Date: 20030416
Docket: T-109-03
Neutral citation: 2003 FCT 443
Vancouver, British Columbia, Wednesday, the 16th day of April, 2003
Present: Mr. John A. Hargrave, Prothonotary
BETWEEN:
REINHARD SPATLING
Applicant
and
SOLICITOR GENERAL OF CANADA,
PRIVACY COMMISSIONER OF CANADA,
ROYAL CANADIAN MOUNTED POLICE WORKERS'
COMPENSATION BOARD OF BRITISH COLUMBIA
Respondents
REASONS FOR ORDER
HARGRAVE P.
[1] I have in the past allowed a litigant with a reasonable claim to proceed notwithstanding an inability to pay filing fees, applying Pearson v. Canada (2000) 195 F.T.R. 31 and Rule 55, the result of which can be an exemption from Rule 19, which together with the Tariffs set the fees payable to the Court. Such an order does not of course exempt a Plaintiff or an Applicant, from liability to a Defendant or a Respondent, for costs which a judge or prothonotary may impose by reason of misconduct or from liability to the Defendant for costs imposed by the Court. In granting the exemption I have kept in mind that the application of Rule 55 requires special circumstances. On the one hand the rules ought not to be interpreted so that an inability to pay filing fees bars a person from using the Court to make a bona fide claim, yet on the other hand, it is for the person claiming relief from court fees to clearly establish that he or she is entitled to what is regarded in the Federal Court as the civil right of taking a proceeding in forma pauperis.
[2] The origin of in forma pauperis proceedings seems rather uncertain. Lord Justice Banks, in Cook v. Imperial Tobacco Co. [1922] 2 K.B. 158 at 163 looked upon the practice of suing in forma pauperis as statutory, first appearing in 11 Henry 7, c. 12, of 1494. By that statute there was a waiver of fees payable to the Crown, the appointment of clerks and, among other things, the appointment of an attorney, all to assist a poor person who had a case which would not be heard without such assistance. As the practice developed it became a requirement, in the mid 1700's, that the pauper provide affidavit evidence that he was not worth 5 pounds and that the application be accompanied by counsel's opinion. The standard of impecuniosity later became more generous: there is brief comment on the applicable practice and procedure in the first edition of Halsbury, 1912, volume 23, at page 186, noting that proof was required that the person seeking to sue as a pauper not only must provide proof that he was not worth 25 pounds, apart from wearing apparel and the subject matter of the cause of action, but that he must also have an opinion from counsel that he had reasonable grounds for the proceeding.
[3] There is no Federal Court rule dealing with the ability to proceed in forma pauperis, however Mr. Justice Muldoon discusses the area in Pearson v. Canada (2000) 195 F.T.R. 31. There he looked upon the in forma pauperis proceeding not as statutory, but as a civil right grounded not only in the Charter, but also in the rule of law as analysed by A.V. Dicey in his 1885 work, Introduction to the Study of Law of the Constitution.
[4] As I say, In Pearson Mr. Justice Muldoon analysed the ability to proceed in forma pauperis as flowing from the "rule of law" and characterized it as a civil right. He observed that
If there were fixed rules for such proceedings, they might require the plaintiffs 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 striking out of ill-grounded proceedings to accommodate that sort of matter of ill-grounded, unfounded proceedings. (Page 38).
[5] In Pearson Mr. Justice Muldoon allowed the Plaintiff to proceed in forma pauperis, but noted that his reasons, to dispense with payment of costs under Rule 19 and Tariffs A and B, could not be taken to exempt the Plaintiff from liability to the Defendant for costs imposed by a judge or prothonotary arising out of misconduct, or as to the payment of witness fees (page 39).
[6] Waiver of court fees, in the Federal Court depends upon a person substantiating that he or she is applicable to engage in proceedings in forma pauperis. The Shorter Oxford Dictionary defines a pauper as "a poor person; a person having no property or means of livelihood; a person dependent on the charity of others; ...". This is a rather narrow and is today perhaps a demeaning definition. The English courts, in years gone by, have been a little more generous. The British Columbia Supreme Court today looks to whether a person is indigent as a standard for waiver of fees: see Appendix C, Schedule 1 to the B.C. Supreme Court Rules. Indigency stops short of designating a person to be without any means, as in the case of a pauper, but rather defines a person possessed of some scanty means. The Federal Court does not have the assistance of rules or legislation by which to waive the payment of court fees and thus must fall back upon the principle of proceedings in forma pauperis. However, Mr. Justice Muldoon, in Pearson v. Canada (supra) takes it for granted that an in forma pauperis Plaintiff may have some income.
