Lessard-Gauvin v. Canada (Attorney General)

Lessard-Gauvin v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2020-06-30
Neutral citation
2020 FC 730
File numbers
T-1136-16, T-210-18, T-766-18
Notes
A correction was made on November 4, 2020
Decision Content
Date: 20200630
Dockets: T-1136-16
T-210-18
T-766-18
Citation: 2020 FC 730
[ENGLISH TRANSLATION]
Montréal, Quebec, June 30, 2020
PRESENT: The Honourable Mr. Justice Gascon
BETWEEN:
DAVID LESSARD-GAUVIN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview
[1] The Court has before it an appeal brought by the applicant, David Lessard-Gauvin, pursuant to section 51 of the Federal Courts Rules, SOR/98-106 [Rules], against three Orders made on November 12, 2019, by Prothonotary Tabib [Prothonotary] in files T-1136-16, T‑210‑18 and T-766-18 [Orders]. In her Orders, the Prothonotary, as case management judge for the three files, granted the motions for security for costs filed by the Attorney General of Canada [AGC] pursuant to rules 416 to 418 [Motions for Security]. With the exception of the amount of costs awarded, the Prothonotary’s Orders are identical in all three cases.
[2] Pursuant to the three decisions, the Prothonotary ordered Mr. Lessard-Gauvin to post security for costs in the amounts of $10,872.76 in file T-1136-16 and $4,712.75 in each of files T-210-18 and T-766-18. She also prohibited Mr. Lessard-Gauvin from taking any further steps in the actions, other than appealing the Orders, until such time as the security for costs had been paid. At the same time, she suspended the proceedings in each file until the security had been posted.
[3] In his appeal, Mr. Lessard-Gauvin, representing himself, submits that the Prothonotary committed a long list of errors of law and of mixed fact and law, and breaches of procedural fairness in her Orders. Mr. Lessard-Gauvin argues that the Prothonotary erred in particular by disregarding the new facts that he wanted to put forward with respect to his recent loss of employment; by refusing to rule on his constitutional arguments as a result of an incorrect application of the doctrines of issue estoppel and stare decisis; by misinterpreting the conditions under rule 417 for denying security for costs; by exercising her discretion under rule 416 in an unreasonable manner; and by adopting a rigid and formalistic approach to the proceedings, which proved unfair to him.
[4] The only issue is whether, in granting the AGC’s Motions for Security, the Prothonotary committed one or more errors justifying the Court’s intervention.
[5] For the reasons that follow, Mr. Lessard-Gauvin’s appeal will be dismissed because he has not demonstrated an error of law or a palpable and overriding error of fact or mixed fact and law in the Prothonotary’s Orders. Moreover, I am not satisfied that there has been a breach of the rules of procedural fairness here that would justify the Court’s intervention.
II. Background
A. Facts
[6] The factual background leading to the Motions for Security is part of a complex tangle of remedies sought and proceedings brought by Mr. Lessard-Gauvin against the AGC over the last few years. The elements relevant to this appeal can be summarized as follows.
[7] File T-1136-16 involves an application for judicial review brought by Mr. Lessard‑Gauvin against a decision of the Public Service Commission of Canada made under section 66 of the Public Service Employment Act, SC 2003, c 22, dismissing requests for investigation at the preliminary stage. That application for judicial review is dated July 11, 2016, and has been subject to numerous extensions of time. By order dated May 5, 2017, the Court consolidated those proceedings with the proceedings in two other files initiated by Mr. Lessard‑Gauvin and involving the same parties (T-1683-16 and T-1989-16), with the application in file T-1136-16 being treated as the main application.
[8] File T-210-18 involves an application for judicial review challenging another decision by the Public Service Commission of Canada, again made under section 66 of the Public Service Employment Act, but this time, following an investigation. That application was filed by Mr. Lessard-Gauvin on February 5, 2018.
[9] File T-766-18, meanwhile, is an application for judicial review of a decision of the Canadian Human Rights Commission pursuant to subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, RSC 1985, c H-6. In that decision, the Commission dismissed a complaint by Mr. Lessard-Gauvin, stating that an inquiry into the complaint was not warranted. That application for judicial review is dated April 25, 2018. These three applications for judicial review appear to be in response to rejections experienced by Mr. Lessard‑Gauvin in his efforts to join the federal public service.
