Docket: T-1625-15
Citation: 2018 FC 228
[ENGLISH TRANSLATION]
Ottawa, Ontario, February 28, 2018
PRESENT: The Honourable Mr. Justice Martineau
SIMPLIFIED ACTION
| BETWEEN:
|
| RENÉ BARKLEY
|
| Plaintiff
|
| and
|
| HER MAJESTY THE QUEEN
|
| Defendant
|
ORDER AND REASONS
[1]
The plaintiff, René Barkley, asks the Court to order the continuation of a stay of proceedings that was previously ordered in this file, to order that an administrative judicial inquiry be held and to award him interim costs. This motion was heard jointly with the motion that was filed in T-1699-12 and of which it was disposed by a separate order (René Barkley v Her Majesty the Queen, 2018 FC 227 [Barkley 2018 #1]).
Procedural background
[2]
The plaintiff is currently incarcerated at Port-Cartier Maximum-Security Institution, which is administered by Correctional Service Canada [the Service].
[3]
Through this simplified action, the plaintiff seeks an award of $30,000 in connection with various acts of which the Service is accused regarding an incident that took place in November 2014. The plaintiff was first allegedly refused his right to call his lawyer, which apparently led to a dispute with the guards. They then allegedly kept the plaintiff in his cell and reportedly kept him in confinement for several days. At the same time, he was reportedly suspended from school and his job. The plaintiff essentially submitted that the violation of his right to call his lawyer, his confinement and lastly, his suspension were all illegal acts by the Service. To date, the action in damages has not yet been heard on merits by the Court.
[4]
In the meantime, on December 3, 2015, the plaintiff filed a motion to obtain an extension of time, to obtain access to a computer and printer in his cell, to obtain access to case law for the federal courts, and to have his computer data transferred. On February 17, 2016, St-Louis J. granted an extension of time lasting 60 days for each of the steps in the proceedings, but dismissed the other remedies sought by the plaintiff. On May 24, 2016, the plaintiff filed a notice of appeal. On June 10, 2016, Roy J. suspended the current proceedings until the plaintiff’s appeal was decided on merits. On January 12, 2017, the Federal Court of Appeal dismissed his appeal.
Continuation of the stay of proceedings refused
[5]
As a general rule, the best interests of justice require that any action or proceedings instituted before the Court proceed expeditiously, as prescribed by Rule 3 of the Federal Courts Rules, SOR/98-106 [the Rules]. According to paragraph 50(b) of the Federal Courts Act, RSC 1985, c. F-7, a stay of proceedings can be warranted when it is in the interests of justice. In the same type of cases, the moving party has the burden of proof to prove that carrying out the action would cause him prejudice or injustice and not simply inconvenience. The moving party must then show that the suspension would not be unfair to the other party (for an example, see Compulife Software Inc v Compuoffice Software Inc, 143 FTR 19, [1997] FCJ No. 1772 (QL) (FCTD)).
[6]
When exercising my judicial discretion, it would not be appropriate for the Court to once again stay the current proceedings.
[7]
The plaintiff first submits that the stay is necessary to settle some of his cross-motions in the meantime. In his submissions from February 12, 2018, he adds that the stay is necessary to allow him to file various internal grievances with the Service. For her part, the defendant submits that the stay of proceedings must not be continued and instead invites the Court to set a new deadline according to the terms suggested in the deadline filed on January 26, 2018.
[8]
I agree with the defendant. The problem is that the plaintiff has not shown how he would suffer a prejudice—and not simply an inconvenience—in the event that the proceedings continue normally.
Application for an administrative judicial inquiry refused
[9]
The plaintiff also wants the Court to order that an “administrative judicial inquiry”
be held. In this matter, he seeks various alternative orders, particularly the filing of evidence that is necessary for the inquiry (Preventive Security file from the Service, briefing minutes from June 9, 2016), the examination of various persons, and any additional remedies that the Court deems appropriate.
