Date: 20000914
Docket: T-290-99
Ottawa, Ontario, September 14, 2000
Present: The Honourable Mr. Justice Muldoon
Between: EDWIN PEARSON,
Plaintiff
- and -
HER MAJESTY THE QUEEN,
Defendant.
ORDER
UPON the plaintiff's motion, which came on for hearing on May 1, 2000 for an order, dated May 2, 2000, setting aside Prothonotary Lafrenière's order of March 13, 2000, which stayed proceedings in this action and awarded costs of $500.00 in the defendant's favour, whereby this Court set aside the learned prothonotary's said order and awarded no costs; and
UPON the plaintiff's motion to be permitted to proceed herein in forma pauperis having come on for hearing also on May 1st, 2000, upon the evidence of the plaintiff's affidavit, sworn April 14, 2000 (document 56, tab 6, plaintiff's motion record) whereupon this Court reserved its decision which it took under deliberation, and upon hearing what was alleged by the plaintiff and by the defendant's counsel, now
THIS COURT ORDERS that the plaintiff be, and he shall be permitted to proceed in forma pauperis, a common law right, which, despite the absence of specific rules to such effect means in this instance that:
| a) rule 55 is invoked so that the Court dispenses with all rules such as rule 19, and tariffs A and B whereby fees might be levied on the plaintiff, but |
| b) nothing herein shall be taken to exempt the plaintiff from liability to the defendant for such costs which the trial judge or prothonotary may hereafter impose on the plaintiff for his adjudged misconduct of the case, if any, or for disgorging any witness fees awarded to the plaintiff in order to compensate witnesses called to testify or produce documents at his behest; and |
| c) costs and fees payable in this litigation shall remain to be disbursed by the plaintiff, if required, in the ordinary discretion of the Court. |
Judge
Date: 20000914
Docket: T-290-99
Between: EDWIN PEARSON,
Plaintiff
- and -
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR ORDER
Muldoon, J.
[1] The moving party, Edwin Pearson, has been impecunious for some years and, in fact, asserts that he is currently subsisting only on his Old Age Pension. This has not robbed him of the will, however, to seek redress in an action against the defendant for actions taken by her employees in respect of the prosecution of certain charges laid against him. He is, unfortunately, unable to afford the various court and registry fees and certain costs which have been assessed against him. These reasons concern a motion, brought by the plaintiff in the main action, for an order allowing him to proceed in forma pauperis.
[2] The moving party, Mr. Pearson, asserts that he should be allowed to proceed in forma pauperis despite the fact that the Federal Court Rules, 1998 SOR/98-106 do not provide for this in the same manner as the gap rule allows him to benefit from Ontario's civil procedure rules which do. Mr Pearson also submits that he has a right of access to this Court pursuant to the common law and sections 2 and 24 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (the Charter).
[3] The defendant argues that the plaintiff may not proceed in forma pauperis and cites the decision of Mr. Justice Walsh in Magrath v. National Parole Board of Canada, [1979] 2 F.C. 757 (T.D.)(hereinafter Magrath). It should be noted that this decision has been followed by this court in Brough v. Canada (T-2842-90, T-389-91, July 29, 1994)(F.C.T.D.) and more recently by Ontario's Superior Court of Justice in Polewsky v. Home Hardware Stores Ltd. (St. Thomas Small Claims Court File No.99-234, London Small Claims Court File No. 1273-97 and Sarnia Small Claims Court Files Nos. 7055-98 and 7190-98, October 12, 1999).
[4] In respect of the moving party's first submission, no provisions of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194 were accurately cited nor were any found which might allow for in forma pauperis proceedings in the Province of Ontario. Nor, as Mr. Pearson admitted, and as pointed out in Magrath, is there any provision in the Federal Court Act or in the rules which might allow for in forma pauperis proceedings. This Court does, nevertheless, note rule 55 of the Federal Court Rules, 1998, which provides:
|
55. Dans des circonstances particulières, la Cour peut, sur requête, dispenser de l'observation d'une disposition des présentes règles. |
This rule makes it clear that, if it is not possible to grant leave to proceed in forma pauperis, it is nevertheless possible for this Court to dispense with compliance with rules pertaining to fees.