[10] As Justice Roy noted in his decision on an appeal filed by Mr. Lessard-Gauvin against another order of the Prothonotary in the same three cases (Lessard-Gauvin v Canada (Attorney General), [LG Roy]), each of these files has been the subject of a great many procedural steps, such that even though they date back to 2016 and 2018, none has yet reached the stage of a hearing on the merits.
[11] These three applications, it should be noted, are not the first in which Mr. Lessard‑Gauvin and the AGC have crossed swords. They follow numerous court cases between the same parties that were instituted by Mr. Lessard-Gauvin between the years 2015 and 2017. For the purposes of this appeal, it is sufficient to note that, following several unfavourable decisions rendered against Mr. Lessard-Gauvin in these earlier court cases, costs had already been awarded in favour of the AGC on more than one occasion.
[12] Against this backdrop, in January 2019, the AGC filed his Motions for Security for costs before this Court in files T-1136-16, T-210-18 and T-766-18. Also in January 2019, the AGC filed similar motions before the Federal Court of Appeal [FCA] in related files A-312-18 and A‑313-18. The AGC states in his motion records that at the time the five Motions for Security were filed, Mr. Lessard-Gauvin already owed the AGC approximately $6,156 in unpaid costs.
[13] The AGC’s Motions for Security progressed slowly, and on November 12, 2019, the Prothonotary issued her three Orders granting them. Those Orders are the subject of this appeal.
B. Procedural history
[14] It is worth taking a moment to reflect on the cumbersome and laborious procedural history that has punctuated the proceedings for the Motions for Security underlying the appeal now before the Court. Rather than respond to the Motions for Security within the prescribed time limits, in February 2019, Mr. Lessard-Gauvin began filing one preliminary and interlocutory motion after another against the AGC’s motions.
[15] Accordingly, in February and March 2019, Mr. Lessard-Gauvin filed motions for an order of confidentiality in each of the five files pending before the Court and the FCA. These motions related to financial and medical documents that he wished to submit in response to the AGC’s Motions for Security [Motions for Confidentiality]. The Motions for Confidentiality include a variety of other requests, including for extensions of time and consolidation of proceedings.
[16] On April 10, 2019, the Prothonotary dismissed Mr. Lessard-Gauvin’s Motion for Confidentiality, with costs, and then granted him a 15-day extension to April 29, 2019, to file his motion records in response to the Motions for Security before this Court. Similarly, on April 29, 2019, Justice Pelletier of the FCA dismissed Mr. Lessard-Gauvin’s Motions for Confidentiality in both FCA files, again with costs, giving Mr. Lessard-Gauvin until May 15, 2019, to file his motion records in response to the Motions for Security in the FCA.
[17] On May 2, 2019, Mr. Lessard-Gauvin filed new motions before the FCA in files A‑312‑18 and A-313-18, this time to seek directions with a view to challenging the constitutionality of rule 417, and to request that the actions be conducted as specially managed proceedings, that a dispute resolution conference be held, and that he be granted an extension of time [Motions for Directions].
[18] A week later, on May 9, 2019, Mr. Lessard-Gauvin brought a third round of motions in files A-312-18 and A-313-18, this time seeking to quash the April 29, 2019, orders dismissing his Motions for Confidentiality [Motions to Quash].
[19] In late May 2019, Mr. Lessard-Gauvin filed a new round of five motions before this Court and the FCA to stay the Motions for Security and lift the stays in the three files in this Court (T-1136-16, T-210-18 and T-766-18) and in the two FCA files (A-312-18 and A-313-18) [Motions to Stay].
[20] On July 5, 2019, in LG Roy, Justice Roy of this Court dismissed Mr. Lessard-Gauvin’s appeal against the Prothonotary’s April 10, 2019, decision on the Motions for Confidentiality, all with costs. A few days later, on July 17, 2019, the Prothonotary also dismissed Mr. Lessard‑Gauvin’s Motions to Stay, with costs in each of the three files. On this occasion, the Prothonotary ordered Mr. Lessard-Gauvin to file his motion record in response to the Motions for Security on or before August 19, 2019.
[21] On July 29, 2019, in three decisions issued simultaneously in files A-312-18 and A‑313‑18, Justice Boivin of the FCA dismissed Mr. Lessard-Gauvin’s Motions to Stay, Motions for Directions and Motions to Quash, all with costs against Mr. Lessard-Gauvin. In his orders on the Motions for Directions, Justice Boivin imposed a peremptory time limit of August 2, 2019, for Mr. Lessard-Gauvin to respond to the Motions for Security that were before the FCA.
