Date: 20121030
Docket: T-1874-11
Citation: 2012
FC 1262
Ottawa, Ontario, October 30, 2012
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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VICTOR COTIRTA
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Applicant
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and
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MISSINNIPI AIRWAYS
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
applicant, Mr. Victor Cotirta, appeals to this Court from Prothonotary
Morneau’s June 26, 2012, order [Order] dismissing, on status review, his
application for judicial review of a decision of a labour adjudicator appointed
by the Minister of Labour under Part III of the Canada Labour Code, RSC, 1985, c L-2.
[2]
A
status review hearing is convened when parties fail to take prescribed steps in
the litigation process within prescribed time periods. In this case, because
Mr. Cotirta did not take any steps between the filing of his notice of
application on November 18, 2011, and the end of May, 2012, this Court, on May
28, 2012, issued a notice of status review requesting that he serve and file
representations as to why his application should not be dismissed for delay
pursuant to rule 382(1) of the Federal Courts Rules, SOR/98-106
[Rules]. On June 5, 2012, Mr. Cotirta filed written representations.
[3]
Prothonotary
Morneau found that apart from trying to justify the merits of his application, the
applicant had failed to address the requirements of rule
382(1)
to avoid the dismissal of his application on status review, namely (i) a justification for the delay that prompted the
issuance of the notice, and (ii) a proposed timetable for the completion of the
steps
necessary to advance the proceeding in an expeditious
manner. It is worth noting that the notice of status review, issued by Chief
Justice Crampton, explicitly notified the applicant that the requested
representations should include his submissions on both issues.
[4]
The
Prothonotary Morneau relied on the Federal Court of Appeal’s decision in Nowoselsky v Canada (Treasury Board),
2004 FCA 418 [Nowoselsky],
to conclude that the applicant not having the benefit of professional advice did
not excuse him from compliance with the Rules. Furthermore, the Prothonotary
agreed with the respondent that the applicant had also failed to provide any
explanation as to why he did not file the required documents, or what steps he would
take to advance his case.
[5]
The standard of review applicable to decisions of prothonotaries is set forth in Canada v Aqua-Gem
Investments Ltd,
[1993] 2 FC 425 at para 95, and Merck & Co v
Apotex Inc, 2003 FCA 488 at para 19, [2003] FCJ No 1925. It
is now trite law that discretionary orders of prothonotaries ought not to be disturbed
on appeal to a judge unless (a) the questions in the motion are vital to the
final issue of the case, or (b) the order is clearly wrong, in the sense that
the exercise of discretion by the prothonotary was based upon a wrong principle
or upon a misapprehension of facts. If either branches of the test is met, the
appeal judge will exercise his or her own discretion de novo.
[6]
The
respondent agrees that because the Order had the effect of disposing of the
application for judicial review, the question before us is vital to the final
issue of the applicant’s case. The Court shall therefore conduct a de novo
hearing and exercise
its discretion anew based on the evidence that was before the prothonotary (Apotex
Inc v Bristol-Myers Squibb Company, 2011 FCA 34 at paras
6-9; Bennett v Canada (Attorney General), 2010 FC 1173 at para 22).
[7]
For the
reasons discussed below, I agree with Prothonotary Morneau that the reasons
provided by the applicant in response to the notice of status review are insufficient to warrant the
exercise of the Court’s discretion in his favor.
[8]
It is well
established that “a party in receipt of a notice of status review is required to address two
questions: (1) is there a justification for the failure to move the case
forward, and (2) what measures does the party propose to take to move the case
forward” (Liu v Matrikon Inc, 2010 FCA 329 at para 2 [Liu],
citing Baroud v
Canada (Minister of Citizenship & Immigration) (1988), 160 FTR 91
(TD) [Baroud]). Undoubtedly, the
test does not require the Court to turn its mind to the merits of the case.
[9]
The
applicant’s arguments in support of the present motion to overturn the Order
are even less convincing than the submissions he made to the prothonotary
conducting the status review hearing. The applicant’s lengthy motion record
contains, in his own words, reasons and evidence he believes he was unjustly
dismissed and was not afforded a fair and objective treatment during the
adjudication process. In fact, having carefully reviewed his affidavit sworn on
September 18, 2012, and supporting documents, I find that the Court is still
left with no reasonable explanation as to (i) why the applicant failed, for a
period of over six consecutive months, to move his case forward after the
notice of application was filed, and (ii) what measures he intends to take to
take so from now on.
