Court of Appeal for Ontario

Citation: 2017 ONCA 251 Date: March 22, 2017

Brown J.A. (In Chambers)

BETWEEN

Attorney General of Ontario

and

$25,610 in Canadian Currency and $80.00 in US Currency (In Rem)

Heard: In Writing

On a fee waiver request made by Godwin Diogu in respect of the filing of a Notice of Appeal from the judgment of Justice Michael A. Penny of the Superior Court of Justice, dated January 31, 2017, with reasons reported at 2017 ONSC 708.

Brown J.A.:

OVERVIEW

[1] Ensuring that litigants enjoy access to public courts to resolve their civil legal disputes is fundamental to our country's constitutional arrangements: Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31, at paras. 32 and 41.

[2] At the same time, courts require money to operate. In Ontario, filing fees provide some of the court's operating revenue. In the case of most civil appeals brought to the Court of Appeal for Ontario, an appellant must pay $220 on the filing of a notice of appeal and $405 to perfect the appeal: Superior Court of Justice and Court of Appeal – Fees, O. Reg. 293/92, ss. 1(3) and (5).

[3] Those fees are quite modest in amount, given the services received by the litigant in return. However, for some, even such modest amounts are beyond their financial means. To address this concern, the Administration of Justice Act, R.S.O. 1990, c. A.6 (the "AJA"), creates a mechanism by which civil filing fees can be waived "so that individuals who might otherwise be denied access to justice because of their financial circumstances can be excused from paying fees": s. 4.1.

[4] Under the fee waiver regime, two different routes are available to a person to request a fee waiver for an appeal in this court: (i) a request to the court registrar; and (ii) a request to a judge: AJA, ss. 4.3 and 4.4.

[5] In the present case, Godwin Diogu has followed the second route, requesting a fee waiver from a judge in respect of his notice of appeal from the order of Penny J., dated January 31, 2017. For the reasons that follow I find that Mr. Diogu is not entitled to a fee waiver.

THE FEE WAIVER REGIME

[6] A new fee waiver regime came into force in November 2016. Below, I describe the procedural requirements for each of the two fee waiver request routes.

(1) The First Route: A Request to the Court Registrar

[7] First, the person can make a written request for a fee waiver to the court's registrar using a form provided by the Ministry of the Attorney General: AJA, s. 4.3(1). The request must be accompanied by proof of the person's income and, in some cases, proof of the spouse's income: Fee Waiver, O. Reg. 2/05, s. 2.1. The registrar must then review the request, together with the accompanying proof of income, to determine whether the person meets the prescribed financial conditions that entitle him or her to a fee waiver.

[8] A person meets the prescribed financial conditions if he or she falls into one of three categories:

(i) the primary source of the person's gross annual household income is one of several identified government benefit programs – e.g. Ontario Works, Old Age Security, Canada Pension Plan, and some others;

(ii) Legal Aid Ontario has approved the person's application to receive legal aid services in respect of the proceeding; or,

(iii) The person meets the financial criteria stipulated by the regulation: O. Reg. 2/05, s. 2(1).

[9] The stipulated financial criteria require a person to demonstrate that his or her gross annual household income, the value of the household's liquid assets, and the household's net worth all fall below certain dollar amounts set out in the regulation: O. Reg. 2/05, s. 2(2).

[10] If the registrar determines the person meets the prescribed financial conditions, the registrar shall give the person a fee waiver certificate: AJA, s. 4.3(4).

(2) The Second Route: A Request to a Judge

[11] The second way a person can request a fee waiver is by making a written request, using a prescribed form, to a judge of the court: AJA, s. 4.4. Before the request is put before a judge, the registrar must review it. If the registrar determines the person has met the prescribed financial conditions, the registrar shall issue a fee waiver certificate: AJA, s. 4.4(4).

[12] If the registrar determines the person does not meet the prescribed financial conditions, the registrar then forwards the request to a judge. In reviewing the request, a judge must determine whether the person has met two conditions:

(i) The person lacks the financial means to pay fees relating to the proceeding; and

(ii) Commencing or continuing the proceeding is not frivolous, vexatious or otherwise an abuse of the process of the court: AJA, ss. 4.4(5) and (7).