[10]
The inquiry application essentially relies on the following allegations:
The Service violated the plaintiff’s constitutional rights and contravened its own directive regarding privileged telephone calls by preventing him from calling the court and by reducing his access to privileged legal communication with the goal of damaging the legal proceedings;
The Service seized and destroyed the plaintiff’s legal documents without legal permission, in particular, dozens of diskettes and CD-ROMs, along with documents that were in his cell; and
The Service and counsel for the defendant impugned and tried to prevent the plaintiff’s constitutional rights from being respected and deliberately lied to the Federal Court of Appeal.
[11]
The defendant reiterates the same arguments for dismissal as in T-1699-12, such that the Federal Court does not have the authority to order that such an inquiry be held. As for the illegal seizure, the defendant states that those allegations by the plaintiff are baseless and have no connection to this action. The defendant relies on the affidavit of Jérôme Vigneault, Acting Assistant Warden, Operations at Port-Cartier Institution, who attests that only one seizure of diskettes took place on July 13, 2016, for safety reasons. That diskette had information on another inmate and had been obtained illegally. It was returned to the plaintiff after being erased. Various documents from the Service were filed as evidence to corroborate this version of the facts.
[12]
For the reasons stated in T-1699-12, this Court does not have the authority to order that an administrative inquiry be held as is currently sought by the plaintiff (Barkley 2018 #1 at paras 17–19). The plaintiff has the burden of proving that his constitutional rights were violated; the Court does not have to play the role of inquisitor. That said, it must be remembered that the plaintiff will serve the list of relevant documents in the defendant’s possession (Rule 295) and will serve a written examination for discovery (Rule 296) as part of this simplified action.
Interim costs refused
[13]
The plaintiff also seeks an order for interim costs.
[14]
In British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71, the Supreme Court recalled that the courts have an inherent power to award costs to a party to the litigation—under rare and exceptional circumstances—before the final settlement of the matter and regardless of the outcome. That said, in Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2 at para 36 [Little Sisters], McLachlin C.J. reiterated that “though now permissible, public interest advance costs orders are to remain special and, as a result, exceptional. These orders must be granted with caution, as a last resort, in circumstances where the need for them is clearly established”.
[15]
In short, as stated in Little Sisters at paragraph 37, the parties that seeks such a provision must satisfy the court that three absolute requirements are met:
1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial — in short, the litigation would be unable to proceed if the order were not made.
2. The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.
3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.
[16]
When exercising my discretion, I have chosen not to award interim costs in this case, although I am prepared to accept that, prima facie, this action should be handled according to the second criterion in Little Sisters.
[17]
That being said, we must also look at whether the plaintiff did everything that was necessary to show that all other funding options have been exhausted (see Little Sisters at para 68, citing Okanagan at para 40). The plaintiff must show that he is financially unable by providing a detailed statement of his income and expenses and a complete financial statement, along with alternative sources of funding (see Al Telbani v Canada (Attorney General), 2012 FCA 188 at paras 8–9). The plaintiff’s bald statements are insufficient to prove this lack of financial ability (see Metrolinx (Go Transit) v Canadian Transportation Agency, 2010 FCA 45 at para 10). In this case, the plaintiff did not provide any evidence or statement that revealed his financial situation. No documents were provided regarding his assets, savings or other possible sources of funding. The only information that the Court had dealt with his “salary”
, which was a gross sum of $52.50 for 14 days of work—leaving him a total of $20.50 after deductions. At the hearing, the plaintiff stated that 25% of his pay was deducted in order to pay costs of $3,308 to which he was sentenced as part of a motion to strike in T-1699-12 (see Barkley 2018 #1 at paras 9–12). In my view, the significance of those deductions does not make the plaintiff, who is representing himself in this case, unable to proceed. The costs in T-1699-12 were validly imposed by the Court and the plaintiff has full responsibility to pay them. Additionally, this Court has the power to exempt, if necessary, the payment of certain legal disbursements. Since I am not satisfied that the plaintiff did everything that was necessary to show that he has exhausted all options to be exempted from paying certain legal disbursements, I am also not satisfied that the first criterion in Little Sisters has been met in this case.