[5] The jurisprudence surrounding rule 55 is sparse. Fortunately, however, Prothonotary Hargrave has commented, over many years, on its application and on the application of its predecessor, rule 6 of the old Federal Court Rules, C.R.C. 1978, Chap. 663. His statement in Chow v. Canada (Minister of Citizenship and Immigration)(1998), 161 F.T.R. 156, which follows, is an accurate synopsis of the relevant considerations when applying the rule:
| The critical wording here is that special circumstances are required. But implicit, in special circumstances is, on the one hand, justice and, on the other hand, that there be no prejudice. |
It might also be added that the conduct of those requesting a dispensation under rule 55 will of necessity be scrutinized; Pfizer Canada Inc. v. Nu-Pharm Inc. (1996), 65 C.P.R. (3d) 493 (F.C.T.D.). Furthermore, any application of rule 55 must accord with the general principles espoused by the Federal Court Rules, 1998 and encapsulated in rule 3:
|
3. Les présentes règles sont interprétées et appliquées de façon à permettre d'apporter une solution au litige qui soit juste et la plus expéditive et économique possible. |
[6] On consideration of the relevant matters, it is clear that the motion before the Court could be an appropriate occasion to apply rule 55 of the Federal Court Rules, 1998. The need for compliance with the rules which require the moving party to pay any Tariff A fees in respect of this motion, the main action and further proceedings adjunct to the latter, shall, therefore, be dispensed with. It should be noted that the Court of Appeal, in Moss v. Canada, (1999) 249 N.R. 126 upheld a similar invocation, by a Tax Court of Canada justice, of a rule comparable to rule 55 found in the Tax Court of Canada Rules (General Procedure) SOR/90-688.
[7] As for the moving party's Charter challenges, it must be concluded that the jurisprudence regarding sections 2 and 24 cannot help to secure for the moving party access to this Court or a reduction of his costs. This is because section 2 guarantees only a person's fundamental freedoms, while section 24 simply guarantees that a person may enforce his or her rights in a court of competent jurisdiction. This is all in addition to the fact that Mr. Pearson failed to give notice of his constitutional arguments pursuant to section 57 of the Federal Court Act, thereby possibly inhibiting this Court from invalidating the fee requirements had it been of a mind to do so. This is probably an apt case in which to invoke rule 55 in practical avoidance of section 57 which does not need to be applied herein.
[8] Thus, it seems that the Court's approach to the plaintiff's plight does not need to invoke section 57 in its own terms, or at all. Upon listening closely to the plaintiff and to the defendant's counsel, the Court cannot strictly affirm that "the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of any province, or of regulations thereunder, is in question before the Court". The statute then states that ... "the Act or regulation shall not be adjudged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and ... of each province in accordance with subsection (2)." Where the legal question raises the matter of a hiatus or a void in an Act of Parliament or a regulation, must a litigant invoke subsection 57(1)? That is, where the statute and regulation avoid a topic or a provision of law, ought one, or can one legitimately attack the statute and regulation as a result of its avoidance of a proposition of law?
[9] Long years before the promulgation of the Charter, the rule of law was a firm fixture of the common law which had been introduced into at least the common-law jurisdictions in Canada. As such, the common law, including the rule of law, is no stranger to the Federal Court of Canada, having been, as it was, continued and created to be "the Court of law, equity and admiralty in and for Canada... existing under [that name] hereby continues as an additional court for the better administration of the laws of Canada and ... continu[ing] to be a superior court of record having civil and criminal [law] jurisdiction," (Federal Court Act, section 3).
