Date: 20110519
Docket: T-255-10
Citation: 2011 FC 575
Ottawa, Ontario, May 19, 2011
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
RICHARD SODERSTROM
Applicant
and
ATTORNEY GENERAL OF CANADA
(CANADA REVENUE AGENCY)
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
appeal concerns the relatively straightforward issue of whether the Applicant’s
response to a Notice of Status Review provided sufficient information to
warrant the exercise of the Court’s discretion to continue these proceedings,
as contemplated by Rule 382.1 of the Federal Courts Rules, SOR/98-106.
[2]
For
the reasons discussed below, I have concluded that the information provided by
the Applicant in response to the Notice of Status Review was not sufficient to
warrant the exercise of the Court’s discretion in his favour. In my view, the
Applicant did not take reasonable steps to inform himself of what he needed to
do to advance, in an expeditious manner, the proceeding that he initiated. As a
result of his failure to take such steps, he was unable to provide (i) an
adequate justification for his delay in advancing the proceedings, or (ii) an
adequate proposed timetable to advance that proceeding in an expeditious
manner.
[3]
Accordingly,
this appeal will be dismissed.
I. Background
[4]
On
February 23, 2010, the Applicant filed a Notice of Application for judicial
review of a Notice of Assessment issued by the Canada Revenue Agency (CRA) in
respect of his 2008 taxation year.
[5]
It
is common ground between the parties that no further steps were taken by the
Applicant to advance his application until after he received a Notice of Status
Review on December 16, 2010.
[6]
The
Notice of Status Review, issued by Chief Justice Lutfy, notified the Applicant
that more than 180 days had elapsed since the issuance of his Notice of
Application and that no requisition for a hearing date had been filed. In
addition, it advised the Applicant that he was required to serve and file,
within 15 days of the date of that notice, representations stating the reasons
why the proceeding should not be dismissed for delay. More specifically, the
Applicant was informed that those “representations shall include a
justification for the delay and a proposed timetable for the completion of the
steps necessary to advance the proceeding in an expeditious manner.”
[7]
On
December 23, 2010, the Applicant provided his response. The substantive part of
that response was as follows:
All of the documents and facts that I wish to have before
the court are contained either in my application or in the documents filed
subsequently by CRA.
I have nothing more to add. I was unaware that there was any
further requirement from me, knowing that all the documents had been filed. I
was waiting patiently for notification of a day for the hearing.
The documents, rules, policies and procedures on the court
web site are far from clear to me. I received no notice (until now) that
further action on my part was required.
I sincerely apologize for any delay that my ignorance has
caused. I respectfully request that this case proceed to have a hearing before
a judge as soon as possible and I will cooperate in every way for this to
happen.
I have no time table. I am prepared to have a hearing
without delay. However, I will be out of country from mid-February until the
second week in March, 2011.
According to the “Notice of Status Review”, I conclude that
I am supposed to file “a requisition for a hearing date.” In conversations
today with staff at the Federal Court I understand that there are other
requirements to be fulfilled before I can formally request a hearing date.
However, I do not understand what those requirements are. Please inform me in
plain language what further forms I need “to serve and file”. I respectfully request
a hearing date.
[8]
On
February 17, 2011, Prothonotary Tabib issued an order dismissing the
Applicant’s application for judicial review of the CRA’s above-mentioned Notice
of Assessment, on the basis that he had “failed to provide a justification for
the failure to move the case forward and [had] failed to propose any measure to
move the case forward.”
II. The Applicable Standard of Review
[9]
The
test applicable on an appeal of a discretionary order issued by a prothonotary
is whether: (i) the questions raised in the motion are vital to the final issue
of the case; or (ii) 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 the facts” (Merck & Co Inc v Apotex Inc,
2003 FCA 488, [2004] 2 FCR 459, at 478).
[10]
More
recently, the Federal Court of Appeal has stated that discretionary decisions
of prothonotaries should stand unless intervention is warranted “to prevent
undoubted injustices and to correct clear material errors” (j2 Global
Communications, Inc v Protus IP Solutions Inc, 2009 FCA 41, at para
16). However, the latter statement appears to have been made solely with
respect to the second prong of the test set forth above, as the Court in that
case agreed with the motions judge that the issue that had been raised was not
vital to the final issue of the case (j2 Global Communications, above,
at para 15). Based on a more recent decision of the Federal Court of Appeal, it
is clear that this Court is still obliged to conduct a de novo review of
a prothonotary’s decision in respect of a question that is vital to the final
issue in the case (Apotex Inc v Bristol-Myers Squibb Company, 2011 FCA
34, at paras 6 and 9).
[11]
It
is common ground between the parties that the dismissal of the Applicant’s
application on grounds of delay raises an issue vital to the final issue in the
within proceeding.
[12]
I
am therefore obliged to conduct a de novo review of Prothonotary Tabib’s
decision (Multibond Inc
v Duracoat Powder Manufacturing Inc, [1999] FCJ No 1698, at
para 21 (TD)), notwithstanding that I am attracted to the view that deference
should be given to determinations made by a prothonotary, even where they raise
a question vital to the final issue of the case (Apotex Inc v Bristol-Myers
Squibb Company,
above, at paras 8 and 9).
