Polewsky v. Home Hardware Stores Ltd.

Polewsky v. Home Hardware Stores Ltd. et al.; The Advocates' Society, Intervenor; The Attorney General for Ontario, Respondent (Intervenor) [Indexed as: Polewsky v. Home Hardware Stores Ltd.]

66 O.R. (3d) 600

[2003] O.J. No. 2908

Court File No. 53/2001

Ontario Superior Court of Justice

Divisional Court

Then, E. Macdonald and Czutrin JJ.

July 15, 2003

Charter of Rights and Freedoms -- Equality rights -- Poverty not constituting analogous ground of discrimination under s. 15(1) of Charter -- Prescribed fees for proceedings in Small Claims Court not violating s. 15(1) -- Canadian Charter of Rights and Freedoms, s. 15(1). [page601]

Charter of Rights and Freedoms -- Fundamental justice -- Economic rights -- Prescribed fees for proceedings in Small Claims Court not violating s. 7 of Charter -- Canadian Charter of Rights and Freedoms, s. 7.

Civil procedure -- Access to courts -- Prescribed fees for proceedings in Small Claims Court not in themselves offending common law right of access to courts -- Absence of express statutory provision for waiver of prescribed fees offending common law right of access to courts where indigent person has meritorious claim -- Rule of law and common law right of access to courts compelling enactment of statutory provisions that enable indigent persons to proceed in forma pauperis in Small Claims Court.

The plaintiff brought a motion for a declaration that the Small Claims Court tariff fees for setting a matter down for trial violate ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms (the "Charter"). Alternatively, he sought a waiver of the fees. The motions judge found that in the absence of an express statutory power to waive fees, a Small Claims Court judge has no jurisdiction to do so. She found that there is no constitutional right of unimpeded access to the civil courts and that the fees do not violate s. 15 of the Charter, since poverty is not an analogous ground under s. 15(1). She found that the protections of s. 7 of the Charter are limited to a person's physical and mental integrity and do not protect civil and economic rights. The plaintiff appealed.

Held, the appeal should be allowed.

Section 25 of the Courts of Justice Act, R.S.O. 1990, c. C.43 does not confer jurisdiction on a Small Claims Court judge to waive compliance with the mandatory fees prescribed under the Administration of Justice Act, R.S.O. 1990, c. A.6. Any order declaring the fees invalid or directing the Clerk of the Court to set a matter down for trial without the fee being paid is in the nature of declaratory and injunctive relief. As such, it is outside the remedial jurisdiction of the Small Claims Court unless there is an express statutory provision that gives Small Claims Court judges discretion to waive or reduce prescribed fees. As a statutory court, the Small Claims Court does not have inherent or equitable jurisdiction. The combination of s. 25 of the Courts of Justice Act and rule 1.04(1) and (2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 does not provide a Small Claims Court judge with discretion to waive fees.

The motions judge was correct in finding no Charter violation on the facts of this case. The poor do not constitute an analogous group for the purposes of s. 15(1) of the Charter. Moreover, as the motions judge found, the plaintiff led no evidence to suggest that the absence of discretion to waive fees on the basis of poverty is based on the application of stereotypical notions of the poor or that it has the effect of reinforcing negative or inappropriate views of the poor. There was no evidence to suggest that the fees are meant to withhold or limit access to Small Claims Court for those of limited means or that they have that effect. As for s. 7 of the Charter, the denial of access to the Small Claims Court is not properly characterized as a breach of security of the person. The right to security of the person covers the right to personal autonomy, involving control over one's bodily integrity and freedom from state-imposed psychological and emotional stress. Although the right extends beyond the criminal law and can be engaged in other proceedings, not all state interference with psychological integrity will engage s. 7. For a breach of security of the person to be made out, the state action must have a serious and profound effect on the person's psychological integrity. The type of harm experienced by individuals who cannot pay Small Claims Court fees does not cause sufficiently serious or profound psychological harm to be in violation of s. 7 of the Charter.

Quite apart from the Charter, there is at common law a constitutional right of access to the courts. Small Claims Court fees do not themselves violate this right, but the absence of a provision for the waiver or reduction of prescribed fees where the litigant is indigent and has a meritorious is unconstitutional. The existence of the Rule of Law combined with the common law constitutional right of access to justice compels the enactment of statutory provisions that permit persons to [page602] proceed in forma pauperis in the Small Claims Court. An amendment or amendments should be made within a reasonable period and not later than 12 months from the date of the release of these reasons.

The evidentiary burden necessary to trigger relief in proceedings in forma pauperis is a high one. It was not met in this case as the plaintiff had apparently not disclosed all of his sources of income and there was no means of assessing the merits of his claims.

