Toronto Dominion Bank v. Beaton, 2012 ABQB 125

Court of Queen ’ s Bench of Alberta Citation: Toronto Dominion Bank v. Beaton, 2012 ABQB 125 Date: 20120223 Docket: 0901 09069 Registry: Calgary Between: The Toronto Dominion Bank Plaintiff - and - Jerry H. Beaton and Louise C. Beaton Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Asserting that he is impecunious, and relying on the fact that other judges of this court have given him an order of the same type that he is requesting today, Mr. Beaton asks the court to order the Transcript Service of the Alberta Government to provide him with a free transcript of court proceedings. Mr.

Beaton states that he requires these transcripts in order to perfect his application for leave to the Supreme Court of Canada to appeal an order issued by a judge of the Alberta Court of Appeal in these proceedings. [ 2 ] The Attorney General opposes the application: relying on Rule 13.32 and Ministerial Order 8/2011 it says that the court has no jurisdiction to grant the order requested and that explicit authority to waive court fees is given only to the court clerk or registrar. [ 3 ] For the purposes of this application, the court concludes that it does have jurisdiction to make an order of the type requested: a

[3] For the purposes of this application, the court concludes that it does have jurisdiction to make an order of the type requested: aprocedure to obtain waiver of court fees which does not take into account the merits of the underlying application in addition to theapplicant’s financial circumstances breaches the applicant’s constitutional right to access to justice.

Historically, the common lawensured access to justice for poor litigants by allowing proceedings in forma pauperis; contemporary constitutional law requires acontemporary analogue to that procedure. [4] Assuming that it does have the authority to make the order requested, and assuming that Mr. Beaton is impecunious, the courtconcludes that this is not an appropriate situation in which to exercise its discretion: in the court’s opinion, Mr. Beaton does not have ameritorious appeal to the Supreme Court of Canada from a decision of our Court of Appeal.

Cases and authority cited [5] By the court: Polewski v Home Hardware Stores Ltd. (ON SCDC), [2003] O.J. No. 2908 (Div.Ct.); Purtle vNovak [2010] O.J. No. 4401 (Sm Cl Ct); British Columbia (Minister of Forests) v Okanagan Indian Band 2003 SCC 71, [2003] S.C.J.No. 76 Appendix A: Extract from Ministerial Order 8/2011 Appendix B: Extract from Polewski 1. Background [6] Mr. Beaton, who is self-represented, is involved in ongoing litigation involving not only the TD Bank, but also the Workers’Compensation Board, Burnco, and an individual named Burns. [7] At the hearing before me, I understood Mr.

Beaton to state that he was intending to ask the Supreme Court of Canada for leave toappeal a decision of a single judge of our Court of Appeal to the Supreme Court. I understood that the decision that Mr. Beaton wasfocussing on was an order issued by the Court of Appeal on December 20, 2011. However, because of the number of different matters inwhich Mr.

Beaton is engaged, I cannot be certain that I correctly understood the precise nature of the application for leave which he isbringing to the Supreme Court of Canada; because of that difficulty, I have filed these reasons in the lawsuit involving the TD Bank,because that was the only file on which Mr. Beaton had a document. It may be that this decision should also be filed in one or both ofthe other actions involving Mr. Beaton.

I will discuss below how the court can make an assessment of merits when it is not certain of theprecise nature of the application. [8] In order to comply with the Supreme Court of Canada’s standard requirements for applications for leave to appeal, understandably,Mr. Beaton would have to provide transcripts of the decisions appealed from. [9] Mr.

Beaton makes an oral submission to the effect that he is impecunious: as a result of the foreclosure proceedings undertakenby the Bank in this action, he has been removed from his home, he is living in his vehicle, and has other longstanding problems,including health problems, from which he expects to recover and to be in a position to repay Alberta Justice for the cost of thetranscripts. Mr. Beaton expresses the firm conviction that he will eventually be successful in his various applications and that he will beawarded some $13 million in damages. [10] Mr.

Beaton makes an application in this court for transcripts even though his application for leave to the Supreme Court of Canadapresumably arises from a decision or order issued by the Alberta Court of Appeal. Although I am not certain about this, I think itpossible that our Court of Appeal does not provide transcripts of oral submissions made on applications in that court. I have looked inLexisNexis to see if there is any reported decision from our Court of Appeal on Mr. Beaton’s litigation and have been unable to find any. Therefore, I assume that what Mr.

Beaton has received from the Court of Appeal is limited to orders. I therefore assume that Mr.Beaton’s application for free transcripts relates only to transcripts of oral proceedings in this court which eventually became the subjectof appeal proceedings. Based on that conclusion, I determined that I had the capacity to hear Mr. Beaton’s application despite hisreference to Court of Appeal proceedings.

2. Does the court have the jurisdiction to make the order requested? [ 11 ] For the purposes of this application, and for the reasons set out below, I have concluded that the court does have jurisdiction to make the requested order. In restricting my conclusion to this application, I intend to acknowledge that the matter is not free from doubt. On the contrary, because Mr. Beaton is not a lawyer, he was not able to counter the arguments raised by the respondent and the respondent was effectively unable to clarify its position on the law.

It may well be, therefore, that upon a full argument on the issue of the court ’ s jurisdiction to waive court fees, a court would agree with the Attorney General ’ s submission. [ 12 ] In assessing Mr. Beaton ’ s application, I begin with a consideration of the Rules of Court.

Part 13 of the Rules is titled Technical Rules and includes Rule 12.32 and other rules relating to the actions of the clerk, some of which may be relevant to the application: Division 5 Payment of Fees and Allowances, and Waivers of Fees Fees and allowances 13.32(1) In every action, application or proceeding in Court, there must be paid to the appropriate court officer or other appropriate person the fee specified, referred to or determined in accordance with

Schedule B [Court Fees and Witness and Other Allowances] unless the court clerk waives the fee , in whole or in part, in accordance with guidelines, if any, established or adopted by the Minister of Justice and Attorney General for persons unable to pay fees.

(2) Except for fees for transcripts, the fees referred to in subrule (1) are payable in advance unless the court clerk otherwise permits. AR 124/2010 s13.32;143/2011 . . . Fee waiver: legal aid 13.36(1) In this rule, (a) “certificate” means a Legal Aid Certificate issued by the Legal Aid Society of Alberta; (b) “document” means any document that may be filed for which a fee is payable under item 1 or 4 of

Schedule B [Court Fees and Witness and Other Allowances] .

(2) A court clerk who is requested to file a document must waive the filing fee otherwise payable if presented with a subsisting certificate issued in respect of the person for whom the document is to be filed.

(3) If a document was filed in an action before a certificate is issued in respect of the person for whom the document was filed, the fee paid for filing the document may not be waived under this rule. AR 124/2010 s13.36;216/2011

Fee waiver: restraining orders 13.37(1) In this rule, “restraining order” means a restraining order in respect of an interpersonal matter between individuals or a protection order under the Protection Against Family Violence Act and includes the costs associated with respect to that restraining order or protection order.

(2) If a court clerk files a commencement document in which the remedy claimed is a restraining order, the court clerk must waive the fee payable under item 1 of

Schedule B [Court Fees and Witness and Other Allowances] .

(3) Despite subrule (2), the fee referred to in subrule (2) must not be waived if any remedy, other than or in addition to a restraining order, is being sought in respect of the matter for which the document is being filed.

