T-3937-78
Jack Clinton Magrath (Plaintiff)
v.
National Parole Board of Canada, M. Mac-
Brayne, L. Hobbs and R. Brown, Canadian Peni
tentiary Service, T. Crozier, D. Howard and B.
Smyth of Agassiz Correctional Work Camp
(Defendants)
Trial Division, Walsh J.—Vancouver, April 17;
Ottawa, May 3, 1979.
Practice — Application to continue action in forma pauperis
without being required to pay fees prescribed by Tariff A of
the Rules — No provision in Federal Court Rules for proceed
ings in forma pauperis — Whether or not proceedings in forma
pauperis not only part of law of British Columbia but also
part of law of Canada and applicable in Federal Court pro
ceedings — English Law Act, R.S.B.C. 1960, c. 129 — A
Mean to Help and Speed Poor Persons in their Suits, Hen.
VII, c. 12.
Plaintiff, an inmate with limited financial resources, seeks
permission to continue his action in forma pauperis without
being required to pay the prescribed fees as required by Tariff
A of the Rules. The alleged right to be permitted to proceed in
forma pauperis is based on an English statute of 1495 and
British Columbia's English Law Act. The Federal Court Rules
make no provision for proceedings in forma pauperis. Plaintiff
contends that the English statute providing for in forma paup-
eris proceedings is not only part of the law of British Columbia
but also part of the law of Canada and therefore applicable in
the Federal Court as part of the substantive law being adminis
tered by it in proceedings over which it has jurisdiction.
Held, the application is dismissed. The absence of any provi
sion in the Rules for proceedings in forma pauperis was not the
result of any oversight and is more likely to be a conclusion that
after due consideration it was not considered necessary. Unrier
its Rules the Court appears to have no discretion, so unless the
English statute applies as part of the substantive law to be
applied in this Court there is nothing to permit the waiver of
fees and charges provided for in the Tariff. The English statute
should not be applied in this Court to substitute for the absence
of any in forma pauperis provision in the Court's Rules. The
general principle adopted in the Federal Court Act and Rules
and the fact that 'Parliament deemed it necessary to provide for
in forma pauperis appeals in the Supreme Court Act and did
not provide for such proceedings in the Federal Court Act
support this conclusion.
APPLICATION.
COUNSEL:
J. W. Conroy for plaintiff.
J. R. Haig for defendants.
SOLICITORS:
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
WALSH J.: Plaintiff instituted proceedings in
this matter on August 29, 1978, acting as his own
counsel stating that the decision delivered by the
National Parole Board following a hearing on June
20, 1978, refusing him day parole, full parole and
temporary absences until another hearing until
June 1979, was not supported by the facts and that
he is entitled to a fair and just hearing. This action
was contested and issue was joined on the contes-
tation. In a motion before the Court he now seeks
permission to continue the action in forma paup-
eris without being required to pay the prescribed
fees as required by Tariff A of the Rules of this
Court. His counsel from the Abbotsford Commu
nity Legal Services appeared on his behalf to
argue the motion. The alleged right to be permit
ted to proceed in forma pauperis is based on an
ancient English statute A.D. 1495 Anno II Hen.
VII, c. 12 and the English Law Act, R.S.B.C.
1960, c. 129. The Rules of this Court make no
provision for proceedings in forma pauperis.
At the opening of the hearing counsel for
defendants indicated that the Crown was willing to
bring at its expense witnesses required by plaintiff
for examination for discovery. This would relieve
him of the necessity of issuing or serving subpoe
nas on them for this purpose, but there is no
undertaking with respect to payment for stenogra
phy or a transcript, or payment of the Registry fee
for setting the action down for trial.
Plaintiffs affidavit in support of his motion
states that as a prisoner he receives a wage of
$1.40 per day of which 25¢ per day is deducted for
a compulsory savings plan which he is not entitled
to touch until his release, and that he has only $10
in his inmate's trust fund. His wife in Vancouver
receives income assistance for herself and their
four children all of whom reside at home and three
of whom attend school, the fourth being on unem
ployment insurance. He has no assets of any value
and is acting on his own behalf although he
receives advice from time to time from the attor
ney who represented him at the hearing of this
motion, who makes no charge for his services. The
English statute he relied on reads as follows:
A MEAN TO HELP AND SPEED POOR PERSONS IN
THEIR SUITS.
