prosecution of the case.
[8]
As mentioned above, on March 17, 2017 the
prothonotary granted the AGC’s motion and ordered Mr. Timm to provide
security of $6640.00 on or before April 17, 2017, otherwise his
application for judicial review would be dismissed and the case suspended until
said security was provided.
[9]
For the reasons set forth below, the Court
considers that the prothonotary did not commit a palpable and overriding error
in finding that Mr. Timm did not prove his impecunious state and the merit
of his application, and will therefore dismiss his appeal.
II.
Impugned decision
[10]
In his decision, the prothonotary first noted
that Mr. Timm did owe the AGC the sum of $32,394.55 for unpaid costs, as
at January 5, 2017, and found that the AGC met the requirements set out in
Rule 416(1)(f). Having made this finding, the prothonotary considered that
he did not have to rule on the other ground raised by the AGC, which is
stipulated in Rule 416(1)(g).
[11]
The prothonotary then considered that
Mr. Timm had not “demonstrated his impecunious
state and the merits of his application by providing evidence that satisfied
the requirements of case law” and therefore found that, in this case,
there was no reason to deny the security solicited by the AGC pursuant to
Rule 417.
[12]
Finally, the prothonotary indicated that he did
not view the AGC’s motion as an abuse of process seeking to prevent prosecution
of the case.
[13]
Since the prothonotary found that Mr. Timm
had not demonstrated his impecunious state and the merits of his application by
providing evidence that satisfied the requirements of case law, it seems
appropriate for the Court to detail the evidence submitted by the parties
pursuant to the motion for security.
[14]
To support his motion for security, the AGC
filed an affidavit by Rosemary Onyeuwaoma, financial officer at the
Correctional Service of Canada (CSC)’s Regional Comptroller’s Office in Quebec,
substantiating the amounts owed by Mr. Timm for costs; an affidavit by
Claudia Lapolla, legal assistant at Justice Canada’s Quebec Regional Office,
supporting the decisions involving Mr. Timm and the estimated costs
involved in the underlying judicial review; and an affidavit by Guy Poudrier,
Deputy Warden of the La Macaza Institution, detailing the changes to
practices regarding the use of nightlights and work on installing individual
[light] switches in the cells.
[15]
In order to object to the AGC’s motion for
security and to cite the application of Rule 417, Mr. Timm filed an
affidavit dated March 6, 2017, in which he made the following statements:
•
He has been in detention since 1995;
•
On February 12, 2016, he brought a motion
to obtain Commissioner’s Directive 566-4 allowing officers to turn on the
nightlights in his cell at all hours of the night;
•
In February 2016, he participated in a
collective grievance, which was dismissed by the complaint and grievance
coordinator. Following this dismissal, he filed an individual grievance, which
he took to the Third Step. On August 30, 2016, he was informed that his
third level grievance had been upheld in part;
•
On September 30, 2016, the allegations of
discrimination having been dismissed, he took this decision to judicial review;
•
He receives a salary of $63.50 every two weeks;
•
Because he has been in custody for more than 22
years and has never been release, he cannot obtain a loan from any financial
institution;
•
The only assets he has are in his inmate account
and amount to $172.02.
•
He is paying $15.88 every two weeks to reimburse
the AGC for the unpaid costs and has been making these payments since 2013 from
his inmate account;
•
He has no contact with the members of his
family, except for his biological mother;
•
His contacts with his biological mother are very
limited, and he cannot obtain any financial assistance from her.
[16]
Mr. Timm attached the following documents
to the affidavit:
•
RT-1: Initial grievance dated February 26,
2016;
•
RT-2: Third level grievance dated March 22,
2016;
•
RT-3: Response to the final grievance dated
July 26, 2016;
•
RT-4: Notice of Application for judicial review dated
September 30, 2016;
•
RT-5: A bundle of the inmate’s income
statements, one for the period from February 1 to 15, 2017 showing a
balance of $185.99 and a debt of $32,345.54, and the other from
February 15 to March 1, 2017 showing a balance of $172.02 and a debt
of $32,329.66.
III.
Issues
[17]
The Court must confirm the applicable standard
of review and then examine whether the prothonotary erred in his decision
regarding Rule 416(1)(g) and the one regarding Rule 417.
