Date: 20030905
Docket: T-615-01
Citation: 2003 FC 1031
Ottawa (Ontario), September 5, 2003
Present: The Honourable Mr. Justice Blais
BETWEEN:
KURT A. THOMAS
Plaintiff
and
THE ATTORNEY GENERAL OF CANADA and
ASSISTANT COMMISSIONER D.G. CLEVELAND
in his capacity as the "Appeal Level"pursuant
to Section 9 of The Commissioners Standing
Orders (Loss of Basic Requirements)
Defendants
REASONS FOR ORDER AND ORDER
[1] This is a motion made in writing by Kurt A. Thomas [the Plaintiff], pursuant to rules 8, 369, 397 and 399 of the Federal Court Rules, 1998 [the Rules] for a reconsideration of the order of the Court dated February 19, 2003, whereby an application on behalf of the Plaintiff was dismissed for delay.
FACTS
[2] The Statement of Claim in this matter was filed on April 9, 2001. The object of the Plaintiff's claim was the following:
- damages for loss of pay in the amount of $50,000.00;
- costs of this action on a solicitor/client basis; and
- such further declarations, orders and judgments as this Court may deem just, including an Order in the nature of a judicial review of the decision of D.G. Cleveland, dated June 14, 1999.
[3] The Statement of Defence was filed on May 15, 2001.
[4] The Plaintiff's Affidavit of Documents was filed on October 24, 2001.
[5] On July 12, 2002, a Notice of Status Review was issued by the Court.
On August 23, 2002, the Submissions of the Plaintiff on Status Review were filed.
[6] On October 3rd, 2002, this Court issued an order permitting the action to continue, stating:
This action should continue, discoveries shall be completed by November 29th 2002 the Plaintiff shall file and serve a Requisition for a Pre-trial conference and a Memorandum no later than December 20th 2002.
[7] Having failed to do so, this Court dismissed the action for delay on February 19th, 2003.
[8] The Plaintiff filed a motion for reconsideration of the latter order on March 3rd, 2003.
[9] The Plaintiff submits that there are three potential bases upon which the Court can reconsider its February 19th, 2003 order. They are:
1. Rule 399(1): the order was made ex parte or in the absence of a party, and the party discloses a prima facia case why the order should not have been made;
2. Rule 399(2)(a): where a matter has arisen or been discovered subsequent to the making of the order; and
3. Rule 397(1)(b): where a matter that should have been dealt with was overlooked or accidentally omitted.
(Motion Record of the Plaintiff, pages 21 to 23)
[10] The Defendants seek to have the action remain dismissed pursuant to the order of February 19th, 2003, with costs.
RELEVANT LEGISLATION
| 397(1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that
(a) the order does not accord with any reasons given for it; or
(b) a matter that should have been dealt with has been overlooked or accidentally omitted.
(2) Clerical mistakes, errors or omissions in an order may at any time be corrected by the Court.
399. (1) On motion, the Court may set aside or vary an order that was made
(a) ex parte; or
(b) in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding, if the party against whom the order is made discloses a prima facie case why the order should not have been made.
399(2) On motion, the Court may set aside or vary an order
(a) by reason of a matter that arose or was discovered subsequent to the making of the order; or
(b) where the order was obtained by fraud.
[emphasis added]
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397(1) Dans les 10 jours après qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes :
a) l'ordonnance ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la justifier;
b) une question qui aurait dûêtre traitée a étéoubliée ou omise involontairement.
(2) Les fautes de transcription, les erreurs et les omissions contenues dans les ordonnances peuvent être corrigées à tout moment par la Cour.
399. (1) La Cour peut, sur requête, annuler ou modifier l'une des ordonnances suivantes, si la partie contre laquelle elle a étérendue présente une preuve prima facie démontrant pourquoi elle n'aurait pas dûêtre rendue :
a) toute ordonnance rendue sur requête ex parte;
b) toute ordonnance rendue en l'absence d'une partie qui n'a pas comparu par suite d'un événement fortuit ou d'une erreur ou à cause d'un avis insuffisant de l'instance.
399(2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l'un ou l'autre des cas suivants :
a) des faits nouveaux sont survenus ou ont étédécouverts après que l'ordonnance a étérendue;
b) l'ordonnance a été obtenue par fraude.
[nos italiques]
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ANALYSIS
[11] As set out in the Affidavit of Deborah Scott, Legal Assistant with the Plaintiff's counsel, after the issuance of the October 3rd, 2002 order, a series of communications between counsel for the parties took place from October 17, 2002 to around January 22, 2003.
[12] By letter dated November 6, 2002, the Defendants consented to an extension of the October 3rd, 2002 order as it related to the holding of the Examinations for Discovery.
