WILLIAM MCCOTTER Applicant v. ATTORNEY GENERAL OF CANADA, 2023 FCA 134

Date: 20230608 Docket: 23-A-33 Citation: 2023 FCA 134 Present: LOCKE J.A. BETWEEN:WILLIAM MCCOTTERApplicantandATTORNEY GENERAL OF CANADARespondent Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on June 8, 2023. REASONS FOR ORDER BY: LOCKE J.A. Date: 20230608 Docket: 23-A-33 Citation: 2023 FCA 134 Present: LOCKE J.A. BETWEEN:WILLIAM MCCOTTERApplicantandATTORNEY GENERAL OF CANADARespondent REASONS FOR ORDER LOCKE J.A. [1] William McCotter, a federal prison inmate, has been repeatedly denied parole. Before this Court, Mr.

McCotter seeks an extension oftime for filing an appeal of a Federal Court decision that dismissed his application for judicial review for mootness. The impugneddecision, a January 20, 2021 decision of the Parole Board of Canada (PBC), had been superseded by a new decision dated January 25,2022. Mr. McCotter also seeks a waiver of fees associated with his proposed appeal. [2] The Attorney General of Canada (AGC) opposes the motion for an extension of time, and takes no position on the request for awaiver of fees. [3] Before analysing the issues in these motions, I note that Mr.

McCotter has made repeated attempts since July 2022 to commence hisappeal and to file his motions. Mr. McCotter is not represented by counsel, and has been attempting to comply with the Court’srequirements while subject to the restrictions that come with being incarcerated. A Direction dated March 6, 2023 by Justice MarianneRivoalen indicated that consent of the AGC was necessary to properly serve his motion records on the AGC by fax. The AGC providedthe required consent by letter dated March 28, 2023. The AGC also filed a responding motion record on April 18, 2023.

Accordingly, itis now appropriate to accept the motion records for filing and to decide the present motions. I. Motion for extension of time [4] The AGC notes that the test for an extension of time is well-established and was articulated by this Court in Canada (AttorneyGeneral) v. Hennelly, (1999), (FCA), 244 N.R. 399, [1999] F.C.J. No. 846 at paragraph 3: The proper test is whether the applicant has demonstrated 1. a continuing intention to pursue his or her application; 2. that the application has some merit;

3. that no prejudice to the respondent arises from the delay; and 4. that a reasonable explanation for the delay exists. [5] The AGC also correctly notes that the overriding consideration is that the interests of justice are served. [6] The AGC bases his opposition to the motion for an extension of time on the second and third factors. He does not take issue with thefirst and fourth factors. [7] With regard to the second factor (some merit), the AGC notes that Mr.

McCotter has not demonstrated that the Federal Court erred inconcluding that the underlying judicial review application was rendered moot by the subsequent PBC decision. The AGC acknowledgesthat, even where a matter is moot, a court has discretion to hear the case. The Federal Court addressed the question of discretion briefly,stating that "“the record does not disclose any reason for hearing this application despite its mootness.”" [8] In deciding whether to exercise discretion to hear a case that is moot, a court should consider the factors discussed by the SupremeCourt of Canada in Borowski v.

Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342 at 358-363 (Borowski). Thefactors are (

i) whether an adversarial context remains, (ii) the concern for judicial economy, and (iii) respect for the proper law-makingfunction of the Court. Of course, for the purpose of the present motion for an extension of time, the focus is on whether Mr. McCotterhas demonstrated some merit to his argument that the Federal Court should not have dismissed his judicial review application. Thethreshold for "“some merit”" is low. [9] I accept that the subsequent PBC decision rendered the underlying judicial review application moot in that it eliminated the livecontroversy between the parties.

However, considering the factors in Borowski, there is a genuine possibility that a court might exerciseits jurisdiction to hear the application. In my view, Mr. McCotter deserves the opportunity to argue that the Federal Court erred inrefusing to exercise its discretion in this regard. [10] There clearly remains an adversarial context between the parties. Mr. McCotter continues to be denied parole and he remainsincarcerated. He come before this Court because he seeks his liberty. [11] With regard to judicial economy, it is relevant to consider (

i) whether the court’s decision will have some practical effect on therights of the parties, (ii) whether the issues in dispute are of a recurring nature but brief duration, which may be evasive of review, and(iii) the public importance of resolving the debate between the parties. Many of the issues that Mr. McCotter seeks to raise relate not onlyto the impugned January 20, 2021 PBC decision, but also to other PBC decisions involving Mr. McCotter. Accordingly, it appears that adecision by the Federal Court could have some practical effect on Mr. McCotter’s rights.

