Court File and Parties

Court File No.: 00-CV-195388 Date: 2019-08-27 Ontario Superior Court of Justice

Between: D!ONNE RENÉE FRANCIS, Plaintiff – and – LEO A. SEYDEL LIMITED operating as CANADIAN TIRE ASSOCIATE STORE #126, Defendant

Counsel: D!ONNE Renée Francis, self-represented Emily Schatzker and Erica Lewin, counsel for the Defendant

Heard: May 28, 2019 and June 28, 2019

Before: G. Dow, J.

Reasons for Decision

[1] The plaintiff’s motion sought a variety of relief detailed in the plaintiff’s notice of motion. I would summarize the relief sought to be:

1. payment of advanced legal costs by this defendant in preparing for proceedings in this and other matters;
2. immediate and ongoing payment of complete living expenses such as debt free housing and home care, ongoing treatment and assistive devices, food and meal preparation as well as all transportation estimated at $33,000.00 per month;
3. reimbursement of social services and other health care expenses incurred or paid to the plaintiff since August 4, 1999;
4. waiver of compliance with the Rules of Civil Procedure;
5. (ongoing) accommodation to ensure access to justice;
6. anonymizing the title of proceedings;
7. renewal of the plaintiff’s driver license without any expense to her or need to comply with any Ministry of Transportation requirements; and
8. investigation by the court including retaining appropriate experts to evaluate and recommend the elimination of racism, and or discrimination, misogynoir and intersectional identities in civil litigation based on the plaintiff’s rights pursuant to the Canadian Charter of Rights and Freedoms.

[2] This motion was scheduled to proceed with the plaintiff being accommodated in the court room and permitted to call and give evidence viva voce.

[3] I began hearing the motion scheduled for one day on its return date, May 28, 2019. I heard evidence from Professor Rinaldo Walcott followed by evidence and submissions from the plaintiff until the end of the court day. I endorsed the Motion Record at that time that this matter had not been completed and a further one half day would be arranged to allow the plaintiff to complete her evidence and submissions. This was mindful of counsel for the defendant requiring one hour of that time to make responding submissions.

[4] On June 28, 2019, the balance of the plaintiff’s evidence and submissions were heard. I made repeated suggestions and cautioned the plaintiff to utilize her available two hours with consideration for the opportunity to make reply submissions. The plaintiff chose instead to continue with her evidence and submissions during the entire two hours allotted for her. This resulted in her not having any time left for reply submissions.

[5] At the outset of the continuation of the motion on June 28, 2019, I dealt with the notice given to me and copied to the plaintiff the previous day, that defence counsel had learned the plaintiff’s counsel most recent lawyer of record was no longer administratively suspended. This counsel attended at the pre-trial on May 18, 2018, the transcript of which was before me. That transcript contained information plaintiff’s counsel was to be administratively suspended and this occurred effective May 22, 2018. As neither defence counsel nor I were aware this counsel had obtained an order removing himself as the plaintiff’s solicitor of record, nor had the plaintiff served or filed a Notice of Intention to Act in Person, I concluded this information was entirely appropriate to consider. The defence counsel had also learned that this counsel was unaware of the plaintiff’s motion and was not available to attend court on June 28, 2019.

[6] Defence counsel had printed and provided the court with a copy of the Law Society of Ontario’s Lawyer Contact Information page confirming that the plaintiff’s counsel’s status as of June 28, 2019 was “In Private Practice”.

[7] The plaintiff objected to the use of or reliance on this information. The plaintiff expressed her desire to proceed with her motion representing herself and I permitted her to do. I did so after describing to her she may benefit from the assistance of her counsel.

[8] In support of the relief sought by the plaintiff, she called Professor Rinaldo Walcott to give evidence. Dr. Walcott (as he preferred to be called) was tendered to give expert opinion evidence in using and applying an equity lens to black woman, “misogynoir, Black creative, intersectionality of multiple identifiers (including disability) who are disadvantaged marginalized, and discriminated against in society due to structural and societal inequities.”

