Date: 20060728
Docket: T-808-05
Citation: 2006 FC 936
Vancouver, British
Columbia, July 28, 2006
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
VACLAV SROUB
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
In accordance with Rule
309 of the Federal Courts Rules (Rules), the Applicant's Record was
due to be filed by August 5, 2005. This date passed without any word from, or action
by, the Applicant. On December 5, 2005, the Chief Justice issued a Notice of
Status Review requiring the Applicant to show cause why the application should
not be dismissed for delay.
[2]
In his
written submissions filed in response to the Notice of Status Review, the
Applicant apologized for his poor English and explained that he did not
understand the procedure. On the basis of the Applicant’s submissions, the application was allowed to
continue as a specially managed proceeding by Prothonotary Roza Aronovitch. In
her Order dated March 14, 2006, Prothonotary Aronovitch fixed a schedule for
completion of the remaining steps in the proceeding, including a deadline of
May 26, 2006 for the service and filing of the Applicant’s Record.
[3]
The
Applicant submitted a document by mail to the Registry on May 10, 2006, in purported
compliance with the Order of Prothonotary Aronovitch. The document was
rejected for filing, however, on the grounds that it was not in the form
required by the Rules. On May 18, 2006, Prothonotary Lafrenière directed
the Applicant to resubmit the Applicant’s Record in proper form by May 26,
2006.
[4]
By early July
2006, there was no record of any document being tendered to the Registry or any
further communication from the Applicant since the issuance of the Directions
of Prothonotary Lafrenière dated May 18, 2006. As a result, Prothonotary
Lafrenière issued an Order on July 12, 2006, pursuant to Rule 385(2) of the Rules,
requiring the Applicant to show cause by written representations, to be served
and filed no later than July 28, 2006, why the application should not be
dismissed without further notice, on the grounds that the Applicant was in
breach of the Order of Prothonotary Aronovitch dated March 14, 2006 and the
Directions of Prothonotary Lafrenière dated May 18, 2006.
[5]
By letter
faxed on July 14, 2006, the Applicant once again apologizes for his poor
English and his lack of familiarity of court procedure. He further indicates
that he does not understand why this Court cannot pass judgment on his argument
based on the Geneva Convention and an affidavit attached to his submissions.
[6]
The Federal Court adopted a case flow management system in 1998
as part of a major revision to its rules of procedure. The objective was to
ensure that matters proceed as expeditiously as possible, thereby avoiding
situations where litigation continues for years without resolution.
[7]
The
Applicant has been on notice since the issuance of the first show cause order
issued on December 5, 2005 that he was in default of the Rules. The
Court has also provided directions to assist the Applicant in moving the
proceeding forward, recognizing that individuals representing themselves may
lack knowledge about court procedures and may not understand the law and legal
terminology. While accepting that the Applicant has some language difficulties,
it remains that the Applicant, who is representing himself, is ultimately
responsible for moving the proceeding forward and, more particularly, to comply
with orders and directions of this Court. As pointed out by Justice Hugessen
in Scheuneman v. HMQ (2003), 120 A.C.W.S. (3d) 48 (T.D.), 2003
FCT 37: “[t]he plaintiff’s lack of legal training does not give him any
additional rights and if he insists upon representing himself, he must play by
the same rules as everyone else”.
[8]
The requirement to file
an Applicant's Record, as set out in Rule 309 of the Rules, is intended to
ensure that an applicant develops and places before the Court the arguments he
intends to present in support of his application. Both the March 14, 2006 Order
and the May 18, 2006 directions are succinct, unambiguous, and written in clear
language. Even if the Applicant was unsure of their meaning, he could have sought
clarification or an explanation of what was required of him. There is no
indication that the Applicant availed himself of this option.
[9]
In
Kalevar v. Liberal Party of Canada (2001), 110 A.C.W.S. (3d) 236, 2001
FCT 1261, Justice Lemieux was dealing with a self-represented litigant who
failed to file an appeal of a prothonotary’s decision in a timely manner and
who was attempting to excuse his delay by claiming that he was procedurally
confused. Justice Lemieux, in dismissing an application for extension of time
to appeal and the appeal itself, said:
23. I agree
with what Justice Dubé said in Gilling v. Canada, [1998] F.C.J. No. 952
(June 30, 1998). In that case, Justice Dubé was dealing with a lay litigant and
he stated:
Although the Court is always careful to
ensure that other parties do not take advantage of a person representing
himself or herself, the individual representing himself must follow the
rules and is not allowed to play the rules so as to prejudice the other
parties. [emphasis mine]
24. Put in
other words, Justice Dubé decided, and I agree with him, the Federal Court
Rules apply equally to cases where a lay litigant is present or in one where
legal counsel has been retained; the Federal Court Rules do not vary
because a lay litigant chooses to prosecute his or her claim.
…
30. I
conclude by saying that yes the applicant has the right of access to justice
but he must do so within the Rules which are applicable to all; as a lay
litigant, he does not have any additional rights or privileges not accruing to
others who may have retained legal counsel.
[10]
The
Kalevar matter was appealed to the Federal Court of Appeal: see (2002),
115 A.C.W.S. (3d) 358, 2002 FCA 246, leave to appeal to Supreme Court of Canada
dismissed, [2002] S.C.C.A. No. 433. In granting the motion of the Liberal
Party of Canada for dismissal of Kalevar’s appeal, Justice Evans commented as
follows:
12. … the
Court recognises and, where appropriate, is responsive to the difficulties
facing litigants who are representing themselves in proceedings before the
Court. Nonetheless, as Lemieux J. pointed out, the rules apply to all
litigants. Those who persistently fail to comply with them do so at their
peril.
[11]
The
Applicant has shown no willingness or ability to perfect his record within a
reasonable period of time. Taking into account the history of inaction on the part
of the Applicant over the past year and his repeated failure to comply with a
clear order and subsequent directions of this Court, I conclude that this
application should be dismissed.
ORDER
THIS COURT ORDERS that this application is
dismissed for delay.
“Roger
R. Lafrenière”
Email this Content