[22] On August 2 and 19, 2019, the dates prescribed by the FCA and the Prothonotary respectively, Mr. Lessard-Gauvin filed with the FCA and this Court his motion record in response to the Motions for Security, which he entitled [translation] “respondent’s partial record”. The responses and written submissions filed by Mr. Lessard-Gauvin were identical in all five files. Mr. Lessard‑Gauvin raised the same arguments in response to the five Motions for Security, before both this Court and the FCA, including the constitutional invalidity and unenforceability of the security for costs regime under the Rules.
[23] And then on August 9 and 19, 2019, Mr. Lessard-Gauvin filed a new round of preliminary motions before the FCA and this Court, this time to stay deliberations in the five Motions for Security, obtain an extension of time to file a supplementary record in response to the Motions for Security, and schedule a hearing on the Motions for Security [Motions Regarding Deliberations and Time Limits]. One purpose of these Motions Regarding Deliberations and Time Limits was to obtain leave to file a financial expert report that Mr. Lessard-Gauvin considers necessary to support his constitutional argument.
[24] On August 29, 2019, Justice Nadon of the FCA dismissed the Motions Regarding Deliberations and Time Limits in A-312-18 and A-313-18, again with costs.
[25] On September 24, 2019, the Prothonotary also dismissed the Motions Regarding Deliberations and Time Limits in all three cases before this Court, again with costs against Mr. Lessard-Gauvin. The Prothonotary then decided, among other things, that she would rule on the scheduling of a hearing after receiving the AGC’s reply to Mr. Lessard-Gauvin’s partial response to the Motions for Security.
[26] On October 17, 2019, Justice Nadon of the FCA rendered his decision on the merits of the AGC’s Motions for Security in files A-312-18 and A-313-18. In two short two-page orders, Justice Nadon allowed the Motions for Security and ordered Mr. Lessard-Gauvin to post security for costs in the amount of $4,471.00 in each of the two cases, at the same time rejecting the various arguments raised by Mr. Lessard-Gauvin.
[27] On October 22, 2019, Mr. Lessard-Gauvin filed new motion records in all three cases before this Court, this time seeking leave to present new facts pertaining to his termination of employment and his ineligibility for Employment Insurance, as well as an extension of time to serve a motion to appeal the September 24, 2019, decision of the Prothonotary dismissing his Motions Regarding Deliberations and Time Limits [Motion for New Facts].
[28] On November 12, 2019, it was the Prothonotary’s turn to render her decision on the merits of the AGC’s Motions for Security in files T-1136-16, T-210-18 and T-766-18. Like the FCA, the Prothonotary granted the AGC’s motions and ordered Mr. Lessard-Gauvin to post security for costs in the amounts of $10,872.76, $4,712.75 and $4,712.75 respectively in these files.
[29] One noteworthy fact emerges from this procedural history. Since the January 2019 filing of the Motions for Security that are the subject of the appeal now before the Court, Mr. Lessard‑Gauvin has suffered setbacks in all of his preliminary and interlocutory motions before the Court and the FCA. On each occasion, he was ordered to pay costs, in addition to those that had originally led the AGC to file his Motions for Security.
[30] Thus, in addition to Justice Nadon’s two orders granting the AGC’s Motions for Security on October 17, 2019, the FCA has issued a total of 10 orders, dismissing in turn the Motions for Confidentiality, the Motions for Directions, the Motions to Quash, the Motions to Stay and the Motions Regarding Deliberations and Time Limits that Mr. Lessard-Gauvin has successively filed since January 2019 in files A-312-18 and A-313-18. Meanwhile, between January 2019 and the issuance of the Prothonotary’s Orders in November 2019, this Court issued 12 orders, dismissing the Motions for Confidentiality (including the appeal of the Prothonotary’s decisions), the Motions to Stay and the Motions Regarding Deliberations and Time Limits filed by Mr. Lessard-Gauvin in files T-1136-16, T-210-18 and T-766-18, each time with new costs. All in all, over a period of only a few months, more than 20 preliminary orders were made by this Court and the FCA, denying the various procedural remedies sought by Mr. Lessard-Gauvin in the Motions for Security he is opposing, all resulting in additional orders for costs being made against him.
[31] I cannot help but note that at as a result of these multiple motions and proceedings, all of which were unsuccessful, Mr. Lessard-Gauvin has thus accumulated unfavourable decisions and added a multitude of orders to pay costs to an already lengthy list.
