HESAMEDDIN ABBASPOUR TAZEHKAND Applicant v. BANK OF CANADA, 2021 FC 738

Date: 20210713 Docket: T-816-19 Citation: 2021 FC 738 St. John’s, Newfoundland and Labrador, July 13, 2021 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: HESAMEDDIN ABBASPOUR TAZEHKAND Applicant and BANK OF CANADA Respondent ORDER AND REASONS [ 1 ] By a Notice of Motion dated March 30, 2021, submitted for consideration without personal appearance pursuant to Rule 369 of the Federal Courts Rules , S.O.R./98-106 (the " “ Rules ” " ), the Bank of Canada (the " “Respondent” " ) seeks an Order that Mr.

Tazehkand (the " “Applicant” " ) post security for costs, pursuant to Rule 416. [ 2 ] The Applicant commenced the within proceeding on May 21, 2019, seeking judicial review of a decision of the Canadian Human Rights Commission, dismissing his complaint filed under the Canadian Human Rights Act , R.S.C. 1985, c. H-6 .

In his complaint, the Applicant had alleged discrimination by the Respondent in refusing to employ him. [ 3 ] By a Judgment issued on December 30, 2020, the Applicant’s application for judicial review was dismissed, with costs to the Respondent in the amount of $2,500.00. [ 4 ] The Applicant appealed the decision of the Federal Court to the Federal Court of Appeal, in cause number A-50-21. [ 5 ] On February 26, 2021, the Respondent obtained an Order for the following relief, to facilitate collection action to recover the costs award: 1.

The Bank of Canada is permitted, as per Rule 433 of the Rules to file a requisition for a Writ of Seizure and Sale to be issued. 2.

Subsequent to the issuance of the aforementioned Writ of Seizure and Sale, the Sheriff of the city of Ottawa [Sheriff] shall seize and sell the real property or immovables and the personal property or movables within the Sheriff’s jurisdiction of Hasemeddin Abbaspour Tazehkand and to realize from the seizure the amounts of: a. $2,500.00 plus post-judgement (sic) interest at the rate of 2 per cent per annum to be calculated from December 20, 2020 to the date of receipt of payment, compounded annually; b. the cost of such Seizure and Sale, and c. the costs awarded to the Bank of Canada on the present motion. 3.

Costs in the amount of $500 payable to the Bank of Canada on the present motion. [ 6 ] On March 11, 2021, the Applicant sought reconsideration of the Order made on February 26, 2021. He also filed a Notice of Appeal in respect of that Order in the Federal Court of Appeal, in cause number A-118-21. [ 7 ] The Respondent filed the affidavit of Mr. Noah Houlton, sworn on April 6, 2021, in support of its motion. Mr. Houlton deposed that requests for payment of the outstanding costs Order were made by electronic mail on January 7, 2021 and February 1, 2021. Mr.

Houlton also deposed that as of the date of his affidavit, the Respondent had been unable to collect the outstanding costs. [ 8 ] The Applicant also filed an affidavit, sworn on June 21, 2021. He deposed, among other things, that he is unemployed and in receipt of Employment Insurance benefits since October 2020.

It appears that he currently receives $448 per week. [ 9 ] In his affidavit, the Applicant referred to e-mails that he had sent to counsel for the Respondent about payment of the outstanding costs. [ 10 ] The Respondent seeks an Order for security for costs in this Court upon the basis that the Applicant has not paid the costs awarded against him in the Judgment of December 30, 2020, and the Order of February 26, 2021. [ 11 ] The Respondent relies upon Rule 416(1)(

f) in seeking an Order for security for costs. That Rule provides as follows: Where security available " " Cautionnement " "

(1) Where, on the motion ofa defendant, it appears to theCourt that 416

(1) Lorsque, par suite d’unerequête du défendeur, il paraîtévident à la Cour que l’une dessituations visées aux alinéas

a) à

h) existe, elle peut ordonner audemandeur de fournir lecautionnement pour les dépensqui pourraient être adjugés audéfendeur :" " … …" " (

f) the defendant has an orderagainst the plaintiff for costs inthe same or another proceedingthat remain unpaid in whole or inpart,

f) le défendeur a obtenu uneordonnance contre le demandeurpour les dépens afférents à lamême instance ou à une autreinstance et ces dépens demeurentimpayés en totalité ou en partie;"" … … the Court may order the plaintiffto give security for thedefendant’s costs. BLANK [12] According to the decision in Lavigne v. Canada Post Corporation (2009), 2009 FC 756 , 350 F.T.R. 46 (F.C.), an opposingparty is prima facie entitled to security for costs when there are unpaid costs in its favour. [13] However, pursuant to Rule 417, the Court may refuse to order security for costs even when Rule 416(1)(

