Date: 20000719
Docket: T-2521-86
BETWEEN:
HANS A. BEHNKE
Applicant
- and -
THE DEPARTMENT OF EXTERNAL AFFAIRS
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] On November 19, 1986, Hans A. Behnke served and filed an application for judicial review under section 41 of the Privacy Act, R.S.C. 1985, c. P-21. In that application he sought a review of the denial of access to personal information about himself contained in the files of the Department of External Affairs. The Department now moves for an order, pursuant to Rule 167 of the Federal Court Rules, 1998, ("Rules"), dismissing the application for delay.
[2] The respondent brings this motion in writing under Rule 369. Its motion is supported by the affidavit of Claire A.H. leRiche, a lawyer with the Department of Justice.
[3] Mr. Behnke was served with the respondent"s motion record and in response filed a "Response Record". The material filed contained no motion record, but in substance requested an oral hearing and an extension of the period given to Mr. Behnke under the Rules to file and serve his responding record.
[4] After considering Mr. Behnke"s material, I issued a direction waiving the requirement for a motion record to be filed by Mr. Behnke seeking leave to extend the time. I extended the time for the service and filing of Mr. Behnke"s responding motion record. I also directed that Mr. Behnke should make his request that the motion not be dealt with in writing in the body of his responding motion record, as required by Rule 369.
[5] Mr. Behnke filed a respondent"s motion record within the time prescribed by the direction.
The Request for an Oral Hearing
[6] With respect to his objection to the Department"s motion being dealt with in writing, Mr. Behnke submitted:
| 11. There are no factual grounds for a court decision on the basis of sole written representations because of the complexity of the issues at fact and at law. |
| A fair representation and defence requires also an oral representation of the complex questions and issues, Behnke believes. |
[7] In Sterritt v. Canada (1995), 98 F.T.R. 68, affirmed (1995), 98 F.T.R. 72 (F.C.T.D.), Prothonotary Hargrave of the Court canvassed case law which has considered when the Court will agree to a request made by a respondent for an oral hearing. The instances which were canvassed include circumstances where the matter is complex; where the issues raise questions of public interest that are novel so that oral argument would be of great assistance to the Court; where an assessment of the credibility of witnesses and full legal argument is required; where there is substantial reason for concluding that the applicant cannot adequately present his application in writing; where the matter is urgent and can be disposed of more expeditiously if an oral hearing were directed; and where so many people are interested in the matter that an oral hearing would avoid an otherwise cumbersome procedure.
[8] With due respect to Mr. Behnke"s submission to the contrary, based upon my review of the material, this matter does not raise complex questions or issues. Nor can I conclude that fairness requires an oral presentation of Mr. Behnke"s submission to the Court.
[9] This is not the type of circumstance where in the past the Court has granted an oral hearing of a motion intended to be disposed of in writing. I can find no basis on which to find that an oral hearing is required. Therefore, notwithstanding Mr. Behnke"s objection, the motion of the Department shall be disposed of in writing.
The Motion to Dismiss for Delay
[10] Having disposed of the preliminary objection, it is now necessary to consider the evidence before the Court with respect to the motion to dismiss for delay. Mr. Behnke did not file any affidavit evidence in response to the affidavit of Ms. leRiche, nor did he cross-examine her upon that affidavit. He did, however, make submissions on the substance of the motion.
[11] In her affidavit, Ms. leRiche deposed that the history of this matter was as follows:
| 1. Mr. Behnke"s notice of application was served and filed on November 19, 1986. |
| 2. On January 26, 1987, the Department served and filed the affidavit of Michael Bittle, an Access to Information and Privacy Officer with the Department of External Affairs. Mr. Bittle swore that of all the documents specifically requested by Mr. Behnke, the Department had only five documents in its possession. Mr. Bittle"s affidavit referred to a binder accompanying the affidavit. It appears that the binder was never served on Mr. Behnke, but was filed in Court. |
| 3. On August 27, 1987, Mr. Behnke served a notice to admit facts on the Department. |
| 4. That day, then counsel for the Department, Ms. Charlotte A. Bell, wrote advising Mr. Behnke that it was her position that a notice to admit facts was inappropriate in proceedings commenced by a notice of application. |
| 5. By order dated January 28, 1988, made by the former Associate Chief Justice, the application was adjourned indefinitely, to be brought on by either party upon 48 hours notice. |
| 6. By order made May 25, 1988, made by the former Associate Chief Justice, an application for directions was adjourned indefinitely, to be brought on upon 48 hours notice by either party. |
| 7. Over seven years after the matter was adjourned sine die, by letter dated November 6, 1995, a law clerk with the Department of Justice wrote to Mr. Behnke asking him whether it was his intention to pursue the matter, or whether he was prepared to consent to a dismissal of the matter, without costs. |
| 8. By letter dated January 6, 1996, Mr. Behnke advised he intended to pursue the matter. |
| 9. Ten months later, on November 24, 1996, Mr. Behnke served the Department with a motion for directions, returnable January 27, 1997, seeking an order granting "the examinations of other persons for discovery of documents sought". |
