Despite inability to pay without undue hardship, no-fee order may be rejected if appeal lacks merit
The Court of Appeal for British Columbia has declined to issue a no-fee order in favour of a party who had sued her former lawyers, finding that the appeal lacked merit.
In Arvanitis v. Slater Vecchio LLP, 2021 BCCA 415, the respondent law firm represented the appellant in a personal injury claim. Unhappy with its conduct, Vicky Arvanitis sued respondent for negligence, which the trial judge dismissed, ordering the appellant to pay costs. In retaliation, Arvanitis posted negative comments online and even contacted current and former clients of the firm.
Slater Vecchio brought a defamation claim against the Arvanitis, which was granted in a summary judgment. Her counterclaim was also dismissed. After the denial of the Arvanitis’ application for extension of time to appeal the order, both parties entered into a settlement agreement for the costs. Arvanitis attempted to pay in cash, but the law firm was “not prepared to accept that form of payment.”
Arvanitis challenged the validity of the agreement before the trial judge, which dismissed the claim for being without merit. In her notice of appeal to the Court, the appellant sought to invalidate the agreement and applied for a no-fee order, claiming that she agreed to the settlement “under severe duress” and was “[unable] to pursue the appeal because she cannot afford the mandated fees.”
Under the Court of Appeal Rules, a no-fee order is available where an applicant shows they cannot afford to pay the mandatory appeal fees without undue hardship, but may be denied if the appeal lacks merit, is scandalous, frivolous or vexatious, or otherwise constitutes an abuse of process.
Despite accepting that she is unable to pay the mandated fees without undue hardship, the Court reviewed Arvanitis’ evidence and concluded that the appeal had no merit. The trial judge was alive to the issues in challenging the settlement agreement, and the appellant had not identified any legal error or error of fact in the decision, said the Court.
“Consequently, I decline to grant a no-fee order,” said Justice Joyce DeWitt-Van Oosten, the author of the Court of Appeal’s decision. “I recognize that doing so may present a substantial hurdle to [the appellant] in pursuing the appeal. However, I see no principled basis for granting the order in light of the governing legal test,” she said.
