Date: 20060203
Docket: T-45-01
Citation: 2006 FC 125
Ottawa, Ontario, February 3, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
ARTEM DJUKIC carrying on business as
SOKO IMMIGRATION CONSULTING SERVICE
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Her Majesty the Queen (the "Defendant") has filed a Notice of Motion pursuant to the Federal Courts Rules, SOR/98-106 (the "Rules"), seeking an Order to strike the Statement of Claim, dismiss the action commenced by Artem Djukic carrying on business as Soko Immigration Consulting Service (the "Plaintiff") and costs of the motion. The Notice of Motion was submitted pursuant to Rule 369, for consideration upon the basis of the written materials filed and without the appearance of counsel for the parties.
BACKGROUND
[2] The basis for the Defendant's Motion is the failure of the Plaintiff to produce his Affidavit of Documents, as required by the Directions issued by the Court on October 13, 2004 and July 20, 2005. The Direction of October 13, 2004 provided that the Plaintiff was to produce his Affidavit of Documents on or before April 18, 2005. The date was extended to November 30, 2005, pursuant to the Direction that was issued on July 20, 2005.
[3] It appears that the Plaintiff has failed to comply with the Direction of July 20, 2005. According to the Motion Record filed by the Plaintiff in response to this Motion by the Defendant, the Plaintiff changed his counsel on or about November 21, 2005. The Plaintiff has submitted the affidavit of one Mark A. Klaiman, a member of the law firm of Klaiman Edmonds, Solicitors. Mr. Klaiman deposes that the law firm of Klaiman Edmonds is now representing the Plaintiff.
[4] Mr. Klaiman also deposes that he found, in the course of reviewing "several documents", a copy of the Direction of the Court requiring production of the Plaintiff's Affidavit of Documents on or before November 30, 2005. Attached as an exhibit to this affidavit is a copy of a letter, dated November 21, 2005, written by Mr. Klaiman to Ms. Marianne Zoric, a solicitor with the Department of Justice Canada, counsel for the Defendant. Mr. Klaiman says, in this letter, that he will be unable to produce the affidavit of documents before November 30, 2005 and requests the consent of Defendant's counsel for an extension of time until March 31, 2006. Mr. Klaiman refers to "personal circumstances" of former counsel for the Plaintiff as contributing to the delay in producing the affidavit of documents.
[5] Mr. Klaiman also refers to a Notice of Change of Solicitor which he forwarded to counsel for the Defendant in compliance with the Rules.
[6] In her Reply to the Plaintiff's Responding Motion Record, the Defendant objects to the Plaintiff's reliance upon an affidavit filed by his counsel and in this regard, refers to Rule 82 of the Rules. Rule 82 provides as follows:
| 82. Except with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit.
|
82. Sauf avec l'autorisation de la Cour, un avocat ne peut à la fois être l'auteur d'un affidavit et présenter à la Cour des arguments fondés sur cet affidavit.
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[7] The Defendant also notes that Mr. Klaiman had previously represented the Plaintiff in proceedings before the Ontario Superior Court of Justice, in 1999, and the Ontario Court of Appeal, which action was struck, for lack of jurisdiction. The Defendant argues that it is improbable, if not unreasonable, for the Plaintiff to argue that his former counsel is unable to comply with the requirement to produce the Affidavit of Documents in the time specified by the Direction of July 20, 2005.
[8] Further, the Defendant argues that the Plaintiff initially filed his Statement of Claim in this Court in 2000; that Statement of Claim was struck out and the Statement of Claim in the present action was filed in 2001. The Defendant submits that the Plaintiff has had ample time to complete his Affidavit of Documents.
DISCUSSION AND DISPOSITION
[9] The record in this file shows that there have been delays, on the part of the Plaintiff, in complying with the requirements of the Rules in completing his Affidavit of Documents and moving this matter on for trial. That much is clear from the Trial Management Record that was filed on September 7, 2004, following a telephone conference with counsel for the parties on the same day, that is September 7, 2004. That Trial Management Record provides as follows:
A conference call was held on Tuesday, September 7, 2004 with counsel for the parties to discuss the status of this action and the progress made since January 19, 2004. By letter dated January 19, 2004, counsel advised that certain pre-trial steps would be undertaken, including the exchange of affidavits of documents.
Counsel for the Defendant advised that they are not fully satisfied with the affidavit of documents produced, to date, by the Plaintiff. The parties have agreed to attempt to resolve the issue of the affidavit of documents and counsel for the Defendant will be attending to inspect the Plaintiff=s documents by September 23, 2004.
Counsel have agreed that they will attempt to resolve the question of the sufficiency of the Plaintiff=s affidavit of documents. Accordingly, I direct the Defendant to advise, in writing, by October 7, 2004, whether the Plaintiff=s affidavit of documents is satisfactory.
The date for completion of discoveries is now changed to the end of January 2005.
[10] It is unacceptable that some sixteen months later that the Affidavit of Documents has not yet been produced. However, I am not persuaded that the extreme remedy of striking the Statement of Claim and dismissing this action is, at this time, an appropriate remedy.
[11] I agree with the Defendant that the responding material of the Plaintiff is in improper form. Counsel for the Plaintiff should not have filed his affidavit as part of the Plaintiff's responding motion record. No explanation was provided as to the unavailability of the Plaintiff to provide a responding affidavit. The Plaintiff is surely able to tender an explanation for the delay in the production of the Affidavit of Documents that is required, on his behalf.
[12] I am not prepared to grant the Defendant's motion. Instead, I am setting the following schedule, on a peremptory basis:
i) Plaintiff's Affidavit of Documents to be produced and served upon the Defendant on or before March 31, 2006;
ii) an Affidavit of Service in that regard is to be filed with the Court on or before April 6, 2006;
iii) Discoveries will be completed on or before June 30, 2006.
[13] In respect of clause iii) above, I note that according to the Direction of July 20, 2005, there was a three-month delay between the production of the Plaintiff's Affidavit of Documents and the completion of discoveries.
[14] From my review of the file, the Plaintiff has been accorded significant time to prepare himself for the trial of this action. He has already been the subject of a Notice of Status Review, pursuant to the Rules, in 2003.
[15] The Defendant seeks costs of this motion. Although she has been unsuccessful, I note that the Plaintiff's responding materials were not in compliance with the Rules. In the exercise of my discretion, pursuant to Rule 400, I award the Defendant costs in the amount of $500.00, payable within fourteen (14) days and in any event of the cause.
ORDER
The motion is dismissed with costs to the Defendant, in the amount of $500.00 payable within fourteen days and in any event of the cause.
The following schedule is set on a peremptory basis:
i) Plaintiff's Affidavit of Documents to be produced and served upon the Defendant on or before March 31, 2006;
ii) an Affidavit of Service in that regard is to be filed with the Court on or before April 6, 2006;
iii) Discoveries will be completed on or before June 30, 2006.
"E. Heneghan"
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