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Court case / Personal Experience / Editorial / Opinion
Standing up for the public interest in the Federal Court can be a lifetime painful learning experience

By CFI Staff
First posted: Tuesday, April 28, 2015 2:48 PM ET
Updated:  Monday, May 19, 2015 7:51 PM ET

Introduction

The information below is in connection with a case that is currently before the court. It is provided to bring to light issues of interest to the public and the administration of the court.

Summary of the case

An ordinary young Canadian, who allegedly suffered from the conduct of an insurance company while claiming health benefits under an insurance policy, filed a complaint to the Privacy Commissioner. Upon investigation, the office of the Commissioner issued a “report of findings” reading, among other things, that they “have concluded that the matter is well-founded and conditionally resolved.”

Under the law, the complainant is entitled to seek remedy in the Federal Court of Canada. The quoted amount for legal representation of the complainant by one law firm is $32,939. The awards which may be applicable to the Applicant are limited to $5,000.

The Federal Courts Rules provide that litigants must be either represented by a lawyer or be self-represented, unless there are special circumstances.

The complainant is a fulltime employee with no legal knowledge and experience that would be of assistance to her in this legal action, and thus is unable to meet the Federal Courts’ demands and is unable to represent and defend her legal rights and interests in opposition to a knowledgeable, trained and experienced lawyer and his legal team – all acting for the Defendants; therefore, at no time did the complainant ever consent or agree directly or indirectly to act as a self-represented litigant in this matter.

A member of Canadians for Integrity (CFI) Dimitre Popov, saw this as another case of citizens being prevented from exercising their constitutional right to justice – a very serious issue of public interest recognized by government officials and our judiciary, including Beverley McLachlin, Chief Justice of Canada, who wrote the foreword to a report published by the Action Committee on Access to Justice in 2013.

The Chief Justice of Canada stated:

“Let me start by saying that the problem of access to justice is not a new one. As long as justice has existed, there have been those who struggled to access it. But as Canadians celebrated the new millennium, it became clear that we were increasingly failing in our responsibility to provide a justice system that was accessible, responsive and citizen-focused. Reports told us that cost, delays, long trials, complex procedures and other barriers were making it impossible for more and more Canadians to exercise their legal rights.”

On behalf of and with the written authorization of the complainant (the “Applicant”), Dimitre Popov filed with the Federal Court of Canada a motion for an order granting him permission to act on behalf of and as a representative of the Applicant.

The noted grounds in the notice of motion are:

  1. The Applicant cannot afford to pay for representation by a solicitor;
  2. The Applicant has no legal knowledge, training, and experience;
  3. It is in accordance with the principals of justice that the motion be granted.

To access the full content of the “notice of motion to represent the Applicant” prepared by Dimitre Popov, click here.

The lawyer, representing with his legal team the Empire Life Insurance Company and one of its employees (the “Respondents”), opposed the Applicant’s motion stating among other things in his affidavit attached to his responding motion record:

“7. The Respondents do object to the Applicant’s request for an Order to have Dimitre Popov (“Dimitre”), the Applicant’s father and a lay person, act on behalf of and as a representative of the Applicant.”

“11. I do verily believe that permitting Dimitre to represent the Applicant would offend the Federal Court Rules and that evidence has not been provided which shows that this is a special circumstance in which the Court should dispense with compliance with Rule 119 of the Federal Court Rule.”

In support to the motion for representation, Dimitre Popov

attached a copy of “Litigation Budget” made by a lawyer from McCague Borlack LLP showing “Estimated Total: $32,939.50” – an amount the Applicant would have been responsible for if the law firm had been retained as a legal representative;

made a reference to the case law Nammo v. TransUnion of Canada Inc. which limits the monetary awards that may apply to the Applicant to up to $5,000;

made a reference to several Federal Courts Rules, including:

“General principle
3. These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.”

“Orders on terms
53. (1) In making an order under these Rules, the Court may impose such conditions and give such directions as it considers just.”

“Varying rule and dispensing with compliance
55. In special circumstances, in a proceeding, the Court may vary a rule or dispense with compliance with a rule.”

In the “Applicant’s Written Representations,” part of the motion record, Dimitre Popov made several points in support of the motion, including

Quoting:

16. An order against the motion for leave to represent the Applicant in the circumstances of this particular case, would

a) Preclude the Applicant from seeking remedies through the justice system for the obvious reason that no reasonable or average person would seek remedies limited to $5,000, “in the most egregious situations” (Nammo v. TransUnion of Canada Inc.), on the condition that they have to pay their solicitor $32,939 (as much as 6 times the amount of the possible remedy). Not to mention that in the event that the Respondents’ solicitor wins the case for his clients, the Applicant could be ordered by this Honourable Court to pay the solicitor tens of thousands of dollars (his expenses and profit) – an outcome that could trigger suicidal thoughts.

b) Be in contravention of the Canadian Charter of Rights and Freedoms which dictates that, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.”

c) Secure victory for the Respondents against whom there is substantiated, compelling, and conclusive evidence that would otherwise establish the Respondent’s liability under the law.

d) Allow the Respondents to evade their legal responsibility.

e) Serve as encouragement for the Respondents to continue with their improper and legally unacceptable conduct and practices – resulting in more members of the public being harmed (given the nature of the corporate Respondent’s business).

f) Bring the administration of the Court into disrepute.

To access the full content of the Applicant’s Written Representations prepared by Dimitre Popov, click here.

To access the attached to the Applicant’s motion record affidavit of Dimitre Popov, click here.

