Docket: A-197-14
A-198-14
Citation:
2016 FCA 77
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CORAM:
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STRATAS J.A.
WEBB J.A.
SCOTT J.A.
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BETWEEN:
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IZABELA POPOVA
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Appellant
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And
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THE EMPIRE
LIFE INSURANCE COMPANY and MAUREEN WHEELER, MANAGER OF THE GROUP LIFE AND
DISABILITY CLAIMS
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Respondents
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REASONS
FOR JUDGMENT
WEBB J.A.
[1]
Ms. Popova has appealed two Orders of Hughes J.
of the Federal Court, both dated April 2, 2014 and both in Docket T-2067-13. The
appeals (A-197-14 and A-198-14) were consolidated by an Order dated June 27,
2014 with A-197-14 to be considered as the lead appeal. These reasons shall be
filed in A-197-14 and a copy thereof shall be filed in A-198-14.
[2]
The issue in relation to both Orders and these
Appeals is whether Ms. Popova’s father, who is not a solicitor, should be
allowed to represent her in her matter before the Federal Court. In one Order,
Hughes J. dismissed the motion made on behalf of Ms. Popova for an Order
granting her father permission to act on her behalf and in the other Order,
Hughes J. dismissed an appeal from an Order of the Prothonotary who had also
denied a similar request.
[3]
Ms. Popova has commenced an Application in the
Federal Court against the Respondents. The Respondents note in their Memorandum
of Fact and Law that a case management Judge was appointed on March 6, 2014.
[4]
Rules 119 and 121 of the Federal Courts Rules,
SOR/98-106, provide that:
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119. Subject to rule 121, an
individual may act in person or be represented by a solicitor in a
proceeding.
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119.
Sous réserve de la règle 121, une personne physique peut agir seule ou se
faire représenter par un avocat dans toute instance.
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…
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[…]
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121. Unless the Court in special
circumstances orders otherwise, a party who is under a legal disability or
who acts or seeks to act in a representative capacity, including in a
representative proceeding or a class proceeding, shall be represented by a
solicitor.
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121. La partie qui n’a pas la capacité
d’ester en justice ou qui agit ou demande à agir en qualité de représentant,
notamment dans une instance par représentation ou dans un recours collectif,
se fait représenter par un avocat à moins que la Cour, en raison de
circonstances particulières, n’en ordonne autrement.
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[5]
Although Ms. Popova referred to Rule 121, this
Rule only applies if a party is under a legal disability or is seeking to act
in a representative capacity. The two references to “who”
would both be referring to “a party”. Therefore
this Rule should be read as applying to either a party who is under disability
or a party who is acting or seeking to act in a representative capacity.
[6]
In this case, there is no indication that Ms.
Popova is under a legal disability. Since her father is not a party, Ms. Popova
cannot rely on Rule 121 to have her father represent her.
[7]
As a result, the applicable Rule is Rule 119.
This Rule is clear – Ms. Popova may either act in person or be represented by a
solicitor. Since her father is not a solicitor, he cannot represent her.
[8]
Prior to the hearing of this appeal, Ms.
Popova’s father filed, on her behalf, a Notice of Constitutional Question in
which Ms. Popova was attempting to raise the issue of whether Rule 119 breached
section 12 and subsection 15(1) of the Canadian Charter of Rights and
Freedoms, 1982 (Charter) and whether Rule 121 breached subsection
15(1) of the Charter. Since Rule 121 would not be applicable in any
event, the alleged challenge would be to Rule 119.
[9]
Section 12 and subsection 15(1) of the Charter
provide as follows:
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12. Everyone has the right not to be
subjected to any cruel and unusual treatment or punishment.
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12.
Chacun a droit à la protection contre tous traitements ou peines cruels et
inusités.
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…
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[…]
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15.(1) Every individual is equal
before and under the law and has the right to the equal protection and equal
benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability.
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15.(1) La loi ne fait acception de personne
et s’applique également à tous, et tous ont droit à la même protection et au
même bénéfice de la loi, indépendamment de toute discrimination, notamment
des discriminations fondées sur la race, l’origine nationale ou ethnique, la
couleur, la religion, le sexe, l’âge ou les déficiences mentales ou
physiques.
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[10]
The issue of whether these provisions of the Charter
are applicable had not been raised before the Prothonotary or the Federal Court
Judge.
[11]
In Somodi v. Canada (Minister of Citizenship
and Immigration), 2009 FCA 268, [2009] F.C.J. No. 1152, this Court stated
that:
2 In Coca-Cola Ltd. v. Parnham
(c.o.b. Universal Exporters), 2003 FCA 11, leave to appeal dismissed,
[1999] S.C.C.A. No. 338, this Court held that it would not entertain Charter
arguments that were not raised before the Federal Court because to do so would
deprive this Court of the benefit of the application judge's reasoning and
analysis on the arguments.
3 Further, by raising the issues for the
first time at the appellate level, the appellant will have deprived the
respondent of any opportunity to lead evidence relating to the alleged
breaches.
