Docket: 17-T-54
Citation:
2017 FC 1115
Ottawa, Ontario, December 7, 2017
PRESENT: The Honourable Mr. Justice Harrington
|
BETWEEN:
|
|
DR. V. I.
FABRIKANT
|
|
Applicant
|
|
and
|
|
HER MAJESTY
THE QUEEN
|
|
Respondent
|
ORDER AND REASONS
[1]
There are three points to keep in mind in Dr.
Fabrikant’s appeal from the Order of Prothonotary Tabib dated September 5,
2017, by which she refused to waive a $30.00 filing fee.
[2]
The first is that her Order was discretionary in
nature. She was under no legal compulsion to waive the fee.
[3]
The second is that Dr. Fabrikant has been
imprisoned for many years. As a prisoner he receives about $30.00 in
disposable income every two weeks. He says he has no other source of funding.
[4]
The third point is that as long ago as 1999 he
was declared by Madam Justice McGillis, in Docket T-376-99, to be a vexatious
litigant. That designation holds true to this day. As a vexatious litigant he
needs the Court’s leave or permission to institute proceedings as required by
s. 40(3) of the Federal Courts Act.
[5]
This set of reasons is broken down as follows:
a)
the requirement to pay filing fees
b)
the consequences of being declared a vexatious
litigant
c)
the case before the Prothonotary
d)
the Prothonotary’s decision
e)
the standard against which appeals from decisions
of prothonotaries is to be reviewed
f)
analysis and disposition.
I.
Filing Fees
[6]
The Federal Courts Rules and tariff provide
for various Registry fees. The fee payable on a notice of motion for leave to
commence a proceeding is $30.00. There is no fee payable on a motion to have
the fee waived on the grounds of impecuniosity. In fact there is no Rule which
specifically deals with fee-waivers. However, Rule 55 provides that the Court
in special circumstances may vary or dispense with compliance with a rule.
This Rule has been used to permit parties to proceed in forma pauperis,
which includes the privilege of not having to file the Court fees prescribed in
the tariff. In determining whether the party would otherwise be deprived of a
reasonably arguable case and denied access to justice, the underlying
application should be taken into account.
II.
Vexatious Litigants
[7]
Section 40 of the Federal Courts Act
provides that if the Court is satisfied that a person has persistently
instituted vexatious proceedings or has conducted a proceeding in a vexatious
manner it may order that no further proceedings be instituted by that person
except with leave of the Court. Leave may be granted if the Court is satisfied
that the proceeding is not an abuse of process and that there are reasonable
grounds for the proceeding. As mentioned above, Dr. Fabrikant was declared to
be a vexatious litigant in 1999.
III.
The Case Before the Prothonotary
[8]
In this case the underlying application, which
was filed separately, sought leave to proceed against the Canadian Human Rights
Commission with respect to an informal settlement to which Dr. Fabrikant agreed.
The agreement which is said to be confidential dealt with the purchase of
kosher food products.
[9]
Thus there were two matters before the Prothonotary.
Her decision is limited to the waiver of the $30.00 filing fee but, as she
should have, she took into account the underlying application for judicial
review.
[10]
The basis of the claim is a change in the
Commissioner’s Directive which dealt with the purchase of items for holiday
canteen. Prior to 2013 the canteen was available to Christians for purchase at
Christmas time. Non-Christians were entitled to purchase their holiday canteen
at a time coinciding with their major holidays. Dr. Fabrikant is Jewish.
[11]
In 2013 a new Commissioner’s Directive 890 was issued.
It only provided a single list of items for all religions. This list is said
by Dr. Fabrikant not to contain a single kosher item.
[12]
Dr. Fabrikant filed a complaint with the
Canadian Human Rights Commission which subsequently referred the matter to the Canadian
Human Rights Tribunal. It offered him an informal settlement of his complaint
which he accepted in September 2016, a settlement which was approved by the
Commission on October 12, 2016, as required by the Canadian Human Rights Act.
