Date: 20020422
Docket: T-806-94
Neutral citation: 2002 FCT 456
BETWEEN:
JACK SEITZ
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
HARGRAVE P.
[1] These reasons arise out of a Rule 385(2) Status Review Order requiring the Plaintiff, who acts for himself, attend on a telephone case management conference on 16 April 2002 in order to explain why this eight-year-old action, on which nothing substantive has happened since examinations for discover in about 1997, ought not to be dismissed for delay. The Plaintiff, although invited to do so, chose not to file any material, however I have taken into account his oral submissions. I have also had the benefit of the oral and written submissions of counsel for the Defendant.
BACKGROUND
[2] The cause of action arose fifteen years ago, in June of 1987, when the Plaintiff allegedly brought goods into Canada without either declaring them or paying the required duty. In February of 1992 the Crown served a Notice of Ascertained Forfeiture, which resulted in a 4 January 1994 decision of the Minister of National Revenue that Customs Act had been contravened and that duty in the amount of $166,668.18 was owed. This action, commenced 5 April 1994, is a challenge of the Minister's decision.
[3] I have reviewed the file. The defence was filed some six months after the Statement of Claim was filed. Mr. Seitz faults both the Crown for delay and the lawyer who was then acting for him for not taking judgment in default of defence. However, in the present context, any such delay or omission is inconsequential.
[4] In November of 1996, nothing having apparently occurred for some time and Mr. Seitz's then lawyer having ignored correspondence, the Crown brought a motion to strike out for want of prosecution. The result of that motion was an order as to the filing of affidavits of documents and completion for examinations for discovery by 31 May 1997, steps which appear to have been accomplished for on 24 July 1997 counsel filed a joint application for a three-day trial in Winnipeg. However the 27 April 1998 trial was adjourned in early April 1998 by reason of illness on the part of the Plaintiff.
[5] By reason of further delay the Associate Chief Justice brought the action forward for status review by an order of 6 August 1999. On 2 December 1999 the action was ordered specially managed, with the Plaintiff to file submissions as to readiness to proceed within 120 days. Following that grace period, on 28 June 2000, there was a further case management conference, with the action being held in abeyance, for Plaintiff's counsel had advised that Mr. Seitz would, within a few months, be able to proceed.
[6] A further case management conference was held 2 November 2001, at which the Plaintiff's counsel was directed to requisition a case management conference no later than 30 November 2001. The requisitioned conference took place 30 January 2002, at which time counsel for the Plaintiff requested that he be removed as counsel of record. A copy of an order, to that effect, was sent to the Plaintiff by registered mail, by the Court, on 1 February 2002, but was returned, as unclaimed, 28 February 2002.
[7] Mr. Seitz was unable to attend the next telephone case management conference on 2 April 2002, however both Mr. Seitz and counsel for the Crown were, as I indicated, able to attend on the 16 April telephone case management conference.
[8] At the beginning of that case management conference I explained to Mr. Seitz that while I was concerned with the overall delay I was most concerned by the fact that nothing had happened since discoveries were done in the Spring of 1997. Mr. Seitz in turn explained what his action was about. He went on to say that illness and deaths in his family, together with his own serious health problems, which he felt were of a terminal nature, had prevented him from pursuing the action. Mr. Seitz, who in the past had several lawyers acting for him from time to time, said that he did not now have funds by which to hire a lawyer. Nor did he have any concrete plan for bringing the matter to trial, other than to try to locate a witness in the Los Angeles region and either take evidence from him or arrange to have him attend at a trial in Winnipeg. Mr. Seitz said that he could not attend immediately in Los Angeles, for he did not have money to get there, but had been promised a ride with a friend who was going to Los Angeles in September or October of this year. He requested that he be allowed until the end of the year to set the matter for trial, but that if he were unable to do so he would then abandon the action.
[9] The Crown's view was that while one might sympathize with the Plaintiff, little has happened during the past five years and that there was really no explanation for the lack of interest and attention to the action by Mr. Seitz. The Crown felt that to allow the matter to continue indefinitely, or even for another eight or nine months would not only have an undesirable effect on the administration of justice in general, but also be prejudicial to the Crown for the Crown would have to try to locate and organize witnesses who might recall what happened in 1987 when, according to the defence filed by the Crown, the Plaintiff smuggled a large quantity of sweatshirts into Canada without declaring them or paying duty.
CONSIDERATION
[10] There are two approaches to dismissal for delay, or as it is also called, dismissal for want of prosecution. One approach, sometimes referred to as the classical test, is that which was set out by Mr. Justice Dubé in Nichols v. Canada (1990) 36 F.T.R. 77 as follows:
The classic test to be applied in these matters is threefold: first, whether there has been an inordinate delay; secondly, is the delay inexcusable; and thirdly, whether the defendants are likely to be seriously prejudiced by the delay. . . . (page 78)
This is the test which was specifically approved by the Court of Appeal in Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425 at 459 and 469. Nichols v. Canada was decided before the 1998 changes to the Federal Court Rules. However, Mr. Justice Gibson, in Ruggles v. Fording Coal Ltd. (1999) 152 F.T.R. 96 agreed, at page 98, that the classic test applied under the post 1998 Rules, reflecting the Rule 167 concept of dismissal for undue delay.
