DATE: 2003-09-18

DOCKET: M30021(C39778)

COURT OF APPEAL FOR ONTARIO

RE:

CARLINE ANTONIA VANDENELSEN (Appellant/Moving Party) – and – LYLE CRAIG MERKLEY (Respondent/Responding Party)

BEFORE:

BORINS, MACPHERSON and CRONK JJ.A.

COUNSEL:

Carline Antonia Vandenelsen

in person

Alfred A. Mamo

for the responding party

HEARD:

September 15, 2003

On a motion to review the order of Justice Louise Charron of the Court of Appeal for Ontario dated June 13, 2003.

E N D O R S E M E N T

[1] Charron J.A. resolved many issues in her endorsement. The only issue we need address is the appellant’s request for an order waiving “all court administrative fees”. The appellant requested this order on the grounds that she was unable to pay the fees stipulated by the Rules of Civil Procedure to process her appeal and that she had been refused legal aid. The fees payable on the filing of a notice of appeal and for perfecting an appeal are $225 and $175, respectively.

[2] As no authority was provided that this court had jurisdiction to waive the administrative fees, Charron J.A. rejected the appellant’s request. However, she went on to make the following factual finding:

I am not satisfied on the evidence before me that the requirement to pay the usual fees will frustrate the appellant’s right to prosecute her appeal. I am also not persuaded, given the apparent proliferation of litigation between the parties, that this would be an appropriate case to grant such relief.

[3] Subsequent to the argument of the appellant’s motion, a panel of the Divisional Court held in the context of proceedings in the Small Claims Court that the absence of a statutory mechanism for the waiver or reduction of fees in limited circumstances was a breach of the rule of law and was unconstitutional: Polewsky v. Home Hardware Stores Ltd., [2003] O. J. No. 2908. The court held that as at common law there is a constitutional right of access to the courts, indigent persons should not be denied access to the Small Claims Court when their claims or defences are meritorious and their inability to pay the prescribed fees is proven on a balance of probabilities. However, on the facts of the case, the court found that Mr. Polewsky had failed to demonstrate that, but for the reduction or waiver of fees, he would not be able to access the court.

[4] Assuming, without deciding, that the principles discussed in Polewsky apply to proceedings in the Court of Appeal, we are of the opinion that had the Polewsky decision been available to Charron J.A. she would have come to the same decision on the basis of her findings of fact.

[5] As no grounds have been shown for interfering with the order of Charron J.A., we would dismiss the motion to review her order without costs.

“S. Borins J.A.”

“J. C. MacPherson J.A.”

“E. A. Cronk J.A.”