C. Prothonotary’s Orders
[32] It was in this rather exceptional context that the Prothonotary issued her Orders dated November 12, 2019. In approximately 10 pages of detailed reasons, the Prothonotary first stated that she had considered and dealt with the Motions for Security in files T-1136-16, T‑210-18 and T-766-18 jointly, as Mr. Lessard-Gauvin wished, while issuing a separate order for each file.
[33] With respect to Mr. Lessard-Gauvin’s request for a hearing, the Prothonotary declined to exercise her discretion to hold one, given the voluminous written submissions received from Mr. Lessard-Gauvin in his partial response and the fact that the constitutional issue had been settled by the FCA decisions rendered a few weeks earlier on October 17, 2019.
[34] The Prothonotary then dealt with Mr. Lessard-Gauvin’s motion to extend the time to appeal her September 24, 2019, order dismissing his Motions Regarding Deliberations and Time Limits. The Prothonotary noted that an appeal, even if properly filed, does not stay the execution of the judgment being appealed, and said motion would therefore not affect her ability to rule on the Motions for Security. The Prothonotary concluded that it was not appropriate for the Court to exercise its discretion to suspend its deliberations on the Motions for Security.
[35] On the constitutional issue, the Prothonotary noted that in response to the five Motions for Security, Mr. Lessard-Gauvin had raised, before both this Court and the FCA, the same arguments of constitutional invalidity and unenforceability of the security for costs regime under the Rules. She also noted that in Justice Nadon’s orders dated October 17, 2019, the FCA had granted the Motions for Security in files A-312-18 and A-313-18, [translation] “thereby dismissing the constitutional arguments raised by” Mr. Lessard-Gauvin. Invoking both issue estoppel and stare decisis, the Prothonotary pointed out that the Court was therefore not required to consider the constitutional validity or enforceability of the security for costs regime under the Rules, as this issue had already been decided.
[36] The Prothonotary then turned her analysis to rules 416 and 417 and decided to grant the Motions for Security. The Prothonotary first determined that the criteria under rule 416(1)(f) had indeed been met, in view of Mr. Lessard-Gauvin’s admissions of unpaid costs already awarded to the AGC in other proceedings.
[37] The Prothonotary next examined the application of rule 417, which allows the Court to refuse an application for security for costs “if a plaintiff demonstrates impecuniosity and the Court is of the opinion that the case has merit”. With respect to the first test for impecuniosity, the Prothonotary noted Mr. Lessard-Gauvin’s admission, in his written submissions, that [translation] “he is not ‘truly’ impecunious within the meaning of the Rules but would still have to sacrifice reasonable expenses for basic needs in order to pay the security for costs”. This admission, she stated, settled the issue of impecuniosity. The Prothonotary went on to observe that Mr. Lessard-Gauvin did not in any way address the merits of his claims in his respondent’s record. Relying on Sauve v Canada, 2014 FC 119 [Sauve], the Prothonotary noted that the test for merit in rule 417 refers to a matter that is “deserving or worthy of consideration” in the sense that the case raises a serious issue to be tried, and that this is “a higher threshold than the threshold of ‘plain and obvious that the claim discloses no reasonable cause of action,’ which is applied in motions to strike”. She added that the burden was on Mr. Lessard-Gauvin to convince the Court that his case has sufficient merit that he should be relieved from the obligation to post security for costs, and that [translation] “the applicant’s failure to make such demonstration is, equally and on its own, fatal to the application of rule 417”.
[38] The remainder of the Prothonotary’s decision deals with the exercise of her discretion under rule 416 to determine whether, in the circumstances, she should order Mr. Lessard‑Gauvin to provide the security for costs requested by the AGC. In her analysis, the Prothonotary reviewed Mr. Lessard-Gauvin’s claims with respect to the absence of serious harm to the AGC, the AGC’s bad faith in refusing to accept payment of costs in instalments and the lateness of the Motions for Security, and came to the conclusion that it was appropriate in the circumstances to order the payment of security for costs in each of the three cases.
[39] Finally, with respect to the amount of security to be paid and the terms and conditions thereof, the Prothonotary found that the amounts claimed by the AGC were justified and that payment of the security in instalments would not be appropriate, considering Mr. Lessard‑Gauvin’s lack of restraint in repeatedly bringing new proceedings against the Motions for Security, which resulted in him incurring new orders to pay costs. However, the Prothonotary agreed to allow Mr. Lessard-Gauvin more flexibility in the time limit for the payment of security, conditional on each file remaining suspended until the security had been paid.
[40] The Prothonotary therefore granted the AGC’s Motions for Security, with costs set at $750.00 for the three files.