PRAYEN the Commons in this present Parliament
assembled,
... that where the King our Sovereign Lord, of his most
gracious Disposition, willeth and intendeth indifferent Justice
to be had and ministered according to his Common Laws, to all
his true Subjects, as well to the Poor as Rich, which poor
Subjects be not of Ability nor Power to sue according to the
Laws of this Land for the redress of Injuries and Wrongs to
them daily done, as well concerning their Persons and their
Inheritance, as other Causes: (2) For Remedy whereof, in the
Behalf of the poor Persons of this Land, not able to sue for
their Remedy after the Course of the Common Law; be it
ordained and enacted by your Highness, and by the Lords
Spiritual and Temporal, and the Commons, in this present
Parliament assembled, and by Authority of the same, That
every poor Person or Persons, which have, or hereafter shall
have Cause of Action or Actions against any Person or Persons
within this Realm. Shall have by the Discretion of the Chancel
lor of this Realm for the time being, Writ or Writs Original,
and Writs of Subpoena, according to the Nature of their
Causes, therefore nothing paying to your Highness for the
Seals of the same, nor to any Person for the writing of the same
Writ and Writs to be hereafter sued; (3) and that the said
Chancellor for the time being shall assign such of the Clerks
which shall do and use the making and writing of the same
Writs, to write the same ready to be sealed, and also learned
Counsel and Attornies for the same, without any Reward taken
therefor: (4) And after the said Writ or Writs be returned, if it
be afore the King in his Bench, the Justices there shall assign to
the same poor Person or Persons, Counsel learned, by their
Discretions, which shall give their Counsels, nothing taken for
the same: (5) And likewise the Justices shall appoint Attorney
and Attornies for the same poor Person or Persons, and all
other Officers requisite and necessary to be had for the Speed
of the said Suits to be had and made, which shall do their
Duties without any Reward for their Counsels, Help, and
Business in the same: (6) And the same Law and Order shall be
observed and kept of all such Suits to be made afore the King's
Justices of his Common Place, and Barons of his Exchequer,
and all other Justices in the Courts of Record where any such
Suit shall be.
Counsel for applicant concedes that under the
English law it is necessary for the Chancellor to
exercise his discretion to permit such in forma
pauperis proceedings and suggests that in applying
this statute in Canada it would be within the
discretion of the Court to make this decision, and
on the facts it is not disputed that plaintiff is
indigent and would be entitled to such assistance if
the law and Rules of this Court so permit.
Counsel contended that this became part of the
law of British Columbia by virtue of the provisions
of the aforementioned English Law Act, section 2
of which reads:
2. Subject to section 3 the Civil and Criminal Laws of
England, as the same existed on the nineteenth day of Novem-
ber, 1858, and so far as the same are not from local circum
stances inapplicable, are in force in all parts of the Province;
but the said laws shall be held to be modified and altered by all
legislation having the force of law in the Province, or in any
former Colony comprised within the geographical limits
thereof.
Nothing in British Columbia law or in the Court
Rules of Practice of that Province made this stat
ute inapplicable and on the contrary its validity
has been supported in judgments of its Courts. In
the case of Bland v. Agnew' Chief Justice Mc-
Donald stated at pages 8-9 dealing with a rule
requiring furnishing of security for costs on appeal:
Now, if we take that view of it, then this Court has a right to
make an order notwithstanding that section. It has a right
because the statute of Hen. VII gave the right to apply, both in
England and here, for aid to poor persons who are about to be
sued, or to sue. It is a substantive part of the law, to use the
expression that has been emphasized so much this morning, it is
a substantive part of the law that a poor person upon shewing
certain things, as to his circumstances, may be given the right
to proceed in forma pauperis. That is that he should not have
any costs to pay. Of course, it will also mean that he shall not
be required to give security for costs which cannot be earned.
He goes on to say on page 9:
Once you have established the right, the Court will if neces
sary provide procedure. Because, if a man has a right, the
Court has said that when the right exists it shall not be
defeated by want of procedure, and to a large extent procedure
is governed by this very Act.
He then states it was granted in two cases in
Manitoba under similar circumstances but refused
once in Alberta because the Court thought it was
contrary to their rules of practice. In this connec
tion he states:
... they seemed to take the view that counsel for the respond
ent has taken here, that substantive law and practice and
1 47 B.C. Reports 7.
procedure are fundamentally different things. I think there is
no doubt that it is part of our general law. It is one branch of
law, just as much law as any other part of law. And therefore,
having got that far, there is no difficulty of procedure unless
there is something in our rules which prevents us giving the
relief asked.
