Date: 20060919
Docket: T-2059-01
Citation: 2006 FC
1124
Ottawa, Ontario, September 19, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ROCHELLE
MOSS
Applicant
and
HER
MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER AND ORDER
THE MOTION
[1]
This 369
Motion seeks reconsideration of my August 10, 2006 order in which I dealt with
a 369 Motion by the Applicant which sought:
a) Amendments to her Amended
Statement of Claim;
b) That Mr. Danny Moss, the
Applicant’s husband, be allowed to represent her in these proceedings and
before the Court; and
c) That if Mr. Danny Moss could
not represent her that the claim be heard by way of written submissions under
Rule 369 of the Federal Court Rules.
[2]
I
dismissed the Applicant’s first 369 Motion on all counts because: she did not
provide the Court with the requisite materials for the proposed amendments or
with a sufficiently clear factual or legal justification for the proposed
amendment; Rules 119 and 121 of the Federal Court Rules preclude Mr.
Danny Moss from acting for the Applicant in the manner proposed and the
Applicant provided no authority or real legal justification for deviating from
these rules; the Applicant did not provide any factual or legal justification
as to how her claim could be handled pursuant to Rule 369.
[3]
The
Applicant now asks the Court to reconsider its August 10, 2006 and relies upon
Rule 397(1) of the Federal Court Rules, 1998 which reads as follows:
|
397. (1)
Within 10 days after the making of an order, or within such other time as the
Court may allow, a party may serve and file a notice of motion to request
that the Court, as constituted at the time the order was made, reconsider its
terms on the ground that
(a) the
order does not accord with any reasons given for it;
or
(b) a
matter that should have been dealt with has been overlooked or accidentally
omitted.
|
397. (1) Dans les 10 jours après
qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour,
une partie peut signifier et déposer un avis de requête demandant à la Cour
qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en
examiner de nouveau les termes, mais seulement pour l'une ou l'autre des
raisons suivantes :
a) l'ordonnance ne concorde pas avec les motifs qui, le cas
échéant, ont été donnés pour la justifier;
b) une question qui aurait dû être traitée a été oubliée ou omise
involontairement.
|
[4]
The
Applicant says that the Court gave no reasons in the Court’s August 10, 2006
order, but the reasons are inherent in the Court’s conclusions which are set
out clearly.
ARGUMENTS
[5]
The
Applicant says that the Court should reconsider the issues dealt with in the
August 10, 2006 order because that order “was based on not fully understanding
what is behind the motion to amend her Statement of Claim.” She says that this
is because of her “inability to articulate my thoughts or my reasons properly,
especially in a legalistic manner that the Court understands …”
[6]
As regards
representation by her husband, she now says “there is precedent that the
Court’s have allowed my husband to speak on my behalf because I am unable to
represent myself nor am I able to afford representation as I live on a
disability pension.” However, the Applicant does not address Rules 119 or 121
and she doesn’t explain how the Court could allow her husband to represent her
in an action, or what precedents she is relying upon.
[7]
As regards
resolution in writing, this was not overlooked. As I explained in my order of
August 10, 2006, it is not sufficient for the Applicant to merely make a request
in this regard. She needed to provide the Court with evidence, argument and
authorities to establish that her case can be held in writing before this
Court.
ANALYSIS
[8]
In the present
case, the Applicant has merely asked the Court to reconsider its order of
August 10, 2006. But in doing so she has provided neither the legal basis for
any such consideration or any real additions to the materials she submitted in
the earlier application that would allow the Court to grant any such request
for reconsideration.
[9]
The
present motion is an attempt by the Applicant to correct the shortcomings of
her earlier motion. She seeks to rely upon Rule 397, but the jurisprudence
associated with that rule does not support her case. The purpose of Rule 397 is
to correct slips and oversights in a judgment. See Halford v. Seed Hawk,
[2004] F.C.J. No. 557, paras. 8, 9, and 11.
[10]
A review
of the materials submitted by the Applicant in this motion make it clear that
she is not asking the Court to apply the slip rule but rather to treat her
motion as some kind of appeal or reconsideration on the merits. Our law does
not allow this.
SELF-REPRESENTATION
[11]
The Court
is fully aware that the Applicant is self-represented in this matter. That is a
choice she is at liberty to make and she is more than welcome to appear before
this Court as a self-represented litigant.
[12]
But the
Applicant appears to misconceive the consequences of self-representation. While
the Court has taken into account her lack of experience and training, the
Applicant must realize that implicit in her decision to represent herself and
to act as her own counsel is the willingness to accept the consequences that
may flow from such lack of experienced training.
[13]
The
Respondent has the right to require that the Rules of Court are followed.
Self-representation cannot be used to gain dispensation from the normal rules
of evidence and procedure that govern actions and motions in this Court. As a
judge, I must remain absolutely impartial between the parties; I cannot play the
role of advocate and I cannot step in and merely assist the Applicant to make
her case or even to guess at the grounds and jurisprudence that may support her
case. It is not the Court’s role to assist the Applicant to supplement the shortcomings
in her materials, her arguments or her authorities.
[14]
Having
come before the Court with a previous 369 motion that the Court found
inadequate and that failed to provide adequate materials, argument or authority
for the relief requested, the Applicant cannot now seek re-determination of the
same issues based upon materials, arguments and a dearth of authority that do
little more than repeat the first motion.
[15]
Based upon
the above considerations and the authorities and reasons given in the
Respondent’s materials, with which the court concurs, the Applicant’s motion must
be dismissed.
ORDER
THIS COURT ORDERS that
1.
The motion
to reconsider is dismissed.
2.
The
Respondent shall have costs of the motion payable forthwith and in any event of
the cause.
“James Russell”
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