IZABELA POPOVA Appellant v. THE EMPIRE, 2016 FCA 77

Date: 20160307 Docket: A-197-14 A-198-14 Citation: 2016 FCA 77 CORAM: STRATAS J.A. WEBB J.A. SCOTT J.A. BETWEEN: IZABELA POPOVA Appellant and THE EMPIRE LIFE INSURANCE COMPANY and MAUREEN WHEELER, MANAGER OF THE GROUP LIFE AND DISABILITY CLAIMS Respondents Heard at Toronto, Ontario, on February 23, 2016. Judgment delivered at Ottawa, Ontario, on March 7, 2016. REASONS FOR JUDGMENT BY: WEBB J.A. CONCURRED IN BY: STRATAS J.A. SCOTT J.A. Date: 20160307 Docket: A-197-14 A-198-14 Citation: 2016 FCA 77 CORAM: STRATAS J.A. WEBB J.A. SCOTT J.A.

BETWEEN: IZABELA POPOVA Appellant And THE EMPIRE LIFE INSURANCE COMPANY and MAUREEN WHEELER, MANAGER OF THE GROUP LIFE AND DISABILITY CLAIMS Respondents REASONS FOR JUDGMENT WEBB J.A. [ 1 ] Ms. Popova has appealed two Orders of Hughes J. of the Federal Court, both dated April 2, 2014 and both in Docket T-2067- 13. The appeals (A-197-14 and A-198-14) were consolidated by an Order dated June 27, 2014 with A-197-14 to be considered as the lead appeal. These reasons shall be filed in A-197-14 and a copy thereof shall be filed in A-198-14.

[2] The issue in relation to both Orders and these Appeals is whether Ms. Popova’s father, who is not a solicitor, should beallowed to represent her in her matter before the Federal Court. In one Order, Hughes J. dismissed the motion made on behalf of Ms.Popova for an Order granting her father permission to act on her behalf and in the other Order, Hughes J. dismissed an appeal from anOrder of the Prothonotary who had also denied a similar request. [3] Ms. Popova has commenced an Application in the Federal Court against the Respondents.

The Respondents note in theirMemorandum of Fact and Law that a case management Judge was appointed on March 6, 2014. [4] Rules 119 and 121 of the Federal Courts Rules, SOR/98-106, provide that: 119. Subject to rule 121, an individual may act inperson or be represented by a solicitor in a proceeding.

Sous réserve de la règle 121, une personnephysique peut agir seule ou se faire représenter par unavocat dans toute instance.… […]121. Unless the Court in special circumstances ordersotherwise, a party who is under a legal disability or whoacts or seeks to act in a representative capacity,including in a representative proceeding or a classproceeding, shall be represented by a solicitor. 121. La

partie qui n’a pas la capacité d’ester en justiceou qui agit ou demande à agir en qualité dereprésentant, notamment dans une instance parreprésentation ou dans un recours collectif, se faitreprésenter par un avocat à moins que la Cour, en raisonde circonstances particulières, n’en ordonne autrement. [5] Although Ms. Popova referred to Rule 121, this Rule only applies if a party is under a legal disability or is seeking to act in arepresentative capacity. The two references to “who” would both be referring to “a party”.

Therefore this Rule should be read as applyingto either a party who is under disability or a party who is acting or seeking to act in a representative capacity. [6] In this case, there is no indication that Ms. Popova is under a legal disability. Since her father is not a party, Ms. Popovacannot rely on Rule 121 to have her father represent her. [7] As a result, the applicable Rule is Rule 119. This Rule is clear – Ms. Popova may either act in person or be represented by asolicitor. Since her father is not a solicitor, he cannot represent her. [8] Prior to the hearing of this appeal, Ms.

Popova’s father filed, on her behalf, a Notice of Constitutional Question in which Ms.Popova was attempting to raise the issue of whether Rule 119 breached

section 12 and subsection 15(1) of the Canadian Charter ofRights and Freedoms, 1982 (Charter) and whether Rule 121 breached subsection 15(1) of the Charter. Since Rule 121 would not beapplicable in any event, the alleged challenge would be to Rule 119. [9]

Section 12 and subsection 15(1) of the Charter provide as follows: 12. Everyone has the right not to be subjected to anycruel and unusual treatment or punishment. 12. Chacun a droit à la protection contre toustraitements ou peines cruels et inusités.… […]15.

(1) Every individual is equal before and under thelaw and has the right to the equal protection and equalbenefit of the law without discrimination and, inparticular, without discrimination based on race,national or ethnic origin, colour, religion, sex, age ormental or physical disability. 15.

(1) La loi ne fait acception de personne et s’appliqueégalement à tous, et tous ont droit à la même protectionet au même bénéfice de la loi, indépendamment detoute discrimination, notamment des discriminationsfondées sur la race, l’origine nationale ou ethnique, lacouleur, la religion, le sexe, l’âge ou les déficiencesmentales ou physiques. [10] The issue of whether these provisions of the Charter are applicable had not been raised before the Prothonotary or the FederalCourt Judge. [11] In Somodi v. Canada (Minister of Citizenship and Immigration), 2009 FCA 268, [2009] F.C.J.

No. 1152, this Court statedthat: 2 In Coca-Cola Ltd. v. Parnham (c.o.b. Universal Exporters), 2003 FCA 11, leave to appeal dismissed, [1999] S.C.C.A. No. 338, thisCourt held that it would not entertain Charter arguments that were not raised before the Federal Court because to do so would deprivethis Court of the benefit of the application judge's reasoning and analysis on the arguments. 3 Further, by raising the issues for the first time at the appellate level, the appellant will have deprived the respondent of anyopportunity to lead evidence relating to the alleged breaches. [12] Since Ms.