(4) A fee that was waived becomes immediately payable if the party in respect of whom the fee was waived claims or seeks a remedy in respect of the matter other than or in addition to the restraining order. Division 6 Judge’s Fiat, Court Officers and Court Reporters Judge’s fiat 13.38(1) A judge or a master may authorize, direct or give permission to a court officer to do

an act , and a note signed by the judge or master is sufficient authority to carry out the act.

(2) The authorization, direction or permission must be filed unless the judge or master otherwise directs. Court officers 13.39 The persons holding the following positions are court officers: (

a) the court clerk and every person delegated authority by the court clerk or authorized by the court clerk to perform any court clerk functions; (

b) the sheriff; (

c) a person appointed as a deputy of a person described in clause (

a) or (b). (Emphasis added) [ 13 ] In other words, the Rules state that only the clerk has the authority to waive court fees, but provide assistance to litigants of limited financial means by waiving court fees for litigants who have a subsisting Legal Aid Certificate. [ 14 ] Given the specificity of Rule 12.32, I am of the view that a judge cannot circumvent the clear intention of that Rule by using Rule 13.38(1) to grant a fiat ordering the clerk to waive court fees. [ 15 ] For ease of reference, Ministerial Order 8/2011, which refers to Rule 12.32 is reproduced as Appendix A.

That M.O. identifies which court fees can be waived, and by inference establishes which fees cannot be waived, repeats that it is the court clerk who can

waive the fees, and by inference establishes that no one else can waive the fees, and establishes a standard format for the inquiry by the clerk into an applicant ’ s financial circumstances. [ 16 ] If the court were only to consider those two pronouncements, the Rules and the Ministerial Order, it would conclude that the court does not have any authority to waive court fees, and that the authority to waive such fees in Alberta resides solely in the Clerk of the Court. [ 17 ] However, case law, in particular Polewski , presents an expanded analysis of the issue of the waiver of fees seen through the lens of access to justice.

Although that decision deserves careful scrutiny, for the purposes of this application, a fair

summary of the Ontario Divisional Court ’ s view of the matter is found in para. 64 of the decision: 64 We agree that Pleau does not stand for the broad proposition that a person has an unrestricted right to recourse to the courts for civil litigation. This is why we emphasize the requirements of proof of indigence and a meritorious claim . We do not suggest that the constitutional right of access to the courts precludes reasonable fees, such as those challenged in this appeal.

We do say, however, that in cases where their existence, combined with the requirement to pay them prevents a person from pursuing a meritorious claim, they are unconstitutional. We see this as something that is quite different from the concept that unimpeded or unrestricted access to the civil courts is a constitutionally guaranteed right, a concept that was rejected by Gillese J. (Emphasis added) [ 18 ] In other words, Polewski makes a very strong argument that, in some situations, the common law historically, and the Charter today, makes access to justice a constitutional right.

The situations where access to justice must be guaranteed are narrow: on the one hand, there must be evidence that the applicant truly cannot afford the required fees. Here, Mr. Beaton has provided no such evidence. On the other hand, the applicant must satisfy the court of the merit of the claim that cannot be advanced without incurring the subject fee.

Both aspects of the test must be satisfied before the court has authority to act. [ 19 ] Somewhat similar comments to those in Polewski concerning the necessity for proof of a meritorious claim were made in Purtle : 22 The last substantive issue is the question of the Fee Waiver which Mr. Purtle obtained from the court clerk pursuant to rule 4.3 of the Administration of Justice Act, R.S.O. 1990, c. A.6 . Mr. Purtle conceded that if these actions were dismissed, there was no purpose in maintaining his Fee Waiver.

Accordingly I struck out the fee waiver. 23 I observe that there is an unfortunate distinction under that Act, as between requests for Fee Waiver which are determined by the court staff, and requests which are determined by a judge.

When a request is made to a judge, the request may be denied, among other grounds, if the judge is not satisfied, under s. 4.4(7) para. 2, that: Commencing, defending, continuing or intervening in the proceeding, as the case may be, is not frivolous, vexatious or otherwise an abuse of the process of the court. 24 What is unfortunate is that such requirement does not apply when the Fee Waiver request is made not to a judge but to a member of the court staff: see s. 4.4(8).

Moreover, the Act provides that while a request may be made to a judge, even those requests are channelled first to the clerk or registrar: see s. 4.4(4).

This appears to place a significant limit on the ability of the administration of justice to protect itself against requests by vexatious litigants for Fee Waivers, when clearly the public interest is not served by waiving the usual modest court fees where the result is only to encourage frivolous and vexatious proceedings. 25 In the circumstances, I order that if the plaintiff, Allan Martin Purtle, submits any further request in future for a Fee Waiver in this court, the request shall be determined by a judge of this court and a copy of these reasons shall be provided to that judge. [ 20 ] However, with respect, I prefer the formulation of the second part of the test as articulated in Polewski .

Before exercising its power to grant access to justice by waiving court fees, the court ’ s obligation is much sterner than the test in Purtle : not only must it decline to intervene where the claim is frivolous, vexatious, or an abuse of process, but it must also decline to intervene unless the applicant has established a meritorious claim.

[ 21 ] As support for the government ’ s position that the court does not have the jurisdiction to waive fees, I note that in Polewski , there was no provision whatever in the Rules allowing the waiver of court fees even where there was a meritorious claim: see para. 45. In Alberta, there is explicit power to waive fees, and that power is given explicitly to court clerks. The Application for Fee Waiver which is attached to the Ministerial Order as

Schedule A requires information about the applicant ’ s financial means. However, that application does not, and indeed presumably could not since it is assessed by a clerk of the court who is not necessarily a lawyer, deal with the merits of the applicant ’ s position. That is where the Alberta system is defective: both financial ability and the merits of the case are important factors to consider when determining which individuals will have access to justice.

An echo of this type of analysis is found in the Okanagan line of cases, stemming from para. 34 of that decision. [ 22 ] In assessing the financial circumstances of the applicant, the court will, of course, take into account the relative ability of the applicant to pay access fees, i.e. the obligation to pay a $600.00 trial fee may well create a different financial burden on a litigant whose only income is social assistance from the burden created on a person who is employed at minimum wage, or on a person who earns above the minimum wage but who has many legal dependents.

In this context, the court observes that Mr. Beaton has not put any evidence before the court of any attempt by him to have Legal Aid support his litigation; evidence of whether Mr. Beaton does or does not meet Legal Aid ’ s financial guidelines might be an alternative to providing the information required by the Ministerial Order. [ 23 ] In assessing the merits of the case, the court will, presumably, proceed as we do on costs, i.e. consider not the overall merits of the case, but the merits of the particular step in relation to which relief is requested.

In other words, rather than trying to forecast if the applicant will be successful in the result, the court should consider whether the applicant ’ s next step has merit. 3. Should the court ’ s discretion be exercised in the circumstances here? [ 24 ] Assuming that it has jurisdiction to grant the order requested, and assuming that Mr. Beaton is in fact impecunious, the court concludes that it should not exercise its discretion here because Mr.

Beaton has not established that his application for leave to appeal to the Supreme Court of Canada is meritorious. [ 25 ] In coming to this conclusion, the court observes that the fact that previous judges of this court have given Mr. Beaton orders for free transcripts is irrelevant: no information is available to the court on this application about the circumstances of those previous orders. Those judges may also have come to the conclusion that they had the jurisdiction to waive court fees and that the particular step in connection with which Mr. Beaton wanted transcripts was meritorious.