[11] As I have indicated the reason given by Mr. Seitz for the delay is illness, both his own and in his family and death in the family. While this is unsworn testimony, I have no reason to doubt it: I sympathize with Mr. Seitz. In response counsel for the Crown has referred me to two cases.
[12] In Fabrikant v. Canada (2000) 165 F.T.R. 319, Mr. Justice Lutfy, as he then was, dealt with a notice of status review of a five-year-old action. There the plaintiff pleaded an unstable heart condition and the inability to retain a lawyer. The Court found that the plaintiff had received ample notice to get on with the matter and that neither his health condition nor his inability to retain counsel constituted satisfactory explanation for failing to move the action forward.
[13] The second case is Behnke v. Canada (2001) 8 C.P.R. (4th) 223 (F.C.T.D.), a decision of Madam Justice Dawson. There the Department of External Affairs moved to dismiss a 14-year-old judicial review proceeding by reason of delay. Mr. Behnke, in his written brief, but unsupported by affidavit evidence, indicated that he was being treated for head and neck cancer over the preceding three years and for that reason could not always act promptly.
[14] Madam Justice Dawson observed that the illness, which she acknowledged as a tragic circumstance, was not a sufficient explanation for Mr. Behnke's "abiding lack of attention to this matter." (page 232). Madam Justice Dawson looked at the whole of the delay, from the initiation of the proceeding, finding it inordinate and without excuse. She also found some prejudice. She therefore struck out the proceeding.
[15] In the present instance I am handicapped for, while I am satisfied that there has been inordinate delay and that Mr. Seitz has not explained the delay, I have only the view of counsel for the Defendant that, since the events leading to this took place in 1987, the Crown would now be hard-pressed to find witnesses, let alone any witnesses with any useful recollection of events which took place 15 years ago. There could well be prejudice on the facts and indeed, prejudice after such a long delay is very often presumed. All of this would probably result, in a more formal setting than a status review ordered under Rule 385(2) and heard by telephone on a case management conference, in a dismissal of the action under Rule 167. In the present instance I do not believe that the Plaintiff fully understands either the relevant principles or the procedure by which to counter a proceeding which may lead to dismissal for delay.
[16] The second approach, which I believe is more apt in the case of a lay litigant in the circumstances of Mr. Seitz, is that employed by the House of Lords in Grovit v. Doctor [1997] 1 W.L.R. 640. I dealt at length with Grovit v. Doctor and with a subsequent Court of Appeal decision, Arbuthnot Latham Bank Ltd. v. Trafalgar Holdings Ltd. [1998] 1 W.L.R. 1426, in Trusthouse Forte California v. Gateway Soap & Chemical (1999) 86 C.P.R. (3d) 28.
[17] Grovit v. Doctor involved a motion to dismiss for want of prosecution in an instance in which there had been inordinate and inexcusable delay by a plaintiff with no interest in actively pursuing the litigation. The House of Lords observed that by reason of abuse of process, brought about by delay and absent any real intention to press the case on to trial, the motions judge and the Court of Appeal were entitled to dismiss the proceedings.
[18] The basis of Grovit v. Doctor is that if a litigant engages in a wholesale disregard for time limits provided in the rules of court, that breach should be looked at not only from the viewpoint of prejudice to the litigants, but also in the light of an abuse and a prejudice to the due administration of justice. Thus, where an action has remained static for a unreasonable length of time, that is an abuse of the administration of justice, which is separate and apart from the classical test for delay, which I have considered above.
[19] Interestingly, in Arbuthnot Latham Bank, Lord Justice Woolf, who became Master of the Rolls, traced the evolution of want of prosecution from Birkett v. James [1978] A.C. 297 (H.L.) through to Grovit v. Doctor and then considered the concept in a future in which civil procedure would be subject to case management:
The gradual change to a managed system which is taking place does impose additional burdens upon the courts, involving the need for training and the introduction of the necessary technological infrastructure. It is therefore in the interests of the litigants as a whole, that the court's time is not unnecessarily absorbed in dealing with the satellite litigation which non-compliance with the timetables laid down in the rules creates. [Page 1436.]
