Date: 20101202
Docket: A-452-09
Citation: 2010 FCA 329
CORAM: DAWSON J.A.
LAYDEN-STEVENSON
J.A.
MAINVILLE
J.A.
BETWEEN:
DAN YANG
LIU
Appellant
and
MATRIKON INC., NIZAR SOMJI,
GRAHAM GOODWIN, RICK MIDDLETON,
JAMES WELSH, GREG ADAMS,
UNIVERSITY OF NEWCASTLE
Respondents
Heard at Edmonton, Alberta, on December
1, 2010.
Judgment delivered at Edmonton, Alberta, on December
2, 2010.
REASONS FOR JUDGMENT OF THE COURT BY: LAYDEN-STEVENSON
J.A.
CONCURRED
IN BY: DAWSON J.A.
MAINVILLE
J.A.
Date: 20101202
Docket: A-452-09
Citation: 2010 FCA 329
CORAM: DAWSON J.A.
LAYDEN-STEVENSON
J.A.
MAINVILLE
J.A.
BETWEEN:
DAN YANG LIU
Appellant
and
MATRIKON INC., NIZAR SOMJI,
GRAHAM GOODWIN, RICK MIDDLETON,
JAMES WELSH, GREG ADAMS,
UNIVERSITY OF NEWCASTLE
Respondents
REASONS FOR JUDGMENT OF THE
COURT
LAYDEN-STEVENSON J.A.
[1]
Following
a status review, by order dated November 25, 2009, Prothonotary Lafrenière
dismissed the appellant’s action for delay. Justice deMontigny of the Federal
Court (the judge) dismissed an appeal of that order. In doing so, the judge
examined the matter de novo. He concluded that the appellant “failed to
provide any concrete plan to move the proceeding forward in the near future,
let alone establish his ability to do so.” The appellant now appeals the
judge’s order to this Court.
[2]
I am not
persuaded that the judge erred in dismissing the action. The jurisprudence of
this Court holds 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: Netupsky v. Canada, 2004 FCA 239; 323 N.R. 349
at para. 11 citing Baroud v. Canada (Minister of Citizenship &
Immigration) (1988), 160 F.T.R. 91 (T.D.) and Manson Estate v. Canada (Minister of National
Revenue),
[2003] 1 C.T.C. 13 (F.C.A.) leave to appeal dismissed, [2002] S.C.C.A. No. 542.
Since the appellant had failed to put forth any plan to move the action
forward, the judge made no error in dismissing the action. Professed lack of
familiarity with the requirements of the law does not operate to excuse the
appellant’s failure to address the second question noted above.
[3]
The
appellant’s suggestion that his section 15 Charter rights have been violated by
reason of the judge’s order must fail. The Charter rights of a plaintiff who
caused delay are not breached by an order dismissing his action for delay: Pal
v. Canada, [1998] 4 C.T.C. 99, 136 F.T.R. 273 (T.D.) aff’d [2000] 2 C.T.C.
15 (F.C.A.).
[4]
I
would dismiss the appeal with one set of costs in favour of the five
respondents represented at the hearing.
“Carolyn Layden-Stevenson”
“I
agree
Eleanor
R. Dawson J.A.”
“I
agree
Robert M. Mainville
J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-452-09
(APPEAL FROM
AN ORDER FROM THE HONOURABLE MR. JUSTICE DE MONTIGNY, DATED NOVEMBER 25, 2009)
STYLE OF CAUSE: DAN
YANG LIU v. MATRIKON INC., NIZAR SOMJI, GRAHAM GOODWIN, RICK MIDDLETON, JAMES
WELSH, GREG ADAMS, UNIVERSITY
OF NEWCASTLE
PLACE OF HEARING: Edmonton,
Alberta
DATE OF HEARING: December 1, 2010
REASONS FOR JUDGMENT BY: LAYDEN-STEVENSON J.A.
CONCURRED IN BY: DAWSON
J.A.
MAINVILLE J.A.
DATED: December 2, 2010
APPEARANCES:
|
Dan Yan Liu
|
APPELLANT (ON
HIS OWN BEHALF)
|
|
Bryan A.
Kwan
|
FOR THE RESPONDENTS,
Graham Goodwin, Rick Middleton, James
Welsh, Greg Adams, and the University of Newcastle
|
SOLICITORS
OF RECORD:
|
Duncan & Craig LLP
Edmonton, Alberta
|
FOR THE RESPONDENTS,
Graham Goodwin, Rick Middleton, James
Welsh, Greg Adams, and the University of Newcastle
|
Email this Content