As indicated earlier, the granting by other judges of orders for free transcripts would be no reflection on the opinions of those judges of the likely eventual success of Mr. Beaton in any of these proceedings. [ 26 ] In determining whether a constitutional right to access to justice will be denied to Mr. Beaton if he is unable to ask the Supreme Court of Canada for leave to appeal a decision of the Alberta Court of Appeal, I do not consider Mr. Beaton ’ s overall position in the various lawsuits, but the specific step of appealing a Court of Appeal decision to the Supreme Court of Canada. [ 27 ] If, in fact, Mr.

Beaton ’ s intended appeal to the Supreme Court of Canada relates to an order given by our Court of Appeal to set aside a previous consolidation order granted by this court, then Mr. Beaton has not established that such an appeal is meritorious. On the very face of the proceedings, they involve different parties, and the presumption would be that the various actions should be dealt with separately. Moreover, any such appeal decision would not deny Mr. Beaton access to the courts but would, on the contrary, give him access in all three proceedings. [ 28 ] The only other proceedings which Mr.

Beaton specifically alluded to during the course of his application before me were the foreclosure proceedings undertaken by this Bank. If Mr. Beaton were attempting to appeal to the Supreme Court of Canada an order from our Court of Appeal relating to these foreclosure proceedings, then Mr. Beaton has not established that such an appeal would be meritorious. As Mr. Beaton acknowledged, the Supreme Court of Canada only accepts appeals on matters which have public importance. From Mr.

Beaton ’ s perspective, the lawsuits in which he is involved do raise matters of public importance, involving political actions and the need for a public inquiry. From an objective perspective, however, Mr. Beaton is involved in disputes with other citizens, with corporations, and with government agencies all of which disputes will be settled according to standard principles of law, and none of which involve “ special circumstances ” of the type required for interference in costs. 4. Conclusion

[ 29 ] For the reasons set out above, Mr. Beaton ’ s application to have the court waive the court fees applying to transcripts is denied. 5. Costs [ 30 ] The successful party, the Attorney General, has not asked for costs; therefore, no costs are awarded. Heard on the 22 nd day of February, 2012. Dated at the City of Calgary, Alberta this 23 rd day of February, 2012. J.B. Veit J.C.Q.B.A. Appearances: Jerry Beaton, on his own behalf Wilma Shim, Civil Litigation

Section Alberta Justice Calgary, AB for Alberta Justice Transcript Service Appendix A M.O. 8/2011 MINISTERIAL ORDER

I, ALISON REDFORD, Q.C., Minister of Justice and Attorney General for the Province of Alberta, pursuant to (

a) Section 1.1 of the Provincial Court Fees and Costs Regulation , and (

b) Rule 13.32 of the Alberta Rules Of Court , do hereby establish the following guidelines to permit a court clerk or registrar to waive in whole or in part, certain fees payable to court officials where the applicant is an individual who is unable to pay fees: 1. The fee waiver guidelines set out herein are applicable solely to the following fees payable to court officials: (

a) Provincial Court, Civil (

i) that portion of the filing fee set out in subsections 1(

a) and (

b) of the Provincial Court Fees and Costs Regulation in excess of $25.00; (

b) Court of Queen's Bench (

i) that portion of the filing fee set out in item 1 of

Schedule B, Division 1 of the Alberta Rules of Court , in excess of $25.00; (ii) that portion of the fee to set a trial date, as set out in item 4 of

Schedule B, Division 1 of the Alberta Rules of Court , in excess of $200.00: (iii) that portion of the fee for an appointment for a review by a review officer as set out in item 6 of

Schedule B, Divison 1, of the Alberta Rules of Court , in excess of $25.00; (

c) Court of Appeal (

i) that portion of the filing fee for a notice of motion for leave to appeal or for a notice of appeal under items 1 and 1.1 of

Schedule E, Number 2 of the Alberta Rules of Court (A.R. 390/68) in excess of $200.00. 2. The court clerk or registar (or designate) shall waive those fees set out in paragraph 1, where: (

a) the applicant is an individual, and there are no other parties joined with the individual in the action who are able to pay the fee in question; (

b) the applicant completes an Application for Fee Waiver and Statement of Finances form set out in

Schedule A, and provides copies of all documents requested by the application form; and (

c) the court clerk or registrar (or designate) is satisfied that the applicant’s gross family income, as declared by the applicant, does not exceed the gross family income threshold set out in

Schedule B.

3. Notwithstanding paragraph 2, where an individual is subject to an order under

section 23.1 (1) or (4) of the Judicature Act (Vexatious Proceedings) which is binding on the Court, the individual may not apply for a waiver of fees applicable to that Court in accordance with these guidelines, unless the individual has obtained leave from the Court under s. 23.1(7) of the Judicature Act to institute or continue the proceedings. 4.

If, after the applicant has been granted a waiver of fees under paragraph 2 above, the court clerk or registrar (or designate) determines that the information or documentation provided by the applicant in support of his or her application was incorrect or false, or that the waiver of fees was erroneously given, the court clerk or registrar (or designate) shall revoke the waiver of fees. 5. Upon the revocation of the waiver of fees under paragraph 4: (

a) the court clerk or registrar (or designate) shall send written notice by regular mail to the applicant, at the address provided on the Application for Fee Waiver and Statement of Finances, that waiver of fees has been revoked; and (

b) that portion of the filing fee which was waived becomes immediately payable by the applicant. This authorization cancels and replaces all previous authorizations on this matter, including Ministerial Order 10/2005 and Ministerial Order 27/2007. This Ministerial Order comes into force on January 31, 2011. Dated at the City of Edmonton, in the Province of Alberta, this 25 th day of January, 2011.

Appendix B Extract from Polewski v Home Hardware Stores Ltd. 26 However, we are persuaded that there is a common law right of access to the courts, premised upon constitutional values. The absence of an express statutory provision enabling the waiver of reduction of prescribed court fees in the Small Claims Court offends this right. It is against the backdrop of this conclusion that we turn to a detailed analysis of Issues #1 and #2.

i) Is there a Judicial Discretion to Waive Small Claims Court Fees on the Basis of Poverty?

27 We agree with Gillese J.'s conclusion that

section 25 of the Courts of Justice Act does not confer jurisdiction on a Small Claims CourtJudge to waive compliance with the mandatory fees prescribed under the Administration of Justice Act.

Section 25 of the Courts ofJustice Act reads: The Small Claims Court shall hear and determine in a

summary manner way all questions of law and fact and may make such order as isconsidered just and agreeable to good conscience. 28 We see this

section as consistent with the remedial objectives of the Small Claims Court Rules. As Gillese J. observed, "[i]ts purposeis to empower the trial judge to decide the case and make such orders as are necessary to ensure a fair disposition. The question of afiling fee is not relevant to the determination of the merits of the case." We also agree with the Attorney General that any order declaringthe fees invalid or directing the Clerk of the Court to set a matter down for trial without the fee being paid is in the nature of declaratoryand injunctive relief.

As such, it is outside the remedial jurisdiction of the Small Claims Court unless there is an express statutoryprovision that gives judges presiding in this court discretion to waive or reduce prescribed fees. Being a statutory court, the Small ClaimsCourt does not have inherent or equitable jurisdiction. We reject the Appellant's submission the combination of s. 25 and Rule 1.04(1)and (2) of the Rules of Civil Procedure, R.S.O. 1990, Reg. 194 as amended provide a Small Claims Court Judge with discretion to waivefees.