[13] If the judge is of the opinion the person meets those two conditions, then the judge shall make an order directing the registrar to give the person a fee waiver certificate: AJA, s. 4.4(5).

[14] Two practical questions arise about fee waiver requests made to a judge.

[15] First, what criteria does a judge use to determine whether the person "lacks the financial means to pay fees relating to the proceeding"? Although a judge will consider all the circumstances concerning a person's financial means, as part of that review a judge certainly will look at the financial criteria used on fee waiver applications to the registrar – i.e. whether: (i) the primary source of the person's gross annual household income is one of several identified government benefit programs; (ii) the person has applied for and received approval for Legal Aid; or (iii) the person's income, liquid assets and net worth fall below the dollar amounts specified in the regulation.

[16] Second, what information must a fee waiver applicant include with a request to a judge? A fee waiver request to a judge first passes through the hands of the registrar. Since the registrar must determine whether the request meets the financial conditions prescribed by the regulation, it follows that an application to a judge for a fee waiver must, at a minimum, include the same information as would a fee waiver request to the registrar – i.e. information showing that the three financial criteria to satisfy a fee waiver are met: (i) the primary source of the person's gross annual household income is one of several identified government benefit programs; (ii) the person has applied for and received approval for Legal Aid; or (iii) the person's income, liquid assets and net worth fall below the dollar amounts specified in the regulation. The Ministry form for a request to a judge assists an applicant in organizing such information.

[17] A fee waiver request to a judge may contain additional information about the applicant's "financial means," and the Ministry form contains a page for "additional financial information."

[18] An applicant for a fee waiver must appreciate that as a result of the changes which came into force in November 2016, he or she can no longer simply file an affidavit stating the applicant lacks the financial means to pay the court filing fees. Financial information must be filed. It is important that any person who applies to a judge for a fee waiver take the time and care to assemble and place before the judge relevant financial documentation about his or her financial means. I say this because the decision of the judge on a fee waiver request is final: AJA, s. 4.4(9). The rules of court do not apply to a fee waiver request made to a judge, so the decision made by the single judge will not be reviewable by a full panel of the court: AJA, s. 4.8.

THE FEE WAIVER REQUEST IN THE PRESENT CASE

[19] In the present case, Godwin Diogu requests a fee waiver in respect of his notice of appeal from the order of Penny J. In that proceeding by the Attorney General of Ontario under the Civil Remedies Act, 2001, S.O. 2001, c. 28, the application judge granted an application for the forfeiture of CDN $25,610 and US $80 on the basis the funds were either the proceeds of unlawful activity or an instrument of illegal activity. Mr. Diogu took the position that the funds were owned either by himself or Mr. Chidi Chinagrooom. The motion judge did not accept his evidence.

[20] Mr. Diogu wishes to appeal that judgment on several grounds: (i) the seized funds were not the proceeds of crime; (ii) the judgment was based on the improper application of the facts and law and, therefore, was wrong; and (iii) "further reasons to be provided".

[21] The registrar has referred Mr. Diogu's fee waiver request to me for consideration.

[22] Mr. Diogu has provided some information about his financial means in his affidavit. He states that he is "presently unemployed because [his] work authorization application is pending." He lives with his wife and lists their net annual household income from employment at $11,000, but he attached 2016 T4s for his wife that show only about $175 in employment income. He lists their household assets as zero; he did not file any documentation about bank accounts or any other asset.

[23] I must assess the statements in Mr. Diogu's fee waiver affidavit in light of other information about his financial means contained in the application judge's reasons. According to those reasons, Mr. Diogu filed evidence on the application that he was an inspection engineer and in 2013 earned annual income net of tax of $40,000. He also had a Canadian dollar bank account and a credit card. He received transfers of US dollars, and he bought used cars for export to Nigeria.

[24] The evidence Mr. Diogu placed before the application judge paints a much different picture of his financial means than shown by his fee request affidavit. Mr. Diogu has not provided me with any explanation that reconciles the statements he makes on this fee waiver request about his current financial means with the evidence he placed before the application judge about his prior employment in Canada, annual income, and use of bank accounts. As a result, I am not persuaded that Mr. Diogu lacks the financial means to pay fees relating to his appeal.

DISPOSITION

[25] Mr. Diogu is not entitled to a fee waiver certificate.

Released: March 22, 2017

"David Brown J.A."