[13]
A few days later, Dr. Fabrikant seems to have
changed his mind because on October 15, 2016, he sent a letter to the
Commission asserting that the agreement which he signed should not have been
approved because it was not in the public interest.
[14]
He decided to check the Commission’s procedure
in the settlement approval process. He requested a complete copy of his file
in accordance with the Privacy Act. Parts thereof were redacted
allegedly on the ground of solicitor-client privilege relating to
correspondence between lawyers representing the Tribunal and lawyers
representing the Commission. This, he says, created a conflict of interest
which nullifies the agreement.
[15]
However, he also complained that the Commission
was not enforcing the agreement as it was required to do. This is a departure
from his submission that the Commission had no business to approve the
settlement in the first place. The agreement was not in the public interest,
he says, because the minutes of settlement he signed state that he agreed that
the settlement did not constitute a precedent, meaning that other Jewish
prisoners could still be discriminated against and unable to participate in any
holiday canteen.
IV.
The Prothonotary’s Decision
[16]
The Prothonotary noted that the motion record had
been dated more than thirty days prior to its submission for filing.
[17]
She dismissed the motion to waive the filing fee
on the grounds that the evidence of impecuniosity was prima facie
deficient being based on an affidavit nearly one year old. Although Dr.
Fabrikant submitted in written argument that his financial situation had not
changed, she noted, quite correctly, that submissions are not evidence.
[18]
The Prothonotary also pointed out that the
motion was out of time when filed and that she was unable to determine whether it
had any merit.
V.
Standard of Review
[19]
Assuming, without deciding, that the
Prothonotary’s discretionary decision was vital to the outcome of the case, the
case law has dramatically changed in the light of the decision of the Federal
Court of Appeal in Hospira Health Corporation v The Kennedy Institute of
Rheumatology, 2016 FCA 215, [2017] 1 FCR 331. Prior thereto the appellate standard
of review applicable to discretionary orders of prothonotaries was set out in
such Federal Court of Appeal cases as Canada v Aqua-Gem Investments Ltd,
[1993] 2 FC 425. Their decisions should not be disturbed on appeal to a
Federal Court Judge unless clearly wrong in the sense that the exercise of
discretion was based upon a wrong principle or upon a misapprehension of the
facts or that questions were raised which were vital to the outcome of the
case. If so, the judge in appeal was to exercise his or her own discretion de
novo. This is no longer the law.
[20]
The standard of review now applicable in appeal of
all decisions of prothonotaries is the standard set out by the Supreme Court of
Canada in Housen v Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, which
dealt with appeals from decisions of judges.
[21]
The new standard as stated by Mr. Justice Nadon,
speaking for the Court of Appeal in Hospira is:
[66] In Housen,
the Supreme Court enunciated the standard of review applicable to decisions of
trial judges. More particularly, it concluded that 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 (paragraphs
19 to 37 of Housen).
[22]
As to the meaning of “palpable” as stated at
para 5 of Housen:
What is palpable error? The New Oxford Dictionary of English (1998)
defines “palpable” as “clear to the mind or plain to see” (p. 1337). The Cambridge International Dictionary of English (1996) describes it as “so obvious that it can easily be seen or
known” (p. 1020). The Random House Dictionary
of the English Language (2nd ed. 1987) defines it
as “readily or plainly seen” (p. 1399).
VI.
Analysis and Disposition
[23]
There are at least three reasons why this appeal
should be dismissed. The first is that a motion should be accompanied by a
current affidavit. It is clear in this case that Dr. Fabrikant’s circumstances
had changed in the several months following the affidavit he proffered to the
Court. The second is that applications for judicial review are to be taken
within thirty days of communication of that decision. The Court may extend
time but there is no motion making that request, and no affidavit explaining,
among other things, why the application was not taken within time. The third
is that it cannot be said based on the material before the Court that Dr.