APPEAL from a dismissal of a motion for a declaration that the Small Claims Court tariff fees are unconstitutional.

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Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 S.C.R. 203, 163 F.T.R. 284n, 173 D.L.R. (4th) 1, 239 N.R. 1, 61 C.R.R. (2d) 189 (sub nom. Batchewana Indian Band (Non-Resident Members) v. Batchewana Indian Band); Egan v. Canada, 1995 98 (SCC), [1995] 2 S.C.R. 513, 96 F.T.R. 80n, 124 D.L.R. (4th) 609, 182 N.R. 161, 29 C.R.R. (2d) 79, 95 C.L.L.C. Â210-025, 12 R.F.L. (4th) 201, affg 1993 2947 (FCA), [1993] 3 F.C. 401, 62 F.T.R. 286n, 103 D.L.R. (4th) 336, 153 N.R. 161, 15 C.R.R. (2d) 310 (C.A.) (sub nom. Egan and Nesbit v. Canada); Eurig Estate (Re), 1998 801 (SCC), [1998] 2 S.C.R. 565, 40 O.R. (3d) 160n, 165 D.L.R. (4th) 1, 231 N.R. 55, 23 E.T.R. (2d) 1 (sub nom. Eurig Estate v. Ontario Court (General Division), Registrar); Falkiner v. Ontario (Ministry of Community and Social Services) (2000), 2000 15904 (ON CA), 189 D.L.R. (4th) 377 (Ont. C.A.) [Leave to appeal to S.C.C. granted [2000] S.C.C.A. No. 297]; Halpern v. Canada (Attorney General) (2003), 2003 26403 (ON CA), 65 O.R. (3d) 161, 225 D.L.R. (4th) 529, 36 R.F.L. (5th) 127, [2003] O.J. No. 2268 (QL) (C.A.), affg (2002), 2002 42749 (ON SCDC), 60 O.R. (3d) 321, 215 D.L.R. (4th) 223, 95 C.R.R. (2d) 1, 28 R.F.L. (5th) 41 (Div. Ct.); Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 2001 21164 (ON CA), 56 O.R. (3d) 505, 56 O.R. (3d) 577, 208 D.L.R. (4th) 577, 89 C.R.R. (2d) 1 (C.A.), revg (1999), 1999 19910 (ON SCDC), 70 C.R.R. (2d) 136 (Div. Ct.); Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1, 236 N.R. 1, 60 C.R.R. (2d) 1, 43 C.C.E.L. (2d) 49; Leopold v. Leopold, [2001] O.J. No. 3355 (QL) (S.C.J.); [page603] MacKay v. Manitoba, 1989 26 (SCC), [1989] 2 S.C.R. 357, 61 Man. R. (2d) 270, 61 D.L.R. (4th) 385, 99 N.R. 116, [1989] 6 W.W.R. 351, 43 C.R.R. 1; New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, 216 N.B.R. (2d) 25, 177 D.L.R. (4th) 124, 244 N.R. 276, 552 A.P.R. 25, 66 C.R.R. (2d) 267, 50 R.F.L. (4th) 63, 26 C.R. (5th) 203; Organ v. Barnett (1992), 1992 7433 (ON SC), 11 O.R. (3d) 210 (Gen. Div.); Polewsky v. Bank of Montreal, [1999] O.J. No. 2606 (QL) (Gen. Div.); Polewsky v. Home Hardware Stores Ltd. (2000), 2000 22652 (ON SC), 71 C.R.R. (2d) 330 (Ont. S.C.J.); R. v. Lord Chancellor, ex parte John Witham, [1997] 2 All E.R. 779 (Q.B.); R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, 63 O.R. (2d) 281, 26 O.A.C. 1, 44 D.L.R. (4th) 385, 82 N.R. 1, 31 C.R.R. 1, 37 C.C.C. (3d) 449, 62 C.R. (3d) 1 (sub nom. Morgentaler, Smoling and Scott v. R.); R. v. Secretary of State for the Home Department and others, ex parte Saleem, [2000] 4 All E.R. 814 (C.A.); Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519, 82 B.C.L.R. (2d) 273, 107 D.L.R. (4th) 342, 158 N.R. 1, [1993] 7 W.W.R. 641, 17 C.R.R. (2d) 193, 85 C.C.C. (3d) 15, 24 C.R. (4th) 281; Spatling v. Canada (Solicitor General), 2003 FCT 443, [2003] F.C.J. No. 620 (QL), 2003 F.C.T. 443 (T.D.); Waxman v. Waxman, 2003 32907 (ON SC), [2003] O.J. No. 87 (QL), 30 C.P.C. (5th) 121 (S.C.J.) Statutes referred to A Mean to Help and Speed Poor Persons in their Suits (U.K.), 11 Hen. VII, c. 12 Administration of Justice Act, R.S.O. 1990, c. A.6, s. 5(c) Canadian Charter of Rights and Freedoms, ss. 2, 7, 15, 24(1) Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 30(14) Constitution Act, 1982, ss. 35, 52 Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 22(1), 23(1), 25, 32(1), 96(3), 109 English Law Act, R.S.B.C. 1960, c. 129, s. 2 Estate Administration Act, 1998, S.O. 1998, c. 34, Sched., s. 4(2) Family Law Act, R.S.O. 1990, c. F.3, s. 3(8) Public Guardian and Trustee Act, R.S.O. 1990, c. P.51, s. 8(3.2) Supreme Court Act, R.S.C. 1985, c. S-26, ss. 1, 59, 97(1) Rules and regulations referred to Federal Court Rules, 1998, SOR/98-106, rules 19, 20, 55 Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 1.04 Rules of the Supreme Court of Canada, SOR/2002-156, rules 8(1), 82, Sched. A., s. 1 Small Claims Court -- Fees and Allowances, O. Reg. 432/93 Small Claims Court Rules, O. Reg. 258/98, rules 1.01, 13.01(7) Tax Court of Canada Rules (General Procedure), SOR/90-688a, rule 9 Authorities referred to Jackman, M."Constitutional Contact with the Disparities in the World: Poverty as a Prohibited Ground of Discrimination Under the Canadian Charter and Human Rights Law" (1994) 2 Rev. Const. Stud. 76 Ontario Law Reform Commission, Report on the Administration of Ontario Courts (The Commission, 1973) Swanson, J., Poorbashing: The Politics of Exclusion (Toronto: Between the Lines, 2001)