[9] Dr. Walcott teaches at the Ontario Institute for Studies in Education in the field of gender studies. As the defendant was not opposed, I permitted him to give such evidence.

[10] Dr. Walcott is a volunteer member of the Board of the Black Legal Action Center. The only funder of that entity is Legal Aid. Its purpose is to support low income individuals. It started about two or three months ago with a view to taking on test cases.

[11] The Legal Aid Services Act, S.O. 1998 c. 26 at subsection 13(3) (c) prohibits providing legal aid services “in proceedings for the recovery of a penalty where the proceedings may be taken by any person and the penalty in whole or in part may be payable to the person instituting the proceedings.”

[12] While not in his curriculum vitae, Dr. Walcott’s book entitled: “Black Life” was released in June, 2019. This follows up on his earlier book, “Black Life Who” which examined the way in which black people are understood in society.

[13] Dr. Walcott has examined anti-black racism, particularly after World War II and the ways it has shaped the country. The focus is on how there is a continued promotion of exclusion and in particular how this fails black people. The lives of black people are examined in a larger discourse. How this affects the judicial system is a different question. There is also consideration for non-whites being racist against blacks.

[14] Dr. Walcott has also examined “intersectionality”. He has examined race, gender and disability in this regard as it pertains to black people. How blacks perceive their own beauty, speech and behaviour differs from other races. In this regard, Dr. Walcott opined the current state of black women with disabilities in Toronto and the GTA, are that 40 to 45% of such individuals are living below the poverty line. This compares unfavourably with all other races aside from indigenous persons. Black females earn less than other races with the same education. According to Dr. Walcott, it is not just white versus black issues but includes other races views of blacks. Blacks are considered less desirable as friends and neighbours.

[15] Dr. Walcott was aware of the United Nation’s Declaration for people of Africa and African descent including a reparations movement. Whites are viewed as colonial masters with greater access to resources and institutions. What is needed is an equitable response by society in ways to engage society.

[16] Blacks are protected under Section 15 of the Canadian Charter of Rights and Freedoms and Human Rights Code. Section 24 of the Charter provides for those who have been infringed or denied rights of freedom to apply to a court of competent jurisdiction to obtain a remedy which the court considers appropriate and just in circumstances. Section 15 of the Charter also confirms equality before and under the law without discrimination.

[17] Dr. Walcott opined on equality verses equity, the former being an ideal grounded in the notation all have an equal playing field. Getting there is almost impossible. Equity is the only way to ensure all start from the same place. For example, an individual of lesser than average height, for example 4 feet, may need to stand on a bench versus the floor to have the same view. The goal is to bring people closer together.

[18] In response to whether there is reverse racism, Dr. Walcott refuted same given the power dynamic or alternatively described as blacks not holding that amount of power in society which could make that possible.

[19] With regard to black women with disabilities before the courts, an equitable measure may require an extraordinary remedy such as an assistant for that individual.

[20] Dr. Walcott was asked for non-black’s impressions of blacks which was objected to and I sustained given his expertise was limited to the impressions by and of blacks in society. Applying an equity lens to anti-black racism requires understanding. It was admitted that some non-blacks have this expertise and are aware of the “structure of whiteness”. A sober look of how society is organized, that is, who benefits and who experiences life in the way it is expected has found black women to have different expectations than others.

[21] Misogynoir deals specifically with a black woman’s experience. Black creatives examine how they fulfil their role and identity. People do not understand how blacks engage with each other within their community. It is essential to understand how these individuals reach the boundaries of blackness to the point non-black people are aware of same.

[22] Dr. Walcott opined black people, particularly poor black people are under-represented by counsel in the courts. This is a problem to be recognized but he did not know what the remedy would be. Dr. Walcott’s focus was on ensuring access to justice. Not having representation undermines the ability to access justice and is a barrier. Participating in the court system is an alien experience for unrepresented, disabled, black women.