[7] In Pearson the Plaintiff had provided a simple yet fairly extensive affidavit setting out his age, a lack of employment, receipt of an old age pension, an absence of funds in any bank account inside or outside of Canada, an absence of real estate, stock, bonds, automobiles or other valuable property, an absence of funds from business, rent, interest, dividends, annuity, insurance or inheritances and the fact that a son leased the property on which he lived and paid the greater part of the rent for that property. Mr. Justice Muldoon accepted the affidavit, although he observed that it might usefully have been subject to cross-examination. As I have noted, he did allow the Plaintiff to go ahead under a type of in forma pauperis proceeding.
[8] In the present instance the Applicant presents less than a sufficient affidavit. The brief affidavit sets out that he does not have sufficient funds to pay Federal Court fees, that he is unemployed as a result of health problems, that he does not have income from any gainful employment, that he does not receive employment insurance benefits and that he does not receive monetary compensation by way of Workers' Compensation payments.
[9] The scope of Mr. Spatling's affidavit is much less than that before Mr. Justice Muldoon in Pearson, who there commented that the affidavit could usefully have been cross-examined upon, but time had run out for that step. The scope of the present affidavit is something picked up upon by counsel for the federal Crown, who points out that financial difficulties do not necessarily equal an indigent status, that is a person of scant means and all the more so does not necessarily constitute that a person is a pauper, that is a person without any means. Counsel refers to two British Columbia decisions, McCuaig v. McCuaig, an unreported B.C. Supreme Court decision, Prince Rupert Registry No. DIV 3515, of 20 April 2000 and Taylor v. Rutherford, also unreported, a 21 December 2000 decision of the British Columbia Supreme Court, Prince George Registry, No. 06867. In both instances the Court drew attention to deficiencies in the evidence tendered to justify an indigent status, for indigency is the test for a waiver of court fees payable to the Crown in proceedings in the British Columbia Supreme Court, subject to the claim being one which would not be struck out.
[10] As I have already pointed out the British Columbia Supreme Court standard of indigency, in order to obtain a waiver of court fees, is an easier standard than that in the Federal Court where the proceeding is in forma pauperis. However the comments as to indigency, in the two British Columbia cases, are of assistance. In McCuaig the Court being unsatisfied with the evidence, denied the Plaintiff the status of indigency, commenting:
6 No information is given as to how long the applicant has been receiving social assistance, what her work history is, or whether she is seeking employment or intends to seek employment. She does not live with her husband, but the material does not disclose whether she is living alone or with someone else. There is no reason given as to why she or her husband feels that a divorce is necessary at this time, after more than four years of separation.
7 In law, the word "indigent" does not mean a person without any means, namely a pauper, but a person possessed of some means but such scanty means that he or she is needy and poor. See: Munro v. Stewart (1989) 31 B.C.L.R. (2d) 164 (S.C.B.C.) at p. 166.
8 Although the fact that a person may be receiving social assistance does not necessarily mean that he or she is not indigent, in this case I am not satisfied that the applicant has established that she is an indigent person. Accordingly, the application is dismissed.
In McCuaig the Court was concerned as to specific deficiencies of the affidavit evidence. Similarly in Taylor v. Rutherford (supra) the Court emphasized that financial difficulties did not necessarily justify the designation of indigency. After reviewing two cases, including McCuaig, the Court focussed on the requirement that an Applicant for indigent status provide appropriate information by which to assess the situation, for while there was no doubt that Mr. Rutherford was under financial stress, the material in support of the application was deficient:
I have no doubt that he is under financial stress but it is his obligation, even when acting on his own behalf, to place before the court the information it needs to assess his circumstances. It is insufficient to simply advise that at this time he is receiving employment insurance and to present expenses without explanation or corroboration.
[11] Applying all of this to the present circumstances, including following Mr. Justice Muldoon's lead in Pearson, in which he noted that requiring an Applicant to demonstrate a reasonably good cause of action ought not to be a strict test so as to result in an artificial barrier against equal access to the Courts, I am not satisfied that Mr. Spatling has provided enough material to demonstrate that he falls within the ambit of those entitled to take an in forma pauperis proceeding. For example, there is no information as to possible social assistance payments, disability payments beyond worker's compensation, income from non-employment sources, spousal support, bank funds, non-monetary assets, or his means of living. There are insufficient circumstances to demonstrate the special circumstances necessary to waive filing fees. Here I acknowledge that filing fees are relatively modest, however it is for the Applicant, in a situation such as this, to clearly demonstrate that there are special circumstances by which the fees ought to be waived. The application is denied.
(Sgd.) "John A. Hargrave"
Prothonotary
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-109-03
STYLE OF CAUSE: Reinhard Spatling v. Solicitor General of Canada et al.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: MOTION DEALT WITH IN WRITING
REASONS FOR ORDER : HARGRAVE P.
DATED: April 16, 2003
APPEARANCES:
MOTION DEALT WITH IN WRITING
SOLICITORS OF RECORD:
Reinhard Spatling (self-represented) FOR APPLICANT
Rodney Yamanouchi FOR RESPONDENTS
Gerald W. Massing FOR RESPONDENT
Workers' Compensation Board of British Columbia