[10] The history of the rule of law is venerable and important, and is perhaps nowhere more clearly recounted than by Prof. A.V. Dicey in his Introduction to the Study of the Law of the Constitution, first published by MacMillan & Co., Ltd. in 1885, with the ninth edition, bearing an appendix by E.C.S. Wade, M.A., LL.D. published in 1952. That is a span of some 67 years. Prof. Wade, in his preface to the 1928 edition of Dicey, wrote with a touch of clairvoyance:
| Certainly, the rule of law, the doctrine upon which most reliance has been placed [by Dicey] assumes that the purpose of the constitution is to protect individual rights. (p. xii). |
Dicey himself summarized the rule of law thus:
| That "rule of law", then, which forms a fundamental principle of the constitution, has three meanings, or may be regarded from three different points of view. |
| It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else. |
| It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the "rule of law" in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals; ... |
| The notion which lies at the bottom of the "administrative law" known to foreign countries is, that affairs or disputes in which the government or its servants are concerned are beyond the sphere of the civil courts and must be dealt with by special and more or less official bodies. This idea is utterly unknown to the law of England, and indeed is fundamentally inconsistent with our traditions and customs. |
| The "rule of law", lastly, may be used as a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land. |
| General propositions, however, as to the nature of the rule of law carry us but a very little way. If we want to understand what that principle in all its different aspects and developments really means, we must try to trace its influence throughout some of the main provisions of the constitution. The best mode of doing this is to examine with care the manner in which the law of England deals with the following topics, which are dealt with in succeeding chapters, namely, ... The true nature further of the rule of law as it exists in England will be illustrated by contrast with the idea of droit administratif , or administrative law, which prevails in many continental countries. These topics will each be treated of in their due order. The object, however, of this treatise, as the reader should remember, is not to provide minute and full information, e.g. as to the habeas corpus Acts, or other enactments protecting the liberty of the subject; but simply to show that these leading heads of constitutional law, which have been enumerated, these "articles", so to speak, of the constitution, are both governed by, and afford illustrations of, the supremacy throughout English institutions of the law of the land.1 If at some future day the law of the constitution should be codified, each of the topics I have mentioned would be dealt with by the sections of the code. Many of these subjects are actually dealt with in the written constitutions of foreign countries, and notably in the articles of the Belgian constitution, which, as before noticed, makes an admirable summary of the leading maxims of English constitutionalism. It will therefore often be a convenient method of illustrating our topic to take the article of the Belgian, or it may be of some other constitution, which bears on the matter in hand, as for example the right to personal freedom, and to consider how far the principle therein embodied is recognised by the law of England; and if it be so recognised, what are the means by which it is maintained or enforced by our courts. One reason why the law of constitution is imperfectly understood is, that we too rarely put it side by side with the constitutional provisions of other countries. Here, as elsewhere, comparison is essential to recognition. |
| 1 The rule of equal law is in England now exposed to a new peril. "The legislature has thought fit," wrote Sir F. Pollock, "by the Trade Disputes Act, 1906, to confer extraordinary immunities on combinations both of employers and of workmen, and to some extent some persons acting in their interests. Legal science has evidently nothing to do with this violent empirical operation on the body politic, and we can only look to jurisdictions beyond seas for the further judicial consideration of the problems which our courts were endeavouring (it is submitted, not without a reasonable measure of success) to work out on principles of legal justice." - Pollock, Law of Torts (8th ed., 19080, p.v. |
[11] This Court's rules and statute make no mention of proceedings in forma pauperis, that is, in pauper's form, or in the character of a pauper. Therefore, there appears to be no prescribed form of affidavit by which an applicant in forma pauperis can prove to this Court that he or she needs to be permitted to proceed in pauper's form. The plaintiff has filed such an affidavit at tab 6 of his motion record. His affidavit runs, thus:
| I, Edwin Pearson, resident at... Ontario .... swear that: |
| 1. I make this affidavit in support of my motion seeking leave to proceed in File No: T-290-99, in forma pauperis. |
| 2. That I am the plaintiff in the above entitled action. |
| 3. That I am not presently employed in any enterprise that returns me a financial recompense. |
| 4. That I am 67 years of age. |
| 5. That I am the recipient of an old age pension and Ontario supplement in the total amount of less than $1000.00 per month. |
| 6. That I have no funds in a checking or savings account, in or outside of Canada. |
| 7. That I own no real estate, stock, bonds, notes, automobiles, or other valuable property in or outside of Canada. |
| 8. That my eldest unmarried son leases and pays the greater part of the rent for the premises where I reside. |
| 9. That I receive no money from business, rent, interest, dividends, annuities, life insurance, or inheritances. |
| 10. That unless I am permitted to proceed in forma pauperis I will be deprived of my Charter, sections 2, and 24(1) right of access to Courts of competent jurisdiction. |
| That all of the facts alleged herein are true. |
| FOR THIS REASON I SIGN: "Edwin Pearson" |
| Sworn to before me this 14th day of April 2000, |
| At Toronto, Ontario |
| Commissioner of Oaths, Regional Municipality |
| of Hamilton, Wentworth |
| (Signed by Sheila Ann Idoine, a Commissioner) |
[12] That affidavit could usefully have been subject to cross-examination, but there is no further time for that, now.