[23] In cross-examination, Dr. Walcott confirmed not having any legal background. His bachelor’s degree was in English Literature and his master’s was in sociology and education. He has never taught legal courses. His participation on the Board of Black Legal Action Committee does not handle cases itself. Any studies he has conducted has not been as a member of that Board. He has not been specifically involved in personal injury law within the civil litigation field. He is not a scholar on the Charter.

[24] In re-examination, the Black Legal Action Center has only been open for 2 ½ months. There was a feasibility study done before and they are bound by their funding agreement.

[25] Dr. Walcott’s curriculum vitae was tendered as Exhibit 1 and the plaintiff testified and submitted the professor attended at a cost of $3,500.00 (with no receipt provided).

[26] Exhibit 2 was the affidavit of Professor Julie Macfarlane, sworn May 11, 2019. Professor Macfarlane teaches in the Facility of Law at the University of Windsor. Her affidavit attached the executive summary of her final report entitled: The National Self-Represented Litigants Project: Final Report. This was a study funded by the Ontario, Alberta and British Columbia Law Foundations and questioned 259 self-represented litigants about their experiences and impressions with regard to representing themselves in the courts of those provinces.

[27] Professor Macfarlane found self-represented litigants faced obstacles, experienced stress causing health consequences and a legal system that was complex and difficult to understand. This was despite various levels of education amongst the litigants, including university graduates. Professor Macfarlane opined varying skill levels existed amongst court staff and the bench in assisting self-represented litigants. The professor’s study noted “consistently negative experiences” and “eroding public confidence in the Canadian justice system” (at paragraph 13). Self-representation is a last resort rather than a choice and the system is considered inaccessible by these litigants. A concern was noted about the perception by these litigants of bias against them within the court system.

[28] In addition, these problems are exacerbated when the self-represented litigant was a person with physical or mental challenges requiring accommodations. The cost of obtaining this evidence was noted by the plaintiff to be $7,500.00 (without a receipt provided).

[29] Exhibit 3 is the May 23, 2019 letter to Justices Archibald and Firestone which attached the plaintiff’s Notice of Motion and 131 pages of rough notes as well as Exhibits 1 and 2. It confirmed accommodations were being provided to permit the plaintiff’s participation. It confirmed reference would be made to the court’s Case History Report and the pre-trial conference transcript.

[30] Exhibits 4 and 5 were printouts of the Ontario Disability Support Plan (“ODSP”) and payments made to the plaintiff from July 27, 2009 to May 31, 2019 totaling $194,864.35.

[31] The plaintiff’s viva voce evidence and submissions which supported the relief she was seeking can be summarized as follows.

[32] The reasons and order of Master Dash, September 29, 2015 which dealt with the defence motion to dismiss the action for delay, or alternatively, restore the action to the trial list and the procedure to be followed in the conduct of defence medical examination of the plaintiff was reviewed. The reasons include describing this cause of action when “a heavy box fell from a shelf striking her on the head” (at paragraph 1) while in the defendant’s store. The resulting physical, cognitive and psychological injuries were exacerbated by:

1. a November 24, 2000 alleged assault and false imprisonment by Peel Police;
2. an October 13, 2002 motor vehicle accident which included a disputed claim for statutory automobile accident benefits with proceeded to arbitration;
3. procedural disputes after the action was initially set down for trial in January, 2007 and included how defence medical examinations were to be conducted, compliance with outstanding undertakings and the manner in which previous counsel acting on behalf of the plaintiff would provide a copy of its file to the plaintiff (at paragraphs 5 to 9 of that decision); and
4. Master Dash seizing himself of all motions within the Master’s jurisdiction in the action as of December, 2008.

[33] The plaintiff testified and submitted there has been a previous judicial finding that she is impecunious. This was noted in the endorsement of Justice H.J.W. Siegel in February, 2005 in which an order dismissing the plaintiff’s action for failure to pay a costs award was set aside (at paragraph 12).