This would not be the case if the Small Claims Court Rules explicitly provided for the exercise of discretion to waive or reduce thefees that are set out in Ontario Regulation 432/97.

a) Statutory Provisions 29 Mr. Hanley, on behalf of the Attorney General, pointed out that unlike other provincial statutes containing reference to a waiver offees for those who cannot afford them, no such provision exists in the Small Claims Court Rules. For example, express jurisdiction towaive fees is contained in the Ontario statutes identified below. i) Section 30(14) of the Children's Law Reform Act, R.S.O. 1990, c.

C.12 provides: The court may relieve a party from responsibility for payment of any of the fees and expenses of [an expert appointed to assist indetermining the best interests of the child] where the court is satisfied that payment would cause serious financial hardship to the party. ii) Section 3(8) of the Family Law Act, R.S.O. 1990, c.

F.3, provides: The court may require one party to pay all the mediator's fees and expenses if the court is satisfied that payment would causethe other party or parties serious financial hardship. iii) Section 4(2) of the Estate Administration Tax Act, S.O. 1998, c. 34, Sched., provides with respect to deposits payable onapplication for state certificates: The estate certificate shall not be issued before the deposit required by

section 3 is made unless a judge is satisfied, based uponthe applicant's affidavit and upon such other material as the judge may require ... (

b) that financial hardship would result from not issuing the estate certificate before the deposit is made; and iv) Section 8(3.2) of the Public Guardian and Trustee Act, R.S.O. 1990, c. P.51 which provides: The Public Guardian and Trustee may, in his or her discretion, reduce the amount of a fee or waive its payment in a case of hardship or inother appropriate circumstances. 30 Gillese J. reasoned that because similar provisions do not appear in either the Small Claims Court Rules or the Administration ofJustice Act, this omission was deliberate. At page 335, Gillese J. adopted the reasoning in Magrath v.

Canada (National Parole Board), (FC), [1979] 2 F.C. 757 (Fed. T.D.) [Magrath] and found that "the absence of a provision to waive fees on the basis ofhardship in the Small Claims Court Rules was deliberate. As a consequence, prima facie the court has no discretion to waive fees andthey must be paid." We say that if such omission suggests an intention on the part of the legislature to make such fees compulsory andnot subject to waiver in any circumstances, such omission, even if it was deliberate, is not the complete answer to the issues raised in thisappeal.

To this extent, we depart from the reasoning of Gillese J. 31 In this context, it is important that there is express jurisdiction to proceed in forma pauperis in the Supreme Court of Canada and to waive court fees in the Supreme Court of Canada and the Federal Court of Canada.12 The relevant provisions are as follows:

i) Section 97.(1) of the Supreme Court Act, R.S., c. S-19, s. 1 creates the jurisdiction for judges to allow appeals in forma pauperis. Thissection provides as follows: The judges, or any five of them, may make general rules and orders: (

b) or allowing appeals in forma pauperis by leave, notwithstandingthe provisions of this Act or any other Act requiring the giving of security for costs, and for allowing a respondent leave to defend informa pauperis; ii)

Section 59 deals with time limits for in forma pauperis appeals, providing that:

(1) Notwithstanding anything in this Act or any other Act of Parliament, the court proposed to be appealed from or any judge thereof or the Supreme Court or a judge thereof may under special circumstan ces, either before or after the expiration of a time period prescribed by

section 58, extend that time period.

(4) Notwithstanding anything in this Act, a judge may, on an application for leave to appeal in forma pauperis, allow an appeal by giving the ap plicant leave to serve notice of appeal although the time prescribed by

section 58 has expired. iii) Rule 82 of the Rules of The Supreme Court of Canada SOR/2002-156 sets out a

schedule of fees for the court. However, that Rule also provides that

(2) A pa rty may on motion to the Registrar request an exemption from any of the fees set out in

Schedule A. iv) Rule 8(1) may also be used to waive fees as it provides that The Court, a judge or unless these Rules provide otherwise, the Registrar may, on motion o r on their own initiative, excuse a party from complying with any of these Rules.

v) Schedule A of the Rules sets out the tariff of fees to be paid to the Registrar of the Supreme Court of Canada.

Section 1 of the

Schedule specifies the following: On the f iling of: (

a) A notice of application for leave, notice of appeal, or other document that commences a proceeding: If a proceeding is commenced by the filing of a notice of appeal accompanied b y a notice of motion for leave to appeal in forma pauperis, payment of this fee shall be deferred until the outcome of such motion. This fee is not payable with respect to a notice of application for leave to cross-appeal. vi) The requirement to pay fees a t the Federal Court is found in Rules 19 and 20 of the Federal Court Rules, 1998 SOR/98-106 , which read as follows: 19. A party shall pay to the Registry for a service or procedure set out in Tariff A the fees set out in that Tariff. 20.

(1) Subject to subs ection (2), a sheriff is entitled to fees or disbursements set out in Tariff A.

(2) On motion, the Court may increase or decrease the fee payable to a sheriff on execution. vii) Along with the express right to decrease fees in s. 20(2), the Federal Court R ules also include a

section similar to Rule 8(1) of the Rules of the Supreme Court of Canada . Rule 55 provides that In special circumstances, on motion, the Court may dispense with compliance with any of these Rules. viii) Rule 9 of t he Tax Court of Canada Rules also permit the court to dispense with any Rules. It provides that The Court may, only where and as necessary in the interests of justice, dispense with compliance of any rule at any time. 32 Rule 9 of the Tax Cou rt of Canada Rules was considered in Moss v. Canada (1997), 97 D.T.C. 1493 aff'd (1999), 99 D.T.C. 5204 .

In that case, the Minister of National Revenue had assessed the Applicant's income tax return. The Applicant sought to appeal the assessments. He was b ankrupt and applied to the Tax Court to waive the Court filing fees prescribed by Rule 176 of the Tax Court Rules. He also applied for an extension of time to file the notice of appeal, which had not been filed because he was unable to pay the fees. The Mi nister argued that the Tax Court did not have jurisdiction to waive the fees.

The Tax Court of Canada found that it had jurisdiction to waive the fees and that the ability to proceed with the appeal was a substantive right. The fees were waived and the per iod to file a notice of appeal was extended. The Federal Court of Appeal (Strayer, Robertson and Sexton JJ.) affirmed the decision, finding that the requirement to pay a filing fee was a procedural matter prescribed by a Rule of the Tax Court, and could th erefore be waived pursuant to those rules. They also noted their assumption that the Tax court judge had considered the merits of the appeal in the exercise of his discretion.

b) Proceeding In Forma Pauperis 33 Historically, where an individu al was indigent and was unable to pay the costs of bringing an action, the individual could proceed in forma pauperis, or "in the manner of an indigent who is permitted to disregard filing fees and court costs". (Black's Law Dictionary, 7th ed. s.v. "in fo rma pauperis"). 34 The history of in forma pauperis proceedings was canvassed most recently by Prothonotary Hargrave in Spatling v. Canada (Solicitor General), [2003] F.C.J. No. 620 , 2003 FCT 443 [Spatling] . 13 At paragraph 2 he noted that 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, i n 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 pra ctice 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 notworth 25 pounds ... but that he must also have an opinion from counsel that he had reasonable grounds for the proceeding. 35 The statute, cited as 11 Henry 7, c. 12 of 1494 was referred to by Gillese J. It is entitled A Means to Help and Speed Poor Persons intheir Suits (U.K.)

(1495) Henry VII c. 12 [the 1495 Act]. As pointed out by Mr. Anand on behalf of the Advocates' Society, it is thisstatute from which the doctrine of in forma pauperis is derived. Mr. Polewsky's submission before Gillese J. was that when Ontarioreceived English law in 1792, it received this statute that "bestowed upon the Chancellor the discretion to, amongst other things, waivecourt fees payable by "poor persons".