f) is in play if the partyagainst whom such an order is sought can show impecuniosity and that party can show that the case has merit. [14] The Applicant pleads impecuniosity, saying that his only income is Employment Insurance benefits. [15] A general claim of impecuniosity is not sufficient to establish such a claim. In that regard, I refer to the decision in Sauve v. Canada(2012), 441 N.R. 195, where the Federal Court of Appeal said the following: [9] … A bald statement from a litigant that he does not have the means to provide security for costs is clearly insufficient totrigger the application of

section 417 of the Rules: B-Filer Inc. v. Bank of Nova Scotia, 2007 FCA 409; 317 N.R. 292 atparas. 9 to 11; Chaudhry v. Canada (Attorney General), 2009 FCA 237; 393 N.R. 67 at para. 10. [10] Material evidence must be submitted in order to sustain a claim of impecuniosity, including complete and clearfinancial information presented in a comprehensible format. Tax returns, bank statements, lists of assets, and (wherepossible) financial statements should be submitted. Evidence of the impracticability of borrowing from a third party tosatisfy the security order should also be provided.

The possibility of accessing family and community resources should beconsidered. No material issue should be left unanswered. [16] I am not satisfied that the Applicant has demonstrated impecuniosity. The only evidence about his financial situation is a statementof Employment Insurance benefits. [17] The Applicant’s income is not large, but there is an income. [18] Rule 417 is conjunctive and invites the Court to consider the merits of a case, in order to protect the right to litigation for animpecunious party; see Sauve, supra. [19] The Applicant commenced an application for judicial review.

The application was heard on November 23, 2020. A Judgment wasissued on December 30, 2020, dismissing his application.

A notice of appeal was filed on February 8, 2021. [20] The merits of the Applicant’s claim have already been assessed. [21] I am not satisfied that the Applicant has shown that he is entitled to the benefit of Rule 417, either on the grounds of impecuniosityor merit in the present cause, for which judgment has been rendered. [22] I am satisfied on the basis of the evidence submitted by the Respondent that two costs awards have been made in favour of theRespondent and that the costs have not been paid. [23] However, in light of the fact that the Applicant has filed an appeal in the Federal Court of Appeal in respect of the Judgment issuedon December 30, 2020, and an appeal in respect of the Order issued on February 26, 2021, I question the utility of granting an Order forsecurity for costs in this proceeding. [24] The "“case”" is effectively ended in the Federal Court, apart from steps that the Respondent may pursue in attempting collection ofthe outstanding costs award. [25] In Worldspan Marine Inc. v.

Harry Sargeant III et al., 2019 FCA 207, the Federal Court of Appeal commented on the purpose of

security for costs relative to future, not past, litigation, as follows: [29] Sargeant, in the letter from his counsel dated July 2, 2019, requested that security for the outstanding costs awards should be provided if the stay is granted. However, security for costs is for costs for future litigation, not security for outstanding cost awards. … [ 26 ] An Order for security for costs involves the discretion of the Court, as is clear from the opening and closing words of Rule 416(1) as follows: Where security available " " Cautionnement " " 416

(1) Where, on the motion of a defendant, it appears to the Court that 416

(1) Lorsque, par suite d’une requête du défendeur, il paraît évident à la Cour que l’une des situations visées aux alinéas

a) à

h) existe, elle peut ordonner au demandeur de fournir le cautionnement pour les dépens qui pourraient être adjugés au défendeur : " " … … the Court may order the plaintiff to give security for the defendant’s costs. BLANK [ 27 ] Considering the evidence of the parties, their arguments and the relevant jurisprudence, I am not persuaded that the requested Order should be granted, and the motion is dismissed. In the exercise of my discretion over costs, pursuant to Rule 400 of the Rules , I make no order as to costs. ORDER IN T-816-19 THIS COURT ORDERS that the motion is dismissed.

In the exercise of my discretion, there is no Order as to costs. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-816-19 STYLE OF CAUSE: HESAMEDDIN ABBASPOUR TAZEHKAND v. BANK OF CANADA MOTION IN WRITING CONSIDERED AT ST. JOHN’S, NEWFOUNDLAND AND LABRADOR PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES ORDER AND REASONS: HENEGHAN J. DATED: JULY 13, 2021 WRITTEN REPRESENTATIONS BY : Hesameddin Abbaspour Tazehkand For The applicant (ON HIS OWN BEHALF) Lynn Harnden For The RESPONDENT SOLICITORS OF RECORD :

Emond Harnden LLP Barristers and Solicitors Ottawa, Ontario For The RESPONDENT