IV.
Positions of the parties
A.
MR. TIMM’S POSITION
(1)
Standard of review
[18]
Although his factum did not specify the
applicable standard of review, Mr. Timm’s counsel confirmed the
application of the principles established in Hospira Healthcare Corporation
v. Kennedy Institute of Rheumatology, 2016 FCA 215 [Hospira] at the
hearing.
[19]
Mr. Timm argued that the AGC’s motion
constituted an abuse of process seeking to prevent his application for judicial
review from being debated on its merits. According to him, the order issued by
the prothonotary was harmful to him and was based on an erroneous finding of
fact. More specifically, he claimed that (1) the application for judicial
review procedure was not frivolous or vexatious and therefore
Rule 416(1)(g) did not apply; (2) Rule 417 allowed him to impede the
motion because he satisfied the definition of impecuniosity provided by the
case law of this Court; and (3) because his case had merit.
(2)
Rule 416(1)(g): frivolous or vexatious
application
[20]
Mr. Timm first cited Rule 416(1)(g)
and argued that the application for judicial review that he initiated was not
frivolous or vexatious, despite the fact that the prothonotary did not rule on
this issue.
[21]
Mr. Timm alleged that he was qualified to
file his individual grievance at the various levels and that he should be able
to have his decision at Step Three reviewed. According to him, his individual
appeal was unique and completely separate from the collective grievance.
[22]
Mr. Timm also said that he has always acted
in good faith in legal proceedings and continued to do so in this case.
(3)
Rule 417: impecuniosity
[23]
Mr. Timm referred to the following
statement of the Federal Court of Appeal in Sauve v. Canada, 2012 FCA
287 [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”
(at paragraph 7).
[24]
Mr. Timm submitted that upholding the
prothonotary’s order would cause him harm because he would be deprived of the
option to assert his rights. He again relied on the statements of the Federal
Court of Appeal: “though security for costs is a tool
in the furtherance of the efficient and orderly administration of justice, in
determining if such security is required, courts must ensure not only that the
justice system works efficiently, but also that it works fairly for all the
parties involved” (Sauve at paragraph 7).
[25]
Mr. Timm argued that the inmate statement
of account that he filed with the prothonotary, which showed a balance of
$172.02 on March 1, 2017, demonstrated his impecuniosity, all the more so
since he had been incarcerated since 1995, and he said that he could not obtain
a bank loan because he had never been released. He also reiterated that he
could not consider the option of asking members of his family to provide him
with financial assistance given that he did not have any contact with them,
except for the tenuous contact with his biological mother.
[26]
Mr. Timm submitted that access to justice
should not depend on his financial capacity and that initiating a motion for
security for costs bordered on using a back-door method to avoid a ruling on
the merits.
[27]
At the hearing, Mr. Timm’s counsel added
that impecuniosity should be considered in a special way because Mr. Timm
had been in custody for 22 years, and his situation was quite different from
that of other applicants referred to in other decisions of the Court.
Mr. Timm’s counsel admitted that the prosecutor’s decision would not be
erroneous if Mr. Timm were not an inmate. According to this position, the
burden of proof required to demonstrate impecuniosity should be contextualized
in order to take into account the particular circumstances of Mr. Timm,
who filed all the evidence he could, given his situation.
(4)
Rule 417: merit of his application for
judicial review
[28]
Mr. Timm submitted that it would be unfair
to prevent him from pursuing his application for judicial review since he was
qualified to do so, especially in view of the fact that the third level
grievance was upheld in part, forcefully demonstrating the merits of his
challenge.
[29]
Mr. Timm maintained that the actions of the
CSC were inconsistent with the CSC’s own directives and that his transfer from
La Macaza to another institution did not alter the fact that he suffered
discrimination for several months while he was incarcerated there.
[30]
According to Mr. Timm, the issues raised in
his case are of great importance for a federal inmate. He also submitted that
his application for judicial review was almost certain not to fail (Early
Recovered Resources Inc. v. Gulf Log Salvage Co-Operative Assn., 2001 FCT
524 at paragraph 30 [Early Recovered Resources]) because it arose
from discriminatory acts against him and that these same acts were made,
knowingly and wilfully, in order to disrupt his quality of life.
B.