[34] The plaintiff also testified and submitted this case was of public importance given the need to protect woman who make up one half of the population and black women whom the plaintiff estimated to be 10 to 15% of that group. The plaintiff has also identified herself as hidden homeless given the plaintiff has been moving from friend’s place to friend’s place for short stays as well as the plaintiff’s parents home outside Toronto where there are ongoing disputes and abuse involving the plaintiff’s father. This conflict exacerbates her ongoing condition.

[35] The plaintiff testified and submitted that payments made from the public purse, whether it be in the form of student loans, social assistance or treatment covered by OHIP were the result of the negligence of the defendant and ought to be reimbursed to the institution which incurred that cost. The plaintiff acknowledged having raised what I would term subrogation with Ontario Disability Support Program (“ODSP”) officials and acknowledged there is no statutory or legislative provisions for same (unlike OHIP payments). The plaintiff analogized the situation to victims of motor vehicle accidents and the creation of statutory automobile accidents benefits to assist members of the public in accessing the treatment required immediately after the accident or when such treatment is needed the most.

[36] The plaintiff testified and submitted suffering from severe depression, and a head injury which makes word finding sometimes difficult and can cause the plaintiff’s mind to go blank. The plaintiff was previously an effective public speaker but is now fearful of same. The plaintiff must work harder when taking in information. However, subsequent to the events of August 4, 1999 the plaintiff admitted having been a candidate and campaigned for elected municipal office.

[37] The plaintiff testified and submitted the only expert on the plaintiff is the plaintiff. The plaintiff is also an expert on racism because of having faced it so often. Thus, the plaintiff finds it immediately recognizable. The plaintiff testified and submitted about counselling being received with regards to depression and hopelessness but not being suicidal. The plaintiff testified and submitted religious faith provides assistance.

[38] With regard to the transcript of the pre-trial conference, the plaintiff testified and made submissions about what was stated at that time, particularly the comments exchanged between the pre-trial judge and defence counsel on the issue of liability. This was contrary to Rule 50.09 which states “No communication shall be made to the judge or officer presiding at the hearing of the proceeding or a motion or reference in the proceeding with respect to any statement made at a pre-trial conference, except as disclosed in an order under rule 50.07 or in a pre-trial conference report under rule 50.08”. Rules 50.07 and 50.08 deal with organizing the trial and making such orders necessary to achieve, and to quote from Rule 50.01, “the just, most expeditious and least expensive disposition of the proceeding”.

[39] In this motion, the plaintiff sought to rely on comments about the issue of liability, which if accepted, would support the plaintiff’s position for payment of some of the expenses incurred in advance of the trial (or a judgment). To that end, having read the transcript in its entirety and as part of accommodating the plaintiff as a self-represented individual not familiar with the rules and the purpose of such rules, I find the comments by the presiding judge and defence counsel were precisely the kind of without prejudice, candid comments about the key issues in this case that forms the basis for why the non-disclosure aspect of the rule exists and why the pre-trial judge cannot be the trial judge. For clarity, the plaintiff testified and submitted that the pre-trial judge stated “damages - - nature and extent of the damages are the only thing to be tried” (at page 11). The balance of the exchange between the pre-trial conference judge and defence counsel was that instructions from the client are required in this regard.

[40] The plaintiff’s rough notes raised prejudice to the plaintiff if she does not have legal representation. The plaintiff testified and submitted that there is a counsel who would go on record if the order being sought for advance payment of costs was granted. However, as stated above, the plaintiff challenged the suggestion her current counsel was able to practice and could be of assistance.