The discretion vested in the Chancellor through the 1495 Act now rests with judges ... thusconferring upon a judge of the Small Claims Court the power to waive fees on the basis of poverty." See page 337 of her judgment.Gillese J. rejected this argument by finding that the 1495 Act was not received into Ontario law. 36 On this basis, Gillese J. reasoned that in forma paurperis doctrine does not apply in Ontario, since no express statutory languagecontemplating proceedings in forma pauperis appears in the Courts of Justice Act.

This contrasts with the province of British Columbia,which by the English Law Act, R.S.B.C. 1960, c. 129 expressly imported all English law into the laws of British Columbia. In Magrath,the plaintiff relied on the 1495 statute in his submission that he should be permitted to proceed in forma pauperis.

He contended that thestatute had become part of the law in British Columbia by virtue of the English Law Act, which stated at s. 2 that civil and criminal lawsof England are in force in all parts of the province of British Columbia, except for laws modified and altered by provincial legislation. 37 In Magrath, Walsh J. held that the lack of provision in the Federal Court Rules for proceeding in forma pauperis was not an oversight.Parliament had deemed it necessary to provide for in forma pauperis proceedings in the Supreme Court Act, and did not provide for suchproceedings in the Federal Court.

With respect to the 1495 Act, Walsh J. found that under its Rules, the Federal Court has no discretion towaive fees unless the 1495 Act applies as part of the substantive law. He further found that the 1495 Act should not be applied tosubstitute for the absence of an in forma pauperis provision in the Court's Rules. 38 A different conclusion was reached in Pearson v. Canada (2000), (FC), 195 F.T.R. 31, leave to appeal to S.C.C.refused, [2002] S.C.C.A. No. 459 Muldoon J. interpreted the Federal Court Act in a manner that permitted the applicant to proceed informa pauperis.

At p. 37, Muldoon J. noted that the Federal Court's rules and statue do not mention proceedings "in forma pauperis".

Atp. 38, he discussed the rule of law, stating that it includes the notion of "... equality of civil rights among all who claim the benefit of thesovereign's peace, in truth all the inhabitants, whether citizens or not ...". 39 In his analysis of the application of Rule 55 of the Federal Court Act Rules, (outlined above, at para. [25]), which states that "inspecial circumstances, on motion, the Court may dispense with compliance of any of these Rules," Muldoon J. considered the specialcircumstances that may lead to the invocation of this Rule.

He found that [i]t is clear that the absence of a "forma pauperis" rule of procedure, in itself breaches the rule of law, a fixed feature of the common law,and that surely constitutes a special circumstance, as required by Rule 55. Rules and laws which are calculated to help out the poor do notforesee an affluent litigant or a person of some social prominence or even prestige; they, instead, contemplate the financially poor,uninfluential ... 40 Muldoon J. then invoked Rule 55 to dispense of the fees. We accept Mr.

Anand's submission that Pearson and Moss, supra, stand forthe proposition that the rights that flow from in forma pauperis proceedings are substantive rather than procedural and that the absence ofprovision to proceed in forma pauperis breaches the Rule of Law. We also accept his submission that the lack of express statutorylanguage in the Courts of Justice Act is not determinative of the issues in this appeal. 41 Before leaving Pearson, we note that Muldoon J. canvassed the evidentiary requirements that would allow for a waiver of the feesprescribed in the Federal Court and permit Mr.

Pearson to proceed in forma pauperis. Mr. Pearson's affidavit deposed to his age, his oldage pension income, that he had no chequing or savings accounts inside or outside of Canada, that he had no real estate, stocks, bonds orother property and that unless he was permitted to proceed in forma pauperis, he would be deprived of his Charter sections 2 and 24(1)rights of access to Courts of competent jurisdiction. We contrast the affidavit of Mr. Pearson with that of Mr. Polewsky, who did notexplicitly state that but for the waiver of the fees, he would not be able to proceed with his claims.

Instead, he asks that the court fees bewaived on the basis that his sole regular monthly income and expenses are such that he cannot afford to pay these fees. We take fromboth Pearson and Spatling that the evidentiary burden necessary to trigger relief in proceedings in forma pauperis is a high one. It is notmet in this case for two reasons. First, Mr. Polewsky implies that he has income from time to time from other sources.

Second, we haveno means of assessing the merits of his claims. 42 In Spatling, the applicant had submitted a brief affidavit stating that he was unemployed as a result of health problems, that he did nothave any income from gainful employment, employment insurance, or Workers' Compensation and that he did not have sufficient fundsto pay Federal Court fees. Prothonotary Hargrave stated at para. 11 that ... I am not satisfied that Mr. Spatling has provided enough material to demonstrate that he falls within the ambit of those entitled to takean in forma pauperis proceeding.

For example, there is no information as to possible social assistance payments, disability paymentsbeyond worker's compensation, income from non-employment sources, spousal support, bank funds, non-monetary assets, or his meansof living.

There are insufficient circumstances to demonstrate the special circumstances necessary to waive filing fees ... 43 Prothonotary Hargrave also noted at para. 9 that the federal Crown had pointed out that "financial difficulties do not necessarily equalan 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 aperson without any means." 44 The purpose of allowing a claimant or a defendant to proceed in forma pauperis was to allow people who are indigent to access the

44 The purpose of allowing a claimant or a defendant to proceed in forma pauperis was to allow people who are indigent to access the courts. The concept has had a long-standing presence in the common law and has found its way into statute law.

Its presence in some statutes, combined with what we find to be the common law right based upon the constitutional principle of access to the courts, buttresses our conclusion that the indigent should not be denied access to the Small Claims Court in cases where their claims or defenses are meritorious and their inabil ity to pay prescribed fees is proven on the balance of probabilities. ii) Are the Prescribed Small Claims Court Fees Constitutionally Valid?

a) The Charter 45 To answer this question, we do not confine the analysis to ss. 7 and 15 of the Charter. We say that the fees do not offend the Charter. However, there is a constitutional defect which arises from the fact that there is no provision in the Rules for the wai ver or reduction of fees in cases where the litigant has a meritorious case and but for the waiver or reduction of fees, would not be able to proceed. This is a breach of the Rule of Law and the constitutional values that underlie the common law. We see th is omission as a constitutional defect that must be cured.

The focus of this issue before Gillese J. was the question of whether the Small Claims Court fees violate the Charter. Before considering her analysis on the section 15(1) issue, we refer to the te st set out in [Law] which established three requirements that a claimant must satisfy in order to demonstrate discrimination under s. 15(1) of the Charter 14 . The requirements are as follows:

i) Does the impugned law (

a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (

b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in su bstantively differential treatment between the claimant and others on the basis of one or more personal characteristics? ii) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? iii) Does the different ial treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or pr omoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration? 46 With respect to the first pa rt of the test, we agree with Gillese J. where she found at page 343 that: ... the Small Claims Court Rules make a distinction that denies the claimant equal benefit of the law.

The failure of the Small Claims Court Rules to provide a discretion to waive f ees on the basis of poverty is a failure to take into account the underlying differences between individuals in society. It is a failure that does not accommodate the already disadvantaged position of the poor within Canadian society. The result for the cl aimant is that it is more onerous to have access to the civil justice system than it is for those of greater financial means. The disadvantage in access to the justice system amounts to a denial of equal benefit of the law. 47 However, the s. 15(1) analysis does not end here.

