Date: 20041014
Docket: T-224-02
Citation: 2004 FC 1418
Toronto, Ontario, October 14th, 2004
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
SELWYN PIETERS
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, by motion in writing under Rule 369, asks for an order declaring him to be impecunious and thus able to proceed in forma pauperis in this and any other proceeding in the Federal Court. He also requests that any assessment of costs be done by a Federal Court judge or, alternatively, by an assessor who is not an employee of the Courts Administration Service (CAS). Last, he requests that no costs be assessed against him on the judicial review proceeding.
[2] The respondent, opposed to the requested relief, asks for an oral hearing. Despite the respondent's submissions, I am satisfied that the matter can be disposed of without the necessity of personal appearances.
[3] The judicial review proceeding referred to by the applicant is one that Mr. Justice O'Reilly dismissed on March 11, 2004. Justice O'Reilly ordered the applicant to pay the respondent's costs of the application. On September 4, 2004, the respondent filed a bill of costs seeking an assessment of costs in the amount of $1,398.92 . The applicant responded by filing this motion on September 16, 2004.
[4] There is no specific statutory authority to order that a party be permitted to conduct a proceeding in forma pauperis. Notwithstanding, by virtue of Rule 55, the Court may allow a party access to the courts without the burden of paying court fees: Pearson v. Canada (2000), 195 F.T.R. 31 (T.D.) aff'd 2002 FCA 326; Spatling v. Canada (Solicitor General) (2003), 233 F.T.R. 6 (Proth.). The applicant must demonstrate the existence of special circumstances warranting such an order. Special circumstances will only be found to exist if the applicant can establish that the requirement to pay fees will prevent him from pursuing an existing claim at court: Polewsky v. Home Hardware Stores Ltd. (2003), 66 O.R. (3d) 600 (Div. Ct.) at p. 627.
[5] The applicant has not alleged that the requirement to pay court fees will prevent him from pursuing any current claim. His motion centres on the application for judicial review that was dismissed on March 11, 2004. No appeal was taken with respect to Mr. Justice O'Reilly's order nor is there any evidence that the applicant intended to pursue an appeal. Consequently, the only outstanding item is the assessment of costs for which no court fees are payable. In short, the outstanding aspect of this matter is the assessment of costs. No fees are payable in relation to an assessment of costs. Thus, it cannot be said that the applicant is restricted in his ability to participate in all that remains to be done - the assessment of costs. Hence, there are no special circumstances that warrant an order dispensing with the Rules in relation to the payment of court fees by the applicant.
[6] I agree with the respondent that it is not at all clear that the applicant is indigent. His affidavit discloses that on the date of Mr. Justice O'Reilly's order, he was employed as a refugee protection officer with the Immigration and Refugee Board (IRB) at an annual salary of approximately $55,000. He is on unpaid leave of absence from the IRB so that he can complete the 2004-2005 bar admission course of the Law Society of Upper Canada. From March 15, 2004 to June 25, 2004, the applicant was on sick leave without pay and received $415 employment insurance per week for 15 weeks. He has filed a worker's safety and insurance claim that is, as yet, undetermined.
[7] The applicant's net earings as an article clerk for the period June 29, 2004 to August 27, 2004 are stated to be a maximum of $238.97 per week. Using his total net earnings for this time period, the applicant projects that his annual net earnings will be less than $8,000. The respondent notes (appropriately) that the entire period from June until August is comprised of the academic phase of the bar admission course during which time the applicant was required to sit examinations. There is no evidence with respect to his earnings during the articling phase that began on September 1st, some three weeks before the swearing of his affidavit.
[8] The applicant's "basic" monthly expenses total $2,120.43. Included in that total - but exclusive of rent, telephone, utilities, groceries, food, lunches and drinks - are the following items: $150 for transportation; $150 for personal supplies; $80 for dry cleaning/laundromat; $30 for cosmetics/toiletries; and $80 for hairdresser. I agree with the respondent that the test to determine whether the applicant is "needy and poor" or "in want" is an objective one. Although the applicant may consider himself impoverished, the fact that his cable television account is $103.32 in arrears and that his Royal Bank account is in overdraft does not make him so.
[9] Regarding his request that any assessment of costs be done by a Federal Court judge, the applicant asserts that the management of CAS were involved in providing instructions to the respondent in relation to his judicial review application. He exhibits copies of e-mail messages, between various management individuals, to support his contention that an employee of CAS would be incapable of providing an impartial assessment.
[10] The cornerstone authority for the test of reasonable apprehension of bias is Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369. The apprehension must be reasonable and be held by reasonable and right-minded persons applying themselves to the question and obtaining the required information. The question is - what would an informed person, viewing the matter realistically and practically, having thought the matter through, conclude? The grounds must be substantial and the test should not be related to the very sensitive or scrupulous conscience. A real likelihood or probability of bias must be demonstrated and mere suspicion is not sufficient.
[11] The e-mail exhibits do not give rise to an apprehension that an assessment officer of the CAS will be biased in the pending assessment of costs. There is no evidence of even remote involvement, with respect to the applicant's judicial review application, of anyone who might be called upon to perform the assessment of costs. The onus of demonstrating bias lies with the person who alleges its existence. On the basis of the applicant's evidence, it is not reasonable to suggest that an informed person, viewing the matter realistically and practically, would conclude that an assessment officer employed by CAS would be biased against the applicant.
[12] Lastly, with respect to the request that no costs be assessed against him in the judicial review proceeding, I view this as nothing other than a collateral attack on the order of Mr. Justice O'Reilly. It is not open to the applicant to question, in any subsequent proceedings (except those provided by law for the express purpose of attacking it), a judicial order pronounced by a Court of competent jurisdiction: Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 at 474. The applicant did not avail himself of any of the avenues provided for in the Rules with respect to the order of costs. He cannot now complain. Moreover, even if I had determined that the applicant is entitled to an order dispensing with the Rules requiring him to pay court fees, it would have no impact on his liability to pay the costs ordered by Mr. Justice O'Reilly: Spatling, supra.
ORDER
THIS COURT ORDERS that the motion is dismissed in its entirety.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-224-02
STYLE OF CAUSE: SELWYN PIETERS
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
MATTER CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: OCTOBER 14, 2004
WRITTEN SUBMISSIONS BY:
Selwyn A. Pieters, B.A., LL.B. FOR THE APPLICANT (Self-Represented)
James Gorham FOR THE RESPONDENT
SOLICITORS OF RECORD:
Selwyn A. Pieters, B.A., LL.B.
Toronto, Ontario FOR THE APPLICANT (Self-Represented)
MORRIS ROSENBERG
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20041014
Docket: T-224-02
BETWEEN:
SELWYN PIETERS
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER