T-2581-89
Ken Rubin (Plaintiff)
v.
Attorney General of Canada, Raymond P. Gue-
nette, J. F. Cousineau and Canada Mortgage and
Housing Corporation (Defendants)
INDEXED AS: RUBIN V. CANADA (ATTORNEY GENERAL) (T.D.)
Trial Division, Strayer J.—Ottawa, June 19 and
July 5, 1990.
Constitutional law — Charter of Rights — Equality rights
— Plaintiff awarded party and party costs, but claim for
counsel fee disallowed as self-represented — Action for decla
ration Federal Court Rules 344, 346 and Tariff B discriminat
ing against those who, owing to public interest nature of
activities, political orientation, economic circumstance, or
combination thereof not retaining counsel — Although Rules
and Tariff B making distinction between self-represented liti
gants and those represented by counsel, plaintiff not demon
strating unfavourable distinction amounting to ground of dis
crimination enumerated in Charter, s. 15(1) or ground
analogous thereto — Mere suggestion of financial disadvan
tage not discrimination as contemplated by s. 15(1).
Practice — Costs — Self-represented plaintiff awarded
party and party costs — Claim for counsel fee disallowed
according to literal wording of Tariff B, permitting allowance
of costs 'for services of counsel", and well-established inter
pretation of Rules — Action for declaration Rules and Tariff
contrary to Charter, s. 15 in discriminating against self-repre
sented litigants — Statement of claim struck as disclosing no
reasonable cause of action.
Practice — Pleadings — Motion to strike — Action for
declaration Federal Court Rules 344, 346 and Tariff B con
travening Charter s. 15 in discriminating against those who,
owing to public interest nature of activities, political orienta
tion, economic circumstance, or combination thereof not
retaining counsel — Motion allowed — Allegations specula
tive and could not be proven by evidence.
Practice — Parties — Self-represented plaintiff awarded
party and party costs — Claim for counsel fees disallowed
Action for declaration Federal Court Rules 344, 346 and
Tariff B discriminating against self-represented litigants, for
certiorari quashing decision of taxing officer and mandamus
requiring taxing officer to tax plaintiff's costs in manner
similar to taxation of represented litigant — Taxing officers
struck as defendants as unnecessary parties — Court could
itself have corrected taxation had plaintiff succeeded in action
for declaration.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1.
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], s. 15.
Federal Court Rules, C.R.C., c. 663, RR. 344 (as am. by
SOR/87-221, s. 2), 346 (as am. idem, s. 3), Tariff B
(as am. idem, s. 8).
CASES JUDICIALLY CONSIDERED
NOT FOLLOWED:
McBeth v. Dalhousie University (1986), 72 N.S.R. (2d)
224; 26 D.L.R. (4th) 321; 173 A.P.R. 224; 10 C.P.C.
(2d) 69 (N.S.C.A.).
APPLIED:
Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R.
289; 34 B.C.L.R. (2d) 273; 36 C.R.R. 193; 91 N.R. 255;
Reference Re Workers' Compensation Act, 1983 (Nfld.),
[1989] 1 S.C.R. 922; (1989), 76 Nfld. & P.E.I.R. 181; 56
D.L.R. (4th) 765; 235 A.P.R. 181; 96 N.R. 227; Opera
tion Dismantle Inc. et al. v. The Queen et al., [1985] 1
S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R.
16; 13 C.R.R. 287; 59 N.R. 1.
CONSIDERED:
Davidson v. Canada (Solicitor General), [1989] 2 F.C.
341; (1989), 36 Admin. L.R. 251 (C.A.).
COUNSEL:
Milos Barutciski for plaintiff.
Linda Wall for defendants Attorney General
of Canada and Canada Mortgage and Hous
ing Corporation.
Kevin L. LaRoche for defendants Raymond P.
Guenette and J. F. Cousineau.
SOLICITORS:
Gowling, Strathy & Henderson, Ottawa, for
plaintiff.
Deputy Attorney General of Canada for
defendants Attorney General of Canada and
Canada Mortgage and Housing Corporation.
Scott & Aylen, Ottawa, for defendants Ray-
mond P. Guenette and J. F. Cousineau.
The following are the reasons for order ren
dered in English by
STRAYER J.:
Relief Requested
There are two motions to deal with: one by the
Attorney General of Canada and Canada Mort
gage and Housing Corporation requesting that the
statement of claim be struck out as disclosing no
reasonable cause of action; and one by the defend
ants Raymond P. Guenette and J. F. Cousineau
requesting that they be struck from the statement
of claim on the grounds that they are not necessary
parties.
Background Facts
I accept, as I must, for the purposes of the
motion to strike the statement of claim, the facts
as alleged therein. According to the statement of
claim the plaintiff applied in March, 1985 to
Canada Mortgage and Housing Corporation
(CMHC) under the Access to Information Act'
for access to the minutes of certain meetings of the
Corporation. Access was denied and a complaint
was made to the Information Commissioner.
Subsequently the Assistant Information Commis
sioner recommended to CMHC that it disclose the
information which it again refused to do. The
plaintiff then took proceedings in the Federal
Court [(1987), 8 F.T.R. 230 (T.D.)] and ultimate
ly was successful before the Federal Court of
Appeal [ [1989] 1 F.C. 265] which, on July 6, 1988
allowed his appeal and awarded costs to him on a
party and party basis both at trial and on appeal.
The plaintiff, who describes himself as a "public
interest researcher", had represented himself
throughout. When it came to taxation of costs he
included in his bill of costs an item of $1,025 as
counsel fees claimed pursuant to Tariff B subsec
tion 1(1) [Federal Court Rules, C.R.C., c. 663 (as
Now R.S.C., 1985, c. A-1.
am. by SOR/87-221, s. 8)]. The Taxing Officers
involved were J. F. Cousineau and Raymond P.
Guenette and the latter, by reasons dated July 13,
1989, rejected the plaintiff's claim for counsel fees.
It is common ground that in doing so he was
following the literal wording of Tariff B which
only provides "for the services of counsel" and the
well-established interpretation of the Rules of this
Court to the effect that counsel fees are not taxed
in favour of self-represented litigants. 2
I am advised by his counsel that the plaintiff
filed an application for review of the taxation
decision, but left that application in abeyance and
commenced the action in question here. In this
action he alleges that Federal Court Rules 344 [as
am. by SOR/87-221, s. 2] and 346 [as am. idem, s.
3], and Tariff B, discriminate against self-repre
sented litigants: by excluding payment for the
personal work of successful parties who would be
partially compensated if they retained counsel
instead; and also by requiring that any taxation of
costs beyond that normally stipulated in Tariff B
must be by special direction by the Court under
Rule 344(7), the request for which puts a self-
represented litigant at a disadvantage. The plain
tiff in his statement of claim invokes subsection
15(1) of the 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]], and
he denies that the Rules in question can constitute
a reasonable limitation (as permitted by section 1)
on his right to equality before and under the law
and to the equal protection and equal benefit of
the law. He asks for various declarations to this
effect, certiorari setting aside the decision of the
Taxing Officer, and mandamus directed to the
Taxing Officers requiring them to tax his costs in
a manner similar to the taxation of costs of a
2 See e.g. Davidson v. Canada (Solicitor General), [1989] 2
F.C. 341 (C.A.).
successful litigant who has been represented by
counsel.
Conclusion
I am satisfied that the action should be struck
out.
In his statement of claim the plaintiff describes
himself as a "public interest researcher". The key
paragraphs of the statement of claim for present
purposes are the following:
6. As a public interest researcher, the Plaintiff from time to
time seeks information from federal government institutions
that can be used by himself and others to support objective
assessment and criticism of the policies and practices of the
Government of Canada.
7. The Plaintiff has on many occasions sought information
under the Access to Information Act, R.S.C. 1985, c. A-I, as
amended, on his own behalf, or on behalf of the media or public
interest organizations, including organizations aimed at the
betterment of socially and economically disadvantaged groups
and individuals.
8. On several occasions, when a request for information under
the Access to Information Act has been denied by a federal
government institution, the Plaintiff has sought judicial review
of the denial in the Federal Court of Canada.
9. Due to the limited resources available to support public
interest activities of the kind carried out by the Plaintiff, he
cannot afford to retain counsel to represent him in access to
information applications. If the Plaintiff were to retain counsel
in such applications, it would severely compromise the effec
tiveness of his role as a public interest researcher as it would
add significantly to the expense of obtaining the relevant
information.
• • •
23. Federal Court Rules 344 and 346, and Tariff B, discrimi
nate against self-represented litigants. Rule 346(1) stipulates
that, unless otherwise ordered by the Court, all costs between
party and party shall be taxed in accordance with Tariff B.
Tariff B provides for costs to be allowed by the Taxing Officer
"for the services of counsel", but does not make an express
allowance for time and expenses (apart from disbursements)
incurred by a self-represented litigant in performing those
functions which would be regarded as allowable services had
the litigant chosen to be represented by counsel.
24. To the extent that such costs can be recovered at all by a
self-represented litigant, it would be necessary for such litigant
to invoke the discretionary authority of the Court under Rule
344 within the time period stipulated in subsection (7) thereof.
This places a self-represented litigant who has been awarded
costs by the Court at a disadvantage, as compared to a litigant
represented by counsel, in respect of the recovery of costs
associated with the functions for which costs can be recovered
under Tariff B.
25. A self-represented litigant is nonetheless liable to pay costs
to an opposing litigant who is represented by counsel, thereby
placing the self-represented litigant at a disadvantage in the
litigation process.
26. The Federal Court Rules, as promulgated and applied,
have the effect of discriminating against those who, owing to
the public interest nature of their activities, political orienta
tion, economic circumstances, or a combination thereof, do not
retain counsel, by compelling them either to bear the cost of
certain functions that are not borne to the same extent by
litigants who have the resources to retain counsel, or to meet
criteria that do not have to be met in seeking recovery of such
costs by litigants who retain counsel, or, alternatively, to refrain
from applying to the Court.
27. The Plaintiff's constitutional rights to equality before and
under the law and to the equal protection and equal benefit of
the law without discrimination, as guaranteed by section 15(1)
of the Canadian Charter of Rights and Freedoms, have thereby
been infringed and denied.
It is common ground that there is a distinction
made by the Rules and Tariff B as interpreted by
this Court, as between self-represented litigants
and those represented by counsel. This was made
amply clear by the Davidson case 3 where a lawyer
acting for himself was denied taxation of a counsel
fee. It appears to me that to succeed in his action,
however, the plaintiff must demonstrate that this
unfavourable distinction, which he must bear
along with all other self-represented litigants,
amounts to discrimination within subsection 15(1)
of the Charter. In that respect, McIntyre J. writ
ing for a majority of the Supreme Court of
Canada in Andrews v. Law Society of British
Columbia' held that a mere unfavourable distinc
tion created by law does not automatically contra
vene subsection 15(1). Such distinction must
amount to discrimination. He indicated that as a
condition of finding "discrimination" within the
meaning of subsection 15(1), the ground of dis
crimination must be one of those enumerated in
that subsection or some analogous ground. This
3 Supra, note 2.
4 [1989] 1 S.C.R. 143, at pp. 181-182.
test has been applied again by the Supreme Court
in a later case as the sole basis for rejecting an
allegation of discrimination. 5
The plaintiff does not demonstrate any special
standing to raise issues concerning the rights of
anyone other than himself in respect of the taxa
tion of costs in the particular litigation against
CMHC which forms the basis of this action. He
alleges no connection in this particular quest for
information with any organization "aimed at the
betterment of socially and economically disadvan
taged groups and individuals" as referred to in
paragraph 7 of the statement of claim. The only
role or characteristic alleged by the plaintiff in his
pursuit of CMHC is that of "public interest
researcher", a seemingly self-defined role. I see
nothing in this which alleges a set of facts upon
which the Court could as a matter of law find
discrimination on grounds analogous to those set
out in subsection 15(1) of the Charter. That is, I
can see no allegation that the plaintiff as a "public
interest researcher" is, where the law is disadvan
tageous to him, per se the victim of discrimination
on a ground analogous to those in subsection
15(1). The closest statements to such an allegation
refer to his "limited resources" and the compro
mise of his effectiveness if he had to incur the
expense of engaging a lawyer in order to claim
counsel fees on a party and party basis. Assuming
as I must that there is some reality in this alleged
option, the mere suggestion that a certain litigant
who is not otherwise identifiable as an object of
discrimination is at a financial disadvantage as
compared to others is not, in my view, an allega
tion of "discrimination" as contemplated by sub
section 15(1).
In argument counsel for the plaintiff stressed,
however, his association with groups which, it was
5 Reference Re Workers' Compensation Act, 1983 (Nfld.),
[1989] 1 S.C.R. 922, at p. 924.
suggested, are typically underfunded and invari
ably devoted to the public interest. Thus, it was
argued, rules imposing a disadvantage on persons
such as the plaintiff thereby impose the same
disadvantages on the groups with which he is
associated. As indicated I am unable to see that
the plaintiff has pleaded the prerequisites for
establishing a "public interest standing" to pursue
this issue for all public interest researchers or
groups, 6 going beyond the standing which he
undoubtedly has to challenge the application of the
Tariff to him personally in the Access to Informa
tion action against CMHC in question here. How
ever, even assuming that standing could be estab
lished herein to invoke the alleged constitutional
rights of all and sundry "public interest" individu
als and groups who do not retain counsel, and
assuming all facts alleged here to be true, I am
unable to see how a constitutional right of them all
can be made out in these proceedings with respect
to the operation of Tariff B and the Federal Court
Rules. The key paragraph in the statement of
claim is, I believe paragraph 26 which for conve
nience will be repeated.
26. The Federal Court Rules, as promulgated and applied,
have the effect of discriminating against those who, owing to
the public interest nature of their activities, political orienta
tion, economic circumstances, or a combination thereof, do not
retain counsel, by compelling them either to bear the cost of
certain functions that are not borne to the same extent by
litigants who have the resources to retain counsel, or to meet
criteria that do not have to be met in seeking recovery of such
costs by litigants who retain counsel, or, alternatively, to refrain
from applying to the Court. [Emphasis added.]
In trying to find in this statement the allegations
which could support a claim of discrimination
under subsection 15(1) I have had respectful
regard to the judgment of Dickson C.J. in Opera
tion Dismantle Inc. et al. v. The Queen et al.'
where he said:
6 He has not demonstrated, for example, that it is unlikely
these others could raise the issue themselves if and when it
might come to bear on them in actual litigation.
7 [1985] 1 S.C.R. 441, at p. 455.
The rule that the material facts in a statement of claim must be
taken as true for the purpose of determining whether it dis
closes a reasonable cause of action does not require that
allegations based on assumptions and speculations be taken as
true. The very nature of such an allegation is that it cannot be
proven to be true by the adduction of evidence. It would,
therefore, be improper to accept that such an allegation is true.
No violence is done to the rule where allegations, incapable of
proof, are not taken as proven.
As noted, the plaintiff must allege that the unfa
vourable distinction made against self-represented
litigants leads to some "discrimination" on a
ground analogous to the grounds specified in sub
section 15(1). The best that can be said for the
allegations in paragraph 26 is that they are, to
borrow the words of Dickson C.J., "based on
assumptions and speculations" which "cannot be
proven to be true by the adduction of evidence".
What evidence would prove the "public interest
nature" of the activities of a given individual or
group? Are courts to engage in speculation as to
who truly represents the "public interest"? What
assumptions would have to be made as to why such
a group does not retain counsel? Similar specula
tion would be required in respect of how the
"political orientation" of a group would cause it
not to retain counsel. The mere suggestion that in
respect of a given individual or group, "economic
circumstances" prevent him or it from retaining
counsel does not, as indicated above, amount to an
allegation of discrimination on a ground analogous
to those specified in subsection 15(1). Finally, it
must be observed that paragraph 26 does not
allege that any one of the specified characteristics
("public interest nature of their activities", "politi-
cal orientation", "economic circumstances") is
essential to make a person or group a victim of
discrimination. It may be any one or a combina
tion of such factors which allegedly leads them not
to retain counsel. This underlines the sweeping,
nebulous, and highly speculative, nature of the
allegations.
In coming to this conclusion I have had regard
to the decision of the Nova Scotia Supreme Court,
Appeal Division in McBeth v. Dalhousie
University 8 in which it was held that the denial of
counsel fee to a self-represented litigant was con
trary to subsection 15(1) of the Charter. However,
that view was rejected by the Federal Court of
Appeal in the Davidson case 9 which followed other
jurisprudence of this Court on the interpretation of
section 15 and upheld our Rules and Tariffs.
While the Court of Appeal's interpretation there
of section 15 may have been affected to some
extent by the more recent Andrews decision '° of
the Supreme Court, the latter case together with
the Reference Re Worker's Compensation Act,
1983 decision" have clearly required that unfa
vourable distinctions, to be prohibited by subsec
tion 15(1), must be either on a ground specified in
subsection 15(1) or on one analogous thereto.
The motion to strike the statement of claim is
therefore granted with costs.
The motion to strike out the Taxing Officers as
defendants should also be granted and this would
be the case even if the action were to continue.
They would not be necessary parties to this action
as the essential issues could be addressed in the
declaratory proceedings. If the plaintiff had been
able to proceed successfully to judgment the Court
could itself correct the taxation, either by agree
ment in these proceedings or on the review of the
taxation by a judge for which the plaintiff has
already made application. As the action is without
foundation these defendants are also entitled to
costs.
8 (1986), 72 N.S.R. (2d) 224.
9 Supra, note 2.
10 Supra, note 4.
" Supra, note 5.
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.