PRACTICE |
Pearson v. Canada
T-290-99
Muldoon J.
14/9/00
9 pp.
Dispensing with compliance--Motion for order allowing plaintiff to proceed in forma pauperis based on gap rule allowing him to benefit from Ontario's civil procedure rules; right of access to this Court pursuant to common law, Charter, ss. 2, 24--Action against defendant for actions taken by employees in respect of prosecution of charges laid against plaintiff--Plaintiff unable to afford court, registry fees, costs assessed against him--Neither Federal Court Rules, 1998 nor Ontario Rules of Civil Procedure allowing in forma pauperis--Federal Court Rules, 1998, r. 55 permitting Court to dispense with compliance with any of these Rules in special circumstances--Justice, no prejudice implicit in "special circumstances": Chow v. Canada (Minister of Citizenship and Immigration) (1998), 161 F.T.R. 156 (F.C.T.D.)--Conduct of those requesting dispensation under r. 55 will be scrutinized: Pfizer Canada Inc. v. Nu-Pharm Inc. (1996), 65 C.P.R. (3d) 493 (F.C.T.D.)--Any application of r. 55 must accord with general principles espoused by Federal Court Rules, 1998, and encapsulated in r. 3--Need for compliance with rules requiring moving party to pay any Tariff A fees in respect of this motion, main action, further proceedings dispensed with--Charter, ss. 2, 24 not applicable--S. 2 guaranteeing only person's fundamental freedoms, while s. 24 simply guaranteeing person may enforce rights in court of competent jurisdiction--Plaintiff not giving notice of constitutional argument pursuant to Federal Court Act, s. 57--S. 57 providing Act or regulation shall not be adjudged invalid, inapplicable or inoperable unless notice served on Attorney General of Canada--But not necessary to invoke s. 57--Rule of law feature of common-law jurisdictions of Canada since before adoption of Charter, as is precept of rule of law, i.e. equality of civil rights among all inhabitants--That which is by law reserved for poor people civil right, therefore available to plaintiff--Because plaintiff seeking equality of civil rights, not seeking to question constitutional validity, applicability or operability of Act of Parliament or provincial legislature--Absence of forma pauperis rule of procedure breaches rule of law, surely constituting special circumstance required by r. 55--Federal Court Rules, 1998, SOR/98-106, rr. 3, 5, 55--Federal Court Act, R.S.C., 1985, c. F-7, s. 57 (as am. by S.C. 1990, c. 8, s. 19)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 2, 24--Rules of Civil Procedure, R.R.O. 1990, Reg. 194.