Docket: A-458-16
Citation:
2018 FCA 43
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CORAM:
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GAUTHIER J.A.
NEAR J.A.
DE MONTIGNY 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
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Respondent
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REASONS
FOR JUDGMENT
NEAR J.A.
[1]
The appellant, Valery Fabrikant, appeals an
order of the Federal Court of Canada (per Justice Roussel) dated November 25,
2016 (T-1405-16). The Federal Court dismissed the appellant’s appeal from an
order of Prothonotary Aylen dismissing the appellant’s motion for an order
waiving the filing fee of a proposed application for judicial review (Fabrikant
v. Canada, 2016 FC 954).
[2]
The appellant is a prisoner at Archambault
Institution. He has been declared a vexatious litigant by the Federal Courts
and must be granted leave to file any proceeding. He attempted to file a motion
for leave to seek judicial review and a motion for an order waiving the filing
fee.
[3]
Prothonotary Aylen exercised her discretion not
to grant the appellant’s motion to waive the filing fee. She explained that the
appellant chooses to spend his money on other things and that he has not filed
any financial records that support his claim of impecuniosity. She also noted
that the appellant has been declared a vexatious litigant and that his previous
conduct before this Court is a relevant consideration. Further, she noted that
the appellant was out of time to file the claim as it appeared on its face to
have been filed more than 30 days after Correctional Services Canada
communicated the underlying decision to the appellant. The appellant appealed
the Prothonotary’s decision to the Federal Court.
[4]
The Federal Court dismissed the appellant’s
appeal. It explained that the standard of review for discretionary orders of
prothonotaries is that outlined in Housen v. Nikolaisen, 2002 SCC 33,
[2002] 2 S.C.R. 235 and that “the decision to waive
filing fees is discretionary in nature” (Hospira Healthcare
Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215, 402 D.L.R.
(4th) 497).
[5]
In my view, the Federal Court did not make a
palpable and overriding error in dismissing the appellant’s appeal of the
Prothonotary’s order dismissing the appellant’s motion to waive the filing fee.
[6]
First, the appellant did not provide any
arguments in his memorandum of fact and law supporting his position that the
Federal Court erred in dismissing his motion to waive the filing fee. Rather,
his arguments pertain to the merits of the judicial review that he has not yet
been granted leave to commence. As the Federal Court explained in Spatling
v. Canada (Solicitor General), 2003 F.C.T. 443 at para. 11, 233 F.T.R. 6, “it is for the Applicant … to clearly demonstrate that there
are special circumstances by which the fees ought to be waived”. In my view,
the appellant did not provide precise, credible evidence of his impecuniosity
in this case. Rather, he invited the Court to conclude “once
and for all” that he be declared impecunious for this and any future
proceedings he may initiate largely on the basis that he has been incarcerated
for a lengthy period of time. I decline the invitation and find that in this
specific case the appellant did not provide the required evidence.
[7]
This is not to say that an applicant should be
put to an impossible and unattainable standard of proof, such as disproving a
negative (e.g. that he does not have any bank accounts). Nor should an
applicant be expected not to communicate with his family to save money. Bald
assertions of impecuniosity, however, are clearly insufficient.
[8]
Second, as the Prothonotary and the Federal
Court explained, the decision to waive filing fees is discretionary. Further,
the decision of another judge to exercise her or his discretion to waive filing
fees in another proceeding does not bind this Court’s discretion (Fabrikant
v. Canada, 2015 FCA 53 at para. 12, [2015] F.C.J. No. 243).
[9]
Pelletier J.A. has recently found that, in
dealing with a request to waive fees, a court should consider the competing
principles of the right to access to a court and the need to charge fees for
services rendered (Fabrikant v. Canada (9 February 2018), Ottawa, FCA,
Pelletier J.A. (Fabrikant 2018)). Generally, my colleague found that court
fees should not be a barrier which prevents an indigent litigant with an arguable
case from being heard. However, he also found that where an applicant is a
heavy user of court services then the need to recover the costs of that heavy
use becomes more significant:
Dr. Fabrikant is a frequent litigant in the
Federal Court and appeals practically every adverse decision in that Court to
this Court. Dr. Fabrikant’s frequent resort to the courts imposes costs on
those who must defend themselves from his proceedings. They also impose costs
on the courts: see Fabrikant [v. Canada, 2014 FCA 89 at para. 7,
459 N.R. 163]. It is not in the interests of justice to permit a litigant to
repeatedly impose costs on the court system without requiring a litigant to
contribute to those costs, however modestly, services by paying the prescribed
filing fees. Where the merits of an indigent litigant’s case is clear, the
interests of justice require that even a frequent litigator have his day in
Court. But where the merits appear to be dubious, it is not unreasonable to
require Dr. Fabrikant to assume his portion of the costs associated with his
appeal.
(Fabrikant 2018)
I agree with this
approach.
[10]
In this case, Dr. Fabrikant is litigating
Archambault Institution’s decision to not allow prisoners to purchase fresh
grapes. The material filed with the Court includes a response from Correctional
Services Canada explaining that they denied the purchase of fresh grapes on the
basis of the need to curtail the production of illegal alcohol within the
prison. Dr. Fabrikant alleges that this decision was made in bad faith because
in his view this measure has little impact, if any, on the illegal production
of alcohol. No evidence was put forward before the Federal Court to support this
serious allegation of bad faith. In such circumstances, in my view, the Federal
Court did not make a palpable and overriding error in dismissing the
appellant’s appeal of the Prothonotary’s order dismissing the motion to waive
the filing fees.
[11]
That said, I agree with Dr. Fabrikant that
Prothonotary Aylen made a palpable error when she noted that the leave motion
was filed more than 30 days after Correctional Services Canada communicated the
underlying decision to the appellant (Prothonotary Decision at para. 14). The
Federal Court does not expressly deal with this issue in its reasons. This
timeline, however, was disputed by the appellant before us and the respondent
conceded that the underlying decision was in fact communicated to the appellant
on July 22, 2016—well within 30 days of when the appellant filed his leave
motion on August 11, 2016. Thus, in my view, the filing of the leave motion was
in fact timely. The Prothonotary’s error, however, is not overriding as it would
not change the outcome of the decision.
[12]
I would dismiss the appeal without costs.
"David G. Near"
“I agree.
Johanne
Gauthier J.A.”
“I agree.
Yves de Montigny J.A.”
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