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Federal Court - Fee Waivers

. McCotter v. Canada (Attorney General)

In McCotter v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR dismissal for mootness. In these quotes the court consider federal fee waiver case law:
II. Motion for waiver of fees

[16] As indicated above, the AGC does not oppose Mr. McCotter’s motion for a waiver of fees. In support of this motion, Mr. McCotter cites the following decisions: Spatling v. Canada (Solicitor General), 2003 FCT 443 and Fabrikant v. Canada, 20147 FCA 89 (Fabrikant). Each of these concerns a motion for a waiver of filing fees. In this case, that would be $50 (see item 1(1)(e) of Tariff A of the Federal Courts Rules, S.O.R./98-106) (the Rules). However, Mr. McCotter’s motion appears to go much further than the waiver of filing fees. Though his notice of motion is not clear on the point, the “Order Sought” section of his memorandum of fact and law extends to “any other tariff A or associated fee”, and “funding for an attorney to aid in moving the Appeal of [the Federal Court’s decision] forward without more delays.”

[17] The question of ordering funding for counsel to represent a party is entirely different from waiving fees, and Mr. McCotter’s submissions do not address that question. I will not order such funding based on Mr. McCotter’s motion materials. Likewise, I will not order generally the waiver of all fees as Mr. McCotter seeks. The other fees that Mr. McCotter has in mind are not clearly identified, and I do not intend here to sign a blank cheque. That said, there is a $20 fee associated with a notice of motion for an extension of time to commence a proceeding (see item 1(2)(a) of Tariff A). I will consider the waiver of that fee along with the waiver of the filing fee.

[18] Fabrikant is particularly useful in considering this issue. It emphasized that the waiver of fees is exceptional. As Mr. McCotter recognizes, waiver of fees is available only in “special circumstances”: see Rule 55 of the Rules. The prospective appellant’s right of access to the Court must be balanced against the need to charge fees for services rendered. Fabrikant also noted at paragraph 11 that “only particularized, credible evidence will suffice” to show special circumstances. In the same paragraph, Fabrikant stated that “[i]n general, parties seeking a waiver of fees must describe, with particularity, their financial situation, with specific reference to numbers setting out sources of funding, assets and expenses.”

[19] In my view, Mr. McCotter has understood the requirements for a successful motion for waiver of fees. He has provided detailed information concerning his income, expenses, assets and net worth. I am satisfied that his financial resources are sufficiently limited to justify a waiver of the filing fee in the proposed appeal as well as the fee associated with a notice of motion for an extension of time to commence a proceeding. I will order said waiver.


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