The Court of Appeal, in Arbuthnot Latham Bank, observed that it was not until recently that the consequences of taking up the time of courts was considered an important issue:
In Birkett v. James, [1978] A.C. 297 the consequence to other litigants and to the courts of inordinate delay was not a consideration which was in issue. From now on it is going to be a consideration of increasing significance. Litigants and their legal advisers, must therefore recognise that any delay which occurs from now on will be assessed not only from the point of view of the prejudice cause to the particular litigants whose case it is, but also in relation to the effect it can have on other litigants who are wishing to have their cases heard and the prejudice which is caused to the due administration of civil justice. The existing rules do contain time limits which are designed to achieve the disposal of litigation within a reasonable time scale. Those rules should be observed.[Loc. cit.]
The Court of Appeal, in Arbuthnot Latham Bank, went on to consider the concept that to continue litigation, with no intent to bring it to a conclusion, can amount to an abuse:
It is already recognised by Grovit v. Doctor, [1997] 1 W.L.R. 640 that to continue litigation with no intention to bring it to a conclusion can amount to an abuse of process. We think that the change in culture which is already taking place will enable courts to recognise for the future, more readily than heretofore, that a wholesale disregard of the rules is an abuse of process as suggested by Parker L.J. in Culbert v. Stephen G. Westwell & Co. Ltd., [1993] P.I.Q.R. P54. [Loc. cit.]
The Court of Appeal was clearly of the view that such an abuse of process was a separate ground for striking out an action, a ground which did not require the defendant to demonstrate prejudice. The Court of Appeal then went on to comment upon the use of the court, by a party, for the warehousing of proceedings until it becomes convenient to proceed, a practice leading not only to stale proceedings, but also to bringing case management and the court into disrepute:
Whereas hitherto it may have been arguable that for a party on its own initiative to, in effect, "warehouse" proceedings until it is convenient to pursue them does not constitute an abuse of process, when hereafter this happens this will no longer be the practice. It leads to stale proceedings which bring the litigation process into disrespect. As case flow management is introduced, it will involve the courts becoming involved in order to find out why the action is not being progressed. If the claimant has for the time being no intention to pursue the action this will be a wasted effort. Finding out the reasons for the lack of activity in proceedings will unnecessarily take up the time of the court. If, subject to any directions of the court, proceedings are not intended to be pursued in accordance with the rules they should not be brought. If they are brought and they are not to be advanced, consideration should be given to their discontinuance or authority of the court obtained for their being adjourned generally. The courts exist to assist parties to resolve disputes and they should not be used by litigants for other purposes. This new approach will not be applied retrospectively to delays which have already occurred but it will apply to future delay. [Ibid. p. 1437.]
I would emphasize Lord Woolf's view as to the reason for the existence of the courts, being ". . . to assist parties to resolve disputes and they should not be used by litigants for other purposes.". As I acknowledged in Gateway Soap & Chemical (supra) the delay of a proceeding, contingent upon some specific event, or to await some specific occurrence might, in some instances, be an appropriate tool of case management, "but to unilaterally and without leave to use the facilities of the court to warehouse actions, either to pursue at a time convenient to the plaintiff, or merely to hold them as leverage over a defendant, in a situation where the plaintiff has no intention to proceed, ought not to be countenanced." (page 33).
[20] In the present instance I sympathize with the Plaintiff, who has not been well. However, the Plaintiff has not presented any real plan for bringing this matter to a conclusion. I am not convinced that the Plaintiff either has a knowledge of the Rules, the resources or the ability to bring this matter to a conclusion, either in the short run or in the longer run. Past promises on behalf of and by the Plaintiff, as to getting on with the case, have amounted to nothing. I put no weight in the Plaintiff's indication that he may be able to get to Los Angeles, in the Fall of 2002, to try to locate a witness, that he will bring the witness here for a trial or that if there is no conclusion by next year he will agree to a dismissal.
[21] Despite the Plaintiff's assertions to the contrary, his lack of any concrete steps to pursue his case, since at least 1997, and his lack of a reasonable plan to bring the action to a conclusion, convince me that he has no real interest in bringing this action to a conclusion. This action, as it is being conducted, constitutes an abuse. It is unfair to the Defendant, to the Court which is hard-pressed to find resources by which to service its users, to taxpayers who must pay the Court's bills and to other litigants who look to the Court for a reasonably quick resolution of their disputes. The action is therefore dismissed.
[22] The Crown has not specifically asked for costs. Each side will bear its own costs.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
22 April 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-806-94
STYLE OF CAUSE: Jack Seitz v. HMQ
PLACE OF HEARING: Vancouver, British Columbia (By Teleconference)
DATE OF HEARING: April 16, 2002
REASONS FOR ORDER: Hargrave P.
DATED: April 22, 2002
APPEARANCES:
Mr. Jack Seitz FOR PLAINTIFF
on his own behalf
Ms. Angela Evans FOR DEFENDANT
Department of Justice
SOLICITORS OF RECORD:
Jack Seitz FOR PLAINTIFF
Mr. Morris Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada
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