Popova did not raise her Charter arguments before the Prothonotary or the Federal Court Judge and since evidencewould be necessary to advance these arguments, they cannot be raised for the first time in this Court in her appeal of the Orders of theFederal Court Judge. The assertions made in the Notice of Constitutional Question with respect to the potential consequences if Ms.Popova’s father is not permitted to represent her are not evidence. Evidence must be introduced through a witness, which is generallydone either by the witness testifying during a hearing or deposing an affidavit.

An opposing party would have the right to cross-examinethe witness. Allegations made only in argument are not evidence. [13] In any event, in the interest of avoiding any further delays in this matter and for the benefit of Ms. Popova, I would refer to thefollowing comments made by the Supreme Court of Canada in relation to sections 12 and 15 of the Charter. [14] In relation to

section 12 of the Charter, Lamer J. (as he then was) in R. v. Smith, (SCC), [1987] 1 S.C.R.1045, [1987] S.C.J. No. 36 stated that:

53 The limitation at issue here is s. 12 of the Charter. In my view, the protection afforded by s. 12 governs the quality of thepunishment and is concerned with the effect that the punishment may have on the person on whom it is imposed.

I would agree withLaskin C.J. in Miller and Cockriell, supra, where he defined the phrase "cruel and unusual" as a "compendious expression of a norm".The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of theCharter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 688, "whether the punishment prescribed is so excessiveas to outrage standards of decency".

In other words, though the state may impose punishment, the effect of that punishment must not begrossly disproportionate to what would have been appropriate. [15] The alleged implications arising from a refusal to allow Ms. Popova’s father to represent her in her Application before theFederal Court, even if they would have been established by evidence, would fall far short of what would be required to establish crueland unusual punishment for the purposes of

section 12 of the Charter. [16] With respect to subsection 15(1) of the Charter, I would refer to the following excerpt from the decision of the Supreme Courtof Canada in Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548: 18 The focus of s. 15 is therefore on laws that draw discriminatory distinctions -- that is, distinctions that have the effect of perpetuatingarbitrary disadvantage based on an individual's membership in an enumerated or analogous group: Andrews, at pp. 174-75; Quebec v. A,at para. 331.

The s. 15(1) analysis is accordingly concerned with the social and economic context in which a claim of inequality arises,and with the effects of the challenged law or action on the claimant group: Quebec v. A, at para. 331. 19 The first part of the s. 15 analysis therefore asks whether, on its face or in its impact, a law creates a distinction on the basis of anenumerated or analogous ground.

Limiting claims to enumerated or analogous grounds, which "stand as constant markers of suspectdecision making or potential discrimination", screens out those claims "having nothing to do with substantive equality and helps keep thefocus on equality for groups that are disadvantaged in the larger social and economic context": Corbiere v. Canada (Minister of Indianand Northern Affairs), (SCC), [1999] 2 S.C.R. 203, at para. 8; Lynn Smith and William Black, "The Equality Rights"(2013), 62 S.C.L.R. (2d) 301, at p. 336.

Claimants may frame their claim in terms of one protected ground or several, depending on theconduct at issue and how it interacts with the disadvantage imposed on members of the claimant's group: Law v.

Canada (Minister ofEmployment and Immigration), (SCC), [1999] 1 S.C.R. 497, at para. 37. 20 The second part of the analysis focuses on arbitrary -- or discriminatory -- disadvantage, that is, whether the impugned law fails torespond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner thathas the effect of reinforcing, perpetuating or exacerbating their disadvantage: The root of s. 15 is our awareness that certain groups have been historically discriminated against, and that the perpetuation of suchdiscrimination should be curtailed.

If the state conduct widens the gap between the historically disadvantaged group and the rest ofsociety rather than narrowing it, then it is discriminatory. [Quebec v. A, at para. 332] 21 To establish a prima facie violation of s. 15(1), the claimant must therefore demonstrate that the law at issue has a disproportionateeffect on the claimant based on his or her membership in an enumerated or analogous group.

At the second stage of the analysis, thespecific evidence required will vary depending on the context of the claim, but "evidence that goes to establishing a claimant's historicalposition of disadvantage" will be relevant: Withler, at para. 38; Quebec v. A, at para. 327. [17] It would appear that Ms. Popova, in relation to her challenge to Rule 119, is alleging that Rule 119 creates a distinction basedon whether a person is a solicitor or is not a solicitor.

This is not an enumerated ground in subsection 15(1) of the Charter and it is farfrom clear on what basis it could be considered to be an analogous ground. [18] Although the Respondent was seeking enhanced costs, in my view, costs should be awarded in accordance with the tariff. Aswell, since the issue is the same for both appeals, I would only award one set of costs. [19] As a result, I would dismiss the appeals, with one set of costs. Since A-197-14 is the lead appeal, I would award costs in thatappeal. "Wyman W. Webb" J.A. “I agree. “David Stratas J.A.” “I agree. “A.F.

Scott J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Dockets: A-197-14 A-198-14

(APPEAL FROM TWO ORDERS OF THE HONOURABLE MR. JUSTICE HUGHES DATED APRIL 2, 2014, DOCKET NUMBER T-2067-13) STYLE OF CAUSE: IZABELA POPOVA v. THE EMPIRE LIFE INSURANCE COMPANY and MAUREEN WHEELER, MANAGER OF THE GROUP LIFE AND DISABILITY CLAIMS PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: February 23, 2016 REASONS FOR JUDGMENT BY: WEBB J.A. CONCURRED IN BY: STRATAS J.A. SCOTT J.A. DATED: March 7, 2016 APPEARANCES : Dimitri Popov on behalf of The Appellant Cory Young For The Respondents SOLICITORS OF RECORD : Hughes Amys LLP Toronto, Ontario For The Respondents