[12]
Since Ms. Popova did not raise her Charter
arguments before the Prothonotary or the Federal Court Judge and since evidence
would be necessary to advance these arguments, they cannot be raised for the
first time in this Court in her appeal of the Orders of the Federal Court
Judge. The assertions made in the Notice of Constitutional Question with
respect to the potential consequences if Ms. Popova’s father is not permitted
to represent her are not evidence. Evidence must be introduced through a
witness, which is generally done either by the witness testifying during a
hearing or deposing an affidavit. An opposing party would have the right to
cross-examine the witness. Allegations made only in argument are not evidence.
[13]
In any event, in the interest of avoiding any
further delays in this matter and for the benefit of Ms. Popova, I would refer
to the following comments made by the Supreme Court of Canada in relation to
sections 12 and 15 of the Charter.
[14]
In relation to section 12 of the Charter,
Lamer J. (as he then was) in R. v. Smith, [1987] 1 S.C.R. 1045, [1987]
S.C.J. No. 36 stated that:
53 The limitation at issue here is s. 12
of the Charter. In my view, the protection afforded by s. 12 governs the
quality of the punishment and is concerned with the effect that the punishment
may have on the person on whom it is imposed. I would agree with Laskin C.J. in
Miller and Cockriell, supra, where he defined the phrase
"cruel and unusual" as a "compendious expression of a
norm". The criterion which must be applied in order to determine whether a
punishment is cruel and unusual within the meaning of s. 12 of the Charter is,
to use the words of Laskin C.J. in Miller and Cockriell, supra,
at p. 688, "whether the punishment prescribed is so excessive as to
outrage standards of decency". In other words, though the state may impose
punishment, the effect of that punishment must not be grossly disproportionate
to what would have been appropriate.
[15]
The alleged implications arising from a refusal
to allow Ms. Popova’s father to represent her in her Application before the
Federal Court, even if they would have been established by evidence, would fall
far short of what would be required to establish cruel and unusual punishment
for the purposes of section 12 of the Charter.
[16]
With respect to subsection 15(1) of the Charter,
I would refer to the following excerpt from the decision of the Supreme Court
of Canada in Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015]
2 S.C.R. 548:
18 The focus of s. 15 is therefore on laws
that draw discriminatory distinctions -- that is, distinctions that have
the effect of perpetuating arbitrary disadvantage based on an individual's
membership in an enumerated or analogous group: Andrews, at pp. 174-75; Quebec
v. A, at para. 331. The s. 15(1) analysis is accordingly concerned with the
social and economic context in which a claim of inequality arises, and with the
effects of the challenged law or action on the claimant group: Quebec v. A,
at para. 331.
19 The first part of the s. 15 analysis
therefore asks whether, on its face or in its impact, a law creates a
distinction on the basis of an enumerated or analogous ground. Limiting claims
to enumerated or analogous grounds, which "stand as constant markers of
suspect decision making or potential discrimination", screens out those
claims "having nothing to do with substantive equality and helps keep the
focus on equality for groups that are disadvantaged in the larger social and
economic context": Corbiere v. Canada (Minister of Indian and Northern
Affairs), [1999] 2 S.C.R. 203, at para. 8; Lynn Smith and William Black,
"The Equality Rights" (2013), 62 S.C.L.R. (2d) 301, at p. 336.
Claimants may frame their claim in terms of one protected ground or several,
depending on the conduct at issue and how it interacts with the disadvantage
imposed on members of the claimant's group: Law v. Canada (Minister of
Employment and Immigration), [1999] 1 S.C.R. 497, at para. 37.
20 The second part of the analysis focuses
on arbitrary -- or discriminatory -- disadvantage, that is, whether the impugned
law fails to respond to the actual capacities and needs of the members of the
group and instead imposes burdens or denies a benefit in a manner that has the
effect of reinforcing, perpetuating or exacerbating their disadvantage:
The root of s. 15 is our awareness
that certain groups have been historically discriminated against, and that the
perpetuation of such discrimination should be curtailed. If the state conduct
widens the gap between the historically disadvantaged group and the rest of
society rather than narrowing it, then it is discriminatory. [Quebec v. A,
at para. 332]
21 To establish a prima facie
violation of s. 15(1), the claimant must therefore demonstrate that the law at
issue has a disproportionate effect on the claimant based on his or her
membership in an enumerated or analogous group. At the second stage of the
analysis, the specific evidence required will vary depending on the context of
the claim, but "evidence that goes to establishing a claimant's historical
position of disadvantage" will be relevant: Withler, at para. 38; Quebec
v. A, at para. 327.
[17]
It would appear that Ms. Popova, in relation to
her challenge to Rule 119, is alleging that Rule 119 creates a distinction
based on whether a person is a solicitor or is not a solicitor. This is not an
enumerated ground in subsection 15(1) of the Charter and it is far from
clear on what basis it could be considered to be an analogous ground.
[18]
Although the Respondent was seeking enhanced
costs, in my view, costs should be awarded in accordance with the tariff. As
well, since the issue is the same for both appeals, I would only award one set
of costs.
[19]
As a result, I would dismiss the appeals, with one
set of costs. Since A-197-14 is the lead appeal, I would award costs in that
appeal.
"Wyman W. Webb"
“I agree.
“David
Stratas J.A.”
“I agree.
“A.F.
Scott J.A.”
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