D. Standard of intervention
[41] The language of rules 416 and 417 expressly provides that a Prothonotary’s decision on the merits of a motion for security for costs is discretionary in nature (Swist v MEG Energy Corp., 2016 FCA 283 at para 15).
[42] Since the FCA decision in Hospira Healthcare Corporation v Kennedy Institute of Rheumatology, 2016 FCA 215 [Hospira], there is no longer any doubt that the standard of intervention on appeals of discretionary orders by prothonotaries is the standard enunciated by the Supreme Court of Canada (SCC) in Housen v Nikolaisen, 2002 SCC 33 [Housen]. As such, on questions of law and questions of mixed fact and law where there are extricable questions of law, prothonotaries’ orders are reviewed for correctness. This standard implies that there is no deference to prothonotaries on these questions. On all other questions, particularly questions of fact or mixed fact and law and inferences of fact, the Court may only interfere if the Prothonotary made a “palpable and overriding error” (Housen at paras 19–37; Maximova v Canada (Attorney General), 2017 FCA 230 [Maximova] at para 4; Hospira at paras 27, 64–66, 79). The parties do not challenge this.
[43] The FCA has repeatedly declared that the “palpable and overriding error” standard is a “highly deferential standard” (Figueroa v Canada (Public Safety and Emergency Preparedness), 2019 FCA 12 at para 3; Montana v Canada (National Revenue), 2017 FCA 194 at para 3; 1395804 Ontario Ltd (Blacklock’s Reporter) v Canada (Attorney General), 2017 FCA 185 at para 3; NOV Downhole Eurasia Limited v TLL Oilfield Consulting Ltd, 2017 FCA 32 at para 7; Revcon Oilfield Constructors Incorporated v Canada (National Revenue), 2017 FCA 22 at para 2). This is a heavy burden for an applicant to meet. As Justice Stratas metaphorically stated in Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 157 [Mahjoub] and in Canada v South Yukon Forest Corporation, 2012 FCA 165 [South Yukon], in order to meet this standard “it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall” (Mahjoub at para 61; South Yukon at para 46), cited with approval by the SCC in Benhaim v St‑Germain, 2016 SCC 48 [Benhaim] at para 38).
[44] Describing what “palpable” and “overriding” mean, Justice Stratas further wrote in Mahjoub, at paragraphs 62 to 64:
[62] “Palpable” means an error that is obvious. Many things can qualify as “palpable.” Examples include obvious illogic in the reasons (such as factual findings that cannot sit together), findings made without any admissible evidence or evidence received in accordance with the doctrine of judicial notice, findings based on improper inferences or logical error, and the failure to make findings due to a complete or near-complete disregard of evidence.
[63] But even if an error is palpable, the judgment below does not necessarily fall. The error must also be overriding.
[64] “Overriding” means an error that affects the outcome of the case. It may be that a particular fact should not have been found because there is no evidence to support it. If this palpably wrong fact is excluded but the outcome stands without it, the error is not “overriding.” The judgment of the first-instance court remains in place.
[45] The FCA has also described a palpable and overriding error as an error that is obvious, plainly seen and apparent, the effect of which is to vitiate the integrity of the reasons (Madison Pacific Properties Inc. v Canada, 2019 FCA 19 at para 26; Maximova at para 5). In Groupe Maison Candiac Inc. v Canada (Attorney General), 2017 FCA 216 [Candiac], the FCA further noted that the threshold of palpable and overriding error is particularly difficult to meet where, as in this case, the discretionary decision under review by the Court is procedural in nature (Candiac at para 50; see also Curtis v Canada (Canadian Human Rights Commission), 2019 FC 1498 at paras 14-17, and Boily v Canada, 2019 FC 323 at paras 16-22).
[46] The SCC recently echoed these principles in Salomon v Matte-Thompson, 2019 SCC 14 [Salomon]: “Where the deferential standard of palpable and overriding error applies, an appellate court can intervene only if there is an obvious error in the trial decision that is determinative of the outcome of the case” (Salomon at para 33, citing Benhaim v St-Germain, 2016 SCC 48 at para 38). The SCC also referred to another metaphor used by the Quebec Court of Appeal in J.G. c Nadeau, 2016 QCCA 167, at paragraph 77, where the Court stated that [translation] “a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye”. In other words, in order to succeed in arguing errors of fact or mixed fact and law as he does, Mr. Lessard-Gauvin must persuade the Court of an obvious error that directly affects the outcome of the Orders; the needle in the haystack or a few branches swaying in the tree will not suffice where the degree of deference is high.