AGC’s position
(1)
Standard of review
[31]
Regarding the standard of review, at the
hearing, the AGC also referred to the standard set in the Federal Court of
Appeal’s decision in Hospira.
[32]
The AGC submitted that the prothonotary did not
commit a palpable and overriding error in law or in assessing the facts that
would warrant intervention by this Court.
[33]
The AGC submitted that Mr. Timm did not
specify which principle of law the prothonotary allegedly misapplied or which
facts he would have palpably misapprehended. He also submitted that the
April 18, 2017 affidavit, filed by Mr. Timm as part of this appeal,
contained new evidence because the facts alleged at paragraphs 10, 11, 16
and 18 were not in the affidavit that he filed in response to the motion for
security.
(2)
Rule 416(1)(g): frivolous or vexatious
application
[34]
The AGC noted that the prothonotary did not deem
it necessary to decide on the application of Rule 416(1)(g), and submitted
that only the possible application of Rule 417 was in dispute.
(3)
Rule 417: impecuniosity
[35]
The AGC maintained that the prothonotary’s
decision was not erroneous. The Court’s case law has repeatedly stated the
factors to be considered in order to establish a state of impecuniosity.
[36]
In this case, Mr. Timm did not satisfy
these criteria. He did not prove that he attempted to borrow money, did not
provide bank statements from outside the penitentiary, and did not explain why
he was unable to retain any assets prior to his incarceration.
[37]
As indicated above, the AGC also argued that the
facts alleged in paragraphs 10, 11, 16 and 18 of Mr. Timm’s affidavit
were not before the prothonotary and can therefore not be considered by this
Court, namely:
10. I do not own any property other than my
personal belongings in my cell at the Federal Training Centre penitentiary;
11. I do not own any real estate and have no
property;
16. I asked my biological mother for
financial assistance, but she told me she did not have the means, given her low
income;
18. I submit that the order issued on
March 17, 2017, by Prothonotary Richard Morneau is causing and could cause
me serious harm by preventing me from defending myself against the
reprehensible acts of the CSC, as shown in exhibit RT-6 (Order dated March 17,
2017).
[38]
According to case law, Mr. Timm had to
ensure that he did not leave any important issues unanswered before the
prothonotary, which he did not do.
[39]
The AGC argued that the evidence of
impecuniosity applies to everyone, even inmates, because they do not benefit
from a presumption of impecuniosity under Rule 417.
(4)
Rule 417: merit of the application for
judicial review
[40]
The AGC maintained that the prothonotary did not
err. He argued that Mr. Timm’s application for judicial review had expired
because (1) the disputed practice regarding the use of nightlights no longer
had any impact on Mr. Timm since he was transferred to the Federal
Training Centre on April 7, 2016; and (2) the La Macaza institution
had implemented measures that significantly modified the use of nightlights
since the Applicant’s grievance was originally filed. As a result, the
situation described in the application no longer exists.
[41]
The AGC submitted that Mr. Timm claimed to
have been a victim of discrimination as a result of a practice that was applied
equally to all La Macaza inmates, without, however, identifying any
prohibited grounds of discrimination. The AGC stressed that Mr. Timm did
not provide an explanation—either in his trial affidavit or in the affidavit
supporting this appeal—regarding the importance or merit of his application for
judicial review.
[42]
Given that the test of Rule 417 is
conjunctive, even if Mr. Timm had managed to prove his impecuniosity, he
cannot rely on Rule 417 because he did not demonstrate the merits of his
application for judicial review.
V.
Analysis
A.
Standard of review
[43]
The Federal Court of Appeal recently determined
that our Court must review a discretionary decision of a prothonotary in
accordance with the standard developed by the Supreme Court of Canada in Housen
v. Nikolaisen, 2002 SCC 33. Thus, “with respect to
factual conclusions reached by a trial judge, the applicable standard was that
of palpable and overriding error. It also stated that with respect to questions
of law and questions of mixed fact and law, where there was an extricable legal
principle at issue, the applicable standard was that of correctness” (Hospira
at paragraph 66).
[44]
In this case, the Court is hearing an appeal of
a discretionary decision of the prothonotary (Swist v. Meg Energy Corp,
2016 FCA 283 at paragraph 15 [Swist]). Thus, it is not for the
Court to determine whether or not Mr. Timm is impecunious or whether his
application for judicial review has merit. Rather, it must determine whether
the prothonotary’s findings in this regard are tainted by a palpable and
overriding error.