We agree with Gillese J. that, on these facts, the poor cannot be recognized as an analogous group for purposes of s. 15(1) of the Charter. Although Mr. Polewsky was able to establish th at his case met the first requirement, he failed to prove that the second and third requirements were met. At pages 343 and 344, Gillese J. considered the second step of the analysis. Her findings were as follows. ii) Second Step: Is Poverty a Analogous gr ound of Discrimination? The plaintiff cannot succeed by showing only that the poor have been denied equal benefit of the law.

Not every distinction or disadvantage is discriminatory. He must show that the denial of the benefit constitutes discrimination on an enumerated or analogous ground. Poverty is not one of the enumerated grounds of race, national or ethnic origin, colour, religion, sex, age or disability. Thus, in the second stage of analysis, we must determine whether poverty amounts to analogous gro und within the meaning of s. 15(1) of the Charter ...

Where a person brings a discrimination claim on the basis of a newly postulated analogous ground - in this case poverty - the court must focus upon whether and why the ground is analogous to those liste d in s. 15(1). Law, supra, and Corbiere, supra, 15 both make it clear that such a determination is to be made on the basis of an analysis of the purpose of s. 15(1), the nature and situation of the individual or group at issue, and the social, p olitical and legal history of Canadian society's treatment of the group.

The ground will not be considered analogous under s. 15(1) unless it can be shown that the differential treatment is based on a premise that has the potential to bring into play human dignity. The court must determine that recognition of the analogous ground would serve to advance the fundamental purpose of s. 15(1), that being to promote a society where all persons are considered worthy of respect and consideration. 48 With respect to the third step of the test, Gillese J. stated the following at page 348 of her reasons. To meet the third hurdle in a s. 15 challenge, one cannot focus on disadvantage alone.

The claimant must establish that the distinction is b ased on the application of stereotypical presumed group or personal characteristics.

Section 15 is not intended to eliminate all disadvantages in Canadian society ... It is the plaintiff's responsibility to lead evidence to support a positive conclusion to this stage of the analysis. If the plaintiff has not already done so for the purposes of stage two of the analysis, he must adduce evidence to show that the small claims court fees were designed to preclude or limit access of those of limited means or to establish that the fees have had that effect. Recall that the affidavit evidence itself contains no assertion of such an effect on the plaintiff.

A bald assertion, in argument, that the fees have had such an effect on the poor is insufficient to constitute evidence. As well, at this stage, the plaintiff must adduce evidence to support the proposition that the purpose or effect of the fees is linked to stereotypical assumptions about the poor.

The plaintiff led no evidence to suggest that the absence of discretion to waive fees on the basis of poverty is based on theapplication of stereotypical notions of the poor or that it has the effect of reinforcing negative or inappropriate views of the poor. There isno link demonstrated between the setting of the tariffs at a particular level and the denying of access.

There is no evidence to suggest thatthe fees were meant to withhold or limit access to the small claims court for those of limited means nor that they had that effect. 49 We agree with Gillese J.'s refusal to invoke the Charter s. 15(1) on the facts of this case. 50 As noted above, at para. 6, Gillese J. considered s. 7 in obiter and found that the protection of s. 7 is limited to a person's physical andmental integrity and does not protect civil and economic rights.

However, where it is established that the fees are a barrier to justice, theissue becomes an access to justice issue, rather than one of economic rights. 51 The appellants argued that for a poor person, "security of the person" must include the right to access the civil justice system,particularly the Small Claims court. The appellant cites Pleau v. Nova Scotia (1998), (NS SC), 186 N.S.R. (2d) 1(S.C., Prothonotary) [Pleau] for this proposition.

Having considered Supreme Court of Canada jurisprudence on this issue, we are notconvinced that the denial of access to the Small Claims Court is properly characterized as a breach of security of the person. 52 The right to security of the person covers the right to personal autonomy, involving control over one's bodily integrity and freedomfrom state imposed psychological and emotional stress (R. v.

Morgentaler, (SCC), [1988] 1 S.C.R. 30, Rodriguez v.British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519). 53 Although the right extends beyond the criminal law and can be engaged in other proceedings, such as child protection proceedings((New Brunswick (Minister of Health and Community Services) v. G.(J.), (SCC), [1999] 3 S.C.R. 46) [G.(J).]), not allstate interference with psychological integrity will engage s. 7. Where the psychological integrity of a person is at issue, the right tosecurity of the person is restricted to protection from serious state imposed psychological stress.

For a breach of security of the person tobe made out, the state action must have a serious and profound effect on the person's psychological integrity. Not all forms ofpsychological prejudice will lead to a

section 7 violation (G.(J.), Blencoe v. British Columbia (Human Rights Commission), 2000 SCC44 , [2000] 2 S.C.R. 307. 54 We are not persuaded that the type of harm experienced by individuals who cannot pay Small Claims Court fees is appropriatelyconstrued as causing sufficiently serious or profound psychological harm to be in violation of s. 7 of the Charter.

b) The Common Law Right of Access to Justice 55 The Advocates' Society referred us to the common law right of access to justice, recently canvassed by the British High Court ofJustice, Queen's Bench Division (Divisional Court) in R. v. Lord Chancellor ex parte John Witham, [1997] 2 All E.R. 779 (Q.B.) [Witham].16 In this case, the applicant was seeking a declaration that

Article 3 of the Supreme Court Fees (Amendment) Order 1996 [the1996 Order] was ultra vires

section 130 of the Supreme Court Act 1981 and unlawful. The 1996 Order amended the Supreme Court FeesOrder 1980 [the 1980 Order]. The GBP 120 fee that had been in place for issuing a writ became the minimum fee for issuing a writ forclaims limited to GBP 10,000 or less, and a new fee of GBP 500 for issuing a writ where no monetary limit is specified was put intoplace.

The change that came about as a result of the 1996 Order was the repeal of previous provisions that relieved persons in receipt ofincome support from the obligation to pay fees and permitted the Lord Chancellor to reduce or remit the fee in any case on grounds ofundue financial hardship. 56 The Witham case was a proceeding for judicial review brought with leave. The applicant wished to bring proceedings for maliciousfalsehood and libel. However, legal aid was not available for defamation cases.

The applicant was unemployed, had no savings, and wastherefore unable to pay the fee to issue proceedings. 57 The Court noted at paragraph 10 that The setting of reasonable court fees of general application does not constitute interference with an individual's right of access to the court.Whether court fees are set at a reasonable level is a separate question from whether it is appropriate for a particular individual, havingregard to his financial and other circumstances, to be given financial assistance in respect of some or all of those fees and whether suchan individual will be denied effective access to the courts in the absence of such assistance. 58 At paragraph 7, the Court found that In addition to the facts pertaining to the applicant himself, the court has evidence ... describing other categories of cases where personson very low incomes are prevented by the terms of the 1996 Order and in particular

Article 3 from taking process in the courts. Theprincipal categories are certain types of debt and housing cases. They include by way of example a person on income support whocannot afford the GBP 10 fee to apply to set aside a default judgment, and another person on income support threatened with eviction asa consequence of possession proceedings by her landlord's building society who cannot afford the GBP 20 fee to be joined in theproceedings as an interested party ...