[47] Mr. Lessard-Gauvin’s appeal also criticizes the Prothonotary for errors that he characterizes as breaches of the principles of procedural fairness. Although Hospira did not deal directly with the applicable test in these situations, the case law does establish that the test to be applied to such errors is the same as that applicable to errors of law, and that no deference is owed to prothonotaries on questions of procedural fairness (Housen at paras 8–9; G.D. Searle & Co. v Novopharm Limited, 2007 FCA 173 at para 34). For example, in Badawy v Canada (Justice), [Badawy], the Court considered whether there had been a breach of procedural fairness because a hearing had been held by videoconference, and concluded that procedural fairness issues are subject to the “standard of correctness” (Badawy at para 13, citing Canadian Pacific Railway Company Limited v Canada (Attorney General), 2018 FCA 69 [CPR] at para 34). Similarly, the Court has held that an appeal arguing a breach of natural and fundamental justice or a reasonable apprehension of bias involves issues that are reviewable on a standard of correctness (Forefront Placement Ltd. v Canada (Employment and Social Development), 2018 FC 692 at para 41, citing Pembina County Water Resource District v Manitoba (Government), 2017 FCA 92 at para 35 and Coombs v Canada (Attorney General), 2014 FCA 222 at para 12).
[48] I would add the following, however. Issues of procedural fairness and the duty to act fairly are not concerned with the merits or content of a decision rendered, but rather the process followed. Procedural fairness has two components: the right to be heard and the opportunity to respond to the evidence that must be rebutted; and the right to a fair and impartial hearing before an independent tribunal (Re Therrien, 2001 SCC 35 at para 82). It is well established that the requirements of the duty of procedural fairness are “eminently variable”, inherently flexible and context-specific (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 21; CPR at para 40). They do “not reside in a set of enacted rules” (Green v Law Society of Manitoba, 2017 SCC 20 at para 53). On these questions of procedural fairness, the Court’s role is therefore to determine, having regard for both the specific context and all the circumstances, whether the procedure followed by the decision maker was fair and just (Perez v Hull, 2019 FCA 238 at para 18; CPR at para 54).
[49] Finally, as Justice Roy reminded Mr. Lessard-Gauvin in LG Roy, I would stress that there are no “varying standards of review” and that “[s]tandards based on procedural fairness in administrative law or the consideration of [TRANSLATION] ‘constitutional principles and fundamental rights’ have nothing to do with the application of known principles to the issues at stake here”, namely those governing appeals from decisions of prothonotaries (LG Roy at para 16).
III. Analysis
[50] In support of his appeal, Mr. Lessard-Gauvin provided in his partial respondent’s motion record and at the hearing before this Court a long list of errors allegedly committed by the Prothonotary. Although Mr. Lessard-Gauvin organized his complaints differently, they can be grouped under four main themes: (1) failure to consider his Motion for New Facts; (2) the treatment of the conditions under rule 417 and the exercise of discretion under rule 416; (3) the constitutional issue relating to the security for costs regime; and (4) the general approach of the Prothonotary in the Orders. I will deal with them in that order.
[51] After carefully reviewing the Prothonotary’s Orders, reading the records and analyzing the written and oral submissions of the parties, I conclude that Mr. Lessard-Gauvin has not demonstrated that the Orders contain an error of law, a palpable and overriding error of fact or mixed fact and law, or a breach of the principles of procedural fairness that would justify the Court’s intervention.
A. Issue of new facts
[52] Mr. Lessard-Gauvin first claims that the Prothonotary ignored his motion, duly served and filed on October 22, 2019, to present new facts relating to his termination of employment on September 30, 2019, and his ineligibility for Employment Insurance benefits following this loss of employment (due to insufficient hours worked). Mr. Lessard-Gauvin submits that these facts were relevant and even crucial to his defence of undue hardship or impecuniosity in respect of the Motions for Security. He argues that these facts change the situation with respect to the application of rule 417. Mr. Lessard-Gauvin argues that by ignoring and implicitly discounted these new facts, the Prothonotary committed a fatal error of procedural fairness, thereby vitiating her Orders. He argues that the Court must therefore decide de novo his defence of impecuniosity under rule 417.