[10]
Without
giving an opinion on his chances to succeed on judicial review, I feel that the
applicant has become engrossed in the merits
of the case from his own perspective rather than doing what is procedurally
necessary to move the matter to a resolution. Given the complete absence of any
adequate responses in the applicant’s written
representations to establish that the criteria of rule 382(1) of the Rules have
been met, I am not satisfied that it would be in the interest of the parties or
the due administration of justice that this proceeding
continue (Bahrami v Canada (Minister of Citizenship and Immigration),
[1998]
FCJ 701, at para 8 (TD)).
[11]
In
reaching this conclusion I have considered that the applicant is
self-represented and the Court should allow considerable latitude when
assessing pleadings made by self-represented litigants (see Tench v Canada, [1999] FCJ No 1152,
at para 8), but such considerations cannot give him any additional
rights or special dispensation (see Brunet v Canada (Revenue Agency),
2011 FC 551, at para 10, and Nowoselsky, above, at para 8).
[12]
The only
justification provided by the applicant before the prothonotary was that he was
self-represented and could not afford legal counsel, and that he intended to
comply with the procedural rules.
[13]
The jurisprudence consistently
refuses to consider a party’s lack of legal training or understanding of the
Rules as constituting a reasonable justification for delay (Mischena v
Canada (Attorney General), 2004 FC 1515 at para
5; Scheuneman v Her Majesty the Queen, 2003 FCT 37 at para
4; Soderstrom v Canada (Attorney General), 2011 FC 575 [Soderstrom]). It has also been held that “professed
lack of familiarity with the requirements of the law does not operate to excuse
the appellant’s failure to address the second question” (Liu, above, at
para 2) and that “mere declarations of good intent
and of the desire to proceed are clearly not enough” (Baroud, above, at
para 5).
Therefore, the applicant’s
alleged lack of knowledge of the procedural issues and inability to pay legal
counsel are of no
help to him on status review.
[14]
In
his amended notice of motion Mr. Cotirta also argued that despite his attempts
to seek advice from the “Registrar Office of the Supreme Court” (the Court’s
Registry, I assume), he has not been told how to proceed in order to avoid
dismissal for delay.
[15]
This
argument should also fail. It is neither the duty of the Registrar nor a proper
exercise of its duties to provide legal advice to litigants. As the Court made
clear in Baroud, above, “the primary responsibility for the carriage of a case
normally rests with a plaintiff and at a status review the Court will look to
him for explanations.”
In this sense, I concur
with Chief Justice Crampton’s remarks in Soderstrom, above, at paras
19-23, where he disposed of a similar argument made by an applicant:
The
Court is cognizant of, and sympathetic to, the position in which self
represented litigants find themselves with respect to the Court’s procedural
requirements. In recognition of this, and to facilitate access to the judicial
system for self represented litigants, the Court has made substantial
information available on its website to assist self represented litigants to
understand, and to deal with, a broad range of procedural matters.
On the home page of the Court’s website, there is a prominent link to such
information near the top, left hand side, of the page. When one clicks on that
link, one is immediately brought to a page that provides prominent links to
detailed information about, among other things, the process for filing an
application for judicial review and what Court Registry staff can and cannot do
for self represented litigants.
The
information regarding the process for filing an application identifies the
various documents that must be filed, briefly describes the various procedures
to be followed, provides cross references to the applicable Rules, and
identifies the applicable timelines. At the top of that same page, a convenient
link to the Rules is provided. That link takes the website visitor directly to
a helpful table of contents that, among other things, readily identifies the
provisions applicable to status reviews.
The information that is provided on the website regarding what Court Registry
staff can and cannot do is also quite detailed. Among other things, self
represented litigants are informed on the website that Court Registry staff
can:
* tell them what forms they
may need to use;
* provide
copies of Court forms and provide information to help fill out some of the
forms;
* briefly
explain and answer questions about how the Court works and about the Court’s
practices and procedures; and
* check
forms and other court papers for completeness.
Given
all of the information that is readily available to anyone who takes the time
to visit the Court’s website, I agree with the Respondent’s position that the
Applicant did not make reasonable efforts to ascertain what he needed to do to
advance his application and to better position himself to describe the steps
necessary to advance the proceeding in an expeditious manner.
[16]
During
the hearing before the Court, the applicant was asked twice what steps he had
taken to familiarize himself with the Rules. The first time, he answered by
arguing the merits of his case, whereas the second time, after having tried to
obtain advice from the Court, he replied that he would try to seek legal
advice.
[17]
Unfortunately
for the applicant, neither requirements of rule 382(1) is
met and his appeal shall be dismissed with costs.
ORDER
THIS
COURT ORDERS that:
1. The present appeal is dismissed with costs in favour of
the respondent.
"Jocelyne
Gagné"
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