Fabrikant has an arguable case. This is a factor in determining whether leave
to proceed should be given under s. 40(3) of the Federal Courts Act to a
declared vexatious litigant, as well as to an extension of time.
[24]
On the first ground, Prothonotary Tabib was
correct in holding that evidence on a motion is to be set out in an affidavit (Federal
Courts Rule 363). The affidavit was almost a year old. She was entitled
to reject it as being stale-dated. Furthermore, in the affidavit which is
dated September 7, 2016, Dr. Fabrikant states that the milk distribution was
non-kosher so he had to incur the additional expense of purchasing milk from
the canteen at an average cost of $1.34 per day.
[25]
Dr. Fabrikant deceived the Court by saying his
circumstances had not changed. He failed to mention the decision of Madam
Justice Gagné in Fabrikant v Canada (Attorney General), 2017 FC 576,
issued June 12, 2017 (currently under appeal).
[26]
She said at paras 11and 12 thereof:
[11] The Applicant is Jewish and
follows a kosher diet. He argues that since October 24, 2014, he has been
forced to buy kosher milk from the canteen as he is of the view that the
powdered milk distribution system in the penitentiary is not kosher. Yet it
appears from the Assistant Commissioner’s decision (at page 2) that the
Applicant was provided with a certification from the Kashruth Council of Canada
stating that the powdered milk is kosher, along with a confirmation by the
Institution Rabbi that the powdered milk distribution system is compliant with
established hygiene standards.
[12] Based on the motion record before
me, it appears that the Applicant’s application for judicial review is prima
facie frivolous. Waiving the filing fees in those circumstances would
essentially annihilate the effect of the section 40 judgment against the
Applicant.
[27]
Dr. Fabrikant appears to be of the view that he
can spend his money as he sees fit. Indeed, if he does not like the kosher
powdered milk offered without charge he is entitled to purchase other kosher
milk. It does not follow, however, that the filing fee should be waived. A waiver
is unusual and exercise of discretion should not even be considered unless the
circumstances are exceptional. That is not the case here. This is but another
example of vexatious litigation.
[28]
The second ground is that applications for
judicial review of decisions of federal boards and tribunals are to be taken
within thirty days of communication of that decision (Federal Courts Act
18.1). Whatever the starting point, more than thirty days had elapsed by the
time the record was proffered for filing.
[29]
The Court may on motion extend time. There is
no such motion in the record. In any event the Applicant must show, among
other things, an arguable case.
[30]
The third ground to reject the request for
waiver of the filing fee is that Dr. Fabrikant has not made out a case that his
application, which is really directed against the Canadian Human Rights
Commission, has any merit. On the one hand he wants the settlement he had
reached to be set aside because of some vague allegations of conflict of
interest based on refusal to provide some of the correspondence between lawyers
for the Commission and lawyers for the Tribunal on the grounds of privilege,
and that the settlement to which he agreed is contrary to public policy because
it is confidential and therefore would not benefit other Jewish prisoners. On
the other hand, he alleges that the Commission has failed to enforce the
agreement. If I had to decide de novo, I would consider the application
to be vexatious under Federal Courts Rule 221.
[31]
Dr. Fabrikant makes a point that from time to
time filing fees have been waived. On the other hand, there are times when
they have not. As Chief Justice Noël speaking for the Federal Court of Appeal
in Fabrikant v Canada, 2015 FCA 53, said at para 12:
… I conclude that it was open to the Federal
Court judge, on the record before her, to exercise her discretion as she did.
Given the nature of this exercise, the fact that another judge chose to
exercise his discretion differently based on a similar record in another
proceeding initiated by Dr. Fabrikant is no reason to overturn the Federal
Court judge.
[32]
Costs were sought. There is no reason why they
should not be granted.
[33]
In summary, the Prothonotary was correct with
respect to questions of law and made no error whatsoever, much less a palpable
and overriding error, on questions of fact. Even if she had, I would have come
to the same conclusion for the reasons set out herein.
Email this Content