Doe v. Canada, 2005 FC 568

Date: 20050426

Docket: T-1114-02

Citation: 2005 FC 568

BETWEEN:

                                                MARK DOE and (OMITTED) INC.

                                                                                                                                             Plaintiffs

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                         IN RIGHT OF CANADA

                                                                                                                                           Defendant

                                                        REASONS FOR ORDER

HARGRAVE P.

[1]         These reasons arise out of the motion of the Defendant for security for costs, in the amount of $1,870, pursuant to Rule 416(1)(f), which allows the Court to award security for costs, against a plaintiff, against whom the defendant has an outstanding order for costs. The $1,870 figure is the Defendant's estimate of the costs of bringing a summary judgment application.

[2]         The individual Plaintiff, whom I will call the "Plaintiff", has an outstanding award of costs against him arising out of an appeal in this matter and a refusal, during a case management conference, to pay those costs, which are in the amount of $913.

[3]         The Plaintiff, in opposing the motion for security for costs, refers to many things, but principally to Federal Court Rule 417, to the effect that where the Court is of the opinion that a case has merit and the plaintiff demonstrates impecuniosity, the Court may refuse to order security for costs.

[4]         In this instance security for costs is proper, for in a motion heard concurrently with this motion, resulting in reasons and an order of 20 April 2005, I determined that the Plaintiff was not impecunious and that the case did not have merit. While those determinations were in the context of the motion of the Plaintiff and his company for security for costs in advance, the principles governing both impecuniosity and merit, whether in the context for security for costs and Rule 416 and 417, or costs in advance, as discussed by the Supreme Court of Canada in British Columbia v. Okanagan Indian Band [2003] 3 S.C.R. 371, include both merit and aspects of impecuniosity. However, because the aspect of impecuniosity in Okanagan Band, bearing upon ability to pay, is intertwined with the consideration of whether denial of costs in advance would bring the litigation to an end, I will set out further reasoning as to why the Plaintiff is not impecunious.

BACKGROUND

[5]         The general background is set out at length in my 20 April 2005 reasons. Therefore I will deal with the relevant background for this motion in brief fashion.

[6]         The initial Statement of Claim in this matter was filed 13 September 2002. The Federal Court of Appeal, in brief reasons of 24 March 2003, upholding an initial interlocutory decision against costs in advance, characterized the action, which was for damages, as one "for tortious interference with contractual and economic relations, and for what he [the Plaintiff] says is a novel cause of action for 'cognitive trespass'.". Much of the initial Statement of Claim and the amended Statement of Claim of 18 March 2003, the latter an elaboration of the former, involved various conspiracies on the part of the Defendant and its myriad of agents, to interfere with and destabilize the Plaintiff's life, his work, his mind, his ability to earn a living, his aspirations and his reasonable expectations culminating, 168 pages later, with various prayers for relief, in the amount of $461 million. I now turn to the consideration of the present motion for security for costs: throughout I have kept in mind that a novel cause of action is not to the prejudice of the Plaintiffs: see Hamilton v. Canada, an unreported 14 May 2002 decision of Madam Justice Heneghan, 2002 FCT 553 at paragraph 18.

CONSIDERATION

[7]         The Defendant's motion refers to "security for the defendant's costs of this trial". However, the material and the oral argument seek security for the costs of a motion for summary judgment.

[8]         The Defendant relies upon Rule 416(1)(f):

The Plaintiff clearly comes within this Rule, as a person against whom there is an unsatisfied award of costs in favour of the Defendant in this proceeding.

[9]         Counsel for the Defendant submits that the Plaintiff can only avoid providing security for costs by coming within Rule 417:

In Rule 417 the test for avoiding giving security for costs is impecuniosity and merit. On the finding that the Plaintiff is not impecunious, I need not consider merit in these reasons, however merit has been thoroughly canvassed in the 20 April 2005 reasons in this action: merit was found to be absent.