Ronald D. Manes and Daina I. Groskaufmanis, for appellant. No one appearing for defendants (respondents). [page604] Raj Anand and Kim Mullin, for intervenor The Advocates' Society. Sean Hanley, for the Attorney General of Ontario.

BY THE COURT: --

[1] These reasons are organized under the following headings:

A. INTRODUCTION AND OVERVIEW (paras. 2-5)

B. BACKGROUND AND HISTORY OF THE PROCEEDINGS (paras. 6-15)

(i) Some Background on Small Claims Court in Ontario (para. 15)

C. PRELIMINARY MOTION (paras. 16-21)

D. MAIN ISSUES (paras. 22-76)

(i) Is There a Judicial Discretion to Waive Small Claims Court Fees on the Basis of Poverty? (paras. 27-44)

(a) Statutory provisions (paras. 29-32)

(b) Proceeding in forma pauperis (paras. 33-44)

(ii) Are the Prescribed Small Claims Court Fees Constitutionally Valid? (paras. 45-77)

(a) The Charter (paras. 45-54)

(b) The common law right of access to justice (paras. 55-73)

(c) The rule of law (paras. 74-76)

E. SUMMARY AND DISPOSITION (para. 77)

A. INTRODUCTION AND OVERVIEW

[2] This appeal is brought by Victor Polewsky, ("Mr. Polewsky" or "the appellant"), from an October 12, 1999 decision of Justice Eileen Gillese (as she then was) [Note 1]. Gillese J. dismissed Mr. Polewsky's motion for a declaration that the Small Claims Court tariff fees are unconstitutional. The challenged fees are the fees to [page605] set a matter down for trial in the Small Claims Court, contained in the regulations established by the Administration of Justice Act, R.S.O. 1990, c. A.6, s. 5(c). The Act authorizes the Lieutenant Governor in Council to make regulations requiring the payment of fees in respect of proceedings in any court and prescribing the amounts thereof. The regulations set the fees and Rule 13.01(7) of the Small Claims Court Rules, O. Reg. 258/98, rule 1.01, compels the payment of the prescribed fee to set a matter down for trial. It reads:

13.01(7) At or after a pre-trial conference, the clerk shall provide the parties with a notice stating that the parties must request a trial date if the action is not disposed of within 30 days after the pre-trial conference, and pay the fee required for setting the action down for trial.

[3] Neither the Administration of Justice Act nor Ontario Regulation 432/93 (Small Claims Court -- Fees and Allowances) make any provision for the waiving of the prescribed fees in any circumstances.

[4] Mr. Polewsky, supported by the intervenor, the Advocates' Society, asks this court to find that the fees violate ss. 7 and 15 of the Canadian Charter of Rights and Freedoms (the "Charter") and the rule of law and are therefore unconstitutional [Note 2]. The Notice of Appeal reads as follows:

The Appellant asks that the impugned Order be set aside and another substituted therefore, reversing the conclusions of Gillese J., (other than those already in the appellant's favour); and conclude that court tariff fees not providing indigent persons access to the courts and to gain redress therein are unconstitutional and of no force