In my view, it is clear on the evidence before us that there is a wide-ranging variety of situations inwhich persons on very low incomes are in practice denied access to the courts to prosecute claims or, in some circumstances, to takesteps to resist the effects of claims brought against them. 59 At paragraph 24, the court found that ... the common law has clearly given special weight to the citizen's right of access to the courts. It has been described as a constitutional

right ... In this whole argument, nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogatethe right of access to justice, unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right. But Imust explain, as I have indicated I would, what in my view the law requires by such a permission. A statute may give the permissionexpressly; in that case it would provide in terms that in defined circumstances the citizen may not enter the court door ...

I find greatdifficulty in conceiving a form of words capable of making it plain beyond doubt to the statute's reader that the provision in questionprevents him from going to court ... save in a case where that is expressly stated.

The class of cases where it could be done by necessaryimplication is, I venture to think, a class with no members. 60 Referring to Witham, the Advocates' Society, at para. 24 of their factum, urged us to conclude that a citizen's right to unimpededaccess to the courts to enforce his or her civil rights is a common law constitutional right that can only be abrogated by clear and expressstatutory language. We agree in part adding that we would not use the term "unimpeded". We say that the right of access is subject to thecaveats of merit and proof of indigence. 61 The results in Witham were reiterated in R. v.

Secretary of State for the Home Department and others, ex p Saleem, [2000] All E.R.814 (Court of Appeal). At page 821, the court emphasized the fundamental nature of the right of access to the court, noting that ... the infringement of such a right [the right of access to a court] must be either expressly authorised by a provision in

an Act ofParliament or arise by necessary implication. Even where it can be said that the making of a rule under powers to make rules bysubordinate legislation arise by necessary implication, it will still be in question whether the rule formulated is reasonable.

Even wherethe need for such a rule does arise by necessary implication either because the purpose of Parliament cannot be achieved without it or thefunction of Parliament has laid on a person or cannot be discharged without it, the rule will be ultra vires the rule making power if therule as framed is unreasonable; if it is wider than is necessary, if it infringes the fundamental right to a greater extent than is required. 62 This is the rationale that has led us to conclude that, quite apart from the Charter, there is at common law a constitutional right ofaccess to the courts.

The fact that the provision to waive or reduce prescribed fees is omitted, deliberately or otherwise, does not make itcorrect in law. The result is that for persons with demonstrated inability to pay prescribed fees and with meritorious cases, there must bea statutory provision to which they can resort for relief from the requirement to pay fees. This is recognized in the examples set out inparagraph [30] above. 63 Gillese J. commented on this common law constitutional right in her reasons.

Referring to Pleau, she stated the following at 340-341: In Pleau, MacAdam J. rejected a s. 15(1) challenge to the validity of fees for initiating and continuing litigation, on the basis that being aplaintiff in a lawsuit does not make the plaintiff a member of a group analogous to those enumerated in s. 15. However, MacAdam J. didfind that court fees could be constitutionally invalid if they impede, impair or delay access to the courts. This invalidity would not flowfrom a breach of s. 15(1) but, rather, from a breach of an unwritten constitutional right to access to the courts.

MacAdam J. states, at page 20, that the creation and imposition of fees are not a breach of the specific provisions of the Charter and"nothing under the Constitution, both written and unwritten, preclude them." He goes on, at page 21, to state: The existence of reasonable fees, that is, fees in amounts that can reasonably be afforded by citizens in general, and not the well to do, atone end of the spectrum, and those qualifying for legal aid, at the other, is not precluded by the constitutional right to access the courts.The processes involved in litigation invoke the provision of various services.

A reasonable fee is neither an impediment, impairment or[sic] cause for delay. A reasonable fee, however, is not necessarily a full reimbursement for the costs of the services. Otherwise validreasonable fees, will loose [sic] their constitutional validity, in circumstances that cause them to "impede, impair or delay" access to thecourts. MacAdam J. ruled that the Hearing Fees in question did hinder, impede or delay access to the courts in a way that was unconstitutional.His ruling on Hearing Fees must be read in context.

The Hearing Fees were set at $50 per half day for up to five days, $200 per day forfive to ten days and $500 per day for over 10 days. The hearing fee for one of the parties had been set at $11,600 and for another party at$1,000. I do not read Pleau as standing for the proposition that a person has an unrestricted right to recourse to the courts for civil litigation. Onthe contrary, the passages set out above makes it clear that MacAdam J. is of the view that reasonable fees are permissible. Indeed, hespecifically approves of certain of the court fees.

To the extent that the case can be read as authority for the proposition that unrestrictedaccess to the civil courts is a constitutionally guaranteed right, I respectfully disagree. Such a view overextends the comments of DicksonC.J. in B.C.G.E.U., Re, (SCC), [1988] 2 S.C.R. 214 (S.C.C.), in my opinion. In B.C.G.E.U., the Supreme Court of Canadawas not concerned with a challenge to legislation restricting access to the courts. Rather, it was considering the right of access to thecourts as a factor justifying an order enjoining protestors from impeding access to the courts.

Dickson C.J.'s comments to the effect thatthere are constitutionally guaranteed rights under the Charter are directed towards the need for physical access to the courts for thepurpose of enforcing Charter rights.

The need to ensure physical access to the courts where certain constitutionally guaranteed rights areaffected does not give rise to the proposition that there is a constitutionally guaranteed right to unimpeded access to the courts for thepurposes of civil litigation. 64 We agree that Pleau does not stand for the broad proposition that a person has an unrestricted right to recourse to the courts for civillitigation. This is why we emphasize the requirements of proof of indigence and a meritorious claim.

We do not suggest that theconstitutional right of access to the courts precludes reasonable fees, such as those challenged in this appeal. We do say, however, that incases where their existence, combined with the requirement to pay them prevents a person from pursuing a meritorious claim, they areunconstitutional. We see this as something that is quite different from the concept that unimpeded or unrestricted access to the civilcourts is a constitutionally guaranteed right, a concept that was rejected by Gillese J.

65 It will be noted from the excerpted passage from the judgment of Gillese J. that she opined that the notion of a constitutionallyguaranteed right of unrestricted right of access to the civil courts "overextends the comments of Dickson C.J. in B.C.G.E.U., Re," (citedabove). This leads us to comment on a joint submission of the Appellant and the Advocates' Society. They urged us to interpret thecomments of Dickson C.J. in an expansive fashion that, if accepted by this court, impacts on the outcome of the issues raised in thisappeal. 66 B.C.G.E.U. was decided in the context of a denial of Charter rights.

The Appellant and the Advocates' Society submitted that theobservations of Dickson C.J. about access to justice, as set out below, resonate to the issues in this appeal. Before reproducing thepassage, we provide brief factual background of B.C.G.E.U. 67 The appellant union had picketed all law courts in British Columbia in the course of a legal strike and hoped to reduce court activityto matters of urgency. McEachern C.J.S.C. issued an injunction restraining picketing and other activities calculated to interfere with theoperations of any court.

The trial judge's decision that the picketing constituted acts of contempt of court was upheld at the Court ofAppeal. Dickson C.J. considered whether the order restraining picketing and other activities within the precincts of all courthouses inBritish Columbia infringed or denied Charter rights.

At 229-230, Dickson C.J., for the Court, observed as follows: There cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shalland who shall not have access to justice ... 68 Dickson C.J. then adopted the following passage from page 406 of the judgment of the British Columbia Court of Appeal: We have no doubt that the right to access to the courts is under the rule of law one of the foundational pillars protecting the rights andfreedoms of our citizens. It is the preservation of that right with which we are concerned in this case.

