Supreme Court of Canada
Carroll v. City of Ottawa, [1956] R.C.S 256
Date: 1956-01-11
Ernest Carroll Applicant;
and
The Corporation of the City of Ottawa Respondent.
1956: January 11.
Present; Abbott J. in Chambers.
MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS.
Appeal—Forma pauperis—Whether test of rule 142 of the
Supreme Court of Canada met.
The applicant, an unmarried man of twenty-eight years of age,
earning $3,600 a year, contributing $70 to $75 a month to the family expenses,
having a life insurance policy of $5,000 with a cash surrender value of $450,
and having debts of $2,003, half for medical bills arising out of injuries
which are the subject of the present litigation and the other half for monies
borrowed to cover costs in the courts below, has failed to satisfy the onus
that he is not worth the amount fixed by rule 142 of the Supreme Court of
Canada. Leave to appeal to this Court in forma pauperis should, therefore, be
refused (Benson v. Harrison [1952] 2 S.C.R. 333 applied).
MOTION by the applicant before Mr. Justice Abbott in
Chambers for leave to appeal in forma pauperis.
S. J. Gorman for the
motion.
R. K. Laishley, Q.C. contra.
Abbott J.:—This
is an application for leave to appeal in forma pauperis. The affidavit
of the applicant made under Rule 142 sets out that he is "not worth five
hundred dollars in the world excepting my wearing apparel and my
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interest in the said matter of the intended appeal" and
that he has debts amounting to $2,003, of which approximately one-half
represent unpaid medical bills arising out of his injury and the other half a
loan from a relative to cover costs of the litigation in the courts below.
The applicant was examined on his affidavit and from this
examination it appears that he is a locomotive engineer, twenty-eight years of
age, employed by the Canadian Pacific Railway with ten years' seniority. He is
unmarried, lives at home with his parents and two unmarried sisters, the two
latter, with himself, contributing to the expenses of running the house. He
earns about $3,600 a year and testified that these earnings would probably be
increased in the near future under the operation of the seniority system in
force in the railway. He has no debts or liabilities other than those set out
in his affidavit, is contributing about $70 to $75 a month to the expenses of
the family home, and during the past year has been paying off about $100 a
month on account of obligations incurred, largely arising out of this
litigation. He has insurance policies on his life of a face value of $5,000 and
with a present cash surrender value of approximately $450.
The onus is on the applicant to satisfy the Court that he is
not worth $500, the amount fixed by the rule, and as to the test to be applied
in determining this question, I am in agreement with the view expressed by my
brother Rand in Benson v. Harrison when he said:—
In determining that question, the matter should, I think, be
approached, not as an inquiry whether the person has actually $500 worth of
property, but whether, in the ordinary business judgment, it can be said that
he is good for $500. That was the view taken by Buckley L.J. in Kydd v. The
Watch Committee of Liverpool 24 T.L.R. 257.
Applying this test to the present case, the applicant
has failed to satisfy me that he is not worth the amount fixed by the rule.
The application is therefore dismissed but without costs.
Leave refused.
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