This case was followed in the British Columbia
Court of Appeal in the case of Ruddick v. British
Columbia Electric Railway Company 2 , and again
in a British Columbia case of Dennis v. Minister of
Rehabilitation and Social Improvement 3 which
dealt with the right to sue in forma pauperis, in
which reference was also made to the Supreme
Court of Canada case of Benson v. Harrison 4 in
which Rand J. dealing with the Rule of that Court
requiring that an applicant be not worth $500 in
order to obtain leave to proceed as a pauper held
that it was an ameliorating Rule and that in
weighing it too delicate weights should not be
used. In the Dennis case it was stated at page 221:
Access to the courts should not be interfered with except for
the most compelling reasons. If it is sought to deny to a subject
the long-standing right of access to Her Majesty's courts or to
deny access except on payment of a tax, which an intended
litigant who is a poor person may be unable to pay, in my view,
it must be done clearly and unmistakably.
Counsel for applicant states that the British
Columbia Legal Aid Plan does not normally pro
vide financing for plaintiffs in civil actions
although there have been certain exceptions such
as the case of McCann v. The Queens. The
Abbotsford Community Legal Services for whom
he works is a community law office funded by the
Legal Services Commission of the Province of
British Columbia but it has no funds for such
proceedings and in the present case no formal
application for legal aid has been made.
Applicant invokes the gap rule of this Court,
Rule 5 which reads as follows:
Rule 5. In any proceeding in the Court where any matter
arises not otherwise provided for by any provision in any Act of
the Parliament of Canada or by any general rule or order of the
Court (except this rule), the practice and procedure shall be
determined by the Court (either on a preliminary motion for
2 (1953) 8 W.W.R. (N.S.) 416.
3 [1972] 6 W.W.R. 214.
4 [1952] 2 S.C.R. 333.
5 [1976] I F.C. 570.
directions, or after the event if no such motion has been made)
for the particular matter by analogy
(a) to the other provisions of these Rules, or
(b) to the practice and procedure in force for similar pro
ceedings in the courts of that province to which the subject
matter of the proceedings most particularly relates,
whichever is, in the opinion of the Court, most appropriate in
the circumstances.
but I do not consider it is applicable in the present
circumstances. The absence of any provision in the
Rules applying for proceedings in forma pauperis
was not, I believe, a result of any oversight and is
more likely to be a conclusion that after due
consideration it was not deemed necessary. More
over, applicant himself contends that this is not a
question of procedure but of substantive law, in
which event it should be dealt with by statute and
not by a Rule of the Court. In England it was dealt
with by statute and not by a Rule of the Court,
and the British Columbia Courts have decided that
the right to proceed in forma pauperis is a sub
stantive and not a mere procedural right.
It is significant that in the Supreme Court Act,
R.S.C. 1970, c. S-19, specific provision is made in
section 65(4) for proceedings in forma pauperis.
This section reads as follows:
65....
(4) Notwithstanding anything in this Act, a judge of the
Supreme Court may, on an application for leave to appeal in
forma pauperis, allow an appeal by giving the applicant leave
to serve notice of appeal although the time prescribed by
section 64 has expired.
There is no such provision in the Federal Court
Act. Applicant contends that section 46(1) is
broad enough to permit the Federal Court to have
such a rule in that it permits the making of rules
and orders not inconsistent with that Act or any
other Act of the Parliament of Canada regulating
the practice and procedure inter alia (b) "for the
effectual execution and working of this Act and
the attainment of the intention and objects there
of". Paragraphs (d) to (g) provide for fixing fees
to be paid to the Registry and for regulating costs.
Section 3 provides that the Court is "an additional
court for the better administration of the laws of
Canada".
Applicant contends that the English statute pro
viding for in forma pauperis proceedings is not
only part of the law of the Province of British
Columbia but is also part of the law of Canada
and therefore applicable in the Federal Court as
part of the substantive law being administered by
it in proceedings over which it has jurisdiction.
Whether or not it is part of the law of Canada I
find it difficult to accept the proposition that it
should be applicable in proceedings in the Federal
Court merely because the Federal Court Act con
tains nothing to prevent its being so applied, when
by analogy Parliament saw fit to expressly confer
upon the Supreme Court the right to permit
appeals in forma pauperis. It would go against
fundamental rules of interpretation of statutes to
conclude that this omission was not deliberate.