ORDER

Madam Prothonotary (a chief clerk with authority to make orders) Martha Milczynski denied the Applicant’s request to the court for an order permitting Dimitre Popov to act on behalf of and as a representative of the Applicant. Instead, Prothonotary Milczynski ordered that “leave is granted to the Appellant’s father, Dimitre Popov to assist the Applicant throughout these proceedings.”

The court’s permission “to assist the Applicant” was, however, never requested by the Applicant or Dimitre Popov. Further, legal professionals familiar with the Federal Courts Rules have confirmed that a litigant was not required by the Rules to seek court’s permission if she or he wished to be helped by someone who had already agreed to do so.

The Order of Madam Prothonotary Milczynski, as it could be interpreted, compels the Applicant to continue in the legal proceedings as a self-represented litigant in the sense of having to argue her case in opposition to the Respondents’ lawyer and his legal team.

As it has long been recognized by legal professionals, in a proceeding where one of the parties is represented, the other party is equally entitled to representation – the right of representation is meant to ensure procedural equality and fairness.

In the words of a prominent law professor, “adversarialism is about “combat”, and the disadvantage suffered by the unrepresented person facing a trained lawyer is in similarity to pitting an unarmed peasant in a contest against an armed gladiator.

To access the full content of Madam Martha Milczynski’s Order, click here.

APPEAL

Dimitre Popov filed a motion to a judge to appeal the order of the prothonotary.

The Honourable Justice Roger T. Hughes of the Federal Court issued, with regard to the Applicant’s appeal by motion, two separate orders in one day – both dismissing the motion in its entirety.  The reasons he provided for the Orders are:  (1) “the Applicant has not shown a proper basis”, (2) “the Order under appeal is reasonable”, (3) “the matter is not vital to the determination of the issues”, and (4) “the Court does not permit non-lawyers to represent parties in a proceeding.” 

There is no mention made by Mr. Justice Hughes of what criteria or test he had applied to determine that, as a matter of law and fundamental justice, (1) the basis shown was not “proper,” (2) the Order under appeal was “reasonable,” and (3) the matter was “not vital to the determination of the issue.” 

In addition, there is no mention made by Mr. Justice Hughes of any of the most relevant and significant rules or provision/s upon which his Orders were predicated.  Furthermore, he did not provide any reason as to why the rules, statutes and regulations referenced in the motion as grounds for the Applicant’s motion do not apply.

According to legal professionals, the issuance of two separate orders in one day, on one motion, and by one judge was unusual; as a result, Dimitre Popov had to file two separate but identical sets of documents with the Federal Court of Appeal, to pay the court fee twice, and then to file two separate motions with the same content for consolidation of the two appeals – which the Court subsequently consolidated.

To access the full content of Mr. Justice Roger Hughes’s order 1, click here.
To access the full content of Mr. Justice Roger Hughes’s order 2, click here.

FEDERAL COURT OF APPEAL

Alleging that the Respondents’ lawyers had interfered with the Appellant’s ability to properly act in the proceeding, Dimitre Popov filed on 2 (two) separate occasions documents seeking direction from the Court and thereafter a motion for an order.

In return to the Respondents’ responding motion record, Dimitre Popov filed a reply laying emphasis on facts and arguments suggesting that the Appellants motion should be granted.

To access the full content of Dimitre Popov’s reply written representations, click here.

The Honourable Mr. Justice André Scott of the Federal Court of Appeal made an order on the motion in favour of the Respondents.

To access the full content of Mr. Justice André Scott order, click here.

Dimitre Popov filed another motion with the Court for an Order setting aside or varying the Order of Mr. Justice Scott and for de novo consideration of the Appellant’s motion if the order was set aside. Further, Dimitre Popov requested that Mr. Justice André Scott recuse himself from participating in the proceeding alleging that his order was giving rise to the perception of apparent apprehension of bias.

In their responding motion record, the lawyers for the Respondents accused Dimitre Popov of making “disparaging remarks concerning Justice Scott” which they asserted, showed “a disregard for the legal and judicial process by the Appellant and Mr. Popov.”

Dimitre Popov saw the lawyers’ accusations as false and manipulative in an attempt to set The Honourable Justice Scout, or a judge of the Court who will decide on the Appellant’s motion, against the Appellant and her representative Mr. Popov.

To alert the Chief Justice of the Federal Court of Appeal, The Honourable Marc Noël, of these very serious issues, Dimitre Popov filed a letter with the Court addressed to his personal attention.

For a complete and accurate content of the letter sent to the Chief Justice, click here.

In response to the motion to the court to set aside or vary the order of Mr. Justice Scott, and request him to recuse (disqualify) himself from the proceeding because his order, Dimitre Popov argued, was giving rise to the perception of apparent apprehension of bias, The Honourable Mr. Justice Scott wrote:

THIS COURT ORDERS that:
1. The appellant’s motion for recusal is dismissed.
2. The appellant’s motion for reconsideration is also dismissed.
3. Costs for this motion will be fixed in the amount of $250 in favour of the respondent payable in any event of the cause.

For a complete and accurate content of the order of Mr. Justice André Scott, click here.

Whether the appellant will be permitted representation by her father or will be made to continue as a self-represented and argue her case in opposition to the respondents’ lawyer and his legal team will be decided by a panel of three Honourable judges from the Federal Court of Appeal.

Please send a link to this article to those whom you believe it would be of interest to.

 

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ABOUT CFI: Canadians for Integrity (CFI) is a non-profit, non-partisan organization committed to identifying, challenging, and deterring public officials who sacrifice the common good to special interests.