Date: 19991014
Docket: T-698-99
BETWEEN:
MICHAEL LEGAULT
Plaintiff
- and -
THE ATTORNEY GENERAL OF CANADA and S. VILLENEUVE
Defendants
REASONS FOR ORDER AND ORDER
GILES A.S.P.
[1] The statement of claim herein was served on the Department of Justice on April 21, 1999. A statement of defence should have been filed within 30 days, pursuant to Rule 204 of the Federal Court Rules, 1998. On August 18, 1999, plaintiff"s counsel (possibly because of Crown Liability and Proceedings Act, 1995 s. 25) wrote asking for a statement of defence. A statement of defence was served September 13, 1999, but it could not be filed in the Registry of the Court as it was served several months later than permitted by the Rules. Two weeks later the motion now before me was filed seeking an order extending or abridging the time of a defence and seeking leave to file a statement of defence as required by Rule 204. The Shorter Oxford defines abridged to mean 1: shorten in duration, and 2: to make shorter in words while retaining the sense. The second choice is not available to me, and I see no reason in shortening the time for service of the statement of defence which is already several hundred percent exceeded. There is now no possibility of filing a defence as required by Rule 204, as it is now October and the defence should have been filed in May.
[2] What I intend to consider is whether to extend the time for filing the defence, that is, whether leave should be granted to file the defence late.
[3] The motion is supported by counsel"s own affidavit. Rule 82 reads:
| Except with leave of the Court, a solicitor shall not both depose to an affidavit and present arguments to the Court based on that affidavit. |
I intend to grant leave in this instance of my own motion so that I may comment on two matters raised in the affidavit. First, the affidavit exhibits the statement of defence for which leave to file is sought. In my view, it is improper to file the statement of defence in any way before leave is given.
[4] Second, paragraph 8 of the affidavit reads:
| In my experience, I have made note of a practice which has developed among Toronto counsel that the Rules with respect to service of Statements of Defence are not strictly adhered to without Plaintiff"s counsel advising the Defendant"s counsel that a defence will be required in strict compliance with the Rules . This allows defence counsel, who has often only received first notice of the claim by way of the Statement of Claim to conduct investigations and draft a proper Defence. In some cases, the parties will engage in settlement discussions and will actually settle a case without the necessity of filing a Defence. |
Under the previous Rule 402 gentle-person conduct of the type outlined by counsel was possible, and perhaps encouraged by concepts of legal etiquette.
[5] Rule 204, save for the restricted possibility outlined in Rule 7, puts an end to such practices. It may be that considerate counsel should jog an opponent falling afoul of the Rules before it is too late, but counsel who allows an opponent to delay extensively runs the risk after 6 months of having his own action dismissed under Rule 382 at a status review.
[6] A further difficulty arises from the provision of Rule 298 that, with some exceptions, a motion in a simplified action may only be brought at a pre-trial conference.
[7] In view of the fact that plaintiff"s counsel appears ready to consent to a defence being filed, I will of my own motion move under Rule 298(3)(a) to remove the proceedings from the operation of Rules 294 to 299 and will similarly move under Rule 292(d) to return the action to the simplified action routine after the motion for extension is granted.
ORDER
1. This action is removed from the operation of Rules 294 to 299.
2. Leave is granted for defendants" counsel to rely on her own affidavit.
| 3. The defendants may file the defence, a copy of which was served on the plaintiff"s solicitors, on or before October 25, 1999, and shall notify the plaintiff"s solicitors when the defence has been filed. |
| 4. The plaintiff shall have ten days after being so notified to file any reply. |
| 5. The Court orders that this action be hereinafter conducted as a simplified action. |
A.S.P.
TORONTO, ONTARIO
October 14, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: MICHAEL LEGAULT |
| THE ATTORNEY GENERAL OF CANADA and S. VILLENEUVE |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369.
| REASONS FOR ORDER AND ORDER BY: GILES A.S.P. |
| DATED: THURSDAY, OCTOBER 14, 1999 |
WRITTEN SUBMISSIONS BY: Nancy L. Noble
For the Defendants
SOLICITORS OF RECORD: John Hill
Barrister & Solicitor
27 Bishop Avenue
Toronto, Ontario
M2M 1Z6
Morris Rosenberg
Deputy Attorney General of Canada
For the Defendants
FEDERAL COURT OF CANADA
Date:19991014
Docket: T-698-99
Between:
Plaintiff
- and -
| THE ATTORNEY GENERAL OF CANADA and S. VILLENEUVE |
Defendants
AND ORDER
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