Date: 20100419 Docket: Vancouver Registry: S064560 Between: Clay Ronald Stewart Plaintiff And: Attorney General of Canada Defendants Before: The Honourable Mr. Justice Walker Oral Ruling on Indigent Status Application In Chambers
[1] THE COURT: The Attorney General of Canada applies to rescind an order previously made which granted Mr. Stewart indigency status to pursue the within action. [2] An indigency status order will not be granted where the claim discloses no reasonable claim, or is viewed to be frivolous or vexatious, or is an abuse of process. Those issues are not raised on this application. [3] The Attorney General of Canada says there are two bases for its application. The first is that Mr. Stewart’s financial situation has changed since that order was granted, in the sense that he now has income from part-time employment. The second basis is that Mr. Stewart has received a payment of $25,000 on account of settlement from the City of Vancouver (which was formerly a defendant in this lawsuit), and that payment of the settlement funds to Mr. Stewart means he is no longer indigent. [4] The Attorney General also says that Mr. Stewart is choosing not to work in order to pursue the present litigation. [5] Mr. Stewart says that he used all of the settlement funds to pay his outstanding debts. For example, Mr. Stewart borrowed money from his family to pay for costs and expenses associated with this claim. He says he has other debts that he must pay, which are outlined in an affidavit sworn today, April 19, 2010. [6] Mr. Stewart is receiving social assistance benefits. He advises me that he disclosed the settlement payment he received from the City of Vancouver to the Ministry responsible for social assistance benefits, and disclosed to the Ministry the fact that he was, in turn, making payments to satisfy some of his outstanding debts. [7] It is clear that Mr. Stewart no longer has any assets. It is also clear that he still has debts. His current balance at the Royal Bank at Howe and Nelson in Vancouver, where he maintains a bank account, is a negative balance of (minus) three cents. [8] I am not aware of any case law that stands for the proposition that the mere fact that Mr. Stewart received the settlement payment of $25,000 means that he is no longer indigent. [9] The purpose of an indigency status order is to allow a litigant to pursue a claim that he or she would otherwise be unable to pursue due to lack of financial resources: Trautmann v. Baker, [1997] B.C.J. No. 452, 69 A.C.W.S. (3d) 252 (C.A. Chambers). [10] The Attorney General has directed my attention to Tan v. Yukon, 2005 YKSC 19, 16 C.P.C. (6th) 81. In that case, Mr. Tan was viewed to be indigent, despite earning a gross monthly income of $800 (from which he netted $750 per month after taxes) and in circumstances where he had a small debt of about $2,000. That is certainly more money that Mr. Stewart is receiving by way of social assistance at the moment, and is less of a debt load than Mr. Stewart carries. [11] Counsel for the Attorney General submitted that Mr. Stewart is capable of and should be working on a more regular basis. Counsel suggested that it is appropriate to impute $10,000 per year in income to Mr. Stewart. Even if that were so, Mr. Stewart’s gross income would still be at the same level as that earned by Mr. Tan. [12] I also presume that the consideration advanced by counsel for the Attorney General, i.e., Mr. Stewart was failing to work more regularly so that he could pursue this litigation, was considered by the judge who made the original order. [13] I am not persuaded by the evidence that I should make any change to the indigency status order presently applicable to Mr. Stewart. [14] I wish to note, however, that the current indigency status order does not apply to Mr. Stewart's proposed application to add further defendants to this litigation. I leave for determination at a later date the question of whether or not Mr. Stewart's action against any or all of the proposed parties he seeks to add should proceed on the basis that he enjoys indigency status. [15] There will have to be an application brought in respect of Mr. Stewart’s indigency status once the judge who hears the application to add those parties determines which, if any, of those proposed defendants are added as parties to the case. "WALKER J."
Date: 20101012 Docket: S064560 Registry: Vancouver Between: Clay Ronald Stewart Plaintiff And: Vancouver Police Department; City of Vancouver, Pacific Institution, Defendants Before: The Honourable Mr. Justice Walker Ruling on Adjournment Application
[1] THE COURT: Mr. Stewart, this application to amend your statement of claim has been outstanding for a long period of time. There was a date that was originally set in the spring of this year, but it was adjourned when you decided and then informed Mr. Burnet and the Court that you wanted to add additional parties. As a result of that advice, I adjourned your application to amend your statement of claim. Then, approximately about a month ago, you announced your decision to not proceed to add those parties. As a result, we then fixed today’s date to proceed with this longstanding and long awaited application. [2] You have reached a successful compromise with one of the defendants, the City of Vancouver. You have successfully brought one of the three doctors back into the lawsuit and have had the costs awarded against you in relation to the other two doctors waived. At this point it is, in my opinion, inappropriate to adjourn the application for any further length of time simply because you wish to appeal the decision that I gave a few moments ago concerning your application to have a seal placed on the writ of summons. [3] Long before the seal issue arose, you were ready, prepared, and wishing to argue your application to amend your statement of claim. But for your decision announced in the spring of this year to seek to add a number of parties, that application would have been argued and determined before now. [4] You have had a considerable period of time to get ready for this application. You have had more time to file further materials. I see no point in delaying the hearing of the application to amend your statement of claim any further than it has been amended thus far. "WALKER J."
