Date:
20061121
Docket:
A-544-04
Citation: 2006 FCA 382
CORAM: LÉTOURNEAU
J.A.
PELLETIER
J.A.
MALONE J.A.
BETWEEN:
DENNIS
NOWOSELSKY
Appellant
and
CANADIAN
HUMAN RIGHTS COMMISSION
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench, at Saskatoon, Saskatchewan, on November
21, 2006).
PELLETIER J.A.
[1] These are the
reasons which were delivered from the bench following the hearing of this
appeal, but which have been edited for grammar and readability.
[2] We are all of the view that the appeal
should be allowed.
[3] The
order underlying the appeal is the prothonotary’s order which required the
appellant, no later than June 30, 2004, “to serve and file a motion to extend
the time within which to serve and file his supporting affidavits pursuant to
Rule 306 of the Federal Courts Rules together with any further or other
motion which he considers necessary to address any difficulty or deficiency in
the style of cause in these proceedings.”
[4] The
appellant complied with this order according to its terms. The prothonotary
dismissed his motion on two grounds. The first is that the delay in pursuing
the action had not been adequately explained. The prothonotary was critical of
the appellant’s failure to address the issue of the style of cause and to move
the matter forward.
[5] The
second ground upon which the prothonotary dismissed the appellant’s motion was
his failure to submit his proposed affidavits so as to permit the Court to
determine if there was relevant admissible evidence in support of the
appellant’s application for judicial review.
[6] With
respect, we are of the view that the prothonotary erred in principle. The
issue of delay was disposed of when the prothonotary decided to allow the
matter to proceed as a specially managed proceeding. The delay which the
appellant was called upon to explain in responding to the notice of status
review was the delay in filing the affidavits required by Rule 306 (“the Rule
306 affidavits”). Having accepted the appellant’s explanation, and having put
the matter into case management, the prothonotary erred in requiring the latter
to address a question which she had already decided.
[7] This
entire episode illustrates the deficiencies of the current status review
system, which gives the applicant no indication of the steps which need to be
taken to regularize his proceeding. Further, it gives the appearance of
requiring the applicant to meet different tests as to delay, when in fact,
there is only one test: why has the applicant not taken the next step required
by the Rules to move his or her file forward.
[8] That
is why the Rules Committee is currently considering an amendment to the Rules
to make the process more intelligible to litigants, particularly those who are
unrepresented.
[9] As
for the prothonotary’s second ground for dismissing the appellant’s motion, it
is apparent that the prothonotary did not credit the appellant for having
complied with her order according to its terms. The appellant’s interpretation
of what the order required him to do was not unreasonable. In the face of the
appellant’s compliance with the order as drafted, the prothonotary ought to
have exercised her discretion, in the spirit of Rule 3, to allow the appellant
to file his Rule 306 affidavits so as to allow her to dispose of the motion on
the merits. The brief hiatus which this would have caused would perhaps have
avoided the much longer delay caused by this appeal.
[10] We
take this opportunity to point out that this entire chain of events was the
result of the Commission’s raising the issue of the style of cause informally
by means of a letter to the Registry. If the Commission believed that it was
not properly named as a respondent, then it was for the Commission to bring a
motion pursuant to Rule 58 to have itself struck from the style of cause. By
proceeding as it did, the Commission cast upon the appellant a burden which was
not his. It was for the Commission to bring a motion; its failure to do so had
a significant effect upon subsequent events.
[11] The
order under appeal before us is that of the Federal Court judge. While he
asserts that he exercised his discretion anew, we have no indication, other
than the result, as to how he may have done so. In our view, the exercise of
the Federal Court judge’s discretion should have led him to recognize the need
to intervene.
[12] We
will therefore allow the appeal with costs fixed at $2,000 inclusive of
disbursements.
[13] The
decision of the reviewing judge will be set aside and, proceeding to render the
decision that he ought to have rendered, the decision of the prothonotary dated
August 5, 2004 dismissing the appellant’s motion for an extension of time to
file his affidavits and documentary evidence pursuant to Rule 306 of the
Federal Courts Rules will be set aside.
[14] The
matter will be remitted to the prothonotary for a new determination as provided
in this order.
[15] The
appellant will serve and file with the Court, within 45 days of the present
order, the affidavits and documentary evidence required by Rule 306 and the
jurisprudence to enable the prothonotary to assess whether there is relevant
and admissible evidence in support of the pending application for judicial
review.
[16] The
style of cause of these proceedings will be amended to substitute for the
Canadian Human Rights Commission for the Attorney General of Canada as the
respondent. A copy of the present order shall be sent to the Attorney General
of Canada by the Registry.
[17] The
appellant’s affidavits and documentary evidence shall be served on the Attorney
General of Canada as the respondent within the time limits provided by this
order.
“Denis Pelletier” _
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLLICITORS OF
RECORDS
(APPEAL
FROM AN ORDER OF THE FEDERAL COURT DATED SEPTEMBER 30, 2004, DOCKET NO. T-1595-03)
STYLE
OF CAUSE: DENNIS
NOWOSELSKY v.
CANADIAN
HUMAIN RIGHTS COMMISSION
PLACE
OF HEARING: SASKATOON, SK
DATE
OF HEARING: NOVEMBER
21, 2006
REASONS
FOR JUDGMENTS LÉTOURNEAU,
J.A.
OF
THE COURT BY: PELLETIER,
J.A.
MALONE,
J.A.
DELIVERED
FROM THE BENCH BY: PELLETIER,
J. A.
APPEARENCES:
Mr.
Dennis Nowoselsky FOR THE APPLICANT
Mr. Giacomo FOR
THE ERSPONDENT
SOLLICITOR
OF RECORDS:
(not
applicable ) FOR THE RESPONDENT
Canadian
Human Rights Commission FOR THE RESPONDENT
Legal
Services
Ottawa, On
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