[18]
Furthermore, this case does not at first glance appear to raise any questions of general importance for the public that have not yet been decided by the courts. Instead, this is a claim that is very personal in nature, such that the third criterion in Little Sisters is not met here.
[19]
Thus, interim costs do not appear warranted in the circumstances.
New timetable and order for special management
[20]
Considering the additional submissions from the parties, I am satisfied that an extension of 60 days for each of the steps in the proceedings—in accordance with the new timetable that was established in the following order—is appropriate in the circumstances. That being done, I particularly considered the fact that the plaintiff is representing himself and that his detention conditions have caused him various inconveniences. As for the internal grievances with the Service, the plaintiff is free to submit them independently and at the same time as these proceedings.
[21]
In addition, both parties agree that it would be appropriate to order that the action continue as a specially managed proceeding. Therefore, it will be up to the judge or prothonotary assigned by the Chief Justice of the Court as case management judge to modify the timetable, if needed, and to determine all questions before the investigation and to prescribe any other appropriate measure so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.
[22]
I am also aware of the numerous procedural obstacles and often disproportionate costs that are dealt with by inmates who want to argue their rights before this Court. In this case, nothing is preventing the plaintiff from sending the case management judge an application for exemption from certain legal disbursements.
[23]
In particular, the plaintiff explained at the hearing that his net income of $20.50 was all that he had to cover the law stamp, postal fees, and purchases of sheets and photocopies. However, all those costs stem from the procedural rules of this Court, which for example require the filing of documents in triplicate and payment of the stamp, or internal procedures of the Service, according to which an inmate can only obtain paper versions of case law, leading to a related application and the covering of printing costs. In my view, this sheds light on the problem of legal access for federal inmates, something of which the Court has certainly showed in the past that it is aware (for example, see Mapara v Canada, 2014 FC 538 at para 42, aff by 2015 FC 110). In addition, the 2015–2016 Report of the Correctional Investigator of Canada also insisted on the glaring lack of legal resources for inmates—shortcomings that were described as unacceptable (Canada, Annual Report of the Office of the Correctional Investigator 2015–2016, by Howard Sapers, Ottawa, Office of the Correctional Investigator, 2016).
[24]
In this measure, although there is no need to award interim costs in this case, the Court must nevertheless ensure, in compliance with Rule 3, the just, most expeditious and least expensive determination of the proceeding. In fact, the proceeding should not be an obstacle to the claiming of a right, especially for an inmate who is possibly in a delicate financial situation. It is also in keeping with what was unanimously expressed at the Supreme Court in Hryniak v Mauldin, 2014 SCC 7 at paras 1 and 28 [Hryniak]:
[1] Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened.
[…]
[28] This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible — proportionate, timely and affordable. […]
[Emphasis added.]
[25]
However, paragraph 385(2)(a) of the Rules grants the case management judge the power to “give any directions or make any orders that are necessary for the just, most expeditious and least expensive determination of the proceeding on its merits”
. That rule grants the judge broad powers and lets him or her regulate the conduct of the parties or exempt them from applying certain rules (for example, see Mazhero v Fox, 2014 FCA 219 at paras 3 and 6, leave for appeal to the Supreme Court refused [Mazhero]). In that matter, Stratas J. thus used his case management powers to establish special rules that governed communication between the parties and the Court (see Mazhero at para 11).
[26]
With this in mind, we can easily imagine various procedural developments that may be granted by the case management judge in order to ensure the most expeditious and least expensive determination for the plaintiff. Exempting him from paying for the stamp; allowing for the filing of a single copy of the proceedings; holding meetings by videoconference to settle litigation issues quickly; exempting him from filing a book of authorities; or allowing the filing of documents by fax are only a few examples of measures that may be taken in order to respect the spirit of Rule 3 and the guiding values of the Supreme Court in Hryniak.
Conclusion
[27]
In conclusion, except for how it is provided in the Court order, all the requests in the plaintiff’s motion are dismissed. Given all the relevant factors, including the fact that the filing of the plaintiff’s motion addressed the setting of a timetable and continuing the proceeding as a specially managed proceeding, in exercising my discretion, it would not be appropriate to award costs to the defendant.
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