



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Attorney General) v. $25,610 in Canadian
    Currency, 2017 ONCA 251

DATE: 20170322

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 countrys 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 courts 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 courts 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 persons income and, in
    some cases, proof of the spouses 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 persons 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 persons
    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 households liquid assets, and
    the households 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 persons 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
    persons 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 persons 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
    persons 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 persons 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 applicants 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. Diogus 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. Diogus fee waiver affidavit in light of other information
    about his financial means contained in the application judges 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 ("DB")

"David Brown
    J.A."