[41] The plaintiff testified and relied on various media reports in 2012 to the present which raised concerns about access to justice and confidence in those making decisions interpreting the laws made by legislators. The plaintiff testified and relied on the duration of this litigation and the conduct of the defendants as the sole cause of the delay in this matter proceeding to trial. There was no detailing of any of the time spent as noted in the Case History Report of the process and time involved with the multiple previous counsels for the plaintiff removing themselves as solicitor of record, adjournments of proceedings requested by the plaintiff or the plaintiff’s failure to comply with previous court orders which gave rise to the defendant’s motion to dismiss the action or enforce compliance.

[42] In conjunction with the rough notes filed, the plaintiff testified and submitted that the Canadian Charter of Rights and Freedom requires an examination of “the history of Eurocentric and racist policies and exclusionary practices that continue to have impact on individuals and communities” (at page 44). The current court justice system is “modern day enslavement” (at page 45). I was asked if it was possible for me to fairly judge this matter given the existence of what was described as “white supremacy” (at page 46) and “in this case where anti-Black racism, misogynoir and ableism and ageism may further impact this litigant” (at page 50). Further, the plaintiff submitted “a Black not articulate enough to express themselves is feigning injury – a Black person articulate enough to express themselves is feigning injury - there is no chance” (at page 51).

[43] I was challenged to give wide application to Section 15 of the Charter and Sections 96, 97 and 98 of the Courts of Justice Act, R.S.O. 1990, c. C43 with the stated power to give equitable relief as is just.

[44] The plaintiff made reference to the decision Eaton v. Despont referenced in her rough notes (at pages 41 and 91) providing only the citation. It was submitted the case was authority for ordering advance costs. Defence counsel sought and I granted a ten minute adjournment (as part of the defendant’s 60 minutes) to allow access to and review of the reasons. Upon resuming court, counsel for the defendant disagreed with the submission of the plaintiff.

[45] Following submissions and as part of preparing these reasons, I reviewed the reasons of Justice Jennings within Eaton v. Despont, supra which is entitled “Costs Endorsement”. My review of the decision is that it deals with the cost consequences of a dismissed motion for summary judgment by the Despont defendants and whether the successful party was entitled to a higher amount of costs, being substantial indemnity as opposed to only partial indemnity. What was central to the issues before me was that Justice Jennings was dealing with an award of legal costs after the outcome of the motion (and not before as the plaintiff seeks before me). Also, after reviewing the legal analysis Justice Jennings made a determination on the costs to be awarded, leaving part of the decision, being the costs of expert fees, to the trial judge. As such, it does not assist the plaintiff.

[46] The defendant’s evidence consisted of an affidavit of an associate of the firm acting for the defendant. It was sworn October 31, 2018 and filed November 14, 2018 (according to the Case History Report) with an affidavit of service on the plaintiff sworn November 1, 2018. When counsel for the defendant made reference to this evidence, the plaintiff objected on the basis she had not reviewed the evidence and wished to cross-examine the deponent. I explained to the plaintiff those steps were available from receipt of the materials months previously and I was unwilling to permit this request at that moment of the proceedings, being after commencement of the defendant’s submissions. I also explained again to the plaintiff I was unable to hear any reply submissions given the plaintiff had used all the time made available to the moving party in giving evidence and making submissions.

[47] In the face of that ruling, the plaintiff raised whether there was any point in remaining in the court room. I advised the plaintiff I would not compel her to remain but urged the plaintiff to do so. The plaintiff stated that giving my urging, the plaintiff would (and did) remain.

[48] The evidence of the defendant noted an action was commenced in 2001 regarding an alleged police assault on November 24, 2000 which was ordered to proceed to trial with this action. However, that action was dismissed for delay and an appeal of that order dismissed by the Court of Appeal on June 8, 2017.