III. Analysis
[13]
Rule
382.1(2) addresses the discretion available to a judge or a prothonotary who
conducts a status review of a proceeding. That provision states:
|
Federal Courts Rules, SOR/98-106
Review by the Court
382.1(2)
A judge or prothonotary shall conduct a status review and may
(a) if he or she is not satisfied that
the proceeding should continue, dismiss the proceeding; or
(b) if he or she is satisfied that the
proceeding should continue, order that it continue as a specially managed
proceeding and may make an order under rule 385.
|
Règles
des Cours fédérales, DORS/98-106
Examen de la Cour
382.1(2)
Un juge ou un protonotaire procède à l’examen de l’état de l’instance et
peut :
a) s’il n’est pas convaincu
que l’instance doit se poursuivre, la rejeter;
b) s’il est convaincu que
l’instance doit se poursuivre, ordonner qu’elle se poursuive à titre
d’instance à gestion spéciale et rendre toute ordonnance prévue à la règle
385.
|
[14]
Pursuant
to Rule 382(1), and as set forth in the Notice of Status Review that was issued
to the Applicant, the recipient of such a notice is required to provide (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.
[15]
Based
on the inadequate response that the Applicant provided to the Notice of Status
Review, I am not satisfied that it would be in the interest of the due administration
of justice that this proceeding should continue (Bahrami v Canada (Minister
of Citizenship and Immigration), [1998] FCJ No 701, at para 8 (TD)).
[16]
As
reflected at paragraph 7 above, the Applicant’s explanation for his delay in
advancing his application was that he “was unaware that there was any further
requirement from [him], knowing that all the documents had been filed.”
[17]
Likewise,
in his written representations in support of the present motion to overturn
Prothonotary Tabib’s Order, the Applicant conceded that nothing had been done
to advance his application for over a year and simply explained that he “had no
reason to believe that [he] was holding things up and therefore had no reason
to seek out the necessary information on how to proceed.”
[18]
As
to his failure to provide a proposed timetable for the completion of the steps
necessary to advance the proceeding in an expeditious manner, the Applicant
stated in his response to the Notice of Status Review that he had “no time
table” and was “prepared to have a hearing without delay.” He added that he
understood from the Notice of Status Review and from his discussions with staff
at the Federal Court there were other requirements, however, he stated that he
did “not understand what those requirements are.” He further added that “[t]he
documents, rules, policies and procedures on the court [sic] web site
are far from clear to me, knowing that all documents had been filed.”
[19]
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.
[20]
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.
[21]
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.
[22]
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.
[23]
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. In view of all of
the information available on the Court’s website to assist self represented
litigants, the Applicant could not simply state that he was unaware that
anything further was required of him or that he had no timetable and was “prepared
to have a hearing without delay.” He was obliged to go further. “Mere
declarations of good intent and of the desire to proceed are clearly not
enough” (Baroud v Canada, [1998] FCJ No 1729, at para 5 (TD)).
[24]
For
example, with respect to the justification for his delay in moving forward his
application, the Applicant should have attempted to explain why he was unable
to advance his application notwithstanding any reasonable efforts that he may
have made to inform himself of, and to deal with, the applicable procedural
requirements. If, as he claimed, the information on the Court’s website was unclear
or otherwise unhelpful to him, and if he was not able to obtain the type of
assistance from the Court’s Registry staff that is explained on the website, he
should have explained why such information or assistance was unhelpful,
notwithstanding his reasonable efforts to obtain same. Given the information
and offer of assistance provided on the Court’s website, I can only conclude
from his failure to provide such an explanation or to move his case forward
that he did not make such a reasonable effort.
[25]
Similarly,
with respect to the proposed timetable that he was required to provide in
response to the Notice of Status Review, the Applicant should have explained
why he could do no more than simply state that he had no such timetable and
that he was prepared to have a hearing without delay. In this regard, he should
have specifically addressed the documents and procedures identified on the
Court’s website. On the particular facts of this case, the Applicant could have
done this by, for example, stating that he had no additional affidavits to
file, that he would not be seeking to cross examine the Respondent on any of
the documents that the Respondent had provided to him, that he would be serving
and filing his Applicant’s record on or before a certain date, and that he
would be submitting his requisition for a hearing on or before a subsequent
date. Unfortunately, he failed to do any of this, or to provide a reasonable
explanation for such failure, notwithstanding the information that was
available to him on the Court’s website and through the Registry staff. He
cannot now claim that it would be in the interest of the administration of
justice for the Court to exercise its discretion to allow the proceeding that
he initiated to be continued (Multibond, above, at para 23; Netupsky
v Canada, 2004 FCA 239, at paras 15 to 19).
[26]
As
Prothonotary Tabib noted in her aforementioned Order, this Court has
consistently held that a party’s lack of legal training or understanding of the
Rules does not constitute 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). In my view, this is particularly the case such as the case at bar
where much, if not all, of the information that was required to provide an
adequate response to the Notice for Status Review was readily available on the
Court’s website.
[27]
As
Prothonotary Tabib also noted, even if the Applicant’s lack of knowledge could
have constituted a reasonable justification for his delay in advancing the
proceeding, the Notice of Status Review provided an opportunity for him to
obtain readily available information to educate himself as to what he was
required to do and then present an adequate proposed timetable setting out the
steps necessary to advance the proceeding in an expeditious manner. His failure
to avail himself of that opportunity, or to adequately explain why he was
unable to provide an adequate proposed timetable notwithstanding the
information available to him on the Court’s website and through Registry staff,
is fatal to this appeal.
[28]
The
fact that the Respondent may not be harmed if the within application were
allowed to proceed is of no assistance to the Applicant on this motion, as “the
Rules clearly and unequivocally place the burden on the [Applicant] to satisfy
the Court that the proceeding should continue despite the delay” (Multibond,
above, at para 12).
IV. Conclusion
[29]
This
appeal is dismissed with costs.
ORDER
THIS COURT ORDERS that this
application for judicial review is dismissed with costs.
“Paul
S. Crampton”
__________________________
Judge
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