[1] This action concerns an alleged breach of a 1992 contract for services agreed to by the appellant and the respondent. Other than minor correspondence in early 1993, the matter remained dormant until December of 1998 when a statement of claim was filed by the appellant acting on his own behalf. This filing served to satisfy the limitation of actions deadline which was about to expire.

[2] The respondent filed a statement of defence on February 8, 1999. Affidavits of documents were then filed although the appellant was unable to complete an affidavit that complied with the rules. In September of 1999, the respondent wrote to the appellant seeking to set dates for discovery and correspondence continued until January of 2000.

[3] On February 22, 2000 a Notice of Status Review was issued by the Federal Court and sent to the appellant's last known postal address. That Notice was returned marked "unclaimed," and on April 12, 2000 Blais J. dismissed the appellant's action. Only when counsel was retained in late June of 2000 did the appellant learn of the dismissal order.

[4] On July 27, 2000 the appellant filed a motion under Rule 399 to set aside the decision of Blais J. on the grounds that the appellant had not received proper notice before that decision was made. Pinard J. on August 24, 2000 adopted the facts and assertions set out in the submission of the respondent which is summarised as follows:

a) The appellant has taken no positive steps to move the action forward beyond vague assurances that he would begin gathering documents, contacting witnesses and drafting settlement proposals, none of which have yet occurred.

b) The appellant has not proposed any concrete steps for future progression of the action beyond assertions that he is willing to proceed.

c) The Court should be doubtful of the appellant's allegations of impecuniosity, since, once dismissed, the appellant had resources sufficient to retain experienced counsel for the purposes of the dismissal proceedings.

d) The appellant's correspondence with the respondent has been vague and brief, and "do not constitute moving the matter forward."

e) Since the appellant has not offered a prima facie case as to why the dismissal order should be set aside, and has not offered any concrete steps for moving the matter forward, it cannot be said that the appellant meets the requirements of Rule 399 to set aside the Dismissal Order.

[5] Before us, the appellant now raises two issues:

a) Did the Motion Judge err in failing to apply the principle of natural justice that a party must be notified and given an opportunity to be heard before his action is dismissed? and

b) Did the Motion Judge err in failing to consider the appellant's reasons for the delay specifically his impecuniosity and lack of legal representation.

[6] The proper test to be applied on a status review is the approach articulated by Hugessen J. in Baroud v. Her Majesty the Queen et al (1998) 160 F.T.R. 91. In essence, the Court needs to be concerned primarily with two questions:

1) what are the reasons why the case has not moved forward faster and do they justify the delay that has occurred?; and

2) what steps is the plaintiff now proposing to move the matter forward?

[7] The standard of review applicable to a discretionary decision of a motions judge is whether or not he gave sufficient weight to all relevant circumstances: Reza v. Canada, [1994] 2 S.C.R. 394. In our analysis, the appellant's complete reliance on the insufficiency of service of the Notice of Status Review is misplaced. That situation was remedied by the plaintiff's ability to make an application under Rule 399. The decision under review now is that of Pinard J. who based his decision on the submissions of the parties. His reasons disclose the fact that the tests in Baroud were addressed. The reasons put forward by the appellant to justify his delay were canvassed and rejected. In addition, it was noted that the appellant has not offered any concrete steps for moving forward.

[8] The reasons of the Motions Judge also indicate that though the appellant had asserted that he intended to move his action forward, he had failed to complete a satisfactory affidavit of documents, had not gathered any witnesses, and had not put forward anything but the most nominal and vague settlement proposals (for example, the record discloses that he has requested a settlement of $250,000, but offers no supporting argument or evidence in support of that offer). The appellant brought his action on the eve of the expiry of the limitation period, and had taken no positive steps since the filing of his statement of claim. The respondent repeatedly brought to the appellant's attention the applicability of the Federal Court Rules, and suggested that the appellant seek aid from either the Court or legal counsel. The appellant did neither and the action did not move forward.

[9] We are satisfied that Pinard J. gave sufficient weight to all aspects of the appellant's submission as well as all relevant circumstances.

[10] The appeal will be dismissed with the costs of this appeal set at $250.00 inclusive of disbursements.

"B. Malone"

J.A.

Fredericton, NB

December 6, 2001

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-607-00

STYLE OF CAUSE: MIKE ROGERS, carrying on business under the firm

name and style LAIRDS AIRCRAFT SUPPORT v.

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

PLACE OF HEARING: Fredericton, New Brunswick

DATE OF HEARING: December 6, 2001

REASONS FOR JUDGMENT BY: Malone, J.A.

DATED: December 6, 2001

APPEARANCES:

Mike Rogers FOR THE APPELLANT

Siobhan Doyle FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mike Rogers FOR THE APPELLANT

409 Pine Ridge Avenue

Kingston, NS

BOP 1RO

Waterbury Newton FOR THE RESPONDENT

Barristers and Solicitors

P. O. Box 94

469 Main Street

Kentville, NS

B3N 3V9

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Rogers v. Canada, 2001 FCA 382

Citations2001 FCA 382

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2001 FCA 382