Court of Appeal Decision of the Week

Civil Litigation: Private Litigation, Public Funding

Case: Wang v Alberta (Justice), 2018 ABCA 345 (CanLII)

Keywords: Public Funding; Self-Represented Litigant; Proceedings Against the Crown Act, RSA 2000, c P-25

Synopsis:

Mr. Wang, a self-represented litigant, initiates a claim with respect to the circumstances of his employment and criminal charges which arose between July 8, 1993 and June 9, 1994. He subsequently:

  • notes the Respondent in default; and
  • applies for default judgment.

However, since Mr. Wang’s claim against the Respondent is made out as against the “Ministry of Justice Department Alberta”, the Respondent is improperly named (under the Proceedings Against the Crown Act, RSA 2000, c P-25). As such, Her Majesty the Queen in Right of Alberta (HMQ) applies to set aside the noting in default. An Order is granted to set it aside, and, eventually, Mr. Wang’s entire claim is also dismissed. It is deemed out of time as per the Limitations Act, RSA 2000, c L-12.

The Applicant, Mr. Wang, applies for public funding to appeal. His application is dismissed.

Importance:

In what circumstances can a private litigant obtain public funding for civil litigation? Citing its decision in Said v Alberta (Workers’ Compensation Board), 2018 ABCA 290 (CanLII), the Court of Appeal noted its discretion to provide public funding in private civil litigation is “extremely limited”:

Despite impecuniosity of the applicant, the test requires the underlying appeal to be “very meritorious”: Said at para 6, citing Cutts v Alterra Property Group Ltd, 2014 BCCA 264 (CanLII) at paras 13-17, 358 BCAC 76. (See para. 5).

In this case, the Court of Appeal set out an additional relevant factor (as derived from the Supreme Court of Canada’s reasons in British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 (CanLII)) in considering public funding for civil litigation – proof that the applicant is genuinely unable to afford to pay. (See para. 8).

For the Court of Appeal, Mr. Wang did not meet this test. For instance, he was unable to demonstrate “…why his claim is in time, nor why the noting in default should be set aside given the impropriety of his service on HMQ.” (See para. 7). Moreover, with respect to Mr. Wang’s capacity to pay, the Court of Appeal noted the following:

Mr. Wang has provided some information about his own income, but not his family income, submitting that his wife strongly protests that he should not use any of her income and urges him not to continue with these matters. (See para. 8).

At the same time, the Court of Appeal expressed its desire to facilitate Mr. Wang’s obtaining some “closure” with respect to the events taking place between July 8, 1993 and June 9, 1994:

Although Mr. Wang had counsel in the criminal process and went through a union grievance process, I acknowledge how keenly he feels a sense of injustice from the incidents 24 years ago. However, given the time that has passed and Mr. Wang’s personal financial circumstances, this Court cannot provide Mr. Wang with a resolution of his grievances. As such, I have encouraged Mr. Wang and counsel for HMQ to discuss what, if any, opportunities exist to discuss these issues, with a view to allowing Mr. Wang to get closure from this chapter of his life. (See para. 9).

Counsel for the Applicant: Wei Wang (in person)

Counsel for the Respondent: Christine Nugent (Department of Justice and Solicitor General, Calgary)

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Posted: Wednesday, October 31, 2018