In addition, given how this matter has come tothis Court, the issues in dispute may be of a recurring nature but brief duration, and evasive of review.

It is difficult at this stage todetermine the public importance of resolving the debate between the parties, but the factor of judicial economy does not appear to be anobstacle to the exercise of discretion to hear the underlying judicial review application despite its mootness. [12] The final of the factors identified in Borowski, respect for the proper law-making function of the Court, likewise does not appear tobe an obstacle to the exercise of discretion. [13] Based on the low threshold applicable to the question of merit on a motion for an extension of time, I accept that Mr.

McCotter hasmet his burden here. [14] I turn now to the other factor cited by the AGC for denying the motion for an extension of time: prejudice. The AGC argues that heis prejudiced by Mr. McCotter "“continuing to litigate PBC and PBC Appeal Division decisions that are rendered moot by subsequenttribunal decisions.”" In my view, the fact that Mr. McCotter’s efforts to seek judicial review of PBC decisions are repeatedly stymiedbecause his applications are rendered moot by subsequent decisions is a stronger argument for granting an extension of time than fordenying one.

It would seem that one of the few ways of ensuring that the issues that Mr. McCotter seeks to raise can be heard is toexercise discretion to hear his arguments despite their mootness. [15] In my view, all of the factors relevant to the motion for an extension of time favour Mr. McCotter. I will grant the motion for anextension of time. II. Motion for waiver of fees [16] As indicated above, the AGC does not oppose Mr. McCotter’s motion for a waiver of fees. In support of this motion, Mr. McCottercites the following decisions: Spatling v. Canada (Solicitor General), 2003 FCT 443 and Fabrikant v.

Canada, 20147 FCA 89(Fabrikant). Each of these concerns a motion for a waiver of filing fees. In this case, that would be $50 (see item 1(1)(

e) of Tariff A ofthe Federal Courts Rules, S.O.R./98-106) (the Rules). However, Mr. McCotter’s motion appears to go much further than the waiver offiling fees. Though his notice of motion is not clear on the point, the "“Order Sought”"

section of his memorandum of fact and lawextends to "“any other tariff A or associated fee”", and "“funding for an attorney to aid in moving the Appeal of [the Federal Court’sdecision] forward without more delays.”" [17] The question of ordering funding for counsel to represent a party is entirely different from waiving fees, and Mr. McCotter’ssubmissions do not address that question. I will not order such funding based on Mr. McCotter’s motion materials. Likewise, I will notorder generally the waiver of all fees as Mr. McCotter seeks. The other fees that Mr.

McCotter has in mind are not clearly identified, andI do not intend here to sign a blank cheque. That said, there is a $20 fee associated with a notice of motion for an extension of time tocommence a proceeding (see item 1(2)(

a) of Tariff A). I will consider the waiver of that fee along with the waiver of the filing fee. [18] Fabrikant is particularly useful in considering this issue. It emphasized that the waiver of fees is exceptional. As Mr. McCotterrecognizes, waiver of fees is available only in "“special circumstances”": see Rule 55 of the Rules. The prospective appellant’s right of

access to the Court must be balanced against the need to charge fees for services rendered. Fabrikant also noted at paragraph 11 that " “only particularized, credible evidence will suffice” " to show special circumstances. In the same paragraph, Fabrikant stated that " “[i]n general, parties seeking a waiver of fees must describe, with particularity, their financial situation, with specific reference to numbers setting out sources of funding, assets and expenses.” " [ 19 ] In my view, Mr. McCotter has understood the requirements for a successful motion for waiver of fees.

He has provided detailed information concerning his income, expenses, assets and net worth. I am satisfied that his financial resources are sufficiently limited to justify a waiver of the filing fee in the proposed appeal as well as the fee associated with a notice of motion for an extension of time to commence a proceeding. I will order said waiver. "George R. Locke" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: 23-A-33 STYLE OF CAUSE: WILLIAM MCCOTTER v. ATTORNEY GENERAL OF CANADA MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: LOCKE J.A.

DATED: June 8, 2023 WRITTEN REPRESENTATIONS BY : William McCotter For The Applicant (On his own behalf) Jocelyne Mui For The Respondent SOLICITORS OF RECORD : Shalene Curtis-Micallef Deputy Attorney General of Canada For The Respondent