[45]
In this regard, the Federal Court of Appeal in Manitoba
v. Canada, 2015 FCA 57 (at paragraph 9, citing Canada v. South
Yukon Forest Corporation, 2012 FCA 165 at paragraph 46) recently
pointed out the “high threshold” that has to be
met to demonstrate “palpable and overriding”
error:
Palpable and overriding error is a highly
deferential standard of review. “Palpable” means an error that is obvious.
“Overriding” means an error that goes to the very core of the outcome of the
case. When arguing palpable and overriding error, it is not enough to pull at
leaves and branches and leave the tree standing. The entire tree must fall.
[Citations omitted.]
B.
Rule 416(1)(g): frivolous or vexatious
application
[46]
As mentioned above, the prothonotary did not
find that the application for judicial review was frivolous or vexatious as
Mr. Timm claimed. Instead, he determined that he did not have to rule on
this allegation, because he had already decided on the application of Rule 416(1)(f).
[47]
As the prothonotary indicated in his decision,
the party that is citing Rule 416(1)(f) does not have to satisfy any
requirements other than those contained in this paragraph, i.e. that “the defendant has an order against the plaintiff for costs
in the same or another proceeding that remain unpaid in whole or in part”
(see Stubicar v. Canada (Deputy Prime Minister), 2015 FC 1034 at
paragraph 9).
[48]
Once this fact has been established,
Rule 417 provides grounds for refusing to order the provision of security
if the party citing the Rule proves its impecuniosity and if the Court is
convinced of the merits of the case. It is a conjunctive test designed to
prevent financial considerations from impeding access to justice (Mapara v.
Canada (Attorney General), 2016 FCA 305 at paragraphs 6–7 [Mapara];
Nicholas v. Environmental Systems (International) Limited, 2009 FC 1160
at paragraph 20 [Nicholas]).
C.
Rule 417: impecuniosity
(1)
Evidence of impecuniosity
[49]
Before the prothonotary, Mr. Timm was
required to prove, on a balance of probabilities, that he was impecunious (Heli
Tech Services (Canada) Ltd. v. Weyerhaeuser Company, 2006 FC 1169 at
paragraph 2 [Heli Tech Services]; Fortyn v. Canada (2000),
191 FTR 12 at paragraph 21 [Fortyn]). As to the evidence, “a high standard is expected; frank and full disclosure is
required” (Heli Tech Services at paragraph 8; also see Chaudhry
v. Canada (Attorney General), 2009 FCA 237 at paragraph 10) so that
there be no unanswered question (Fraser v. Janes Family Foods Ltd., 2012
FCA 99 at paragraph 37 [Fraser]).
[50]
As mentioned above, Rule 417 may be
exercised at the Court’s discretion (Swist at paragraph 15) “and requires the Court to balance a number of factors,
including the strength of the evidence before the Court” (Coombs v.
Canada, 2008 CF 837 at paragraph 4 [Coombs]). In this regard, a
bald statement from the Applicant indicating that he is impecunious is
insufficient (Sauve at paragraph 9; Fortyn at
paragraph 21). The Applicant has to show that he does not have access to
funding (Fraser at paragraph 38). As the Federal Court of Appeal
indicated in Sauve, at paragraph 10:
Material evidence must be submitted in order
to sustain a claim of impecuniosity, including complete and clear financial
information presented in a comprehensible format. Tax returns, bank statements,
lists of assets, and (where possible) financial statements should be submitted.
Evidence of the impracticability of borrowing from a third party to satisfy the
security order should also be provided. The possibility of accessing family and
community resources should be considered. No material issue should be left
unanswered.
[51]
Thus, an applicant who alleges that he has no
source of income other than his Canada Pension and Old Age Security Pension and
provides an affidavit to this effect, but does not attach exhibits showing his
bank balances or any other financial data (Coombs at paragraph 11)
has not demonstrated his impecuniosity. The Court will also hold an applicant
at fault for failing to provide sufficient evidence that he cannot borrow money
from family members, especially when he had already received such financial
assistance in the past (Mapara at paragraph 13). It is appropriate
to look at other sources of funds that may be available to the litigant
including those held by close family members (Nicholas at
paragraph 24). In Mapara, for example, the Court criticized the
affidavits from the Respondent’s family members because they were short on
particulars that could have explained why they were no longer able to assist
the Respondent.
