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Killer professor wins waiver of court filing fee

By: Colin Perkel, The Canadian Press

 | Apr 09, 2014 - 3:10 PM |
TORONTO - A notorious inmate serving a life sentence for gunning down university faculty should be able to file an appeal related to his prison conditions without paying a $50 fee given his financial straits, the Federal Court of Appeal has ruled.

Waiving the required fee for Valery Fabrikant won't, as the government argued, open the floodgates for other prisoners crying poor, the court decided.

The decision, which in part cites tracts going back to the days of King Henry VII, notes important principles around access to the courts.

"The court should determine whether to grant a fee waiver based on the above principles and the particular evidence before it, not slippery-slope arguments based on generalizations," Judge David Stratas said in rejecting Ottawa's objections.

Fabrikant, 74, has been declared a "vexatious litigant" for his frequent court actions that followed his murder conviction for killing four academics and injuring a secretary at Concordia University in August 1992.

Ironically, Fabrikand said the fee waiver relates to his view that he was overcharged in 2011 for filing another judicial review under the Federal Courts Act — something he claims has happened to other litigants.

"People were overcharged millions of dollars," he said in an email from Archambault Institution in Sainte-Anne-des-Plaines, Que.

Federal Court spokesman Andrew Baumberg said different fees apply to different court proceedings.

In arguing for the Federal Court of Appeal fee waiver, the former associate professor of mechanical engineering pleaded penury.

"I have been in jail for 21 years by now. My official pay in jail is $52.50 per two weeks. After all deductions are taken, I get $20.93, which I can actually spend," he said in an affidavit.

Phone calls to his family and buying canteen food eat up the $1.40 a day he has to spend, he said.

"The $50 filing fee is just over five weeks net pay for Dr. Fabrikant before he attends to his other expenses," Stratas said. "Those other expenses are significant."

In opposing Fabrikant's request, the government argued that granting the waiver would "create a precedent for almost every inmate."

Not true, Stratas decided.

What's more important, the judge said, is that denying the waiver could mean an entire "class of inmate" could lose access to the courts because of the filing fee.

In fact, Stratas said, it might make more sense for the court to change its rules to exempt particular classes of litigant instead of deciding waivers on a case-by-case basis.

While courts must be able to recover some costs by charging filing fees, Stratas found, the need to do so must be balanced against court access.

Those seeking a waiver will have to offer detailed and credible evidence to back their claims, Stratas said.

In a separate case, the government recently bowed to a Federal Court of Appeal order by paying Fabrikant $50 in legal costs and giving him a second winter parka after a protracted fight over the additional clothing.

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