Date: 20120314
Docket: A-135-11
Citation: 2012 FCA 87
CORAM: PELLETIER J.A.
DAWSON J.A.
STRATAS J.A.
BETWEEN:
CHIEF
WALTER CONSTANT, ISAAC DANIELS, EDDIE HEAD,
OLIVER CONSTANT AND PETER SANDERSON,
suing on
their own behalf and on behalf of all
other members of the
James Smith Indian Band, all of whom
reside on the James Smith Indian
Reserve No. 100 and the Cumberland Indian Reserve No. 100 “A”,
in the Province of Saskatchewan
Appellants
and
HER
MAJESTY THE QUEEN
Respondent
Heard at Saskatoon, Saskatchewan, on March
12, 2012.
Judgment delivered at Winnipeg, Manitoba,
on March 14, 2012.
REASONS FOR JUDGMENT BY:
DAWSON J.A.
CONCURRED
IN BY:
PELLETIER J.A.
STRATAS J.A.
Date:
20120314
Docket:
A-135-11
Citation:
2012 FCA 87
CORAM: PELLETIER
J.A.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
CHIEF WALTER CONSTANT, ISAAC DANIELS,
EDDIE HEAD,
OLIVER CONSTANT AND PETER SANDERSON,
suing on
their own behalf and on behalf of all
other members of the
James Smith Indian Band, all of whom
reside on the James Smith Indian
Reserve No. 100 and the Cumberland Indian Reserve No. 100 “A”,
in the Province of Saskatchewan
Appellants
and
HER MAJESTY
THE QUEEN
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1]
This
is an appeal from an order issued by Justice Hugessen (Judge) of the Federal
Court on February 25, 2011 in Federal Court file T-3032-91. The order provided:
UPON the Interim Notice
of Status Review issued on July 24th, 2009;
THIS COURT ORDERS THAT the
plaintiffs having failed to show cause why the proceeding should not be
dismissed for delay, the action is dismissed without costs.
[2]
The
facts giving rise to the order may be briefly summarized. In 1991, an action
was commenced by the appellants in the Federal Court in which declarations were
sought relating to the surrender of certain land to the Crown in 1897 and the
subsequent sale of the land. On December 8, 1998, the Judge was designated as
the case management judge in the action.
[3]
During
the period from February 5, 1999, to January 10, 2008, the Judge granted a
number of orders on consent, staying this action. The last stay expired on
January 10, 2009. Thereafter, the appellants neither sought a further stay nor
advised the Court of the status of the proceeding.
[4]
On
July 24, 2009, the Judge issued a notice of status review which required the
appellants to show cause why the action should not be dismissed for delay. The
appellants responded by letter dated September 23, 2009, advising that the
plaintiffs wanted to proceed with the action “but are facing challenges with
regard to funding legal fees”. The appellants advised that they were seeking
the defendant’s consent to an order staying the action for six months while the
appellants “deal with these funding issues”.
[5]
On
September 30, 2009, the Judge issued an order staying the action until March
30, 2010. Upon the expiration of the stay the appellants took no steps to move
the action forward, made no request for a further stay, and did not report to
the Court as to the status of the action.
[6]
On
September 8, 2010, the Judge issued a direction requiring the appellants to
make representations to the Court by no later than October 8, 2010, failing
which an order would issue dismissing the action for delay.
[7]
On
September 24, 2010, the appellants’ counsel responded that his clients “have
struggled to find the funding necessary for legal fees necessary to allow the
action to proceed at this time. They are looking into proceeding in the new
Tribunal process”. The appellants sought the respondent’s consent to a further
stay of one year. The respondent took no position with respect to this request.
[8]
On
October 15, 2010, the Judge stayed the action until January 15, 2011, at which
time the appellants were required to report on the status of the proceedings.
[9]
On
February 11, 2011, the appellants’ counsel wrote advising that his clients
“advised that they do not see any possibility at this time in raising the funds
needed to advance the court case and have instructed me to seek an extended
stay during which time they will continue to pursue funds”. At the same time,
counsel wrote to the respondent requesting its position on an extended stay.
The respondent took no position with respect to this request.
[10]
On
February 25, 2011, the Judge issued the order now under appeal by which the
action was dismissed for delay.
[11]
The
order under appeal is a discretionary order. Generally, this Court can only
interfere with a Judge’s exercise of discretion if it determines that the Judge
gave insufficient weight to relevant factors or proceeded on a wrong principle
of law, or if it is satisfied that the Judge seriously misapprehended the
facts, or where an obvious injustice would otherwise result (Apotex Inc. v. Canada (Governor
in Council), 2007 FCA 374, 370
N.R. 336, at paragraph 15).
[12]
In
the present case, however, the order under appeal was made by a case management
judge who had managed the action since 1998. This Court has stated that case
management judges must be given latitude to manage cases. In the result, this
Court will only interfere with an order issued by a case management judge
acting in that capacity in the clearest case of a misuse of judicial discretion
(Sawridge Band v. Canada, 2001 FCA 338, 283 N.R. 107 at paragraph 11).
[13]
On
the record before us I see no such error which would warrant our intervention.
[14]
As
noted above, the Judge issued a notice of status review on July 24, 2009, which
required the appellants to show cause why action should not be dismissed for
delay. On September 8, 2010, the appellants were again required to show why the
action should not be dismissed for delay. The order which then issued stayed
the action for three months and required the appellants to report to the Court
about the status of the action when the stay expired. On these facts there is
no merit in the appellants’ argument that the status review commenced on July
24, 2009 had been completed.
[15]
Nor
is there any merit to the appellants’ submission that the Judge failed to give
reasons for his order. As the order states, it issued because the appellants
had failed to demonstrate why the action should not be dismissed for delay.
[16]
On
status review a plaintiff is required to explain two things. First, a plaintiff
must explain the reasons why the case has not move forward more quickly and show
that the reasons given justify the delay. Second, a plaintiff must explain the
steps the plaintiff proposes to move the action forward (Stoney Band v.
Canada, 2005 FCA 15, 329 N.R. 201 at paragraphs 34 to 37).
[17]
The
appellants did not propose any steps to move the action forward. Indeed, they
acknowledged that they did “not see any possibility at this time in raising the
funds needed to advance the court case”. On the basis of this admission, the
Judge was plainly entitled to make the order appealed from and I see no misuse
of the Judge’s discretion.
[18]
For
these reasons, I would dismiss the appeal with costs.
“Eleanor
R. Dawson”
“I
agree.
J.D.
Denis Pelletier J.A.”
“I
agree.
David
Stratas J.A.”
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