| 10. At about this time, counsel for the Department noted that she was not able to find the "binder" referred to by Michael Bittle in his affidavit. It was not located to the date materials were filed on this motion. |
| 11. On January 27, 1997, Justice Nadon of this Court ordered that Mr. Behnke may examine Mr. Bittle on his affidavit sworn January 22, 1987, on a date acceptable to Mr. Bittle, Mr. Behnke and counsel for the Department. |
| 12. After this order was made, counsel for the Department learned that Mr. Bittle was retiring from the Department that week. |
| 13. By letter dated January 28, 1997, Mr. Behnke wrote advising he would like to inspect all of the documents listed by Mr. Bittle in his affidavit. |
| 14. By letter dated February 5, 1997, counsel for the Department responded that Rule 452 of the Federal Court, the rule referenced by Mr. Behnke in his request, was not applicable to applications for judicial review. |
| 15. By letter dated April 15, 1997, counsel for the Department advised Mr. Behnke that the current access to information and privacy coordinator was prepared to look again at the documents listed in the affidavit of Michael Bittle to see whether there was anything further that could be released. The letter further confirmed a telephone conversation with Mr. Behnke wherein he indicated that he would like to see what the response to that enquiry was before withdrawing his application for judicial review, and before deciding whether he still wished to cross-examine Mr. Bittle on his affidavit. |
| 16. By letter dated June 3, 1997, from counsel for the Department to Mr. Behnke, he was advised that no further documents would be disclosed. Mr. Behnke was asked whether he wished to withdraw his application for judicial review. |
| 17. On July 30, 1998, a notice of status review was issued by Justice Muldoon. |
| 18. On August 31, 1998, Mr. Behnke apparently served a further motion for directions on the Department without filing it in Court. |
| 19. The Department responded to the notice of status review by stating that Mr. Behnke had not shown cause as to why the application should not be dismissed for delay. |
| 20. By order made December 11, 1998, the Associate Senior Prothonotary permitted the matter to continue, stating that he was not "precluding any right the Respondent may have to seek dismissal for want of prosecution". He ordered that the matter was to continue as a specially managed proceeding and that any cross-examination of Mr. Bittle should be concluded by April 1, 1999. |
| 21. No such cross-examination took place. |
| 22. Counsel for the Department attempted to contact Mr. Bittle leaving two messages on his answering machine, explaining the reason for her call, and requesting that he call her. Those messages were left in December of 1998. Mr. Bittle did not return her telephone calls. |
[12] As to the legal principles which govern a motion to dismiss for delay, on such a motion a Court is required to determine, first, whether there has been inordinate delay; second, whether the delay is inexcusable; and third, whether the defendant or respondent is likely to be seriously prejudiced by the delay. See: Friedrich v. Canada (1998), 143 F.T.R 42, reversed on other grounds, (2000), 252 N.R. 189 (F.C.A.), and Ruggles v. Fording Coal Ltd. (1998), 152 F.T.R. 96 (F.C.T.D.).
[13] On the Department"s behalf, it was submitted that all three parts of this test had been satisfied. The Department submitted that the delay had been inordinate and that Mr. Behnke had given no reason to excuse the delay.
[14] While the Department acknowledged that Mr. Behnke had been ill since the beginning of 1997, it pointed out that for the time period before 1997, Mr. Behnke gave no reason as to why he had not proceeded with the application for judicial review.
[15] The Department alleged that it would likely be seriously prejudiced should the matter continue because Mr. Bittle retired from the Department in January of 1997 and had not returned telephone calls. It was submitted as well that since he had retired, he had no authority to release documents under the Privacy Act. The Department also pointed to the loss of the binder which was referenced in Mr. Bittle"s affidavit.
[16] In opposing the motion to dismiss for delay, Mr. Behnke advanced four arguments. He objected that the solicitor"s affidavit which supported the motion was sworn by a lawyer who had no first-hand knowledge of the file during the period from 1986 to March of 1993 in that the deponent only had carriage of the matter since March of 1993. Mr. Behnke argued that the notice of status review was null and void because he did not receive the Court"s information circular to the profession about status review. He submitted that Rule 167, pursuant to which the motion to dismiss was brought, and Rule 369, were rules in force only since 1998 and were not retroactive in effect. Finally, he stated in his brief, but did not support by way of affidavit evidence, that he was being treated medically for head and neck cancer and that had been the case since the beginning of 1997. He said that he "can for that reason not always act promptly".
[17] With respect to Mr. Behnke"s objection as to the adequacy of the affidavit which supports the Department"s motion, I clarify at the outset that this affidavit was sworn by a solicitor other than the solicitor who presented argument to the Court based on that affidavit. Accordingly, leave of the Court has not required pursuant to Rule 82.
[18] I find Mr. Behnke"s objections to the affidavit to be unfounded. To the extent that the affidavit recounts matters that took place from 1986 to 1993, it references orders, affidavits and correspondence which are located on the file. This is material that counsel is in a position to know of, and accordingly, to be able to swear to.