Any action that interferes with suchaccess by any person or groups of persons will rally the court's powers to ensure the citizen of his or her day in court. Here, the actioncausing interference happens to be picketing. As we have already indicated, interference from whatever source falls into this category.[Emphasis added] 69 Emphasizing the above passage, the Appellant and the Advocates' Society jointly urged us to conclude that the reasoning inB.C.G.E.U. should not be confined in its application to matters of physical access to courthouses.

We accept this submission. 70 B.C.G.E.U. is discussed in British Columbia (Minister of Forests) v. Okanagan Indian Band (2001), 2001 BCCA 647 , 208D.L.R. (4th) 301 (B.C.C.A.), leave to appeal to S.C.C. granted, [2001] S.C.C.A. No. 629 [Okanagan]. The appeal was heard on June 9,2003 and is under reserve. This is an appeal by the Okanagan Indian Band from an order remitting its action to the trial list and a refusalto order the government of British Columbia to pay the Band's costs in advance.

In association with other Bands, the Band challenged theconstitutionality of the provincial Forest Practices Code where it purported to regulate Band logging activities. The Band's chief deposedthat his members suffered extreme poverty and needed the lumber for housing. A chambers judge ruled that a full trial and pleadings wasnecessary to resolve the dispute. However, he rejected Band arguments that, without funding by the province, the Band would be deniedfull and equal access to justice as guaranteed by the Charter.

The Band also claimed that The Constitution Act, 1982 guaranteed allaboriginal people access to the courts. 71 Newbury J.A. analyzed the Bands' position that it has a constitutional right to funding. At para. 25, she noted that "The Bands'constitutional arguments in this court were based on ... the existence of what they called a "free standing constitutional right to accessjustice in the courts" ...".

The argument was also based upon s. 35 of the Constitutional Act, 1982, however, this was not argued onappeal. 72 Newbury J.A. then referred to the passage from B.C.G.E.U., excerpted above in paragraph 67 of this judgment and stated thefollowing at para. 26: It will be recalled that in B.C.G.E.U., the injunction was granted against picketers of the courthouse who were denying or delaying theright of the public to physical access to the courts. ...

However, it is a large step - in my view, too large - from the Court's reasoning in B.C.G.E.U. to the proposition that because a court oflaw has ordered proceedings to be remitted to the trial list, the Bands have been denied access to justice, thereby giving rise to a right tofunding from the province. I am not persuaded that there is such a right. Unfortunately, many persons in our society find themselvesunable to pay the high costs of litigation, which include provincial filing fees and taxes (unsuccessfully challenged in John CartenPersonal Law Corp. v.

British Columbia (Attorney General) (1997), (BC CA), 40 B.C.L.R. (3d) 181, 153 D.L.R. (4th)460 (B.C.C.A.). In the latter case, Lambert J.A. said this for the majority: There are many reasons why the cost of legal services, or a lack of funds, may restrict, hamper, or even prevent a person from exercisingrights of access to the courts or rights of access to other legal services.

What would be required in order to find this Act [Social ServicesTax Act] wholly unconstitutional, or even unconstitutional in its application to a particular case, would be proof that people, or a class ofpeople, in general, or some person in particular, who would have been able to exercise the legal rights in question if this tax were not ineffect, were or was prevented by this tax from exercising those rights ... What would be required would be proof that the right wasdenied, or its exercise was prevented, by the existence or operation of this tax.

In other words, that a right which would have beenexercised but for this tax could not be exercised because of this tax. [emphasis in original] 73 We do not see the reasoning in Okanagan as being at odds with the rationale that underlies the disposition of this appeal. We see this disposition as one that flows from the passage of Lambert J.A. above. We agree with the necessity of applying a "but for" test.17 In this

case, Mr. Polewsky has not proven that but for the waiver or reduction of prescribed fees, he would not be able to proceed.

c) The Rule of Law 74 Before leaving the discussion of B.C.G.E.U., we find helpful to consider other observations of Dickson C.J. that begin at p. 228: ... For the moment I wish to highlight certain sections of the Charter which, it seems to me, are a complete answer to anyone seeking todelay or deny or hinder access to the courts of justice in this country. Let us look first at the

preamble to the Charter. It reads: "WhereasCanada is founded upon principles that recognizer the supremacy of God and the rule of law". So we see that the rule of law is the veryfoundation of the Charter ... To paraphrase the European Court of Human Rights in Golder v. United Kingdom (1975), 1 E.H.R.R. 524,at p. 536, it would be inconceivable that Parliament and the provinces should describe in such detail the rights and freedoms guaranteedby the Charter and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to acourt.

As the Court of Human Rights truly stated: "The fair, public and expeditious characteristics of judicial proceedings are of no valueat all if there are no judicial proceedings". And so it is in the present case. Of what value are the rights and freedoms guaranteed by theCharter if a person is denied or delayed access to a court of competent jurisdiction in order to vindicate them? How can the courtsindependently maintain the rule of law and effectively discharge the duties imposed by the Charter if court access is hindered, impededor denied?

The Charter protections would become merely illusory, the entire Charter undermined. We see no reason why this commentary, even if made in the context of certain Charter arguments advanced by the Union, does notprovide a backdrop for considerations of the Rule of Law and its impact on the matter of access to the courts by indigent persons.

TheRule of Law stands independently of the Charter and, at the same time, infuses the Charter or as Dickson C.J. put it, "it is the veryfoundation of the Charter". 75 The Rule of Law has been described as an unwritten constitutional principle that reflects Canada's "commitment to an orderly and civilsociety in which all are bound by the enduring rules, principles, and values of our Constitution as the supreme source of law andauthority." See Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), (ON CA), 56 O.R.(3d) 505 (C.A.) [Lalonde] at 547.

In the context of Lalonde, we are alert to the caution contained in the following comment at p. 551.The Court observed that "[t]he unwritten principles do not confer on the judiciary a mandate to rewrite the Constitution's text." In thatcase, the court referred to Re Eurig Estate, (SCC), [1998] 2 S.C.R. 565 at p. 594, where Binnie J. noted that "implicitprinciples can and should be used to expound the Constitution, but they cannot alter the thrust of its explicit text." Our analysis of theissues in this appeal and the results that flow from such analysis is not premised on the application of the Charter. 76 We agree that the Rule of Law infuses this court's determination of the issues raised in this appeal.

We say that the existence of theRule of Law combined with what we find to be the common law constitutional right of access to justice compels the enactment ofstatutory provisions that permit persons to proceed in forma pauperis in the Small Claims Court. E.

Summary and Disposition 77 It will be apparent from these reasons that we have concluded that, apart from the Charter, there is a common law constitutional rightof access to the Small Claims Court. We do not say that this right is unimpeded or unrestricted. It must be subject to the exercise ofjudicial discretion on issues of merit and financial circumstances that trigger the right to proceed in forma pauperis.

To the extent that nosuch provision exists in the Courts of Justice Act, The Rules of the Small Claims Court, the Administration of Justice Act or OntarioRegulation 432/97, we say that there will have to be a statutory amendment to give effect to the findings of this court. We do not say thateach one of the aforementioned statutes must be amended. It will be up to the legislature to decide which of the statutes is to be amendedto give effect to the disposition of this Appeal.

We do not say that an immediate amendment is required but it should be done within areasonable period of time and not later than 12 months from the date of the release of these reasons. We reiterate that even if there hadbeen a statutory provision allowing him to proceed in forma pauperis, this Appellant would not have met the requirements because of theevidentiary deficiencies above noted. The appeal is therefore allowed in accordance with these reasons. This is not a case for costs. TheAppeal Book is endorsed accordingly.