[13] In reply, the Plaintiff's counsel wrote, on November 13, 2002:
Our client has recently learned that Assistant Commissioner McDermid may be currently out of the country. If that is indeed the case, it might be best to ensure he is available for discovery before we finalize those dates. We are suggesting that Discoveries take place any time during the last two weeks of January and the first week of February, 2003. Once we can confirm dates, we will be in a position to seek the extension of Justice Blais' Order.
[emphasis added]
[14] As previously stated, on October 3rd, 2002, the Court allowed the action to continue. It established a schedule which, inter alia, granted the delay sought by the Plaintiff in his Submissions of the Plaintiff on Status Review filed on August 22nd, 2002. That schedule gave the parties nearly two months to file their discoveries, two months for the Plaintiff to file and serve a Requisition for a Pre-trial Conference, and nearly three months for the Plaintiff to file and serve a Memorandum.
[15] In light of the foregoing, I find the following comment by Prothonotary Morneau in the decision of Ferrostaal Metals Ltd. v. Evdomon Corp., (2000) 181 F.T.R. 265, [2000] F.C.J. No. 589, to be of great relevance:
[para. 14] The Court might have expected that this schedule would be observed, since it was taking this action in a case that was already in breach of the rules (there had had to be a notice of status review issued in the case) and which the Court was allowing to continue. Any schedule imposed by the Court certainly should have been taken seriously at that point. This is particularly true for any plaintiff since ultimately it is the plaintiff's action that is at stake, and primary responsibility for ensuring that the case moves forward lies with the plaintiff. This is a matter of the credibility of and respect for the orders of this Court.
...
[para. 20] In my opinion, any unjustified non-compliance with an Order of the Court establishing a schedule is a serious matter in itself. When that Order was made pursuant to a status review, any unjustified default is even more serious, and the degree of tolerance shown by the Court will be correspondingly lower. After all, the Court is then dealing with a case that is delinquent for the second time. It seems to me that the test that then applies should be even simpler than what we find in France-Canada Éditions et Publications Inc. et al v. 2845-3728 Québec Inc., unreported decision dated March 9, 1999, docket no. T-2278-92, and Baroud v. Canada, [1998] F.C.J. No 1729. In my view, the sound administration of justice justifies saying that a finding of unjustified default is then sufficient in itself for a plaintiff's action to be struck for delay.
[para. 21] Of course, striking an action will definitely prejudice a plaintiff to some extent. However, in terms of a status review, an assessment of the prejudice to a party is not part of the equation that is applied (see Multibond Inc. v. Duracoat Powder Manufacturing Inc., unreported decision dated October 4, 1999, docket no. T-1703-94). This seems to me to be particularly true when, as here, we have a situation that arose after the notice of status review. If any prejudice should be taken into consideration at this point, it is the prejudice to the Court and those of its users who comply with the rules and orders. ...
...
[para. 24] A party who has an Order from the Court, and particularly a plaintiff, cannot allow the various steps set out in that Order to expire without attempting, in a timely manner, to obtain a variation of the Order by motion.
[emphasis added]
[16] In the above decision, the plaintiffs appealed Prothonotary Morneau's decision. However, they were unable to persuade the Court (Denault J.) that Prothonotary Morneau had erred in dismissing their action for delay. The plaintiffs then proceeded to appeal Denault J.'s decision before the Federal Court of Appeal (Reasons given by Richard C.J.), which dismissed the appeal with costs payable by the appellants to the respondent.
[17] It is unfortunately fatal that the Plaintiff and his counsel allowed all steps set out in the October 3rd, 2002 order to expire without attempting, in a timely manner, to obtain a variation of the order by motion.
[18] For these reasons, I am of the opinion that the Plaintiff's action should be dismissed for delay.
O R D E R
THIS COURT ORDERS THAT:
[1] This motion for reconsideration is dismissed.
[2] The Defendants have claimed costs. However, I am of the view that an award of costs is inappropriate, as they acquiesced in the delay. I base my conclusion on the decision of Lignum Ltd. v. "Azur" (The) (1998), 158 F.T.R. 228 (T.D.), where Reed J. stated:
[para. 5] I accept counsel for the defendants' arguments that the defendants were not a cause of the delay. At the same time, they acquiesced in it. It is appropriate to quote the comments of Mr. Justice MacKay in Knight Maintenance Ltd. v. Canada (Minister of Public Works) (1989), 31 F.T.R. 173 at 176, a decision dismissing the claim on motion by the defendant: "the apparently casual approach to the action by both parties mitigates against an award of costs in favour of one or other of the parties.". See also Collins v. Canada et al. (1994), 87 F.T.R. 82. Also, I continue, to find it particularly significant that the dismissal of the plaintiffs' action occurred as a result of the Court's initiative and not that of the defendants.
[para. 6] In all the circumstances, I have concluded that an award of costs is not appropriate.
Pierre Blais
J.F.C.
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