[19] While Mr. Behnke took particular issue with respect to a statement made in the affidavit to the effect that Mr. Behnke had not replied to a letter from Charlotte A. Bell, I do not find that error, if it is an error, to be material. Nor do I find any such error to detract from the fact that Mr. Behnke did not cross-examine the deponent upon her affidavit nor did he file any evidence explaining the delay.
[20] I similarly find no merit in Mr. Behnke"s objection that the notice of status review is null and void. This motion to dismiss is brought independent of the notice of status review. Therefore the validity of the notice of status review is not relevant to this motion.
[21] As to Mr. Behnke"s objection that Rules 167 and 369 of the Federal Court were not in force when this application was commenced, Rule 167, pursuant to which this motion was brought, is analogous to the former Rule 440. In Ruggles v. Fording Coal Ltd., supra, Justice Gibson of this Court found that the "classic test" under Rule 440 continued to be the test applicable to motions under Rule 167. There has been no substantive change in the law.
[22] The balance of Mr. Behnke"s objection as to any retroactive effect is answered by Rule 501, the transitional rule that governed the transition from the former to the new rules. Rule 501 provides in subsection (1):
| 501. (1) Subject to subsection (2), these Rules apply to all proceedings, including further steps taken in proceedings that were commenced before the coming into force of these Rules.
|
501. (1) Sous réserve du paragraphe (2), les présentes règles s'appliquent à toutes les instances, y compris les procédures engagées après leur entrée en vigueur dans le cadre d'instances introduites avant ce moment.
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| [23] No explanation was provided by Mr. Behnke as to why nothing was done to advance this matter from May 25, 1988, when the matter was adjourned sine die, to November 24, 1996, when Mr. Behnke served a motion for directions to examine other persons for discovery of documents, (a procedure not contemplated in the Rules that deal with applications). Similarly, no explanation was provided as to why that motion was not proceeded with. No explanation was given as to why Mr. Bittle was not cross-examined on his affidavit of January 22, 1987 on a timely basis after Justice Nadon"s order of January 27, 1997, an order pronounced ten years after the affidavit was sworn. No explanation was provided as to why such cross-examination did not take place by April 1, 1999, in circumstances where the Associate Senior Prothonotary ordered that any cross-examination of Mr. Bittle be conducted by that date. |
| [24] With respect to the statement that since early 1997, Mr. Behnke has been treated for cancer, that does not provide any explanation for the delay from 1988 to early 1997. Further, while undoubtedly his illness is a tragic circumstance, Mr. Behnke noted that its effect was simply that he could "for that reason not always act promptly". I have concluded that that is not a sufficient explanation for the applicant"s abiding lack of attention to this matter. |
| [25] Inordinate delay is measured not from the time the last step has been taken in a proceeding, but rather requires consideration of the total period of time during which the proceeding has been extant (see: Hagwilget Band Council v. Canada (Minister of Indian Affairs and Northern Development) (1996), 115 F.T.R. 268 (Proth.). |
| [26] I, therefore, conclude that there has been inordinate delay in the conduct of this matter, and that the delay is unexplained and inexcusable. |
| [27] The final point to consider is whether the Department is likely to be seriously prejudiced by the delay. |
| [28] I am satisfied that some prejudice has been established by the Department in that Mr. Bittle, who swore the responding affidavit, has retired, and is no longer under the control of the Department. He has apparently evidenced a lack of enthusiasm to further participate in this litigation. |
| [29] I also find some prejudice in the loss of the binder of documents, although in the absence of further evidence as to the effect of such a loss, I cannot conclude that the loss of this material of itself would render the fair adjudication of the application impossible. |
| [30] As to the sufficiency of the evidence as to prejudice, this issue was considered, but not decided, by the House of Lords in Grovit and others v. Doctor and Others, [1997] H.L.J. No. 14 (H.L.). |
| [31] The House of Lords" decision was considered by Prothonotary Hargrave in Universal Graphics Ltd. v. Canada (1997), 135 F.T.R. 71, where the learned prothonotary observed at paragraph 10 of his reasons: |
| Our court has a substantial number of actions on file which are long in the tooth. In some instances this is a natural result of circumstances and subject matter. In other instances, it may be the result of a plaintiff who has lost interest, but who is not prepared to drop a proceeding, an exercise which continues to cost a defendant in time, money and anxiety. The court ought to be able to give relief in appropriate circumstances without resorting to the fiction of discovering prejudice by an assumption that the memories of witnesses have faded over time, or worse, by requiring the defendant to show, in fact, that the memories of witnesses have faded, thus prejudicing a defendant"s position if the motion is unsuccessful. |
| [32] I agree with the prothonotary"s comments, and note that the Rules recognize the adverse consequences and increased costs to the parties caused by dawdling litigation. Delay also undermines the reputation and efficiency of the justice system. |
| [33] I therefore find in the exercise of my discretion that, in these circumstances, the Department has established sufficient evidence of prejudice. |
| [34] This proceeding is therefore struck out. |
| [35] Costs have not been sought, and no order for costs is made. |
| [36] For the reasons provided, it is ordered that this application be dismissed, without costs. |
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