[53] I disagree with Mr. Lessard-Gauvin’s submissions. I am of the opinion that, for the following reasons, the Prothonotary did not commit an error justifying the intervention of this Court in not considering the Motion for New Facts in the circumstances of this case. Moreover, even if there had been a breach of procedural fairness involving Mr. Lessard-Gauvin’s defence of impecuniosity, this would not have changed the finding with regard to rule 417 because the Prothonotary correctly concluded that the second part of this provision was not satisfied and that this alone was [translation] “fatal to the application of rule 417”. Finally, even if I were to find that there had been an error and ruled de novo on the defence of leniency advanced by Mr. Lessard-Gauvin in light of his Motion for New Facts, as he wishes, I would come to the same conclusion as the Prothonotary on Mr. Lessard-Gauvin’s failure to meet the requirements of the first part of rule 417.
(1) Motion for New Facts
[54] In her Orders, the Prothonotary dealt only briefly with the first criterion of rule 417 relating to impecuniosity, merely noting Mr. Lessard-Gauvin’s admission in his written submissions that he is not [translation] “truly” impecunious within the meaning of the Rules but that he would still have to make sacrifices in order to be able to provide the security for costs requested by the AGC. The Prothonotary, it is true, did not deal directly with the arguments put forward by Mr. Lessard-Gauvin in his Motion for New Facts with respect to his termination of employment and his ineligibility for Employment Insurance benefits.
[55] However, this motion must be viewed in the context of the procedural history of the Motions for Security. The Motion for New Facts was filed by Mr. Lessard-Gauvin on October 22, 2019. As of that date, an order had already been issued by the Prothonotary on July 17, 2019, imposing a peremptory time limit of August 19, 2019, for Mr. Lessard-Gauvin to file his response to the Motions for Security. Mr. Lessard-Gauvin did in fact do so by the prescribed date. In addition, the Prothonotary had issued another order, this one dated September 24, 2019, among other things dismissing Mr. Lessard-Gauvin’s request to file a [translation] “supplementary response” (in relation to a financial expert report on the issue of costs). In that order dated September 24, 2019, the Prothonotary denied Mr. Lessard-Gauvin’s request to file a supplementary response given that his respondent’s motion record and the AGC’s reply had already been filed. The Prothonotary also viewed Mr. Lessard‑Gauvin’s request as being tantamount to a motion for extension of time to complete the service and filing of his respondent’s motion record, whereas the order of July 17, 2019, had already set a peremptory time limit of August 19, 2019.
[56] In the circumstances, and considering these two orders already made by the Prothonotary setting a peremptory time limit and denying an initial request to file a supplementary response, I am not satisfied that the failure to consider the Motion for New Facts, filed at the eleventh hour of deliberations on the Motions for Security, constitutes a breach of the rules of procedural fairness, or that the procedure followed by the Prothonotary in arriving at her Orders was not fair and just. Mr. Lessard-Gauvin’s motion was clearly untimely; it ignored two previous Orders, and Mr. Lessard-Gauvin had been given an opportunity to be heard on the issue of impecuniosity in the context of his submissions in his partial respondent’s motion record.
[57] I further note that on January 7, 2020, Prothonotary Steele denied Mr. Lessard-Gauvin’s motion for an extension of time to appeal the Prothonotary’s September 24, 2019 order and to submit new facts. Contrary to Mr. Lessard-Gauvin’s contention, Prothonotary Steele did not, by this decision, refer the question of admitting new facts to the judge hearing this appeal. Rather, she decided that the issue of new facts as to the impecuniosity alleged by Mr. Lessard‑Gauvin had been rendered [translation] “moot” by the Orders granting the Motions for Security.
(2) Rule 417 not satisfied in any event
[58] Furthermore, even if I were to agree that the refusal to consider the new facts advanced by Mr. Lessard-Gauvin did in fact undermine procedural fairness in his defence of impecuniosity, this would not justify the Court’s intervention in this matter because those new facts would not have changed the Prothonotary’s finding on rule 417. Indeed, the Prothonotary correctly concluded that the second part of this provision was not satisfied and that this alone was [translation] “fatal to the application of rule 417”.
[59] It is useful at this point to reproduce the text of rule 417, which reads as follows:
417 The Court may refuse to order that security for costs be given under any of paragraphs 416(1)(a) to (g) if a plaintiff demonstrates impecuniosity and the Court is of the opinion that the case has merit.
417 La Cour peut refuser d’ordonner la fourniture d’un cautionnement pour les dépens dans les situations visées aux alinéas 416(1)a) à g) si le demandeur fait la preuve de son indigence et si elle est convaincue du bien-fondé de la cause.