[49] The defendant’s evidence also included the endorsement of the pre-trial conference judge which indicated the plaintiff intended to assert a claim for punitive damages. The insurance policy that provided indemnity for the existing claims of the plaintiff would not extend to that head of damage. The pre-trial judge noted the plaintiff’s position was “regrettable since liability for the incident is not really an issue, and the case could proceed to trial on damages only” (at paragraph 11 of the affidavit of Erica Lewin sworn October 31, 2018). I must conclude the endorsement takes precedence over any and all comments and statements made in the transcript of the pre-trial conference. As a result, I have determined that despite the evidence relied on and submitted by the plaintiff, no formal admission has been made on the issue of liability or determined by this court.

[50] Finally, the defendant’s evidence summarized the various costs awards made in favour of the defendant against the plaintiff. It also includes the decision of Justice H.J.W. Seigel, February 28, 2005 that, given the plaintiff’s impecuniosity, costs awards in favour of the defendant “under any outstanding cost orders shall be payable upon determination of the action by a trial judge or other final disposition of this action” (at paragraph 12).

[51] I note these events, in part, because while civil personal injury cases regularly take many years to reach trial, the almost twenty years which has passed since the plaintiff’s cause of action arose is of great concern. It does not, however, change my obligation to determine this interlocutory matter on its merits.

Analysis

[52] I was provided with no legal decisions which supported the relief sought by the plaintiff except with regard to payment of “advance cost” or “to pay for a lawyer with expertise in civil litigation to take this matter (head injury 1999) to trial” (from paragraph 1a.i) of the Notice of Motion. The plaintiff supported the balance of the relief sought by reference to an application of Section 15 of the Charter and Sections 96, 97 and 98 of the Courts of Justice Act, R.S.O. 1990, c. C43, supra.

[53] For guidance on the law, following submissions, I referred myself to Law v. Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 where the Supreme Court of Canada examined the claim by a 30 year old woman without dependent children or disability who was denied Canadian Pension Plan Survivor benefits given her age. This decision provided a general approach and guidelines to evaluate relief sought by application of Section 15 of the Charter. The general approach focuses upon three central issues:

1. whether a law imposes differential treatment between the claimant and others, in purpose or effect;
2. whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and
3. whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee (at paragraph 88).

[54] Here, with regard to the first central issue, I would describe the law to be the payment of damages, subrogated claims or even expenditures from the public purse (ODSP) by the defendant in advance of the trial or judgment. The differential treatment between the claimant and others I would describe as self-represented visible minority female litigants with personal characteristics needing accommodations in personal injury actions with, at its widest, represented individuals not requiring accommodations in personal injury actions. To that end, and mindful of the evidence tendered by the plaintiff including submissions about systemic problems with the justice system, its rules and procedures, I am unable to conclude the group which the plaintiff represents is being discriminated against with regard to the need to provide payment to third parties or the plaintiff in advance of a trial and judgment.

[55] Our system of deciding personal injury negligence disputes (which are regularly litigated in this court) is predicated on tendering evidence to persuade the trier of fact on a balance of probabilities of the liability of another for the damages which have occurred and the proper amount of those damages. Personal injury compensation arising from the negligence of another is an individualized assessment. Each plaintiff, regardless of any of their personal characteristics, has their damages assessed in a manner which reflects what has occurred to that plaintiff and what losses or losses the plaintiff has suffered (and will continue to suffer). It takes into account, based on the evidence tendered, all the concerns and losses raised by the plaintiff. It is also a foundation of our system of personal injury negligence compensation that the defending party has the opportunity to test that evidence and tender its own evidence before the imposition of any award, penalty or judgment. It does not form a basis for the payment in advance of a judgment of such amounts.

[56] While it is understandably of great importance to the plaintiff, this civil personal injury matter is not a matter of public importance or within the narrow class of cases where such an extraordinary exercise of the court’s power is warranted. Having failed to meet the test in the first central issue to be determined, it is not necessary to address the other two central issues.

[57] With regard to claims for payments to provide the plaintiff with a portion or all of her ongoing or required living expenses and treatment, given the existence of universal health care and other social assistance programs which are intended to support members of society that are at a disadvantage whether financial, physical or cognitive (albeit of minimum levels), I am unable to conclude the plaintiff is the subject of discrimination whether systemic or specific. As a result, Items 1 a. ii) through ix) in the Notice of Motion are dismissed.