[10]       The Plaintiff, in seeking to avoid providing security for costs, went far beyond a consideration of impecuniosity and merit, the test set out in Rule 417 and submits, in an anticipatory brief of 10 June 2003 and in a 24 June 2003 brief in response to the Defendant's motion material of 20 June 2003, that the Defendant seeks to halt advancement of the action until the Plaintiff provides security for costs. This, in the view of the Plaintiff, is a direct confrontation "... between the respective fundamental rights, interests, entitlements, duties and obligations of the individual and those of the state." (para. 33 of the 24 June 2003 written representations) and that this goes beyond what has in the past been addressed by the security for costs Rule, Rule 416. The Plaintiff points out that, as a private citizen, he has

... a large and diverse variety of causes of action against, inter alia, the Government of the Dominion of Canada, as represented by its sovereign, the Queen in Right of Canada. Further, the Plaintiff has a large and diverse variety of causes of action against the Municipal Government of Vancouver, British Columbia, Canada, as represented by its sovereign, the Queen in Right of British Columbia.              

                                                                                                                        [Ibid. para. 35]

This strays somewhat beyond the jurisdiction of the Federal Court, except that in the amended Statement of Claim all of the entities referred to, which are outside of the jurisdiction of the Federal Court, are said to be acting as agents of the Federal Crown.

[11]       At this point the Plaintiff reaches back 790 years, to the Magna Carta of 1215 and the balance then struck between king and citizen, between the state of affairs when "... the multi-trillion dollar worth federal government is sued by an impecunious litigant, and one who alleges said impoverishment has been at the hands of the state ...". Here the Plaintiff refers to section 39 of the Magna Carta, prohibiting imprisonment or any destruction save after lawful judgment by the law of the land; section 40, prohibiting denial, sale or delay of justice; section 45, as to the appointment of justices who must know the law of the realm and are reminded to observe it rightfully; section 51, involving removal of foreign soldiers, crossbowmen, servants and hireling, which was a temporary section; section 61, governing the enjoyment of the rights forever and the council to be elected to ensure the provisions of the Magna Carta were carried out; and section 63, granting the royal subjects the right to have and hold, among other things, the liberties, rights and concessions granted, forever.

[12]       The Plaintiff also moves on to the point that access to the courts is a fundamental constitutional right of Canadian citizens, referring to B.C.G.E.U. v. British Columbia (Attorney General) [1988] 2 S.C.R. 214, a case in which the picketing of courts by the B.C.G.E.U., a denial of access to the courts, in which the courts throughout upheld an injunction restraining picketing activities which were calculated to interfere with the operation of any of the courts.

[13]       While all of this history and digression is interesting, it goes rather far afield. Rather, I look upon Rules 416 and 417 and the common law on which those rules are directly built and which directly surround those rules as a complete code, a means, to adopt the argument of the Plaintiff, of harmonizing the rights and obligations of litigants and that includes the rights and obligations of an individual vis-a-vis the rights and obligations of the Crown so that, again in the words of the Plaintiff, there might always be a constitutional balance between the Crown and the citizen.

[14]       I now turn to Rule 416 which, as I say, balances the rights of litigants, on the one hand protecting a defendant from improper demands, but on the other hand granting protection and access to the courts to the impecunious with meritorious causes of action.

[15]       The relevant case law to which I have been referred and of which I am aware universally begins by defining impecuniosity from a dictionary point of view and perhaps there is little more to be said. But of more interest is Fortyn v. Canada [2000] 4 F.C. 184, a decision of Mr. Justice Lemieux, being the first case to consider Rule 416(1)(f), the defendant having an outstanding order for costs against the plaintiff, and the shield to avoid providing security for costs, Rule 417. Here Mr. Justice Lemieux, at page 192, adopted the view as to the meaning of impecuniosity which was set out by Mr. Justice Teitelbaum, in Ferguson v. Arctic Transportation Ltd. (1996) 118 F.T.R. 154 at 158:

After verifying the facts as to the Plaintiff's financial situation, I am satisfied there is no merit to the allegation that the Plaintiff is impecunious. The New Shorter Oxford English Dictionary On Historical Principles (Oxford: Clarendon Press, 1993) defines the word "impecunious" as "in need of money, poor, penniless". The American Heritage Dictionary defines the word "impecunious" as "lacking money - penniless". The word "impecunious" is an adjective to denote someone who is "poor" or "impoverished" or "needy".