Date: 20101012 Docket: S064560 Registry: Vancouver Between: Clay Ronald Stewart Plaintiff And: Vancouver Police Department; City of Vancouver, Pacific Institution, Defendants Before: The Honourable Mr. Justice Walker Oral Reasons for Judgment
[1] THE COURT: Mr. Stewart applies for the following three orders: to have the Supreme Court's July 14, 2006 seal placed on the original writ of summons; to have the Supreme Court's July 14, 2006 seal placed on the endorsement of the company; and for the Supreme Court of British Columbia to identify when these proceedings were commenced. [2] By way of background, Mr. Stewart sought to commence his action in the summer of 2006. He has pointed me to the Rules of Court that were then extant and has told me that he was well aware of them and the two-year limitation period. He says that he lacked the necessary funds to pay for the filing fee that must be submitted when a writ of summons is tendered for filing. At the time that he sent the writ in for filing without funds, he says that he was told that the seal would not be placed on the writ unless the funds were provided or he obtained an order for indigency status. Mr. Stewart then sought to obtain such an order. His application was rejected. After further modifications, it was eventually accepted and the writ was sealed and issued on December 8, 2006. [3] In the course of his submissions, Mr. Stewart told me that he telephoned the Vancouver B.C. Supreme Court registry on July 14, 2006, and spoke with a registrar. He claims that he was told that he needed the money or the indigency status order before the writ could be issued and the seal placed upon it. He was also told that the seal would not be put on the writ until either of those two events took place. [4] On August 17, 2006, he was advised as follows by Registrar Beagan of the Civil Chambers Registry of the B.C. Supreme Court (concerning his application for indigency status): Your application was sent to a Master for approval, together with your supplementary affidavit, and it has been rejected with the following notation: “Statement of Claim needs to be refined to disclose proper claim.” As this is the second rejection on this file, it will now be closed. I am sending you a blank Writ of Summons and indigent application. If you wish to proceed with this matter, you will have to commence a new file. As I said, Mr. Stewart's application was refused, and then ultimately accepted on December 8, 2006, after he made further modifications to his statement of claim. [5] In this application, Mr. Stewart complains that the writ of summons and statement of claim should have been accepted and the indigency order granted at the time that he submitted it. He says that this is because there is nothing that is different in substance between the original statement of claim and the one that was ultimately accepted. To the extent that this application is essentially an attempt to appeal the decision of a District Registrar or the Master, it is improper at this time because Mr. Stewart did not avail himself of the appeal procedure available under the Rules of Court. [6] I turn now to what appears to be Mr. Stewart's only source of possible merit on the application. He says that although he was aware that the two-year limitation period was about to expire, he received a promise and an assurance from Mr. Brent Messenger of the Civil Chambers Division that he need not worry about seeking the indigency status order until he was released from prison. Mr. Stewart was to be released from prison in early December 2006. He says that he relied on that promise and that it forms the basis for his application to be relieved of the consequences of the Limitation Act, R.S.B.C. 1996, c. 266. [7] In making his submissions, Mr. Stewart drew my attention to a fax transmission document that he sent to Mr. Messenger on August 19, 2009, some years after the impugned series of events. That document reads in part as follows: Mr. Messenger, Good afternoon. As a result of a Summary Trial judgment I am now preparing my factum to appeal Mr. Justice Kellehers judgment to dismiss most of my suit. One of the reasons is that he said I offered no excuse for exceeding the two year limitation. You were helping me at the time and you did tell me to wait until after I was released so you could show me what needed to be done to my statement of claim to make it an acceptable endorsement. I am asking you now if you might assist me to sort out what happened and send me your records from the time my file was opened till the time the Writ of Summons and Statement of Claim was Stamped. I will list what I recall happened and then follow it up with questions I need to know: June 28, 2006 writ of summons and statement of claim arrived at the Supreme Court of BC registry, the City of Vancouver and Pacific Institution. July 14, 2006 file #s04560 [sic] was opened (with a requisition I am now told). Sept, 2006: Your letter explaining the problems with endorsement. Sept, 2006: A revised Statement of Claim (actually, this’d be before that) Sept, 2006 I phone you to discuss the Statement of Claim. You attempt to explain what is required and asked me to just wait until after my release on November 30, 2006, so you can show me what to do. I expressed concern over the two year time limitation deadline arriving on October 19, 2006, and you tell me not to worry about it. You gave me the impression that you had the power and authority to override or at least take care of it. That you might provide me with an ‘excuse’ if required. December 5, 2006 I was at the Supreme Court of BC to see you December 8, 2006 The endorsement gets a green light, I am granted indigent status, and the Writ of Summons finally gets stamped. [8] Mr. Stewart’s communication then posed seven questions. The final question reads as follows: Of course I would like you to respond to why you advised me to wait until after the limitations deadline passed as if it would not ultimately be held against me when it now has been. I require your assistance to at least make sense out of what actually happened here so I can present a viable excuse to the Appeal Court. If you