[60] There was no dispute that under this rule, the Court had to be satisfied that Mr. Lessard‑Gauvin had demonstrated both his impecuniosity and the merits of his application for judicial review at the source of each file. This is a conjunctive test, and even if Mr. Lessard‑Gauvin had been able to present new facts regarding his impecuniosity, he could not have relied on rule 417 because he did not demonstrate the merits of his applications for judicial review. As detailed later in this judgment, I am of the view that the Prothonotary’s conclusions in this regard were correct and that she did not commit a palpable and overriding error or an error of law. Also, the new facts relied upon by Mr. Lessard-Gauvin would not have changed the Prothonotary’s findings in any way because Mr. Lessard-Gauvin did not satisfy the second part of rule 417. The lack of merit in the application is fatal to Mr. Lessard-Gauvin’s position on rule 417 and is sufficient to validate the Prothonotary’s decision on this aspect of her Orders.
[61] Thus, even if I were to agree that the Prothonotary made an error of procedural fairness in disregarding Mr. Lessard-Gauvin’s new facts, the Prothonotary’s error would be inconsequential. I recognize that breaches of procedural fairness ordinarily render a decision invalid and would normally require the Court hearing an appeal of the Prothonotary’s Orders to rule de novo on this issue of new facts. However, even where an error has resulted in a breach of procedural fairness, such a breach may be ignored where the outcome of a case is legally inevitable (Canada (Attorney General) v McBain, 2017 FCA 204 at para 10, citing Mobil Oil Canada Ltd. v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 SCR 202 at pp 227–28). Here, given the Prothonotary’s conclusions on the second element of rule 417, the outcome in this case was inevitable, and it is certain that the Prothonotary would have arrived at the same result on the application of rule 417, regardless of any breaches of procedural fairness that may have occurred in the treatment of evidence of new facts. Contrary to Mr. Lessard-Gauvin’s assertions, these new facts do not change the situation with respect to rule 417.
(3) Alleged new facts insufficient
[62] In addition, and in the alternative, even if I were to agree that there had been an error of procedural fairness and I were to rule de novo on the defence of leniency advanced by Mr. Lessard-Gauvin in light of his Motion for New Facts, I would nevertheless reach the same conclusion as the Prothonotary on Mr. Lessard-Gauvin’s failure to meet the requirements of the first part of rule 417. Indeed, the new facts relied upon by Mr. Lessard-Gauvin, namely the evidence of his loss of employment and ineligibility for Employment Insurance benefits, would not have been sufficient to convince me that Mr. Lessard-Gauvin had proven his state of impecuniosity.
[63] I agree with the AGC that the new facts alleged by Mr. Lessard-Gauvin would not have enabled the Court to rule in his favour on rule 417 or on the Motions for Security. Being unemployed is not, in and of itself, an argument to establish impecuniosity under rule 417, and the Court has already recognized that the burden of proof in this regard is significantly higher (Timm v Canada (Attorney General), 2017 FC 563 [Timm FC] at paras 24, 25, 55; Coombs v Canada, 2008 FC 837 [Coombs] at para 11).
[64] Mr. Lessard-Gauvin had to prove his impecuniosity on the balance of probabilities (Timm at para 49; Heli Tech Services (Canada) Ltd v Weyerhaeuser Company Limited, 2006 FC 1169 [Heli Tech Services] at para 2). With respect to evidence, “a high standard is expected”, and “full and frank disclosure is required” (Heli Tech Services at para 8; see also Chaudhry v Canada (Attorney General), 2009 FCA 237 at para 10). As in Coombs, I am not satisfied that Mr. Lessard-Gauvin has demonstrated his impecuniosity robustly enough.
[65] As the FCA stated in Sauve v Canada, 2012 FCA 287 [Sauve], “[m]aterial evidence must be submitted to sustain a claim of impecuniosity, including complete and clear financial information presented in a comprehensible format” (Sauve at para 10). The mere assertion that a party cannot afford to provide security for costs is insufficient to give effect to rule 417. Documents such as “[t]ax returns, bank statements, lists of assets and (where possible) financial statements should be submitted” (Sauve at para 10). Similarly, evidence of “the impracticability of borrowing from a third party to satisfy the security order” or lack of access to “family and community resources” should also be provided (Sauve at para 10). No material issue should be left unanswered.
[66] As such, an applicant who alleging that he or she has no source of income other than Canada Pension and Old Age Security, who provides an affidavit to that effect but does not attach a document confirming the balance of his or her bank accounts or other financial data, will not ha