In Arctic Transportation Mr. Justice Teitelbaum, after reviewing the affidavit evidence and evidence following the examination of the plaintiff, was unable to find that the plaintiff was a person in need of money, or poor, or penniless. Similarly, in Fortyn, Mr. Justice Lemieux was unable to find impecuniosity, although he did take into account that the proposed bill of costs would probably not pass by an assessment officer unscathed and therefore cut security for costs to less than a third. I would also observe that security for costs, by Rule 416(2), may be given in stages, as costs are incurred.

[16]       In Fortyn we also see the shifting of onus. It is for the party seeking security for costs to bring the other side within Rule 416, the security for costs rule, with the onus then shifting so that the other side may either show sufficient assets to meet costs, or alternatively, come within Rule 417, demonstrating both merit and impecuniosity, that is establishing that he or she is someone who is poor, impoverished or needy and does not have and cannot raise security for costs. Here I would observe that by requiring a plaintiff, who asserts but does not establish impecuniosity, to provide security for the defendant's future costs, thereby stifling a plaintiff's case, might only be an injustice where the case has some degree of merit.

[17]       The Plaintiff may be living below the poverty line in Vancouver, yet he does have income, in part in the form of rent, utilities and food paid for by his mother, together with an allowance from his mother and social assistance. That figure includes rent of $855 a month and, on a monthly basis, food of about $300, utilities of about $150, cash of between $60 and $120 all provided by the Plaintiff's mother and welfare just in excess of $511 per month, a figure, rounded off and taking the lower monthly cash allowance of $60 into account, about $22,500 per year. This income, accepting as I say that the monthly cash allowance from his mother might be $60, rather than $120, gives the Plaintiff a yearly income of about $22,500: the figure is higher by $1,500 per year than that set out in my 20 April 2005 reasons in this matter, reflecting a more inclusive and closer calculation. The Plaintiff uses furniture belonging to his mother and to his sister. He values his personal effects at $5,000.

[18]       The situation may be summed up by saying that while the Plaintiff may feel he is in need of money, he is far from being impoverished or poor. Here I would note, from his Statement of Claim, from his affidavit material and from cross-examination, that he does have an entertainment budget reflecting attendance at night clubs and that he has been a member, "with little interruption since early 1996", of the Bentall Centre Athletic Club, a squash club (para. 267 of amended Statement of Claim). Conversely he has debts of somewhere between $20,000 and $24,000, but apparently with little success on the part of creditors.

CONCLUSION

[19]       The Plaintiff has been unable to demonstrate impecuniosity, in order to come within Rule 417. Relief under that Rule requires both impecuniosity and a case which has merit. Strictly speaking, there being no impecuniosity there is no relief under Rule 417, however I think it proper to also have included merit, as discussed in the earlier reasons, for to do justice a plaintiff ought not to have a meritorious case brought to a premature end.

[20]       In the present instance the Defendant's skeleton bill of costs is relatively modest. However there may be some element of optimism which would not get past a taxing officer.    The Defendant is allowed, at this point and without prejudice to subsequent requests for security for costs pursuant to Rule 416(2), security for costs in the amount of $1,200, to be paid into Court by the Plaintiff within four months. No further steps may be taken by the Plaintiffs until security for costs has been provided, save as to appeals and as responses to steps taken by the Defendant. In the event that security for costs is provided the Defendant shall, within 90 days of the provision by the Plaintiff of security for costs, file the intended summary judgment application. No costs being sought on the present motion, none are awarded.

___________________________

PROTHONOTARY

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:       T-1114-02

STYLE OF CAUSE: Mark Doe et al. v. HMQ

PLACE OF HEARING:         Vancouver, BC

DATE OF HEARING:           March 25, 2004

REASONS FOR ORDER : HARGRAVE P.

DATED:          April 26, 2005

APPEARANCES:

Mr. Brad Kempo                                                          FOR PLAINTIFFS

Ms. Keitha Richardson                                     FOR DEFENDANT

Mr. Malcolm Palmer

SOLICITORS OF RECORD:

Mr. John H. Sims, Q.C.                                                 FOR DEFENDANT

Deputy Attorney General of Canada