[13] The rule of law is a feature of the law, of at least the common-law parts of Canada, and has been such since long before the adoption of the Charter, as demonstrated in part by Prof. Dicey's learned writings. So, indeed, is that precept of the rule of law - the equality of civil rights among all who claim the benefit of the sovereign's peace, in truth all the inhabitants, whether citizens or not. That which is by law reserved for poor folk - taking Court proceedings in forma pauperis - is a civil right and therefore available to the plaintiff herein, on even the bare evidence which he has provided in order to qualify for taking his court proceedings in forma pauperis. If there were fixed rules for such proceedings, they might require the plaintiff or applicant to demonstrate that he has a reasonably good cause to prosecute, but such a requirement ought not to be very strict for it would be an artificial barrier against equal access to the ordinary Courts of the land and would constitute a partial frustration of the rule of law in itself. There will likely always be rules for the striking out of ill-grounded proceedings to accommodate that sort of matter of ill-grounded, unfounded proceedings.
[14] Because the plaintiff seeks equality of civil rights, it is clear that he is not seeking to question the constitutional validity, applicability or operability of an Act of Parliament or a provincial legislature, but rather he seeks to persuade this Court, in accordance with rule 55 to dispense with compliance with all rules requiring him to pay for filing and other Court fees in accordance with the rules, not in avoidance of any rule.
[15] What special circumstance is associated with the invocation of rule 55? It is clear that the absence of a forma pauperis rule of procedure, in itself breaches the rule of law, a fixed feature of the common law, and that surely constitutes a special circumstance, as required by rule 55. Rules and laws which are calculated to help out the poor do not foresee an affluent litigant or a person of some social prominence or even prestige: they, instead, contemplate the financially poor, uninfluential and those whom the self-important regard as merely inconsequential.
[16] The consideration is timely, although that is an aspect of which this Court needs not to take notice. The newspaper recently reported an incident wherein a lawyer of British Columbia "completes bike trek to aid poor... protests failure of legal system to provide fair access". Of even more significance is the call by the Right Honourable the Chief Justice of Canada to the legal profession to moderate their fees, which, she made clear, would give more people access to justice. And that would be in sweet accord with the rule of law.
[17] The rule of law is a major feature of the common law upon which this Court's jurisdiction rests, as noted in section 3 of the Federal Court Act. In view of all the foregoing, this Court will invoke rule 55 and will dispense with all rules, such as rule 19 and tariffs A and B, but nothing in these reasons shall be taken to exempt the plaintiff from liability to the defendant for costs which the trial judge or any case-management judge or prothonotary may hereafter impose for the plaintiff's adjudged misconduct of the case, if any, or any witness fees awarded to the plaintiff in order to compensate witnesses called to testify at his behest.
Ottawa, Ontario
September 14, 2000
Judge