While one can speculate that the development of
legal aid systems diminished the need for such a
provision, and it is unnecessary and it would be
improper to speculate as to why no such provision
was included in the Federal Court Act, the fact
remains that it was omitted. Tariff A of the Feder
al Court Tariff of Costs in connection with fees
payable to the Registry states: 2(1)(a) "The fol
lowing fees shall be paid" (emphasis mine). While
section 1(3) uses the words:
1. ...
(3) Unless the Court otherwise directs in respect of a par
ticular step in a proceeding, or in respect of all steps in a
particular proceeding,
it is evident from the context that this merely
applies to the classification of proceedings. For
example subparagraph (4)(b) of section 1 provides
that the Court may "when making an order or
delivering a judgment concerning costs, direct that
such costs or certain of them shall be taxed on the
basis that the steps involved are classified in a
specified class or classes". Rules 351 to 353 refer
ring to witnesses, registry fees and bailiffs always
use the mandatory word "shall". Under its Rules
the Court appears to have no discretion, so unless
the English statute applies as part of the substan
tive law to be applied in this Court there is nothing
to permit the waiver of fees and charges provided
for in the Tariff. Two cases have been decided in
this Court with some bearing on the matter. The
first was T-1350-75, William Smith v. The Attor
ney General of Canada, a judgment of Associate
Chief Justice Thurlow dated November 3, 1976 6 .
Plaintiff, a frequent litigant in this Court wished
the Registry to accept for filing an application to
fix a time and place of trial without paying the $50
fee required under Tariff A on the basis that they
had done so in a previous case. In deciding that
that did not create a precedent, but was rather an
error, the Associate Chief Justice stated:
For such an action Tariff A requires payment of a fee of $50
by the party seeking to have the action heard, which fee is
payable on the filing of the application for an order fixing the
time and place for the hearing. In my opinion, therefore, the fee
is payable and I know of no provision under which payment of
it may be waived. And, I am not persuaded that it should be
waived.
The other case was a judgment by the Federal
Court of Appeal (1978) 19 N.R. 239 in which
Tabitha Smith and the said William Smith were
appellants in an action against the Attorney Gen
eral of Canada. They sought travel money to travel
from Old Crow to Vancouver and argue the appeal
on the basis that they had no money with which to
do so, and requested that at the same time a Trial
Division proceeding in which they were involved be
also heard. In rendering judgment Chief Justice
Jackett stated [at p. 250] that the Court "... has
neither the duty nor the power to make arrange
ments concerning the financing of a party's
expenses of conducting litigation". In the footnote
to his judgment he stated [at pages 253-254]:
Rightly or wrongly, we have not departed in principle from
the adversary system under which the parties, with such assist
ance as legal aid may provide, must take the steps for which
provision is made in the statute and Rules (which are designed
to hold the balance between them even) and it is the function of
the Court to decide the matters that are brought before them
by the parties for decision at such time as they are ripe for
consideration. The Court is not provided with funds to carry
out an inquisitorial type of investigation and there are no rules
in accordance with which it could be done. That being so, as it
seems to me, the Court must resist the temptation to invoke its
influence, in particular cases, where it happens to be moved by
some compassionate ground for so doing, to cause one party (in
this case the Government) to expend monies for the benefit of
another. Whether that should be done is a matter of policy for
the party by whom the monies would be so expended. In the
absence of some rule or principle to guide it, intervention by the
Court would be more or less arbitrary.
6 [Not circulated—Ed.]
It must be pointed out that in neither of these
cases does the argument seem to have been raised
that the question is a substantive one and not a
question of procedure to be governed by the Rules
and that the right to proceed in forma pauperis is
a substantive right recognized by the English stat
ute which is still applicable in Canada.
The general comments of the Chief Justice in
the footnote (supra) set out the general principle
adopted in the Federal Court Act and Rules,
however, and in view of the fact that Parliament
deemed it necessary to provide for in forma paup-
eris appeals in the Supreme Court Act and did not
provide for any such proceedings in the Federal
Court Act, lead me to conclude that the English
statute should not be applied in this Court to
substitute for the absence of any such provision in
the Court's Rules.
Plaintiff should therefore seek legal aid in Brit-
ish Columbia as was allegedly done in the McCann
case, as the affidavits in the record indicate he
may have an arguable case.
The application to be allowed to continue the
proceedings in forma pauperis is therefore dis
missed, but since it raised a novel and serious issue
this will be done without costs.
ORDER
Plaintiff's application for permission to continue
these proceedings in forma pauperis is dismissed,
without costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.