[52]
On the contrary, in Leuthold v. Canadian
Broadcasting Corporation, 2013 FCA 95, the Federal Court of Appeal was
convinced that the appellant was impecunious. Her affidavit and the supporting
exhibits that she provided showed that her average yearly taxable income was
less than $15,000.00 US and her assets were of limited value.
[53]
Overall, the decision-maker who is called to
apply Rule 417 must assess an applicant’s overall financial situation (Mapara
at paragraph 12).
(2)
Evidence that Mr. Timm submitted to the
prothonotary
[54]
In the case before us, the prothonotary found
that Mr. Timm did not prove his impecuniosity by providing evidence that
satisfied the requirements of case law.
[55]
We should bear in mind that to substantiate his
impecuniosity, Mr. Timm limited the evidence that he filed with the
prothonotary to his affidavit and the documents described at paragraphs 15
and 16 of this judgment.
(3)
Finding on the evidence of impecuniosity
[56]
The Court finds that the evidence filed with the
prothonotary is laconic and specifically notes the absence of information
regarding Mr. Timm’s assets or lack of assets outside prison, the absence
of an affidavit from his biological mother regarding her financial situation
and her inability to lend money to Mr. Timm, as well as the absence of
documents confirming that Mr. Timm could not borrow from [financial]
institutions.
[57]
Thus, given (1) the burden of proof that an
individual must meet to prove his impecuniosity; (2) the factors set out in the
case law regarding the burden of proof; (3) that the Court cannot create a
special exemption for inmates that is not stipulated in the Rules; (4)
documents that Mr. Timm filed with the prothonotary; and (5) the
discretion conferred on the decision-maker, the Court cannot find that the
prothonotary committed a palpable and overriding error in determining that the
evidence produced was insufficient to prove a state of impecuniosity “to the extent required by case law.”
[58]
The Court could end its review here, because the
test of Rule 417 is conjunctive. However, it seems appropriate to address
the merits of Mr. Timm’s application for judicial review.
D.
Rule 417: merit of the application for
judicial review
(1)
Evidence of the merit of the application for
judicial review
[59]
With respect to the requirement that the
application have merit, both parties referred to this Court’s ruling in Early
Recovered Resources, in which the criterion is discussed as follows at
paragraph 30:
As I noted earlier the Ontario test, as set
out in Orkin, for allowing an impecunious corporate plaintiff to proceed
without posting security for costs, is that the claim be one which the
plaintiff establishes not merely as likely to succeed, but as almost certain
not to fail. This seems a rather high standard, one which might mitigate
against an unusual claim or a difficult claim which has merit. Yet a defendant,
faced with the claim of an impecunious corporate plaintiff, a claim to which
there may well be a good defence, ought to have some protection. [Our
emphasis.]
(2)
Evidence that Mr. Timm submitted to the
prothonotary
[60]
Mr. Timm limited his submissions to the
prothonotary to the following five points: (1) he suffered harm as a result of
the actions of the CSC officers; (2) it is clear that there is a real issue
that deserves to be debated at a real trial since the third level grievance was
upheld in part; (3) he is qualified to apply for a judicial review of said
decision; (4) the issues that he raises are of great importance to a federal
inmate and deserve special attention in that acts of harassment and
discrimination by public officials are alleged; and (5) the outcome of his
application could affect detention conditions in federal facilities. However,
he did not provide any details.
(3)
Finding on the merit of the application for judicial
review
[61]
The Court notes that Mr. Timm’s arguments
that he is nearly certain that his application will not fail are general in
nature.
[62]
Mr. Timm did not specify, either before the
prothonotary or even on appeal, the prohibited ground of discrimination or the
statutory provisions cited in support of his allegation of discrimination.
Thus, the Court cannot find that the prothonotary committed a palpable and
overriding error in determining that Mr. Timm had not proved the merits of
his application for judicial review.
[63]
Thus, this Court’s intervention is not warranted
in this case.
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