[58] Some of the relief sought by the plaintiff extends beyond the parameter of causes of action and damages sought as a result of the alleged tort committed by the defendant. I am not prepared to exercise any inherent jurisdiction or power I have to make an order for the relief sought in paragraphs 1.e., f., and g. (in its entirety) in the Notice of Motion. The request for that relief is dismissed. Further, this reasoning applies to the portions of paragraph 1.a.i) with regard to legal matters other than this action. It is also dismissed.

[59] With regard to the relief sought in paragraphs 1 b., c. and d. of the Notice of Motion, I decline to fetter those sitting on this matter in the future as to how best ensure fairness and justice to both parties. On certain issues or events, the plaintiff may or may not require accommodation or waiver of formalities imposed by the rules and procedure to be followed. In my view, taking an event specific course of action best ensures the plaintiff’s participation in and access to justice. I observed the plaintiff was capable of sitting at the counsel table on both May 28 and June 28, 2019 for extended periods of time making articulate submissions. The plaintiff was capable of questioning witnesses both in chief and re-examination. The plaintiff was able to prepare, serve and refer to, as well as rely on, documents in support of the relief sought in the Notice of Motion. The plaintiff was able to clearly state her limitations with regard to word finding and loss of train of thought (which occurred very infrequently). These requests for the relief sought are dismissed.

[60] In evidence and submissions, the plaintiff raised whether universal legal care should be instituted to ensure fair access. I would conclude that such a step, given its parameters, is for legislators and beyond what the judiciary should consider. Given the plaintiff’s reference or analogy to statutory automobile accident benefits as a means to ensure equity and access, I note these benefits are “statutory” and not judicial. I would also take judicial notice of the efforts made in the statutory automobile accident benefit system to allow for self-representation as well as provide for disputes over entitlement. Further, such disputes are determined by a non-partisan administrative tribunal with appeal rights to the courts.

[61] I also decline to anonymize this proceeding because I heard no evidence or convincing submissions supporting same.

[62] Regarding the request for payment of the plaintiff’s legal fees to carry on with the case and proceed to trial, there is both legal and legislative precedent for same. This was the focus of the evidence and submissions before me.

[63] The legislative power is found at Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C43, supra, which extends wide discretion to the court with regard to “by whom and to what extent the costs shall be paid”. Both parties relied on British Columbia, (Ministry of Forests) v. Okanagan Indian Band, 2003 SCC 71 where the Supreme Court of Canada upheld an order for payment of legal costs by one litigant to another “prior to final disposition of a case and in any event of the cause” (at paragraph 1).

[64] The dispute giving rise to that decision involved members of the indigenous respondents logging on Crown land which resulted in a stop work order being served on them by the applicant-provincial ministry. The indigenous respondents raised a constitutional question challenging the authority to issue the stop work order and the provincial ministry applied to have the matter proceed to a trial. That process would be a protracted and expensive event.

[65] The Supreme Court of Canada upheld the British Columbia Court of Appeal allowing the claim for funding of the legal expense in advance of the finding or determination of the issue in dispute. The Supreme Court of Canada noted the following to exist. The jurisdiction of our courts includes the right to order legal costs payable by one party to another, usually in favour of the successful or deserving litigant, payable by the loser. Costs are not payable for the purpose of assuring participation in the proceedings (at paragraph 20).

[66] The modern approach to costs includes consideration and policy objectives to ensure the proper balance between the court’s needs to oversee “its own process and ensuring litigation conducted in an efficient and just manner” (at paragraph 26).