don't actually remember the conversation, or if it threatens your job security, that's fine, but you are here to help me so I would like a response on this so I know what I am working with. Mr. Messenger, I am simply trying to say to the Court of Appeal "wait a minute. I do have an excuse for not having the Writ filed within the two year limit." Can you please see what you have on file related to this and weigh in on what you do remember? You have assisted me in the past but this is where I need you the most. I suppose you are bound by certain rules restraining you from getting involved in certain ways, but when you directed me to wait and assured me the limitations wouldn't be an issue, this had the real consequences for me. I trusted and respected you as a high level operator in the Supreme Court hierarchy. [9] Mr. Messenger wrote back on August 21, 2009: I am writing in response to your faxes submitted to the Vancouver Law Courts on August 19 & 20, 2009. Please note that during our communication in 2006, while you were in custody, I was trying to assist you in filing a proceeding with the court. You indicate in your fax that I advised you not to worry about the two year limitation period approaching. I can confirm, that at no time did I advise you not to worry about the limitation period. I also note that on August 29th, 2006, I corresponded with you and indicated that a Duty Master reviewed your indigent application and directed you to refine the Statement of Claim. You resubmitted a new application. Following that, I sent you a letter on October 17, 2006 indicating that the Duty Master reviewed and denied your indigent application and Statement of Claim, as it was not proper in form among other things. Sincerely, Brent Messenger Deputy District Registrar, Manager In-Court Operations. [10] What, then, did the letter of October 17, 2006 state? It is important to look at that letter because the two communications that I have just referred to were written some years after the fact. The letter is the only piece of objective evidence extant in the proceedings in relation to the events in issue. The letter is from Mr. Messenger, who was then Manager of Civil Programs, to Clay Ronald Stewart. It was sent care of the Fraser Regional Correctional Centre. It is dated October 17, 2006. It reads as follows: Re: Application for Indigent Status. I am writing in pursuant to your application for indigent status. The material that you provided to this registry last week was referred to a Duty Master. The Duty Master reviewed the application and refused it. The reason provided is the Statement of claim is not in proper form as among other things. It pleads evidence contrary to the rules. As I have previously advised you, I suggest that you seek legal advice before resubmitting your application. Brent Messenger Manager, Civil Programs [11] The argument that Mr. Stewart advances is detrimental reliance. There is no indication in any of the objective evidence surrounding the events or time period in question that Mr. Messenger purported to waive the limitation issue or that it would be held in abeyance. The only letter to that effect is a letter that Mr. Stewart sent in August 2009. Mr. Stewart has not satisfied me that the assurance or promise was made by Mr. Messenger. Even if it had been, the case law is clear that I cannot relieve Mr. Stewart of the consequences of the Limitation Act on that basis. [12] In Re Granger and Employment and Immigration Commission, 29 D.L.R. (4th) 501 at 505 (F.C.A.), Pratte J. had the following to say about statements made by bureaucrats that are relied upon by litigants that seek to circumvent the clear requirements of statutes: ... The applicant's real complaint against the umpire is not that he infringed the rules of natural justice, simply that he did not apply equity rather than the law. It is beyond question that the commission and its representatives have no power to amend the law, and that therefore the interpretations which they may give of that law do not themselves have the force of law. It is equally certain that any commitment which the commission or its representatives may give, whether in good or bad faith, to act in a way other than that prescribed by the law would be absolutely void and contrary to public order. The applicant's argument therefore comes down to this: the umpire erred because, so as to avoid causing injury to the applicant, he should have refused to apply the law. Once the applicant's argument is seen in its true light it is clear that it must be dismissed. A judge is bound by the law. He cannot refuse to apply it, even on grounds of equity. [13] In Moulton v. R., [2002] 2 C.T.C. 2395 (T.C.C.), Associate Chief Justice Bowman of the Tax Court of Canada said the following at para. 11: The appellant argues with great conviction that he should be entitled to rely on advice given by the CCRA and relied upon by him in good faith. I agree that the result may seem a little shocking to taxpayers who seek guidance from government officials whom they expect to be able to give correct advice. Unfortunately such officials are not infallible and the court cannot be bound by erroneous departmental interpretations. Any other conclusion would lead to inconsistency and confusion. The only response I can make to what the appellant undoubtedly sees as an unsatisfactory state of affairs is what I said in Goldstein v. R., [1995] 2 C.T.C. 2036 (T.C.C.) at pp. 2045-6. [14] Mr. Stewart has not persuaded me that Mr. Messenger made those assurances and promises. Even if I were persuaded that Mr. Messenger had done so, it is clear to me that Mr. Stewart did not rely on them. During his submissions, Mr. Stewart told me that he sought to have his statement of claim accepted by the registrar so that he could obtain an indigency status order in October 2006, notwithstanding any of Mr. Messenger’s remarks (including those contained in Mr. Messenger’s letter dated October 17, 2006). Mr. Stewart remained well aware of and very concerned about the limitation period throughout. [15] Mr. Stewart's application is dismissed. "WALKER J."
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