Date: 20100716
Docket: A-454-08
Citation:
2010 FCA 189
CORAM : EVANS J.A.
PELLETIER J.A.
TRUDEL J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
JEAN PELLETIER
Respondent
and
THE
HONOURABLE JOHN H. GOMERY,
IN
HIS QUALITY AS EX-COMMISSIONER
OF
THE COMMISSION OF INQUIRY INTO THE
SPONSORSHIP
PROGRAM AND
ADVERTISING
ACTIVITIES
Third
Party
REASONS FOR ORDER
PELLETIER J.A.
[1]
On September 26, 2008, the Attorney General of Canada
appealed from the decision of the Federal Court holding that the conduct of the
Honourable John Gomery, in his quality as Commissioner of the Commission of
Inquiry into the Sponsorship Program and Advertising Activities (“the Gomery
Commission”), raised a reasonable apprehension of bias against Mr. Jean Pelletier.
On October 6, 2008, counsel
filed a notice of appearance on behalf of Mr. Pelletier.
[2]
On January 10, 2009,
Mr. Pelletier died.
[3]
The parties were then
heard on the conduct of the appeal, and on February 19, 2009, they submitted to the Court a draft order
setting the parameters for the appeal. Counsel for Mr. Pelletier signed
that draft consent order. Before endorsing the draft order that had been
submitted to it, the Court made a direction dated March 3, 2009, in which
it noted the death of Jean Pelletier, acknowledged that he could not bring
legal proceedings and asked the parties to advise the Court in writing of the
basis on which the appellant would carry on his appeal against the deceased.
The Court also asked who had authorized counsel for Mr. Pelletier to agree
to the draft order.
[4]
In accordance with this
direction, counsel for Mr. Pelletier filed in Court a motion to dismiss
the appeal on the basis that the extra-patrimonial rights of Mr. Pelletier
at issue in the decision under appeal could not be transmitted under
Rule 117 of the Federal Courts Rules.
[5]
On June 23, 2009,
the Federal Court of Appeal made the following order:
[translation]
Whereas Rules 116 and 117 of the Federal
Courts Rules state that a proceeding is not terminated only by reason that
a party to a proceeding dies and provide for a transmission of interest;
And whereas the succession of the deceased
has not carried on the proceeding and consequently does not have the legal
capacity to seek its dismissal;
Now therefore, it is so ordered:
The motion to dismiss the appeal
is dismissed with costs.
[6]
On September 18, 2009, the Court made, on its own initiative, a direction
asking the parties, in accordance with the direction dated March 3, 2009,
and the order dated June 23,
2009, to make their
submissions to the Court regarding the conduct of the appeal.
[7]
Counsel for Mr. Pelletier
responded to the direction on September 24, 2009, stating that the
succession of Jean Pelletier proposed to carry on the proceeding as provided
for under Rule 117 of the Federal Courts Rules and refiled the
motion to dismiss the appeal, for the same reasons as those set out in the
original motion.
[8]
In light of the
intention of the succession of Mr. Pelletier to carry on the proceeding,
the Attorney General of Canada wrote to the Court on October 15, 2009, to
ask that Mr. Pelletier’s appeal, as well as that of Mr. Jean Chrétien (A-46-08),
be stayed until a decision was rendered in the appeal of Mr. Gagliano
(A-9-08), given that these three cases arose from the same events that took
place in the course of the Gomery Commission’s proceedings.
[9]
Counsel for
Mr. Chrétien conveyed to the Court his client’s intention to carry on with
his appeal independently of the appeals of Mr. Pelletier and
Mr. Gagliano.
[10]
On December 8,
2009, this Court held that Mr. Chrétien’s appeal (A-46-08) should proceed
independently of those of Mr. Pelletier (A-454-08) and Mr. Gagliano
(A-9-08).
[11]
Neither party took any
action whatsoever in this case after December 8, 2009. On June 18, 2010, the Court issued a
notice of status review asking the appellant to state the reasons why the
appeal should not be dismissed for delay.
[12]
In reply to the notice
of status review, the Attorney General of Canada asked that this appeal be
stayed pending judgment in the appeal of Mr. Chrétien (A-46-08). However,
since the succession of Jean Pelletier had not carried on the proceeding, it
would have to proceed ex parte.
[13]
Counsel for Mr. Pelletier
then wrote to the Court to ask that the appeal be dismissed for delay.
[14]
Although the appeal’s
progress was stalled by the death of Mr. Pelletier and the inaction of his
succession, the fact remains that the responsibility for moving the case
forward lies on the appellant, the Attorney General of Canada. When asked to
explain his failure to proceed with the appeal, the Attorney General merely
proposed a solution which this Court had already rejected. He did not explain
his failure to conduct his appeal, nor did he propose a schedule for the next
steps. In Netupsky v. Canada, 2004 FCA 239, [2004] F.C.J. No. 1073,
this Court gave its opinion on the obligations of a party in receipt of a
notice of status review:
[11] According to the jurisprudence
of this Court, 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? (2) What measures does the party propose to take to move the case
forward? (See Baroud v. Canada (Minister of Citizenship & Immigration)
(1998), 160 F.T.R. 91 (T.D.), Manson Estate v. Canada (Minister of National
Revenue), [2003] 1 C.T.C. 13 (F.C.A.), leave to appeal refused, [2002]
S.C.C.A. No. 542.)
[15]
Since the Attorney
General did not fulfil his obligations, I would dismiss the appeal for delay,
with costs.
“J.D. Denis Pelletier”
“I agree.
John M. Evans J.A.”
“I agree.
Johanne Trudel J.A.”
Certified true
translation
Michael Palles
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