[67] A relevant consideration in determining costs is access to justice where “in highly exceptional cases involving matters of public importance the individual litigant who loses on the merits may not only be relieved of the harsh consequences of paying the other side’s costs, but may actually have its own costs ordered to be paid by a successful intervenor or party” (at paragraph 30). The discretionary power to award costs extends to interim costs in the rare case where all of the following conditions must exist:

1. the party seeking the order must be impecunious and would not be able to proceed with the case without the order;
2. the claimant must establish a prima facie case of sufficient merit to warrant pursuit of their legal remedy; and
3. “there must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate” (at paragraph 36).

[68] The kinds of cases identified in that decision extended to where a law firm successfully acted on its own behalf, where public interest and access to justice was forefront and in certain matrimonial, trust, bankruptcy and corporate cases where unfairness was to be avoided. No mention was made of personal injury claims.

[69] In applying the law to the facts, I find it important to note the comment by the Supreme Court of Canada that a contingent fee arrangement was not feasible in British Columbia (Ministry of Forests) v. Okanagan Indian Band, supra (at paragraph 45).

[70] The situation of funding an impecunious plaintiff in a personal injury matter was addressed in Saunders v. John Doe, 2016 ONSC 2060. Justice Corthorn adopted the three part test set out in British Columbia (Ministry of Forests) v. Okanagan Indian Band, supra. I agree with that approach.

[71] I accept the plaintiff is impecunious. Were this the sole consideration, I would grant the relief for interim advance costs sought. I do not accept the plaintiff as unable to proceed with the case without an order for interim costs. Personal injury litigation is replete with skilled counsel advertising their willingness to take on cases at no upfront cost to the client or on a contingent fee basis. In addition, in this matter, the plaintiff has acknowledged there is a counsel willing to take on the case if the interim cost order is made. As submitted by counsel for the defendant, this was without any evidence, explanation or reason why that counsel would not take on the case without an order for prepayment of costs. Many counsel involved in personal injury matters purchase costs insurance as part of advancing the claims of plaintiffs in personal injury matters and as a means to provide greater access to litigants in circumstances similar to that of the plaintiff.

[72] I accept the plaintiff as has established a prima facie case sufficient to warrant pursuit of her legal remedy, that is, damages. While there may be complicating factors such as intervening events which have occurred, such events are common in contested personal injury litigation. Were this the sole consideration, I again would grant the relief being sought.

[73] Finally, with regard to special circumstances sufficient to satisfy the court this matter is within the narrow class of cases where the extraordinary exercise of the court’s discretion is warranted, after long and careful thought, particularly with regard to the plaintiff’s claims of systemic bias in the justice system against this particular plaintiff or visible minority female litigants, I am not satisfied the evidence tendered meets the requisite legal test of proof on a balance of probabilities. Many individuals with unique gender, cultural or individual challenges and characteristics suffer personal injuries as a result of the negligence of another and access our court system with and without legal counsel.

[74] Dr. Walcott’s research and evidence about anti-black racism and how it affected the judicial system gave no conclusion. The conclusion by Dr. Walcott that poor black people are under represented by counsel did not also conclude the remedy was that sought by the plaintiff for advance costs. I agree with Dr. Walcott that the focus should be on access to the court system. The plaintiff has accessed the system and demonstrated the ability to participate effectively. The plaintiff has been provided with accommodations to support her access and effective participation.

[75] As stated, to go beyond this is for legislators to determine and beyond what the judiciary should consider in private disputes between individuals (or private corporations as has occurred in this matter). There was insufficient evidence to conclude that the existing system is so tainted as to invoke the special circumstances where there should be resort to this extraordinary power of the court.

Conclusion

[76] The balance of the plaintiff’s motion is dismissed. Counsel for the defendant sought costs in the amount of $2,000.00 inclusive of fees, HST and disbursements which I agree is reasonable in the circumstances. I award same (mindful of the previous order of Justice H.J.W. Seigel, February 28, 2005) to the defendant in any event of the cause upon determination of the action by a trial judge or other final disposition of this action.

Mr. Justice G. Dow Released: August 27, 2019